J R Hess & Company, Inc.

Terms and Conditions of Sale

1.        GENERAL: The sale by J R Hess and Company, Inc. (“Seller”) of the goods set forth on the face hereof is subject to the terms set forth below (the “Contract”). These terms and conditions shall not be superseded by any other terms or conditions in the purchase order of the purchaser of the goods or services set forth on the face hereof (“Buyer”).  This Contract merges and supersedes all prior negotiations or agreements of the parties, either written or oral, made either prior to or contemporaneous with this Contract. This Contract cannot be modified or amended except by a subsequent written instrument executed by the parties which expressly supersedes the provisions of this Contract. This Contract, together with its attachments, constitutes the complete, exclusive and final agreement between Buyer and Seller.

2.        DELIVERY; TITLE; RISK OF LOSS: Seller will take all reasonable steps to deliver the goods within any stated delivery period, but Seller accepts no responsibility for any failure to do so, and any stated delivery date is not of the essence. Title and risk of loss in all goods sold hereunder shall pass to Buyer upon Seller’s delivery to carrier at shipping point.

3.        BILL & HOLD: For any goods sold hereunder which are held at Seller’s facility pursuant to Buyer’s instructions, and stored in accordance with Buyer’s contractual commitment to purchase and receive goods in predetermined installments, Seller may invoice Buyer before delivery, with risk of loss or damage passing to Buyer as of the date of such invoice. Buyer shall be responsible for maintaining adequate insurance for said goods.

4.        WARRANTIES; LIMITATION OF LIABILITY; REMEDIES; DAMAGES:  Seller warrants to Buyer that (a) the Product is of the quality set forth in Seller’s published specifications, if any, or, as may be otherwise stated in writing in this Contract, and (b) the title conveyed is good and the Product is free from any security interest, lien or encumbrance (other than in favor of Seller for the unpaid balance of all amounts due Seller from Buyer with respect to the Product).  Such warranties extend only to Buyer. EXCEPT AS EXPRESSLY SET FORTH IN THE FOREGOING SENTENCE, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTY THAT THE PRODUCT SOLD HEREUDER IS NON-INFRINGING, IS OF MERCHANTABLE QUALITY, OR THAT THE PRODUCT SHALL BE FIT FOR ANY PARTICULAR PURPOSE. THERE ARE NO OTHER WARRANTIES EXPRESSED OR IMPLIED BY OPERATION OF LAW OR OTHERWISE.

SELLER SHALL NOT BE LIABLE TO BUYER OR ANYONE ELSE FOR ANY SPECIAL, INDIRECT, ECONOMIC, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE PRODUCT, THIS CONTRACT OR ANY BREACH OF THIS CONTRACT INCLUDING, BUT NOT LIMITED TO, ANY LOSS OR DAMAGE RESULTING FROM THE USE OF THE PRODUCT IN BUYER’S MANUFACTURING PROCESSES OR IN COMBINATION WITH OTHER SUBSTANCES.

IF THE PRODUCT DOES NOT CONFORM TO THE WARRANTIES SET FORTH IN THIS SECTION, OR IF BUYER MAKES ANY OTHER CLAIM OF ANY SORT WHATSOEVER, INCLUDING THE CLAIMS SET FORTH ABOVE, AGAINST SELLER, BUYER’S EXCLUSIVE REMEDY SHALL BE LIMITED TO REPLACEMENT OF THE PRODUCT, OR, AT SELLER’S OPTION, REPAYMENT OF THE PURCHASE PRICE PAID BY BUYER.  Any Product supplied by Seller hereunder to replace Product shall be deemed supplied to Buyer subject to all of the terms and conditions of this Contract, including, without limitation, those concerning warranties, limitation of liability, remedies and damages, to the same extent as the Product. In the event Seller agrees to replace any Product or agrees to repay to Buyer the purchase price of any Product supplied by Seller to Buyer under this Contract pursuant to this portion of this Contract, Buyer agrees that it shall take reasonable steps, at Seller’s written request, to return to Seller (at Seller’s expense) the product for which replacement or repayment is sought.

SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO THE ACCURACY OR ADEQUACY OF INFORMATION FURNISHED TO BUYER CONCERNING THE PHYSICAL CHARACTERISTICS AND INGREDIENTS OF, AND PROTECTIVE MEASURES TO BE TAKEN REGARDING THE PRODUCT. SELLER SHALL NOT BE LIABLE FOR ANY ERROR OR OMISSION IN THE PREPARATION OF SUCH INFORMATION. SELLER SHALL NOT BE LIABLE TO BUYER, BUYER’S EMPLOYEES OR ANYONE IN CONNECTION WITH THE ACCURACY, ADEQUACY OR FURNISHING OF SUCH INFORMATION.

5.        BUYER’S INSOLVENCY: Buyer represents to Seller that it is not insolvent. In the event Buyer fails to fulfill the terms of payment, or if Seller shall have any doubt at any time as to Buyer’s financial commitments, Seller may decline to make further deliveries except upon receipt of cash or satisfactory security.

6.        RETURNABLE CONTAINERS: Title to all returnable container (those not sold to Buyer) shall remain with Seller. Credit for the return of containers for which Seller charges a deposit is conditioned upon (a) the use thereof by Buyer for storage of goods originally shipped therein and (b) reasonably prompt return of the containers in good condition, not to exceed 60 days from the date of shipment.

7.        BUYER’S HANDLING OF PRODUCT: Buyer assumes all risks and liability, and Seller assumes no risk and no liability, for loss or damage resulting from the transportation, unloading, storage, handling, use, and sale of the products sold hereunder, and the compliance or noncompliance with all federal and local laws and regulations with respect thereto.

8.        INDEMNITY: Buyer shall defend (including attorneys fees),  indemnify  and  hold  Seller harmless from and against all damages, causes of action, claims, liabilities, penalties, personal injuries (including death), environmental damages and tangible property damage caused by Buyer’s negligence, strict liability, breach of warranty, breach of this Contract, fault, omissions and willful or wanton conduct arising, without limitation, from the handling, transportation, blending, modification, processing, storage and use of the goods, products or services  provided  hereunder.

9.        INSPECTION OF GOODS: Buyer shall examine and test immediately all goods delivered hereunder. Failure of Buyer to make a claim in writing within 30 days after delivery shall constitute a waiver by Buyer of all claims with respect thereto.

10.     FORCE MAJEURE: Seller shall have no liability whatsoever to Buyer in respect of the failure to deliver any goods or perform any obligations, or delay in delivering or performing, under this Contract due to any cause outside of the control of Seller, including, but not limited to, causes arising from the acts or omissions of Buyer, acts of God, war, fire, strike, labor disputes, equipment breakdown, accidents, inability to obtain containers, raw materials or transportation, government acts or requirements, or other similar causes.

11.     TAXES: Buyer shall reimburse Seller for all taxes, excises or other charges which Seller may be required to pay to any government (national, state or local) upon the sale, production or transportation of the products sold hereunder.

12.     BUYER’S BREACH OF CONTRACT: If Buyer fails to perform any of the terms of this Contract, Seller may at its option defer shipments until the default is remedied and/or treat such default as a breach of the entire Contract.

13.     FAIR LABOR STANDARDS ACT: Seller hereby represents that the goods sold hereunder were produced in compliance with the Fair Labor Standards Act of 1938, as amended.

14.     GOVERNING LAW: This agreement and all its terms and conditions shall be subject to and construed in accordance with the laws of the State of Rhode Island.

15.     NON-WAIVER. Seller’s waiver of any breach or failure to enforce any of the terms or conditions of this Contract at any time shall not in any way affect, limit or waive its right thereafter to enforce strict compliance with every term and condition hereof.

16.     SEVERABILITY. If any provision of this Contract shall be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Contract. The entire Contract shall be construed as if not containing the particular invalid or unenforceable provision and the rights and obligations of each party shall be construed and enforced accordingly.

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