The following terms and conditions of sale, (i) as they appear below and on the face or back hereof and (ii) as they are amended and appear at www.fairmountminerals.com at the time of sale, govern the sale of all materials, goods or services (the “Goods”) supplied by Fairmount Santrol or its affiliates (hereinafter called “Seller”) to any purchaser thereof (hereinafter called “Buyer”) and apply notwithstanding any conflicting, contrary or additional terms and conditions in any quotation, confirmation form, acceptance invoice, bill of lading or other document or communication from Buyer. By purchasing the Goods, Buyer confirms that the terms and conditions apply to the Buyer’s purchase of the Goods, regardless of the form or terms of Buyer’s order. The terms and conditions set forth below and on the face or back hereof and as they appear on the Seller’s website at www.fairmountminerals.com, as the case may be, constitute all of the terms of this Agreement between Buyer and Seller. No course of prior dealings or performance between the parties or usage in the trade shall be relevant to supplement or explain any terms used in this Agreement. No modification or waiver of these conditions of sale shall be binding upon Seller unless approved by Seller in writing. ANY CONFLICTING WARRANTIES, TERMS AND CONDITIONS IN THE PURCHASE ORDER OR ANY OTHER OF BUYER’S DOCUMENTS SHALL BE CONSIDERED MATERIAL ALTERATIONS, WILL BE OF NO BINDING EFFECT, AND ARE HEREBY SPECIFICALLY OBJECTED TO AND REJECTED BY SELLER.
1. ACCEPTANCE OF ORDERS. Buyer’s order shall not be binding upon Seller unless and until such order is accepted by Seller in writing. Any order received by Seller is subject to credit approval and may be cancelled if the Buyer’s credit standing is not satisfactory to Seller.
2. PRICES AND PAYMENT TERMS.
2.1 Unless otherwise expressly stated, quoted prices are those in effect at the time of quotation. All prices are net and cover only the Goods expressly specified and, unless otherwise expressly stated, do not include any freight, duties, tariffs or other additional costs, all of which shall be borne by Buyer. Any such charges paid by Seller for Buyer’s account shall be charged to Buyer’s account. Seller may increase the price of any Goods ordered by Buyer but not yet shipped by Seller based upon increases in Seller’s price for such materials.
2.2 Unless stated in the quotation, prices quoted do not include federal, provincial, municipal, local or other taxes, charges, levies or duties which be promptly paid by Buyer.
2.3 Seller reserves the right to adjust prices on any order for any alterations or changes requested by Buyer subsequent to Seller’s acceptance of the order. Additional charges for special services or any other requirements shall be paid by Buyer.
2.4 Invoices for Goods shall be due and payable net thirty (30) days from date of invoice. Until the purchase price and all other sums due pursuant hereto are paid in full, Seller retains a security interest in the Goods provided hereunder and in all products and proceeds thereof. Buyer irrevocably authorizes Seller to file UCC financing statements in appropriate jurisdictions indicating such Goods as collateral. No discounts shall apply. If any payment is not received by Seller within the period such payment is due and payable, Buyer shall liable for interest on the unpaid amount from the date by which the payment was due, without further notice, at the rate of 1.5 percent per month; provided, however, that if such rate is in excess of the maximum rate permissible under applicable law, then interest shall be charged at the maximum possible interest rate. Any modification to these payment terms must be in writing. Seller may refuse or delay shipments or require payment C.O.D. if Buyer fails to pay promptly any payments due to Seller.
3. DELIVERY. Goods are shipped F.O.B. point of origin. Title to and risk of loss shall pass upon Seller’s delivery of Goods to carrier. Buyer shall pay all freight, handling, delivery, special packing and insurance charges for shipments of Goods. Seller shall not be liable for loss, damage or expense due to delays in shipment or delivery. All reasonable efforts will be made to ship according to Buyer’s desired schedule, but any stated delivery dates are estimates. Seller shall notify Buyer of estimated ship dates, but is not responsible for delays in shipping. Acceptance (including deemed acceptance) by Buyer of the Goods when received waives any claim resulting from a delay. If shipment of Goods is delayed by Buyer, Buyer shall pay on demand any costs incurred by Seller for handling, storage, and timely processing of Buyer’s order as well as demurrage and similar charges, if any.
4. FREIGHT. Freight estimates are provided as a courtesy prior to shipment. When contract requires Seller to ship prepaid, Goods shall be shipped “F.O.B. Origin Prepay and Add.” The rate in effect at the time of shipment shall prevail. The Buyer shall file claims for loss and damaged Goods with the transportation company, unless other arrangements are agreed upon in writing. All export shipments, except those using negotiable bills of lading, are made FCA, Free Carrier-named U.S. point. On these export shipments, the title to the shipment is transferred to the Buyer at the time the Goods are delivered into the charge of the export carrier or transport terminal acting on behalf of the carrier, at a named point. All shipping terms for international transactions shall be interpreted in accordance with INCOTERMS 2000 which, unless expressly stated in writing, shall supersede any inconsistent term set forth in this Agreement. This Agreement shall not be governed by the UN Convention on the International Sale of Goods.
5. ACCEPTANCE OF GOODS. Upon Buyer’s receipt of shipment, Buyer shall immediately inspect the Goods. The Goods shall be deemed finally inspected, checked and accepted by Buyer when Buyer (a) notifies Seller of its acceptance in writing, (b) uses the Goods or permits their use by others, (c) remits payment for the Goods to Seller, or (d) fails to notify Seller in writing of any claim for shortage, overcharge or damage to Goods within ten (10) days from invoice date. From and after any such acceptance, no allowances shall be made for claims other than for violation of Seller’s warranty hereunder.
6. WARRANTY. Seller warranties that Goods shipped is within specifications at the time of shipment. NO LIABILITY IS ASSUMED BY SELLER UNDER ANY CIRCUMSTANCES FOR LABOR, MATERIAL OR OTHER COSTS ASSOCIATED WITH THE REMOVAL OR REPLACEMENT OF PRODUCT, UNLESS PREVIOUSLY APPROVED IN WRITING. Buyer must notify Seller in writing within thirty (30) days of shipping of any nonconformity of product to the foregoing warranty. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES NOT EXPRESSLY SET FORTH HEREIN, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. No affirmation of Seller, by words or action, other than as set forth in this Section 6 shall constitute a warranty or become any part of the basis of the bargain between the parties. This exclusive remedy shall not be deemed to have failed of its essential purpose so long as Seller is willing and able to repair or replace defective Goods. Goods not manufactured by Seller are not warranted by Seller and are sold only with the warranties, if any, of the manufacturer thereof. Seller’s warranty does not apply to any Good which has been subjected to misuse, mishandling, misapplication, neglect (including but not limited to improper storage or maintenance), accident, improper installation, modification (including but not limited to use of unauthorized parts or attachments), or adjustment or repair performed by anyone other than Seller or one of Seller’s authorized agents.
7. LIMITATION OF LIABILITY; ASSUMPTION OF RISK. SELLER’S LIABILITY FOR ITS GOODS UNDER ALL THEORIES OF LIABILITY SHALL BE LIMITED TO REPAIRING OR REPLACING THOSE FOUND BY SELLER TO BE DEFECTIVE, OR AT SELLER’S OPTION, TO REFUNDING THE PURCHASE PRICE OF SUCH GOODS. AT SELLER’S REQUEST, BUYER WILL PERMIT SELLER OR ITS DESIGNEE TO INSPECT ANY ALLEGEDLY DEFECTIVE GOODS INCLUDING SHIPMENT OF SUCH ALLEGEDLY DEFECTIVE GOODS TO THE LOCATION SPECIFIED BY SELLER AT SELLER’S COST. In no event shall Seller’s liability arising in connection with or under this agreement (whether under the theories of breach of contract, tort liability, misrepresentation, fraud, warranty, negligence, strict liability, or any other theory of law) exceed the purchase price of the materials. It is understood and agreed that Buyer assumes all risks and liabilities resulting from the acceptance, handling, transport, storage, use and disposal of the Goods. Seller neither assumes nor authorizes any person to assume for Seller any liability in connection with the sale or use of the Goods.
8. DISCLAIMER OF DAMAGES. In no event shall Seller be liable for consequential, incidental, special or punitive damages arising out of or in connection with this agreement or the sale of Goods to buyer including, without limitation, breach of any obligations or warranty imposed on Seller hereunder or in connection herewith. Consequential damages for purposes hereof shall include without limitation, loss of use, income or profit, or losses sustained as a result of injury (including death) to any person, or loss of or damage to any property (including, without limitation, property handled or processed through the use of the Goods), damages or losses resulting from claims or other persons against buyer, or damages or losses sustained as a result of work stoppage. Buyer or damages or losses sustained as a result of work stoppage. Buyer shall indemnify Seller against all liability, cost or expense which may be sustained by Seller on account of any such loss, damage or injury.
9. TESTING. All testing shall be performed at the Seller’s plant site(s) and Goods shall be accepted at the shipping points.
10. FORCE MAJEURE. Seller shall not be liable for delays in the execution of its obligations due to causes beyond its reasonable control, including, but not limited to, acts of God, acts of Buyer, fires, strikes, labor disturbances, floods, epidemics, quarantine restrictions, war or terrorist act, insurrection or riot, acts of civil or military authority, compliance with priority orders or preference ratings issued by any Government, acts of Government authorities with respect to revocation of export or re-export permits/licenses, freight embargoes, car shortages, wrecks or delays in transportation, unusually severe weather, or inability to obtain necessary labor, materials or supplies or delays of subcontractors. In the event of any such delay, the set date for delivery of Goods, if any, shall be extended for a reasonable period, or, the delivery of Goods may be cancelled, without liability, at Seller’s option. The contract of sale of Goods will in no event be subject to cancellation by the Buyer, due either to delay in delivery of Goods or to any other cause, without the prior written consent of Seller. In the case of cancellation, cancellation charges judged adequate by Seller shall apply.
11. COMPLIANCE WITH LAWS. Buyer agrees that the Goods will not be used, resold, transferred, exported or reused in any way by Buyer in violation of any laws, regulations of any local state or other governmental entity and Buyer shall indemnify, defend and hold harmless Seller from any harm or damages or liability caused to it (including but not limited to reasonable attorney fees, court costs and costs of investigation and defense) by any of the foregoing uses or for the failure to comply with any laws or regulations. This Agreement is subject in part to applicable governmental laws, regulations and rules of the government of the United States, including departments, agencies and sub-divisions thereof, and of the country in which the equipment and/or services to be sold will be installed, used, or performed. Should any governmental authority prohibit the performance of this contract, in whole or in part, or if the exportation or importation of the equipment which is the subject of this proposal, or any resulting contract, be precluded because of the inability, within a reasonable time, to obtain an export or import license therefore, as appropriate, then the Seller’s obligations under the quotation or any resulting contract shall be expunged, at the Seller’s option, and the Seller shall be entitled to reasonable termination charges for the cancellation of any resulting contract. It shall be the Buyer’s responsibility to provide any required applications, documentation, or any action which may be necessary to obtain any required license(s) to export from the United States or import into the Buyer’s country. These documents as applicable, may include but are not limited to, U.S. Government Form ITA-629, International Import Certificate, Country End-User Certificate and Import License.
12. TERMINATION. Seller may, without cost or liability to it, terminate this Agreement if one or more the following occurs: (a) Buyer does not pay Seller for the Goods delivered in accordance with the terms hereof; (ii) Seller’s cost for the Goods increases and Seller is unable to pass such costs along to Buyer; (iii) Seller is unable to obtain sufficient quantities of Goods to meet Buyer’s orders; or (iv) the institution of any proceedings against Buyer, voluntary or involuntary, in bankruptcy or insolvency, or for the appointment of a receiver or trustee, or in the event that Buyer shall make an assignment for the benefit of creditors. In addition to the preceding rights of termination, Seller may, upon thirty (30) days notice to Buyer, terminate this Agreement at its convenience without cost or liability to it as to any Goods not delivered to Buyer pursuant to any purchase order. Seller shall not be liable in damages for any failure or delay in delivery of materials due to causes beyond Seller’s control and occurring without its fault or negligence, provided, Seller promptly notifies Buyer as soon as possible after the beginning of any such cause. Additionally, Buyer agrees to reimburse Seller for any and all costs and fees incurred in the collection of any unpaid contract balance, including, but not limited to, any arbitration and/or court costs and fees (including attorneys fees).
13. HEALTH, SAFETY AND ENVIRONMENTAL. Seller shall make available to Buyer its current MSDS concerning the Goods. Buyer acknowledges that it is aware of the potential health risks associated with the improper handling, use, transport, storing and disposal of the Goods as well as the need for utilization of appropriate respiratory protection equipment. Buyer further acknowledges that it is knowledgeable concerning the proper and recommended practices necessary to safely handle, use, transport, store and dispose of the Goods. Buyer further acknowledges and agrees to comply with all safety and health related governmental and/or industry rules, regulations, guidelines, and standards applicable to handling, use, transport, storing and disposal of the Goods.
14. INDEMNITY. Buyer agrees to defend, indemnify, release and hold harmless Seller and all of its affiliated entities and persons from and against any and all claims, demands, damages, actions or causes of action at law or in equity, together with any and all losses, costs, fines, penalties, expenses and attorneys’ fees in connection with, related to or in any manner growing out of the handling, use, transport, storing and disposal of the Goods asserted by any entity, person or persons, including but not limited to, employees of Buyer and all third parties for personal injury, disease and/or death.
15. COMPLETE AGREEMENT. This Agreement sets forth the sole and entire agreement between the parties regarding the sale of Goods herein and supersedes any and all prior or contemporaneous oral and written agreements between them regarding the same.
16. GENERAL. All agreements, covenants, conditions and provisions contained herein shall apply to and bind the assignees and successors in interest of Buyer. This Agreement is not assignable by Buyer without Seller’s prior written consent. Facsimile signatures or other reliable means of authentication by which Buyer signifies its assent to this Agreement shall be effective to bind Buyer to the terms hereof. The waiver by Seller of any breach or default in any payment shall not be deemed to be a waiver of any later breach or default. The exercise or failure to exercise any remedy shall not preclude the exercise of that remedy at another time or of any other remedy at any time. If any provision or portion this Agreement is held to be invalid, illegal, unconscionable or unenforceable, the other provisions and portions hereof shall not be affected. The several captions used herein are for the convenience of the parties only and shall not affect the construction or interpretation hereof. Any clerical errors are subject to correction. This Agreement shall be governed by the laws of the State from which the product shipped or originated.