ALL*STAR FOREST PRODUCTS, INC
TERMS OF SALE
1. Purchase and Sale of Product/Controlling Terms.
Purchaser agrees to purchase the products described on the reverse side (the “Product”) on the terms and conditions set forth herein and for the price described on the reverse side. Typographical errors are subject to correction. This Agreement constitutes the entire Agreement between the parties with respect to the subject matter contained herein and supersedes and cancels all other prior agreements and understandings, whether written or oral, of the parties. Each party specifically advises the other that any representations inconsistent with the terms and conditions contained herein shall have no force or effect and no additional terms that may be embodied in any quotation, purchase order, or other communication from Purchaser shall alter terms of this Agreement. No waiver, modification, or amendment of this Agreement or of any provision contained herein shall be valid unless in writing and duly executed by both parties hereto.
2. Price, Taxes and Expenses.
Unless otherwise agreed in writing, prices, delivery, and shipping terms shall be F.O.B. Origin and Purchaser shall pay all cost, expenses and other amounts associated with shipping including, but not limited to, duty, customs, freight, bank charges, etc. Purchaser also agrees to pay all other expenses, including but not limited to sales or use taxes, excise taxes imposed now or in the future by any federal, state or local authority, duties, insurance, licenses, permits and freight. Unless otherwise agreed to in writing, the method and agency of transportation and routing shall be selected by All*Star Forest Products and will include any amounts owed for shipping by Purchaser on an invoice to Purchaser.
3. Terms of Payment.
Payment terms established on all new accounts once credit review is completed. A late charge will be imposed on all delinquent balances at the rate of one and one-half percent (1 ½%) on the unpaid balance.
4. Orders by Purchaser.
Purchaser shall follow All*Star Forest Products guidelines and procedures for placing orders as may be set forth by All*Star Forest Products from time to time. All orders for Product must contain: a description of the Product; the quantity of Product desired; date required; shipping address; and an authorized signature. Purchaser agrees that all sales are final. Any returned Product that All*Star Forest Products elects to accept may be subject to a restocking charge. All*Star Forest Products will not accept returned special ordered Product.
5. Security Interest.
Purchaser grants to All*Star Forest Products a purchase money security interest in all Product purchased by Purchaser, together with all increases, added and substituted goods, and all proceeds of such goods. The security interest is granted to secure full payment and performance of all indebtedness and obligations of Purchaser to All*Star Forest Products now or hereafter incurred, direct or indirect.
6. Delivery; Risk of Loss.
Title to the Product shall pass to Purchaser upon delivery thereof to the carrier or Purchaser, whichever is applicable. Purchaser assumes all risk of loss or damage to the Product and said loss or damage to the Product shall not release Purchaser from the obligations of Purchaser hereunder. Purchaser shall be responsible for obtaining insurance, if desired.
7. Inspection/Rejection of Product.
Claims for damage, shortage, or non-conforming Product may not be made without advanced written notice to All*Star Forest Products. Purchaser shall, within ten (10) days after delivery of each shipment, inform All*Star Forest Products in writing of damage, non-conformance and/or shortage. Unless Purchaser gives such notice within ten (10) days after delivery, Purchaser agrees that it shall be conclusively presumed that Purchaser has fully inspected and acknowledged that the Product is in good condition and quality. Upon a valid and proper rejection of Product, All*Star Forest Products liability shall not exceed the purchase price, and All*Star Forest Products will replace, or at its option, refund the purchase price of the Product found to be damaged, short, or non-conforming. All*Star Forest Products shall not be liable to Purchaser for any delay in or failure of performance due to causes beyond its reasonable control.
8. Disclaimer of Warranty: Limitation of Damages; Indemnification.
8.1 ALL*STAR FOREST PRODUCTS IS NOT THE MANUFACTURER OF THE PRODUCT AND, EXCEPT AS SPECIFICALLY SET FORTH HEREIN, PURCHASER AGREES TO ASSERT ALL CLAIMS IN CONNECTION WITH THE PRODUCT SOLELY AGAINST THE MANUFACTURER AND NOT AGAINST ALL*STAR FOREST PRODUCTS. ALL*STAR FOREST PRODUCTS MAKES NO WARRANTY, EXPRESS OR IMPLIED, AND DISCLAIMS ANY AND ALL WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCT OR ITS INSTALLATION, STORAGE, HANDLING, MAINTENANCE, USE, REPLACEMENT OR REPAIR AND THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES, EXPRESS OR IMPLIED, AS TO QUALITY, CONDITION, NON-INFRINGEMENT, SUITABILITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE.
8.2 IN NO EVENT WILL ALL*STAR FOREST PRODUCTS BE LIABLE TO PURCHASER OR TO ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF REVENUES, PROFITS OR OPPORTUNITIES, COST OF SUBSTITUTE PRODUCT, FACILITIES OR SERVICES, LOSS OF USE, DOWNTIME COST, ETC.), OR PUNITIVE DAMAGES ON ANY THEORY OF LIABILITY, WHETHER RESULTING FROM NON-DELIVERY OR FROM THE USE, MISUSE, OR INABILITY TO USE THE PRODUCT OR FROM DEFECTS IN THE PRODUCT.
8.3 EXCEPT FOR LIABILITY CAUSED BY THE SOLE NEGLIGENCE OF THE ALL*STAR FOREST PRODUCTS, PURCHASER ASSUMES LIABILITY FOR , AND AGREES TO DEFEND, INDEMNIFY AND HOLD ALL*STAR FOREST PRODUCTS HARMLESS FROM ANY CLAIM, LIABILITY, LOSS, COST, EXPENSE OR DAMAGE OF EVERY NATURE BY OR TO ANY PERSON OR ENTITY REGARDLESS OF THE BASIS WHICH DIRECTLY OR INDIRECTLY RESULTS FROM OR PERTAINS TO THE PURCHASE, MANUFACTURE, DELIVERY, OWNERSHIP, USE, MAINTENANCE, POSSESSION, STORAGE, SELECTION, PERFORMANCE, OPERATION, INSPECTION, CONDITION (INCLUDING WITHOUT LIMITATION, LATENT OR OTHER DEFECTS, AND WHETHER OR NOT DISCOVERABLE AND THE EXISTENCE OF MOLD OR MILDEW/ OF THE PRODUCT.
If purchaser fails to perform any of the covenants or conditions contained herein, or becomes insolvent or is the subject of a petition in bankruptcy or makes an assignment for the benefit of creditors, All*Star Forest Products shall have all rights and remedies at law and in equity including but not limited to the following: (a) to recover any and all delinquent payments and performance of any and all delinquent obligations, and damages for non-performance; (b) to declare all amounts immediately due and owing, enter the premises of Purchaser without breach of peace, take possession of the goods, and exercise any and all rights on default possessed by a secured party under the laws of the State of Mississippi; provided All*Star Forest Products may require Purchaser to assemble the property and make the goods available to it at a place to be designated by All*Star Forest Products that is reasonably convenient to All*Star Forest Products and Purchaser; (c) to dispose of the goods and to require Purchaser to pay and deficiency remaining after application of the net proceeds to indebtedness and obligations secured.
10. Attorney Fees.
In the event of any legal dispute between the parties relating to this Agreement or the relationship between the parties, the most prevailing party shall be entitled to all costs and legal expenses including, but not limited to, attorney fees, accounting fees, court costs, expert witness expenses, and investigation expenses.
11. Governing Law.
This agreement shall be governed, construed and interpreted in accordance with the laws of the State of Mississippi and venue of any action shall be in Hinds County, Mississippi.
12. Survival of Terms.
Termination of this agreement shall not relive either party of any obligations arising under this Agreement prior to the date of termination. Any provisions of this Agreement that, by their nature, extend beyond the termination of this Agreement, including, but not limited to payment, disclaimer of warranty, and indemnification survive and remain in effect until all obligations are satisfied.