TERMS AND CONDITIONS OF SALE
1. PRICE : The prices quoted in the face hereof represent current prices and shall be adjusted to Seller's prices in effect on date of shipment and reflect changes in freight rate occurring on or before such date. Unless otherwise provided, shipment will be made FOB Houston, Texas, freight allowed to destinations within the continental United States; but if Buyer designates mode of transportation or route, Seller's obligation shall not exceed the applicable rail or truck rate, whichever is lower, for the most direct route. Prices shall include sales, excise, use or other taxes now in effect if hereafter levied by reason of this transaction by the State of Texas.
2. PAYMENT : Seller's terms are set forth on the face hereof. However if Buyer's financial responsibility or condition reasonably appears to call for such action, Seller may require payment in advance or security or guaranty satisfactory to it that invoices will be paid when due. If Buyer becomes insolvent, commits an act of bankruptcy, fails to make a payment when due or fails to comply with Seller's aforesaid requirements, Seller reserves the right to withhold further deliveries or to terminate this Agreement, and any unpaid amount shall thereupon become due immediately. Interest will be charged on any overdue amounts at 1.5% of unpaid balance per month (18% per year). If Seller should find it necessary to retain a collection agency and /or attorney to collect amounts overdue and shall have given buyer at least ten (10) days notice of its intentions in this respect, the collection cost, including attorney's fee, shall be paid by the Buyer.
3. WARRANTY: Seller warrants that all materials sold pursuant hereto will conform to the description on the face hereof, subject to stand commercial tolerances; that suck material will be free from defects in material and workmanship; and that it will convey good title thereto. The aforesaid warranties run only to Buyer's, are non-assignable and are in lieu of and exclude any warranty fitness for a particular purpose and all other warranties, express of implied, by operation of law or otherwise, and any other liability in respect to defects. Any claim by Buyer on account of breach of warranty shall be deeded waived conclusively unless written notice thereof is given within ten days of Buyer's receipt of material and before use or alteration thereof. This warranty shall not apply to any material which shall have been subjected to misuse, neglect or accident or which shall have been damaged in any other way after shipment from Seller's plant. Seller's plant. Seller shall have the right to either replace or repair any defective materials, to refund the purchase price or credit the Buyer therewith, or, with Buyer's concurrence, to grant a reasonable allowance on accont of such defects; and Seller's liability for defective materials shall be limited to replacement, repair, refund, credit or allowance as Seller may elect. Seller shall be given reasonable opportunity to investigate all claims and no material shall be returned to the Seller until receipt by buyer of shipping instructions from the Seller.
4. DELAYS: Seller shall not be liable for any failure in performance arising from strikes of other labor difficulties, labor shortage, fire, flood, war, breakdowns or failure of plant machinery or equipment, delays in or the lack of transportation. Governmental priorities or allocations, delays of supplies, or any cause beyond the reasonable control of the seller. In the event of delay or failure of performance not excused in accordance with the preceding sentence, Seller's liability shall not exceed the excess costs, if any, reasonable incurred by Buyer in procuring the undelivered portion of the material order from other sources. In no event shall Seller be liable for any consequential, special or contingent damages.
5. QUANTITY TOLERANCES: Tolerances of ten percent plus or minus will apply to the quantity of material specified in this order.
6. CANCELLATION: Acceptance by Seller of Buyers order gives rise to a binding contract between the parties which, except as otherwise specifically provided herein, may not be cancelled or modified by either without the consent the writing of the order. In the event Buyer fails to accept materials ordered or advises Seller of its intention not to accept deliveries, Buyer shall be liable Seller's cancellation charges which shall not exceed the purchase price of the undelivered materials.
8. WAREHOUSING: After 30 days from the ready date of goods sold hereunder, in the absence of agreed shipping dates. Seller shall have the right to bill Buyer for such goods and shall have the option of either shipping such goods to Buyer or billing for storage charges at the rate of $2.50 per MSF per month on singlewall items and $3.75 per MSF per month on doublewall items of such goods held in inventory.