1. PAYMENT TERMS: All invoices are due within the terms of sale on each invoice. Any amounts not paid when due shall bear interest of 2½% percent per month (30% per annum) or the maximum legal rate, whichever is less. ALL COSTS OF collection irrespective of litigation are the responsibility of the buyer.
2. Title and risk of loss shall pass FOB the carrier at Buyer’s “Point of Delivery.” Seller shall ship to the Point of Delivery. Buyer shall unload the shipment from the carrier.
3. COMPLETE AGREEMENT: Seller’s Order Acknowledgment, and terms incorporated therein by reference or written amendment, including but not limited to formal documentation, email and text messaging, contains the entire contract between Buyer and Spartan Mat LLC. Prior negotiations or representations between the parties that are not reflected in the Order Acknowledgment are NOT part of the agreement. Any different or additional items or conditions proposed by Buyer in variance form the terms of this Order Acknowledgement are rejected by Seller, unless accepted in writing by Seller.
4. LIMITATION OF WARRANTY: Seller warrants that the Goods delivered shall conform to the grade and quantity specified in the Order Acknowledgment. If the Order includes goods which have been fabricated in accordance with shop drawings approved or supplied by Buyer, those goods are warranted to be in substantial conformance with the drawings. SELLER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
5. NONCONFORMING GOODS: All ascertainable defects or nonconformities in the goods shall be described with particularity, in writing or by transmitted photographs, within 5 days of delivery, or will be deemed waived. All nonconforming goods must be held intact at the delivery point for inspection by Seller or Seller’s agent. Under no circumstances are goods to be returned to Seller unless Buyer has written permission from Seller to do so. Seller shall replace or refund Buyer for non-conforming goods. Buyer has no right of offset.
6. BUYER’S EXCLUSIVE REMEDY. SELLER’S LIABILITY AND BUYER’S REMEDY SHALL BE LIMITED TO THE REPLACEMENT OF NONCONFORMING GOODS WITHIN A REASONABLE PERIOD OF TIME FOLLOWING PROPER AND TIMELY REJECTION BY BUYER. AT SELLER’S OPTION, SELLER MAY REPAIR THE NONCONFORMING GOODS, DELIVER REPLACEMENT GOODS OR REFUND BUYER’S PURCHASE PRICE. BUYER AGREES THAT NO COST FOR LABOR, DELAY, OR ANY OTHER CONSEQUENTIAL DAMAGES OF ANY KIND SHALL BE RECOVERABLE FROM SELLER FOR DELIVERY, NONDELIVERY, SALE OR USE OF GOODS REGARDLESS OF WHETHER ARISING OUT OF CONTRACT, WARRANTY, OR NEGLIGENCE, STRICK LIABILITY OR OTHER TORT.
7. LIMITATION ON ACTIONS: NO ACTION OR SUIT TO ENFORCE BUYER’S RIGHT’S OR REMEDIES ARISING FROM THIS SALE SHALL BE COMMENCED LATER THAN ONE YEAR FROM THE DATE OF SHIPMENT.
8. FORCE MAJEURE. In the event of any delay in Seller’s performance due to fire, explosion, strike, or other difference with a workman, shortage of utility, facility, material or labor, delay in transportation, breakdown or accident, compliance with or other action taken to carry out the intent or purpose of any law or regulation, or any cause beyond Seller’s reasonable control, Seller shall have such additional time within which to perform this agreement as may be reasonably necessary under the circumstances and shall have the right to apportion its production among its customers in such manner as Seller may consider to be equitable.
9. JURISDICTION, VENUE AND FEES. This agreement is governed by the laws of Arizona, and the parties submit to personal jurisdiction in the courts of Maricopa County, Arizona . In any action arising out of this transaction, the prevailing party shall be entitled to recover all expenses of litigation, including reasonable attorney’s fees during collection, at trial and on appeal.