Farina Group of Companies

Each order by Buyer, including shipments to Buyer in response to any telephone orders, shall be deemed an acknowledgement and acceptance by Buyer of Seller’s terms and conditions As then in effect.  The terms and conditions set forth herein, as may be subsequently modified by Seller from time to time, are incorporated by reference into all sales order forms and Invoices issued by Seller, and the terms and conditions herein shall constitute the complete and final agreement between Buyer and Seller, superseding prior written and oral communications.

NO MODIFICATIONS:  Seller’s provision of credit, acceptance of any purchase order and/or sale of any goods are expressly conditioned upon the terms and conditions contained or referred herein.  NO TERMS OR CONDITIONS THAT ALTER OR MODIFY IN ANY WAY ANY PROVISION HEREOF SHALL BE BINDING UNLESS EXPRESSLY AGREED TO IN A WRITTEN INSTRUMENT SIGNED BY SELLER’S AUTHORIZED REPRESENTATIVE.  SELLER OBJECTS TO ANY DIFFERENT OR ADDITIONAL TERMS OR CONDITIONS AND HEREBY REJECTS ANY AND ALL SUCH TERMS, WHETHER CONTAINED IN PREVIOUS OR SUBSEQUENT PROPOSALS OR COMMUNICATIONS

FROM BUYER:  Authorization by Buyer to furnish goods hereunder constitutes acceptance of these terms and conditions.  BUYER AND SELLER AGREE THAT THE TERMS AND CONDITIONS PRINTED HEREIN ARE ACCEPTED IN GOOD FAITH BY BOTH PARTIES AS THE CONTROLLING AND FINAL TERMS AND CONDITIONS, AND FURTHER AGREE THAT THERE SHALL BE NO “BATTLE OF THE FORMS” AS DESCRIBED IN SECTION 2-207 OF THE UNIFORM COMMERCIAL CODE.

PRICE:  The purchase price of any goods sold hereunder shall be as stated on the applicable Sales order acknowledgment or accepted purchase order; provided, however, that any increase in Seller’s cost of the subject materials after the date of the applicable Seller order acknowledgment or accepted purchase order, including, but not limited to, any price increase or surcharge may result in an increase in such price effective for any goods scheduled for shipment beginning immediately on the date such increase in Seller’s cost of the subject material is imposed on Seller.  Such price changes may be made effective by Seller without prior notice to Buyer and may be adjusted by Seller periodically to reflect a change is such costs.  Seller shall be bound as to purchase price only upon shipment and acceptance of all or any part of the goods ordered.

DELIVERY AND FORCE MAJEURE:  Unless otherwise agreed to in writing, Seller does not guarantee any certain date of delivery, and any delay in or failure of performance of the Seller shall not constitute default hereunder if such delays and/or failure to perform is caused by an occurrence beyond the control of Seller, including, but not limited to, acts of God, acts of war, fires, strikes, severe weather conditions, labor shortages, inability to secure material, and thefts.  If Seller’s delay in or failure of performance is covered by this provision, then the time for performance by Seller shall be extended by a period of time equal to time lost by reason of such delay.    

INSTALLMENTS:  Unless otherwise expressly stated, Seller shall have the right to make delivery in installments.  All installments shall be separately invoiced and paid as billed without regard to subsequent deliveries.  Failure of Buyer to pay for any installment when due shall excuse Seller from making further deliveries.  Delay in delivery on any installment shall not relieve Buyer of its obligations to accept and pay for remaining installments.

SECURING LOADS:   Buyer is responsible for the securing of all loads of material transported from Seller’s facility in Buyer’s vehicle, as well as for flagging or otherwise marking such material for transport.  If a third-party freight carrier transports material from Seller’s facility, the freight carrier shall be responsible for securing the load, flagging, or otherwise marking the material for transport.  Seller shall not have any liability to Buyer or any third party for any (1) damage to, or loss of, any vehicle used to carry material purchased by Buyer from Seller, whether such vehicle belongs to Buyer or a third party, or to any other vehicle belonging to a third party, (2) damage to, or loss of, the material purchased by Buyer from Seller or to a third party’s property (real or personal), (3) injury to any person (whether the driver of the vehicle carrying the material or an unassociated third person), or (4) any other loss of any kind, resulting from a failure by Buyer or a freight carrier to properly secure a load of material purchased from Seller and transported from Seller’s facility in Buyer’s vehicle or on a vehicle belong to a freight carrier.

LITIGATION AND COLLECTION:   Any controversy or claim arising out of or relating to this sale shall be mediated by a mutually agreed upon mediator in the country, region and Country where it was manufactured. The cost of the mediation shall be shared equally.  In the event the dispute is not resolved through mediation, any litigation shall be brought in the country where the product was manufactured, which courts shall have the exclusive venue for and have exclusive jurisdiction over any such litigation.  Buyer and Seller hereby expressly consent to the jurisdiction and venue of said courts.  If any default is made in payment of amounts due for the sale of goods and materials hereunder or upon any other breach of the terms and conditions set forth herein, Buyer agrees to pay Seller’s reasonable cost of collection and/or compliance, including reasonable attorneys’ fees and costs, not to exceed an amount allowed by law.

TAXES AND OTHER CHARGES:  In addition to the price quoted for goods sold, Buyer shall pay any tax imposed by any present or future law on the sale of goods covered by this order, and all other reasonable charges for ancillary services and costs such as forming, galvanizing, and other services.   If Buyer fails to make payment to Seller of any amounts due and owing (including any applicable surcharge or freight charge) by the net due date, Seller may charge interest on the outstanding balance at an annual rate of 18% or the highest rate allowed by law (whichever is less).  Payments after accrual of such interest charges shall be applied first against such interest charges and secondly against past due invoices. 

FINANCIAL RESPONSIBILITY:  Reasonable doubt on the part of Seller concerning the financial responsibility of Buyer (including, but not limited to, Buyer’s failure to pay on the net due date for goods shipped) shall entitle Seller to stop operation, decline shipment, or stop any material in transit without liability, until the material has been paid for or until Seller is furnished reasonably satisfactory proof of Buyer’s financial responsibility.  If Seller suspends performance and later proceeds with such order, Seller shall be entitled to such extension of time for performance as is necessitated by the suspension.  Seller may, in its discretion, require any order placed by Buyer to be paid on a C.O.D. basis.

RETURNS:  No goods may be returned for credit and no order may be cancelled, in whole or in part, without the prior written consent of Seller.  If Seller consents to a return, Seller may assess a restocking fee of $20 or 15%, whichever is greater.

SECURITY INTEREST:  Buyer grants to Seller a security interest in the goods sold hereunder, as well as a security interest in any goods made or fabricated therefrom and the proceeds thereof, and agrees that said security interest secures any and all obligations of Buyer at any time owing to the Seller, whether now existing or hereinafter incurred.  Buyer agrees, until such time as Seller has been paid in full for the goods purchased hereunder, that it will keep the goods free from any adverse security interest.  Seller may file a copy of the applicable invoice as a financing statement at any time.   

CONTROLLING LAW:  This contract is deemed made in the country of which the product is made and shall be governed by and construed in accordance with the laws of that country.

WAIVER:  Neither any failure nor any delay on the part of Seller in exercising any rights hereunder shall operate as a waiver of any of Seller’s rights hereunder.  All rights and remedies granted herein are in addition to all remedies available at law or in equity. 

WARRANTY:  THE COMPANY WARRANTS ITS GOODS TO BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP UNDER NORMAL AND PROPER USE AND SERVICE FOR ONE (1) YEAR FROM DATE OF SHIPMENT FROM THE COMPANY’S PLANT. THE COMPANY’S LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES RESULTING FROM ANY CAUSE WHATSOEVER, INCLUDING THE COMPANY’S NEGLIGENCE OR CLAIMS BASED ON STRICT LIABILITY, ALLEGED DAMAGES OR DEFECTIVE GOODS, IRRESPECTIVE OF WHETHER SUCH DEFECTS ARE DISCOVERABLE OR LATENT, SHALL BE LIMITED TO THE REPLACEMENT, OF ANY GOODS (A) THAT SHALL, WITHIN ONE (1) YEAR FROM THE  DATE OF SHIPMENT FROM THE COMPANY’S PLANT, BE RETURNED TO THE COMPANY WITH TRANSPORTATION CHARGES PREPAID AND (B) THAT THE COMPANY’S EXAMINATION SHALL DISCLOSE TO ITS SATISFACTION TO HAVE BEEN SO DEFECTIVE. EXCEPT AS PROVIDED IN THIS SECTION, THE COMPANY MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED (WHETHER WRITTEN, ORAL, STATUTORY, ARISING BY PREVIOUS COURSE OF DEALING OR USAGE OF TRADE, OR OTHERWISE), INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE. THE COMPANY SHALL HAVE NO OTHER OBLIGATION OR LIABILITY FOR DAMAGES TO THE PURCHASER OR ANY OTHER PERSON OF ANY TYPE, INCLUDING BUT NOT LIMITED TO, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR OTHER COMMERCIAL LOSS, OR ANY OTHER LOSS, DAMAGE OR EXPENSE ARISING OUT OF OR IN CONNECTION WITH THE USE, LOSS OF USE, NONPERFORMANCE OR REPLACEMENT OF THE PRODUCT, FOR ANY REASON WHATSOEVER. ANY STATEMENTS OR DESCRIPTIONS OF THE GOODS SOLD UNDER THIS AGREEMENT HAVE BEEN MADE FOR THE SOLE PURPOSE OF IDENTIFYING SUCH GOODS, AND PURCHASER ACKNOWLEDGES THAT ANY SUCH STATEMENTS OR DESCRIPTIONS WERE NOT INTENDED TO, AND DID NOT FORM, THE BASIS OR ANY PART OF THE BARGAIN OF THIS CONTRACT. THIS PROVISION IS A MATERIAL INDUCEMENT TO THE COMPANY TO PERFORM ITS OBLIGATIONS HEREUNDER. THIS WARRANTY IS CONDITIONED UPON COMPLIANCE BY PURCHASER WITH SHIPPING, HANDLING, INSTALLATION AND USE IN ACCORDANCE WITH GOOD COMMERCIAL PRACTICES OF THE TRADE. THE COMPANY SHALL NOT BE RESPONSIBLE FOR FAILURES CAUSED BY, AMONG OTHER THINGS, SHIPPING, MISHANDLING, IMPROPER INSTALLATION, PHYSICAL ABUSE, ACCIDENT, CORROSION, EROSION OR NORMAL WEAR AND TEAR. NO LABOR COST OR OTHER EXPENSE OR LIABILITY WILL BE ASSUMED.

THE UNIFORM COMMERCIAL CODE SHALL NOT APPLY TO THIS SALE, NOR THE TEXAS STATUES ADOPTING THE UNIFORM COMMERCIAL CODE.  THIS EXPRESS WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, GUARANTEES, OR REPRESENTATIONS, EXPRESS OR IMPLIED.  THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE.

STATUTE OF LIMITATIONS:  Buyer and Seller agree that any action, regardless of form, arising out of this sale must be brought within one (1) year after the goods are delivered to Buyer.

SEVERABILITY:  If any section or portion of a section of these terms and conditions are deemed unlawful or unenforceable, that section or portion of a section shall be stricken, and the remaining terms and conditions shall continue in full force and effect. 

FOR SALES ORIGINATING AND EXPORTED FROM THE UNITED STATES OF AMERICA.:  Buyer agrees and certifies that neither the goods purchased from Seller, nor the direct product thereof, will be exported outside the United States (1) into any country (or to a national or resident of any such country) as to which the U.S. has embargoed goods, (2) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (3) otherwise in violation of or as prohibited by the laws, rules, regulations or administrative order of the United States, or any unit, agency or department thereof.  Buyer further agrees and certifies that it is not located in, under the control of, or a national or resident of any such country, or any such list or order, or subject to any such prohibition.

MSDS:  When the goods sold hereunder are subject to welding, cutting, grinding, or other processing and/or fabrication, hazardous substances and/or fumes may be released.  Please contact Seller for material safety data sheets on the goods sold hereunder.