Terms & Conditions

Terms and Conditions of Sale

These Terms and Conditions of Sale (the “Terms”) establish the rights, obligations, and remedies of Ferguson Enterprises, LLC, and/or its wholly owned affiliates (“Seller”) and the buyer (“Buyer”), form the entire agreement between Seller and Buyer, and apply to all sales transactions between Seller and Buyer unless otherwise specifically agreed to in writing by both parties. […]

Read More1. ENTIRE AGREEMENT:
These Terms and Conditions of Sale (the “Terms”) establish the rights, obligations, and remedies of Ferguson Enterprises, LLC, and/or its wholly owned affiliates (“Seller”) and the buyer (“Buyer”), form the entire agreement between Seller and Buyer, and apply to all sales transactions between Seller and Buyer unless otherwise specifically agreed to in writing by both parties. All prior oral or written agreements, including, but not limited to, terms in Buyer’s purchase order, which are different from or in addition to these Terms are not binding on Seller unless expressly accepted in writing by Seller’s duly authorized representative.

2. SHIPMENT:
All orders are shipped FCA, Seller’s facility. Risk of loss will transfer to Buyer upon tender of products and/or parts (“Goods”) to Buyer, Buyer’s representative or common carrier. The cost of any special packaging or handling caused by Buyer’s requirements or requests will be added to the amount of Buyer’s order. If Buyer causes or requests a delay of shipment, or if Seller ships or delivers an order erroneously as a result of inaccurate, incomplete, or misleading information supplied by Buyer or Buyer’s agents or employees, all storage and other additional costs and risk will be borne by Buyer.

3. PRICE:
All prices are subject to change unless otherwise noted on Seller’s applicable quotation. Buyer will be invoiced at prices in effect at the time of shipment. All taxes, transportation costs, duties and other charges are in addition to quoted prices. The amount of any sales, excise or other taxes, if any, applicable to the goods shall be added to the purchase price and shall be paid by Buyer unless Buyer provides Seller with a valid tax exemption certificate.

4. DELIVERY:
Seller will make a good faith effort to deliver Goods in accordance with Buyer’s schedule. Seller will pay for expedited shipping of delayed Goods if the delay in delivery is solely caused by Seller. Seller assumes no responsibility or liability for Seller’s non-performance caused bya force majuer event including, but not limited to an act of God, war, labor disputes, civil unrest, accidents, pandemics, the inability to obtain materials or Goods, delays of carriers, contractors or suppliers, or any other causes beyond Seller’s control.

5. CANCELLATION:
Buyer may not cancel or modify an order without the written consent of Seller and payment by Buyer of all applicable cancellation or re-stocking fees.

6. PAYMENT:
Buyer shall pay for the Goods Net 10 Prox from date of Seller’s invoice. In the event of a late payment, Seller is entitled to treat Buyer’s entire account(s) as immediately due and payable without notice or demand. All past due amounts will be subject to a service charge accruing at a rate of up to 1.5% per month. Buyer shall not be allowed to retain or holdback payment and Buyer’s payment obligations are not contingent on any event other than Seller’s performance. Buyer’s receipt of payment or funds from any third party shall in no way relieve Buyer’s obligations to pay Seller. Buyer is not entitled to set-off any amounts due to Seller by Buyer in connection with any transaction governed by these Terms. Buyer’s credit application to Seller is hereby incorporated by reference.

7. INSPECTION AND ACCEPTANCE:
Buyer shall examine all Goods upon receipt and prior to installation. All claims for damage, shortage, and errors in shipment or improper delivery must be made to Seller in writing within two (2) business days of delivery, after which date Buyer will be deemed to have accepted the Goods and will have no right to reject the Goods or to revoke acceptance. Buyer must make any claims for billing errors or adjustments to Seller in writing within ten (10) business days from the invoice date. Claims not received in writing within such period of time will be waived by Buyer.

8. RETURNS:
Within 30 days of purchase, Buyer may return any Goods which Seller stocks and which are not special order items if: (i) the Goods are in new condition, suitable for resale in undamaged original packaging and with all original parts; and (ii) the Goods have not been used, installed, modified, rebuilt, reconditioned, repaired, altered, or damaged. All returns are subject to a re-stocking fee, unless otherwise agreed to by Seller. Special orders or non-stock Goods may be returned if the manufacturer is willing to accept the return and Buyer agrees to reimburse Seller for any restocking or cancellation fees charged by the manufacturer.

9. COMPLIANCE WITH EXPORT CONTROL LAWS:
Buyer warrants that it is not subject to U.S., EU, or UN sanctions, including, but not limited to, being identified on the U.S. Specially Designated Nationals (SDN) List, or more than 50 percent owned by an SDN. Buyer further acknowledges that Goods are subject to U.S. export control laws and regulations and cannot be exported, reexported, or transferred except in compliance with such laws and regulations. If Seller delivers Goods to Buyer within the United States, Buyer expressly assumes any and all duties and liability associated with subsequent export of the Goods, including but not limited to determining export licensing requirements, obtaining all required authorizations, and submitting Electronic Export Information, if required. In such case, Seller shall not be named as the Exporter of Record with respect to the Goods.

10. WARRANTIES:
(A) Private Label Goods: Unless otherwise specified in the product specifications, Seller warrants title to the Goods and that for a period of twelve months after delivery to Buyer, Seller’s Private Label Goods shall conform to their specifications and be free from defects in material or workmanship. Buyer’s sole and exclusive remedy for non-conformity with these warranties shall be repair or replacement of the non- conforming Goods at Seller’s expense, or refund of the purchase price for non-conforming Goods returned during the warranty period.

(B) All Other Goods: Seller warrants only title to the Goods sold to Buyer. All other warranties are those extended by the product manufacturer. Seller assigns to Buyer any and all manufacturer warranties and will assist Buyer to obtain repair, replacement, or other applicable remedy for a breach of warranty made known to Seller during the warranty period.

(C) Services: Seller warrants that all services provided by Seller shall be performed in a professional and workmanlike manner with qualified personnel.

(D) Warranty Exclusions: These warranties shall be void if there has been misuse, accident, modifications, unsuitable physical or operating environment, improper maintenance, storage, or installation of the goods. SELLER DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR USE OR A PARTICULAR PURPOSE EVEN IF KNOWN BY SELLER. SELLER MAKES NO REPRESENTATION, WARRANTY, OR PROMISE THAT THE PRODUCTS OR SERVICES WILL CONFORM TO ANY APPLICABLE LAWS, ORDINANCES, REGULATIONS, CODES OR STANDARDS, INCLUDING BUT NOT LIMITED TO LOW LEAD OR LEAD FREE LAWS OR REGULATIONS, EXCEPT AS SPECIFIED AND AGREED TO IN WRITING BY AN AUTHORIZED REPRESENTATIVE OF SELLER.

11. INDEMNIFICATION:
Each party (“Indemnitor”) shall indemnify, defend and hold harmless the other party and its employees, officers, directors, and agents (each an “Indemnitee”) from any suit, cause of action, arbitration/mediation proceeding, judgment, or claim (“Claim”) for damages to property or bodily injury, loss of life, infringement, liability of any nature, costs, fines, penalties, and expenses, including reasonable attorney fees and any other cost of litigation (“Damages”) to the extent caused directly by the negligent act or omission or intentional misconduct of the Indemnitor. Indemnification shall not apply to Damages proximately caused by the negligence of Indemnitee.

12. INSURANCE:
Seller shall maintain all insurance as required by law and shall not allow such coverage to lapse. Seller agrees to maintain Worker’s Compensation coverage as required by applicable state law, $2 million per occurrence and $4 million aggregate in commercial general liability coverage, including product liability coverage, and $5 million in automobile liability coverage. All such coverage can be met through a standard, umbrella, or any combination of policies thereof. Seller is not bound to pay any premium or other fee to an Owner Controlled Insurance Program (“OCIP”) or Contractor Controlled Insurance Program (“CCIP”) type insurance program. Unless expressly provided in Seller’s quotation to Buyer, payment and performance bonds are not to be provided by Seller.

13. LIMITATION OF LIABILITY:
IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, STATUTORY, LIQUIDATED, OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, REVENUES, CAPITAL, BUSINESS OPPORTUNITY OR DOWNTIME COSTS, ARISING OUT OF THE SALE OF GOODS AND/OR SERVICES TO BUYER. This limitation shall apply regardless if the claimed damages arise from breach of contract, breach of warranty, tort, strict liability, or any other legal theory.

14. SEVERABILITY:
These Terms will be construed as if prepared jointly by the parties hereto and any uncertainty or ambiguity will not be interpreted against any one party. If any provision contained in these Terms is held to be unenforceable then such provision will be given effect in such reduced form as may be decided by a court of competent jurisdiction, provided that, if any provision should be declared unenforceable or invalid for any reason, such unenforceable or invalid provision will be severed from the remainder of these Terms without affecting the enforceability or validity of the remaining provisions.

15. NON-WAIVER:
The failure of Seller to insist upon the strict performance of any of these Terms will not be deemed to be a waiver of any of the rights or remedies of Seller, nor of its right to insist upon strict performance of such term or of any other term in the future. No waiver of any of these Terms will be valid unless in writing signed by a duly authorized representative of Seller.

16. DISPUTE RESOLUTION:
The parties shall attempt in good faith to resolve promptly any dispute arising out of or relating to these Terms by negotiation between executives who have authority to settle the dispute. The executives must be at a higher level of management than the persons with direct responsibility for administration of these Terms. If a dispute cannot be resolved by negotiation, then either party may bring a legal action in accordance with Section 17 of these Terms.

17. GOVERNING LAW:
For Goods and/or services delivered within the United States, all disputes related to or arising out of a Buyer’s order shall be governed by the laws of the jurisdiction where the applicable Goods are delivered and/or services are performed, excluding the rules on the conflict of laws. For Goods and/or services delivered outside of the United States, all disputes related to or arising out of Buyer’s order shall be governed by the laws of the Commonwealth of Virginia, excluding the rules on the conflict of laws. Any legal action related to or arising out of Buyer’s order shall be brought in the relevant state or federal court in such jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods, and any successor thereto, shall not apply.

Rev. February 2021


Terms and Conditions of Purchase

These Terms and Conditions of Purchase apply to the purchase order which they accompany or to which they are attached (the “Order”). As used herein: (i) “Buyer” means Ferguson Enterprises, LLC, its affiliates, successors, and permitted assigns and (ii) “Seller” means the entity fulfilling the Order. […]

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1. FINANCIAL

A. PRICING
Seller shall not impose any price increase on any Order or change the terms of sale without Buyer’s written consent. Seller warrants that the prices of the products and services covered by any Order (collectively “Products”) are at least as low as for comparable volume levels and similar services as that provided by Seller to any other customer. If during the term of the fulfillment of this Order, Seller or any of its affiliates enters into any agreement, arrangement, or understanding with a third party whereby Seller or such affiliate (or any other entity formed in connection with such agreement, arrangement, or understanding) agrees to provide substantially the same Products to such third party, and such agreement, arrangement, or understanding contains pricing or terms or conditions that, taken as a whole, are more favorable to such third party than the comparable terms of this Order (taken as a whole) are to Buyer, then Seller shall offer such favorable terms and conditions to Buyer with respect to the Products and amend this Order, as applicable, to the extent necessary so that such terms and conditions are incorporated in a manner reasonably acceptable to Buyer.

B. TERMS
If cash discounts for early payment are offered by Seller, the period of time agreed upon as constituting “early payment” shall begin with the later of the invoice date or receipt of Products. All shipments received or invoices dated after the twenty-fifth (25th) will be considered dated the first day of the following month. Shipments consigned directly to Buyer’s customers that are shipped after the twenty-fifth (25th) shall be considered as invoiced the first day of the following month. Unless freight or other charges are itemized, the discount will be taken on the full amount of the invoice. Acceptance of payment waives any claim for cash discounts taken related to early payment terms. “Net invoices” will be paid on the last day of the following month.

C. TAXES
Unless prohibited by law, any Order price shall include all federal, state, or local tax, transportation tax, or other tax which is required to be imposed upon Products by reason of their sale or delivery.

D. PAYMENT
Upon submission of proper invoices, Buyer shall pay the undisputed Order price as listed in any Order for Products delivered and accepted. However, payment may be withheld, or portions deducted or set off against Seller if Seller is not performing in accordance with the provisions of any Order. There will be no minimum charges honored unless specifically agreed to prior to shipment.

E. SET-OFF
Buyer shall be entitled, at all times, to set off any amount owing at any time from Seller to Buyer against any amount payable at any time by Buyer in connection with any Order.

2. DELIVERY

A. TRANSPORTATION
Unless otherwise stipulated on the face of any Order or as modified by routing letter from Buyer’s authorized representative, Products shall be shipped FOB shipping point. Title to Products passes to Buyer upon delivery to the carrier at shipping point, regardless of risk of loss. Delivery in advance of the specified Buyer’s shipping date, however, will not cause passage of title, transfer, of risk of loss or establish the point of shipment. Transportation charges on Products delivered DDP destination must be prepaid. No charges for unauthorized transportation will be allowed. Any unauthorized shipment, which will result in excess transportation charges, must be fully prepaid by Seller. Unauthorized transportation charges not prepaid will be set off by Buyer.

B. CUSTOMS DOCUMENTATION
Seller accepts full responsibility for the completeness and accuracy of the corresponding Certificate of Origin and all other customs documentation (“Shipping Documents”) provided to Buyer. Seller accepts any liabilities resulting from inaccurate data on Shipping Documents or failure to comply with import or export requirements.

C. HAZCOM REPORTING
For Products defined by any applicable federal, state, or local law, rule, or regulation as hazardous or toxic chemicals, Seller shall provide at the time of delivery all required information, including, without limitation, all Product Safety Data Sheets (SDS) in approved form. Seller agrees to maintain such information current and shall provide Buyer with any amended, altered, or revised information on a timely basis. Buyer may withhold payment for Seller’s failure to provide such information until it is provided.

D. SHIPMENT
All Products shall be properly packed for shipment. Seller shall comply with routing and shipping instructions issued by Buyer. If such instructions are not attached or have not been previously received, Seller must request instructions from Buyer immediately. No additional charge will be allowed for packing, crating, freight, express, or cartage unless specified on the face of any Order. Any loss or damage, whenever occurring, which results from Seller’s improper packaging or crating shall be borne by Seller. All items shall be properly identified with Buyer’s Order number releasing shipments against any Order and any Order item number or other identification number shown.

E. DELIVERY SCHEDULE
Time is of the essence in the fulfillment of any Order. An Order is subject to termination if not shipped at the specified time. Buyer reserves the right to refuse deliveries made in advance of the delivery schedule. Products shipped after the time specified may be returned at Seller’s expense for full credit. Retention of all or any part of such Products shall not be considered acceptance of same. Acceptance of such Products shall neither be deemed a waiver of Buyer’s right to hold Seller liable for any loss or damage resulting therefrom, nor shall it act as a modification of Seller’s obligation to make future deliveries in accordance with the delivery schedule. Buyer shall be reimbursed in full for all Products returned.

F. REJECTIONS
If any Products are found at any time to be defective in material or workmanship, or otherwise not in conformity with the requirements of any Order, Buyer, in addition to any other rights which it may have under all applicable warranties or otherwise, may at its option, correct or have corrected the nonconformity at Seller’s expense, or reject and return such Products at Seller’s expense. Rejected Products shall not be replaced without written authorization from Buyer. Buyer may accept, without prejudice, a portion of any shipment, and, at its option, have Seller repair or replace any non-conforming portion of the shipment, at Seller’s expense. Items rejected shall be removed promptly by Seller at its expense and at its risk. Final acceptance shall not be conclusive with respect to latent defects, fraud, or such gross mistakes as amount to fraud or with respect to Buyer’s rights under the “Warranty” clause.

3. LIABILITY

A. WARRANTY
Seller warrants that Products are delivered free and clear of any lien or encumbrance. Seller further warrants that Products shall conform to Seller’s specifications, the requirements of any Order, and approved samples, if any; and further, Products shall be merchantable and fit for Buyer’s or its customer’s intended use, and free from defects in design, material, and workmanship (collectively, the “Seller’s Warranty”). Seller’s Warranty shall remain in effect for a one-year period after acceptance of the items by Buyer’s customers, or for such longer period of time as is normally warranted by Seller. Neither approval by Buyer of Seller’s design nor acceptance of the Products shall release or discharge Seller from liability for damages resulting from a breach of Seller’s Warranty. If any defect, failure, or other non-conformity appears, Buyer shall have the right to take the following actions (i) retain such defective Products and make an equitable adjustment in any Order price; (ii) require Seller to repair or replace such defective Products, at Seller’s sole expense, including all shipping, transportation, and installation costs; or (iii) correct or replace such defective Products with similar products and recover the total cost thereof from Seller. Seller’s Warranty shall survive acceptance and payment and shall run to Buyer, its customers, and their successors in title and shall not be deemed to be exclusive, but shall be in addition to Buyer’s other rights under the terms of any Order or at law or equity.

B. INDEMNIFICATION
To the fullest extent permitted by law, Seller agrees to indemnify, hold harmless, and defend Buyer and its customers, directors, officers, employees, and agents (“Indemnitees”), from any suit, cause of action, arbitration proceeding, judgment, or claim (“Claim”) for damages to property or bodily injury, loss of life, infringement, liability of any nature, costs, fines, penalties, and expenses including reasonable attorney fees and any other costs of litigation (“Damages”) caused by Seller or its affiliates, their employees, agents, subcontractors, or sub-suppliers arising out of or related to the Products; except that Seller’s obligation shall not apply to Damages arising from Buyer’s sole negligence. Seller agrees to expressly waive its immunity, if any, under the applicable workers’ compensation law if such immunity may affect this indemnification obligation.

C. PATENT AND COPYRIGHT INDEMNITY
Seller represents and warrants that neither the Products nor their sale will infringe upon or violate any trademarks, patents, copyright, or other legal rights of third parties. Seller agrees to indemnify, hold harmless, and defend Indemnitees from Claims arising from or related to any actual or alleged intellectual property infringement or violation of applicable law.

D. INSURANCE
Seller shall maintain commercial general liability insurance with a company rated “A- VII” or better by A.M. Best. Such policy shall have minimum coverage of $2,000,000 per occurrence and $4,000,000 aggregate, which can be met through an umbrella or standard policy or any combination. The insurance shall be evidenced by a Certificate of Insurance naming Buyer as an “Additional Insured” under its Vendor Broad Form endorsement.

4. REPRESENTATIONS

A. COMPLIANCE WITH LAWS
Seller warrants that all Products are in compliance with applicable federal, state, and local laws, ordinances, codes, rules, regulations, or standards. Furthermore, Seller warrants and represents that it shall, with respect to any Order, comply with applicable laws including, without limitation, those pertaining to manufacturing, labeling, invoicing, environmental protection, immigration, employment, occupational safety and health, antitrust, and anti-corruption. Sellers located within the United States also warrant that they shall at all times comply with applicable provisions relating to government contractors and subcontractors, which provisions, and any contract clauses required thereunder, are incorporated in any Order by reference as if set forth in full, including (i) 41 CFR 60-1, et seq., with the reporting, record keeping, and affirmative action program requirements;
(ii) Equal Opportunity Clause of EO 11246 pursuant to 41 CFR 60-1.4; (iii) the maintenance of non-segregated facilities as required by 41 CFR 60-1.8; (iv) the provisions of 41 CFR 60-250.4 relating to disabled and Vietnam era veterans; (v) the provisions of 41 CFR 60-741 relating to handicapped workers; (vi) Fair Labor Standards Act of 1938; and (vii) Foreign Corrupt Practices Act.

B. TELECOMMUNICATIONS RESTRICTIONS
Seller will not provide to Buyer and will not cause Buyer to use any telecommunications equipment, systems, or services produced or provided by the following entities or any subsidiary or affiliate of such entities: Huawei Technologies Company, ZTE Corporation, Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, Dahua Technology Company, and any other covered telecommunications equipment or service providers prohibited by Federal Acquisition Regulation 52.204-25 (collectively the “Covered Entities”). Seller must promptly notify Buyer if Seller learns that any telecommunications equipment, system, or service produced or provided by any of the Covered Entities was provided to or used by Buyer under this Order.

C. EXPORT COMPLIANCE
Seller warrants that no goods, technology, software, or services supplied under this Order are sourced from or originate in a jurisdiction subject to United States, European Union, or United Nations sanctions, or are supplied by or in connection with an entity or person subject to such sanctions. Seller further confirms that it is not subject to such sanctions, including, but not limited to, being identified on the United States list of Specially Designated Nationals. Buyer reserves the right to terminate or suspend performance of this Order, without penalty, as required to ensure compliance with the applicable sanctions or export control laws. Seller will readily provide Buyer with all information related to export control classification of Products provided under this Order.

D. AUDIT
Seller shall maintain records in the ordinary course of business in accordance with generally accepted accounting principles to accurately capture and reflect purchase and sale transactions arising out of any Order. Seller will allow Buyer, or its agent, to audit such records or its facilities to evaluate compliance with any Order and compliance with these Terms and Conditions of Purchase. Such audits shall be at reasonable time and with reasonable notice.

E. STATE LAW, EXCLUSIVE JURISDICTION, AND CLASS WAIVER
Any Order, and any dispute between Buyer and Seller, shall be governed in all respects by the laws of the Commonwealth of Virginia, and the exclusive jurisdiction for all actions between Buyer and Seller shall be a court of competent jurisdiction residing in the Commonwealth of Virginia. Seller waives any right to pursue any claims against Buyer as a class representative or to otherwise act in a class action, mass action, or representative capacity.

5. TERMINATION

A. DEFAULT
Neither Seller nor Buyer shall be considered in default in the performance of its obligations herein to the extent that performance of such is delayed or prevented due to causes beyond the control of said party, including, but not limited to, acts of God, war, revolution, civil commotion, blockade or embargo, any law, order, regulation, or ordinance of any government (excluding increases in tariffs, levies, or excise taxes), fires, floods, unavoidable casualties, strikes, labor disputes, and other causes beyond the reasonable control of either party. If Buyer incurs damages as a result of Seller’s delay in delivery, Seller shall be liable for such damages if due to the negligence of Seller. Buyer may by written notice of default to Seller terminate the whole or any part of any Order in any one of the following circumstances: (i) if Seller fails to perform within the time specified herein or any extension; (ii) if Seller fails to perform any of the other provisions of any Order, or so fails to make progress as to endanger performance of any Order in accordance with its terms; or (iii) if Seller shall become insolvent or make a general assignment for the benefit of creditors or if a petition under any bankruptcy act or similar statute is filed by or against Seller, and in any of these circumstances Seller does not cure such failure within a period of ten (10) days or such longer period as Buyer may authorize in writing. Upon such termination Buyer may procure, upon such terms as it shall deem appropriate, products or services similar to those so terminated, in which case Seller shall continue performance of any Order to the extent not terminated and shall be liable to Buyer for any excess costs for such similar products or services. As an alternate remedy, and in lieu of termination for default, Buyer, at its sole discretion, may elect (i) to extend the delivery schedule and/or (ii) to waive other deficiencies in Seller’s performance, in which case an equitable reduction in any Order price shall be granted. Buyer shall have the right at any time to require assurance from Seller. In the event Seller for any reason anticipates difficulty in complying with the required delivery date or performance schedule, or in meeting any of the other requirements of any Order, Seller shall promptly notify Buyer in writing. If Seller does not comply with Buyer’s delivery schedule or performance schedule, Buyer may require delivery by fastest means and charges resulting from the premium transportation must be fully prepaid and absorbed by Seller. The rights and remedies of Buyer provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or under any Order.

B. TERMINATION BY BUYER
Notwithstanding any other provision of any Order, Buyer reserves expressly the right to revoke any Order at any time prior to receipt of notice of acceptance by Seller. Buyer shall have the right to terminate for its convenience any Order in whole or in part at any time, and from time to time, by written notice effective upon receipt by Seller, even though Seller is not in breach of any obligation hereunder. Upon receipt of notice of termination, Seller shall immediately discontinue performance and shall comply with Buyer’s instructions concerning disposition of completed and partially completed items, work in progress, and Products acquired pursuant to any Order. In the event of such termination, Seller shall be paid an amount in settlement to be mutually agreed upon by the parties which shall cover Seller’s reasonable costs of performance incurred prior to termination in connection with the Products for which any Order is terminated plus a reasonable profit based upon such costs. However, said payment shall not exceed the price specified herein for such Products. In no event shall Seller be entitled to recover special, indirect, incidental, consequential, punitive, or exemplary damages. Seller shall advise Buyer, in writing, of Seller’s claim, if any, for termination costs within ten (10) days after receipt of the notice of termination.

C. WAIVER
Buyer’s failure to insist upon strict compliance shall not be deemed to be a waiver of any right granted Buyer herein. Buyer shall not be deemed to waive any such right unless such waiver is in writing signed by Buyer’s authorized representative; such waiver shall not constitute a waiver of any other default under any Order.

6. MISCELLANEOUS

A. TERMS AND CONDITIONS
No terms and conditions other than the terms and conditions set forth in any Order, including any terms and conditions in any document attached to or incorporated by reference, shall be binding upon Buyer unless accepted by it in a writing signed by Buyer’s authorized representative. Acceptance is limited to the terms stated herein. All terms and conditions contained in any prior proposal or acknowledgment of any Order which are different from or in addition to the terms and conditions of any Order are hereby rejected and shall not be binding on Buyer, whether or not they would alter any Order, and Buyer hereby objects thereto. Seller will be deemed to have assented to all terms and conditions contained herein if any part of the Order is shipped or invoiced.

B. ENTIRE AGREEMENT
The Order and these Terms and Conditions of Purchase constitute the entire agreement between the parties and contain all the agreements and conditions of sale; no course of dealing or usage of the trade shall be applicable unless expressly incorporated in any Order. The terms and conditions contained in any Order may not be added to, modified, superseded, or otherwise altered except by a written modification signed by Buyer’s authorized representative. Each delivery shall be deemed to be only upon the terms and conditions contained in any Order, which shall supersede all inconsistent provisions included in Seller’s proposal and in any subsequent acknowledgment by Seller, notwithstanding Buyer’s act of accepting or paying for any delivery or similar act of Buyer.

Rev 3 (March 2021)

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