SELLER’S TERMS & CONDITIONS – All sales by MTankCo Supply, LLC (“MTankCo” or “Seller”) are subject to all of the terms and conditions contained herein and upon no other terms and conditions. Seller’s acceptance of Buyer’s order is expressly made conditional upon Buyer’s assent to all of Seller’s terms and Seller objects to any terms or conditions at variance with, different from or additional to the terms set forth herein, unless such terms are set forth in a writing signed by an officer of Seller.
1. PRICES & PAYMENT – Seller, MTankCo Supply, LLC (“MTankCo” or “Seller”) will invoice Buyer and Buyer will pay Seller for Goods sold by Seller. Buyer will also pay the amount of any sales, use, excise or other tax now or hereafter imposed by reason of any sale, delivery, charge or furnishing of any Goods by Seller. Terms of payment, unless otherwise agreed, are cash or cash equivalent before or upon delivery of Goods sold. All prices are subject to change without notice. Credit terms may be extended solely at the discretion of Seller. If Seller agrees to credit terms and Buyer fails to make timely payment in accordance with those terms or any other agreement separately agreed to by Seller, or Buyers financial condition becomes otherwise impaired or Buyer is unable or unwilling to provide reasonable assurance to Seller of its ability to pay, Seller reserves the right, in its sole discretion, among other remedies, to refuse to supply Goods except upon receipt of cash with order and/or payment in full of all outstanding charges and/or assess and collect from Buyer a monthly late charge at the rate of one and one-half (1½%) per month on any delinquent balance to the extent permitted by law, and/or terminate or suspend the supply of Goods. The Buyer hereby agrees to pay, in addition to all charges indicated, reasonable attorney fees and costs of collection in the event it is necessary to place this sale in the hands of an attorney to collect any amounts owed by Buyer to Seller. Seller retains a security interest in all items or Goods sold on credit terms for which full payment has not been received by Seller including the right to recover possession of any Goods for which payment has not been made in full.
2. SHIPPING, RISK OF LOSS & RESTOCKING – All sales are made F.O.B. Point of Shipment. In all cases, title shall pass upon delivery to the carrier at point of shipment and thereafter all risk of loss or damage shall be upon Buyer.
Any item that is specially ordered for Buyer that Buyer, for any reason, decides not to purchase is subject to a restocking fee. The deposit on any special order not purchased will be returned to Buyer less the restocking fee, which will be charged by Seller up to 30% of the purchase price of the specially ordered item or items. This restocking fee applies to any items sold and delivered on credit terms for which full payment is not made and such items are returned or recovered by Seller due to non-payment.
3. CONTINGENCIES – Neither party hereto will be liable to the other for default or delay in the performance of any of its obligations hereunder (except any obligation to make payments when due) due to act of God, accident, fire, flood, storm, riot, war, sabotage, explosion, strike, concerted acts of workers, national defense requirements, governmental law, ordinance, rule or regulation, whether valid or invalid, inability to obtain electricity or other type of energy, raw material, labor, equipment or transportation, unavailability of Goods, or any similar or different contingency beyond its reasonable control which would make performance commercially impracticable whether or not the contingency is of the same class as those enumerated above, it being expressly agreed that such enumeration shall be nonexclusive. In the event Seller is unable to provide Goods ordered or fill any order, Seller will under no circumstances be liable to Buyer or anyone else for any damages, fees or any other claims beyond return of any deposit or payment. Buyer shall not, under any circumstances, be entitled to claim or recover for any consequential damages, lost profits, loss of business or income, increased expense or any other type damage due to the failure of Seller to deliver Goods ordered by Buyer regardless of the circumstances.
4. SPECIFICATIONS – Seller does not manufacture Goods it sells and is only a distributor of such Goods for others who manufacture the Goods. Seller makes no alteration to any Goods sold (including packaging, instructions, warnings and product specifications and descriptions). Accordingly, Seller provides no separate warranty regarding Goods sold to Buyer. Goods sold are only warranted to the extent of any warranty by the manufacturer. Buyer is solely responsible for determining whether or not any Goods ordered or purchased are appropriate for the use or application needed by Buyer. No statements, unless made in writing and signed by Seller, may be relied upon by Buyer regarding any merchantability, fitness for a particular purpose, specification, warranty, description or other representation as to any characteristics of any Goods sold by Seller to Buyer. Seller will provide reasonably available information upon request regarding Goods to Buyer, but Buyer is solely responsible for determining if such Goods are appropriate for the use Buyer intends to make of the Goods purchased. Buyer may reject any Goods which do not meet specification(s) of the manufacturer of the Goods. Buyer must inspect all Goods purchased and notify Seller of any unconformity within five (5) days of the delivery of the Goods to Buyer. Seller will make refund of Buyer’s payment, if any, for such Goods properly rejected contingent upon the agreement of the manufacturer or supplier of the Goods to Seller agreeing that specifications for the Goods were not met and the Goods were properly rejected. If the manufacturer or supplier of Goods to Seller refuses to accept Buyer’s rejection of the Goods, Buyer’s only remedy is against the manufacturer or supplier of the Goods to Seller and not against Seller. Under no circumstances will any claim of any kind with respect to the conformance of Goods to Specification(s), descriptions or any other characteristic of the Goods, whether or not based on negligence, warranty, strict liability or any other theory of law, result in Buyer being entitled to any amount greater than the amount actually paid for the nonconforming Goods. The foregoing shall constitute Buyer’s exclusive remedy and Seller’s sole obligation with respect to any such claim. THERE ARE NO EXPRESS WARRANTIES BY SELLER OTHER THAN THOSE SPECIFIED IN THIS ARTICLE. NO WARRANTIES BY SELLER (OTHER THAN WARRANTY OF TITLE AS PROVIDED IN THE UNIFORM COMMERCIAL CODE) SHALL BE IMPLIED OR OTHERWISE CREATED UNDER THE UNIFORM COMMERCIAL CODE, INCLUDING BUT NOT LIMITED TO WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
5. LIABILITY – Buyer acknowledges that there are hazards associated with the use, installation, incorporation and application of certain Goods and Buyer agrees that Buyer shall be solely responsible for any use, installation, incorporation or application of any Goods purchased and for complying with all relevant reporting obligations under all applicable laws. Buyer also assumes all responsibility for the suitability and the results of using Goods purchased, and incorporation into larger systems, machines, vehicles or anything else. Seller shall not be liable hereunder for any incidental, consequential, indirect or special damages. Buyer hereby agrees to indemnify and hold Seller harmless from any action, lawsuits, demands, claims, losses, expenses, costs, including but not limited to legal fees, and damages, arising from the injury, illness or death of the Buyer’s employees or anyone else while engaged in the use, installation, incorporation, application or any other activities related to any Goods supplied by Seller hereunder, whether or not such injury, illness, or death is claimed to have been caused by, resulted from, or was in any way connected with the negligence of the Seller.
6. PATENT INFRINGEMENT – Seller shall have no responsibility for patent, trademark or copyright infringement for the manufacture, use or sale of the Goods herein which are considered as the design or specification of any other third party, nor shall Seller have responsibility for the structural design or the operating performance of Goods manufactured according to designs and specifications of Buyer, or any other third party, Seller shall have no responsibility for patent infringement of Goods sold by it, which are manufactured or distributed by others.
7. THIRD PARTY USERS – If the user of the Goods sold is not the Buyer, then Buyer agrees to indemnify and hold Seller harmless for any and all loss, damage, and/or expense which may at any time be sustained by the Seller by reason of any claims by the user against which the Seller would have a partial or total legal defense or additional legal rights had notice of Seller’s terms and conditions of sale been made part of any sale made by the Buyer to the user.
8. ARBITRATION – Your acceptance of any Goods purchased from Seller constitutes your agreement to submit any dispute of any kind related in any way to the Product purchased, charges made, and any related action arising from the transaction, including any claims for torts, negligent or intentional breach of contract or otherwise, to binding arbitration pursuant to the then Rules of the American Arbitration Association for arbitration of commercial disputes. The arbitrator shall be the sole judge of whether a claim is subject to arbitration. This agreement is binding on you, your agents, employees, successors, assigns and any others claiming through you. The arbitration shall be held in Hattiesburg, Forrest County, Mississippi and the arbitrators shall be selected as follows regardless of any contrary provisions of the American Arbitration Association: All arbitrators shall be selected from an area within 100 miles of Hattiesburg, Forrest County, Mississippi and each side shall appoint one arbitrator and the two (2) arbitrators appointed shall agree on a third (3rd) arbitrator. All arbitrators are to be licensed and practicing attorneys. Arbitrators shall apply the law of the State of Mississippi. In the event any party is successful in avoiding the agreement to arbitrate or Seller seeks collection of a debt or open account or claims of Buyer against Seller that would otherwise be subject to arbitration are less than $20,000, Buyer agrees that any lawsuit will be filed only in state or federal courts located in Hattiesburg, Forrest County, Mississippi and Buyer agrees to the personal jurisdiction of those courts over the parties and waives any objections to venue. Mississippi law is to apply to any dispute.
9. ENTIRE CONTRACT, MODIFICATION, SEVERABILITY – These terms and conditions constitute the entire understanding between the parties with respect to the terms governing the subject transaction and supersede all prior negotiations, discussions and preliminary agreements, if any. Except for representations set forth herein, neither party as relied on any promises or representations made by the other as an inducement to enter the subject transaction. This Agreement may be supplemented, amended, or modified only by the mutual agreement of the parties. No supplement, amendment, or modification of this Agreement shall be binding unless it is in writing and signed by all parties. If any term or condition herein, or application thereof to any person or circumstance, shall be deemed to be invalid or unenforceable, the remainder of these terms shall be affected thereby, and all such terms, covenants or conditions shall be valid and shall be enforced to the fullest extent permitted by law.