NYATEX ADHESIVE AND CHEMICAL CO. CONDITIONS OF SALE
- Prices – Prices for the materials sold under this agreement shall be Nyatex’s prices in effect on the date of shipment, terms are Prepay/Pay in Advance, unless otherwise agreed in writing. Prices are subject to change without notice. Buyer will also pay any applicable taxes. If payments are not made when due, or if Nyatex has reason to believe that Buyer has unsatisfactory financial responsibility, Nyatex may require cash in advance or other payment terms, suspend shipments, or cancel this agreement.
- Limited Warranty – Nyatex warrants that the materials will meet its written specifications and were produced in compliance with the requirements of the Fair Labor Standards Act of 1938, as amended, and all other federal and state laws and regulations applicable to the materials and Nyatex’s sale of them under this agreement. Nyatex also warrants that it has good and free title to the materials and that the materials will not infringe any valid claim of any United States’ patent covering the materials themselves, but Nyatex does not warrant against infringement by reason of the use of the materials in combination with other products or in the operation of any process. Nyatex may discontinue deliveries of any materials, the manufacture, sale or use of which in its opinion would involve patent infringement. NYATEX MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
- Inspection; Limitation of Liability; Buyer’s Remedy – Buyer must promptly inspect the materials upon their delivery and must notify Nyatex in writing of any claims within 10 days of their date of delivery. Nyatex’s maximum liability and Buyer’s sole remedy in the event of delivery of materials that fail to comply with the terms of this agreement, or for any other breach by Nyatex under this agreement, is a refund of the purchase price or, at Buyer’s option and subject to availability, supply of replacement materials, freight charges to be borne by Nyatex. In no event shall either Nyatex or Buyer be liable for any consequential or other incidental damages under this agreement, whether or not caused by such party’s negligence.
- Technical Information; Hazards and Precautionary Procedures – Any technical information or assistance Nyatex or any of its affiliates provides is given and accepted at Buyer’s risk and is not a warranty or a specification. Buyer agrees that it will familiarize itself with all hazards and precautionary procedures with respect to the handling, transportation or use of the materials or products made in whole or in part from the materials, and the containers in which such materials or products are shipped, and will manage the materials, products and containers accordingly. Buyer will forward any product safety information provided by Nyatex or its affiliates to Buyer’s employees, to all others who handle the materials, and to its customers. Buyer agrees, notwithstanding anything herein to the contrary, to indemnity Nyatex and its affiliates for any claims made against Nyatex or its affiliates and for associated damages and expenses (including reasonable attorneys’ fees and expenses), to the extent caused by Buyer’s failure to familiarize itself with such hazards and precautionary procedures, to manage accordingly, or to forward such information.
- Force Majeure; Governmental Actions – Neither Buyer nor Nyatex shall be liable for failure of such party to perform where such failure is caused by war, fire, accident, strike, labor trouble or shortages, equipment breakdown, governmental laws, regulations, orders or decrees (including those relating to environmental matters), unavailability of materials, containers or transportation, or acts of God or other causes beyond such party’s control, and upon the occurrence of any such event pertaining to Nyatex, Nyatex may allocate any available material among its customers, its internal needs, and its affiliates without such allocation constituting a default hereunder. If a governmental action substantially affects Nyatex’s right to establish prices or transportation terms, Nyatex may terminate this agreement on 30 days’ notice.
- Title; Containers – Unless it is otherwise indicated elsewhere in this agreement, delivery and sales terms are F.O.B. shipping point, freight collect to destination. Buyer is responsible for protecting and returning in good condition any returnable drums or other containers provided by Nyatex, which will at all times remain Nyatex’s property. Buyer is responsible for ensuring that such drums or containers are “empty” before return
- Miscellaneous – This agreement consists only of the terms on this document and any attachments hereto. Any modifications must be in writing and signed by both parties. A waiver by Nyatex with respect to any breach by Buyer shall not constitute a waiver of any other breach. This agreement shall be deemed to have been entered into in Howell, Michigan and the laws of the State of Michigan shall apply.
NO CHARGE ORDERS
In the event that the materials to be delivered hereunder are samples or are otherwise provided substantially without charge, the following provisions apply in lieu of Sections 1, 2, 3 and 5 above.
1.NYATEX MAKES NO WARRANTY OR REPRESENTATION THAT THE MATERIAL SUPPLIED HEREUNDER IS MERCHANTABLE OR THAT IT IS FIT FOR A PARTICULAR PURPOSE. THERE IS NO WARRANTY AS TO THE ADEQUACY OF ANY WARNING CONCERNING THE HANDLING OR USE OF SUCH MATERIAL OR ANY OTHER MATTER RELATED TO THE MATERIAL, AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE EXCLUDED. The person or company to whom this sample is sent assumes all risk and liability whatsoever that may result from the handling and use of the material, singly or in combination with other substances, and whether or not used in accordance with any suggestions or directions of the supplier; and such person or company also agrees to indemnify and hold harmless Nyatex against all claims and liability (including reasonable attorneys’ fees and expenses) arising out of any property or use of the material, or of products made in whole or in part from the material, whether or not the claims and liability are caused in whole or in part by the negligence of Nyatex. Nyatex assumes no liability in connection with the furnishing of the sample or the use of the sample material, and there are no oral agreements or warranties collateral to or affecting the furnishing of this sample. In no event shall Nyatex be liable for any incidental or consequential damages hereunder.
2. Nyatex makes no representation whatsoever concerning the possibility that the material furnished as a sample will or will not infringe any patent, and assumes no responsibility whatsoever for any possible patent infringement resulting from the use of the material either singly or in combination with another substance.
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