Sales Terms & Conditions

COMPLETE TERMS. Sales by Tharco Containers, Inc. ("THARCO") and each of its affiliates, are governed by these terms and conditions, unless the parties have entered into a mutually executed written agreement stating applicable terms and conditions. This is an offer conditioned on Buyer's acceptance of all, and only, these terms. THARCO objects to any different or additional terms. This is the final and complete expression of all terms and conditions of the agreement. Any representations, promises, warranties, or statements that are not contained here are void. These terms and conditions can be modified, waived, or amended only by a writing signed by both Buyer and THARCO. INSTALLMENT CONTRACT. If Buyer's order requests or requires delivery in more than one installment, then the products involved in each delivery shall be deemed to be covered by a separate contract. Default in one or more deliveries shall not affect Buyer's obligation to accept the balance of the required deliveries (unless otherwise specified in the acknowledgement). NONCANCELLATION. Buyer may not cancel or terminate for convenience, or direct suspension of manufacture, except with THARCO's written consent and only then upon payment of reasonable termination charges. FINANCIAL RESPONSIBILITY. If THARCO has any reasonable doubt at any time as to Buyer's financial responsibility, THARCO, at its option, may either (a) decline to make further shipments except upon receipt of cash in advance or upon giving of other security satisfactory to THARCO, or (b) terminate this agreement. Nothing in this paragraph is intended to affect the obligation of Buyer to accept and pay for the products. MUTUALITY. All debts and obligations of Buyer and THARCO to each other are mutual and subject to setoff. For purposes of this paragraph, "Buyer" and "THARCO" shall be deemed to include each party's respective subsidiaries and affiliates which directly or indirectly control or are controlled by that party through 100% equity ownership. WARRANTY. THARCO warrants that the quality of the products delivered shall be at least commercially equal to the quality of like products which THARCO is then selling to others. EXCEPT AS SET FORTH IN THIS PARAGRAPH, THARCO MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, CONDITION, OR ANY OTHER MATTERS WITH RESPECT TO THE PRODUCTS. LIMITATION OF LIABILITY. Neither Buyer nor THARCO shall have recourse against the other for any loss which could be reasonably prevented by cover or otherwise. Buyer must commence any action at law or in equity against THARCO within one year after THARCO ships the involved products. Under no circumstances shall THARCO's liability in aggregate to Buyer for breach of contract or warranty, or commission of any tort, including negligence and strict liability, or indemnity, exceed the invoice price for the involved products. THARCO will not be liable for special, consequential, indirect, or incidental damages, and Buyer assumes the risk of these damages, regardless of whether the damages are based upon THARCO's breach of contract or warranty, or commission of any tort, including negligence or strict liability, indemnity, or any other legal theory. DELIVERY. Delivery shall be as specified in the acknowledgement. Title and risk of loss shall pass to Buyer upon delivery to carrier for FOB origin orders, and upon delivery to destination for FOB destination orders. Selection of routing and carrier is reserved to THARCO. THARCO will use commercially reasonable efforts to meet requested delivery dates, but specific delivery dates are not guaranteed. Buyer must give THARCO written notice of claims for shortages or incorrect or damaged products within 30 days after Buyer receives shipment. Failure to give this notice shall constitute an unqualified acceptance and waiver by Buyer of all claims for shortages or damaged or incorrect items. DELAYED SHIPMENT, STORAGE. THARCO may place in storage for Buyer's account and risk any products on which Buyer delays manufacture, receipt, or shipment. Buyer shall pay all charges which THARCO incurs for storage, trucking, and other incidental expenses. If shipment is delayed, THARCO may invoice Buyer upon completion of manufacture or upon the date the products would have been ready for shipment. DEFAULT. Buyer will be in default if (a) Buyer fails to pay to THARCO any amount when due under this agreement, (b) Buyer fails for a period of five days after receiving written notice from THARCO to fulfill or perform any provisions of this agreement (other than the prior provision relating to due date of payments), (c) Buyer becomes insolvent or bankrupt, or a petition therefor is filed voluntarily or involuntarily and not dismissed within 30 days from filing, or (d) Buyer makes a general assignment for the benefit of its creditors, or a receiver is appointed, or a substantial part of Buyer's assets are attached or seized under legal process and not released within 30 days thereafter. Upon Buyer's default, THARCO may, at its option, without prejudice to any of its other rights and remedies, and without demand for payments past due, (a) make shipments subject to receipt of cash in advance, (b) terminate this agreement and declare immediately due and payable the obligations of Buyer for products previously shipped, notwithstanding any other provision in these terms and conditions, (c) demand reclamation, and/or (d) suspend any further deliveries until the default is corrected, without releasing Buyer from its obligations under this agreement. In any event, Buyer shall remain liable for all loss and damage sustained by THARCO because of Buyer's default, including, but not limited to collection fees, reasonable attorneys fees, and interest at the lower of 1 ½ % per month or the highest amount allowed by applicable law. CONTINGENCIES. If THARCO fails to deliver or Buyer fails to take products due to any cause beyond THARCO's or Buyer's control, respectively, then (a) the failing party shall give prompt written notice to the other with its best estimate as to when the contingency will be ended (but without any liability for error or inaccuracy in making that estimate), and then (b) the other party shall have the right to omit during the period of the contingency all or any portion of the quantity deliverable during that period, and the total quantity deliverable shall be reduced by the quantity omitted. ALLOCATION. If THARCO is unable to supply the total demands for products because of a contingency or otherwise, THARCO shall have the right to allocate its available supply among its customers and its own divisions in a manner which it deems fair and equitable. In any exercise of its right of allocation, THARCO may allocate its production on a plant-by-plant or company-wide or product basis, change the product mix at any or all of its plants, or make any other production decisions concerning its plants as it may deem necessary under the circumstances. In no event shall THARCO be obligated to purchase material from others to enable it to deliver the products to Buyer. TAXES. Except for federal or state income taxes, Buyer is responsible for all taxes on the sale of products. THARCO may either bill the taxes to Buyer separately or add the taxes to the price of the products shipped. THARCO will notify Buyer in writing of the nature of any such tax or charge and of the law imposing the tax.