(Revised 7-1-2024)
These standard Terms ofSale (these “Terms of Sale”) govern the sale of goods and/or materials and/orthe provision of any services (“Goods and/or Services”) by BeltserviceCorporation, or one of its divisions, subsidiaries or affiliated entities (“Seller”)to the person or business entity buying such Goods and/or Services (“Buyer”).These Terms of Sale are incorporated into each and every purchase orderreceived from Buyer which may establish in addition to these Terms of Saleessential commercial terms not in conflict with these Terms of Sale. In the eventof any conflicting provisions in any purchase order or any other documentreceived from Buyer, these Terms of Sale shall control and Seller shall proceedwith the sale pursuant to the understanding that these Terms of Sale are thesole Terms of Sale binding on the parties. Buyer and Seller expressly agreethat Seller may modify these Terms of Sale from time to time without notice,and such modifications shall be binding upon Buyer. Accordingly, each requestfor quote, order, acceptance of Goods and/or Services and/or payment to Sellerby Buyer shall be deemed an acknowledgment and acceptance by Buyer of these Termsof Sale as then in effect.
1. NO MODIFICATIONS/ENTIRE AGREEMENT.
Seller’s extension ofcredit to Buyer, if any, acceptance of any purchase order and/or sale orprovision of any Goods and/or Services to Buyer are all expressly conditionedupon Buyer’s acceptance of these Terms of Sale as then in effect. SELLER HEREBYREJECTS ANY TERMS OR CONDITIONS WHICH ATTEMPT TO ALTER, MODIFY OR CHANGE IN ANYWAY ANY PROVISION HEREOF, OR OTHERWISE ATTEMPT TO SUSPEND, CONTRADICT OR ADD TOANY TERM OR CONDITION CONTAINED HEREIN, AND BUYER HEREBY WAIVES ALL SUCH TERMSOR CONDITIONS; THUS, SUCH SHALL NOT BE BINDING ON SELLER UNLESS EXPRESSLYAGREED TO IN A SEPARATE WRITTEN INSTRUMENT SIGNED BY SELLER’S AUTHORIZEDREPRESENTATIVE. SELLER OBJECTS TO ANY DIFFERENT, INCONSISTENT, CONFLICTING,SUPPLEMENTAL OR ADDITIONAL TERMS OR CONDITIONS AND HEREBY REJECTS SUCH, WHETHERCONTAINED IN PREVIOUS OR SUBSEQUENT PROPOSALS OR COMMUNICATIONS (WHETHER ORALOR WRITTEN) FROM OR WITH BUYER OR IMPLIED BY TRADE, CUSTOM, PRACTICE, COURSE OFDEALING OR USAGE IN THE TRADE. BUYER AND SELLER AGREE THAT THESE TERMS OF SALE,AS MAY BE SUBSEQUENTLY MODIFIED BY SELLER FROM TIME TO TIME, ARE ACCEPTED INGOOD FAITH BY BOTH PARTIES AS THE COMPLETE AND FINAL EXPRESSION OF THE TERMS OFSALE GOVERNING TRANSACTIONS BETWEEN THEM, AND FURTHER AGREE THAT THERE SHALL BENO “BATTLE OF THE FORMS” AS DESCRIBED IN SECTION 2-207 OF THE UNIFORMCOMMERCIAL CODE.
2. ORDERS.
Buyer may not cancel ormodify an order in whole or in part without Seller’s prior written consent, tobe given or denied in Seller’s sole and absolute discretion, and which Sellermay condition upon an adjustment of price and/or other terms and Buyer’s reimbursementto Seller of its costs and damages in connection with the order and itscancellation.
3. PRICE.
The purchase price ofany Goods and/or Services sold and/or provided shall be as stated on theapplicable Seller order acknowledgment or accepted purchase order; provided,however, that Seller may upon prior notice to Buyer assess a surcharge on thesale of any Goods and/or Services and/or without prior notice choose to passalong any price increase in Seller’s cost of the subject Goods and/or Servicesor surcharge imposed on Seller by its supplier(s), including, but not limitedto, any such surcharge predicated upon an increase in the cost of raw materialsor energy, delivery costs, all after the date of the applicable Seller orderacknowledgment or accepted purchase order.
4. DELIVERY ANDPERFORMANCE.
Unless specificallyagreed to by Seller in a separate signed writing, Seller does not guarantee anycertain date of delivery and Seller shall not be liable to Buyer for anylosses, costs, damages, charges or expenses incurred by Buyer or any otherperson or entity arising directly or indirectly out of a failure to deliver onany particular date, nor will any delay entitle Buyer to terminate or rescindits purchase. Seller reserves the right to defer delivery, to cancel the orderor reduce the volume of Goods and/or Services delivered, all without liabilityof any kind whatsoever to Buyer, if Seller is prevented from or delayed in thecarrying on of its business due to a force majeure event. Buyer’s right, under the Uniform CommercialCode (the “UCC”), to reject due to delay in delivery is waived unless noticethereof is presented to Seller in writing within five (5) days after delivery.
5. WARRANTY; DISCLAIMER.
All sales of products of Seller or one of its divisions or subsidiaries(each “Seller”) shall be made solely and exclusively pursuant to Seller’s standardTerms of Sale. Seller’s acceptance of any purchase order is hereby expresslymade conditional on the Buyer’s assent to all of Seller’s standard Terms ofSale, including without limitation terms and conditions that are additional toor at variance with the terms and conditions of the Buyer’s purchase order.
Seller warrants only that Products manufactured by Seller, when shipped,are free from defects (within normal industry allowances) of material andworkmanship when properly installed and used for the intended purpose andoperated under normal service conditions for a period for one (1) year afterthe date of tender and delivery; provided, Buyer gives Seller written notice ofany such defect within the warranty period. Claims not made within suchone-year period shall be barred. Defective and nonconforming Products must beheld for Seller’s inspection and return to Seller upon request. Normal wear anddeterioration are excluded. Seller does not warrant Products which have beensubject to misuse, negligence, carelessness, accident, overloading, impropermaintenance, service adjustments, improper actions by someone other thanSeller, alterations, modifications or replacements. This warranty does notapply to normal maintenance, service adjustments or replacements. Products thatare repaired or replaced during the warranty period will be covered by warrantyfor the remainder of the original warranty period or 90 days, whichever islonger. Notwithstanding the foregoing, goods and parts not manufactured bySeller and work not performed by Seller are warranted only to the extent (andin the manner) that they are warranted to Seller by the original Seller orSeller’s vendors, and only to the extent that such warranties can be passed toBuyer. THE WARRANTIES STATED HEREIN AREEXCLUSIVE AND IN LIEU OF ANY OTHER WARRANTIES WHETHER ORAL, WRITTEN, IMPLIED,EXPRESSED, STATUTORY, OR ARISING BY LAW OR CUSTOM, INCLUDING BUT NOT LIMITEDTO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSEWITH RESPECT TO PRODUCTS MADE PURSUANT TO BUYER’S SPECIFICATIONS, WHETHER THEPRODUCTS ARE USED ALONE OR IN COMBINATION WITH OTHER SUBSTANCES OR DEVICES.
Buyer’s sole and exclusive remedy against Seller for any breach of warrantyshall be, at Seller’s option, either (i) the repair or replacement of defectiveProducts Seller without charge by Seller or (ii) a refund of an equitable portion of the original purchase price ofdefective Products. The Products must be returned to Seller’s factory,transportation charges prepaid and accompanied by a claim in writing. SELLER’SLIABILITY SHALL NOT EXCEED THE NET PURCHASE PRICE PAID BY BUYER FOR THEPRODUCTS GIVING RISE TO THE CLAIM OR CAUSE OF ACTION, AND UNDER NOCIRCUMSTANCES SHALL SELLER BE LIABLE FOR DAMAGES RELATING TO SUPPLY, PAY FORLABOR DOWNTIME OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVEDAMAGES. THESE LIABILITY LIMITATIONS AND EXCLUSIONS SHALL APPLY REGARDLESS OFTHE FORM OF THE CLAIM OR CAUSE OF ACTION, WHETHER IN CONTRACT, WARRANTY,INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, ANOTHER TORT, EQUITABLE ACTION OROTHERWISE. THE PRICE STATED FOR THE PRODUCTS IS A CONSIDERATION IN LIMITINGSELLER’S LIABILITY.
6. INDEMNITY.
To the fullest extentpermitted by law, Buyer shall, at Buyer’s sole cost and expense, indemnify,defend, release and hold harmless Seller, its officers, directors, agents andemployees, from and against any and all claims, demands, lawsuits or proceedingsof any kind brought or threatened against Seller and/or its officers,directors, agents and employees based on any claim, in whole or in part, thatthe Goods and/or Services as fabricated or manufactured by Seller in accordancewith drawings, specifications or other information provided by Buyer fail to(i) be adequate for a particular purpose, (ii) comply with any productliability law, rule or regulation pertaining thereto, (iii) be adequate for anyuse to which the Goods and/or Services are put after shipment by Seller toBuyer and/or, (iv) comport with all patent, copyright and/or trademark rightsof any third party. Buyer shall pay allcosts, expenses, damages, liabilities and losses incurred by Seller, itsofficers, directors, agents and/or employees, as a result of any such actual orthreatened claim, demand, lawsuit or proceeding, including, but not limited to,reasonable attorney’s fees.
7. TITLE.
Notwithstanding deliveryand passing of risk, Goods and/or Services sold by Seller to Buyer shall remainthe property of Seller until Buyer has paid to Seller the agreed purchase pricetherefor (together with any accrued interest). Until title to the Goods and/orServices passes to Buyer in accordance with this Section 7, Buyer shall: (i)hold the Goods and/or Services on a fiduciary basis and shall not part withpossession otherwise than in the ordinary course of business; (ii) take propercare of the Goods and/or Services; (iii) take all reasonable steps to preventdamage to or deterioration of the Goods and/or Services; and (iv) keep theGoods and/or Services free from any charge, lien or other encumbrance. Fromdelivery until title to the Goods and/or Services passes to Buyer, Buyer shallinsure the Goods and/or Services for their full value with a reputable insurer,and on request, Buyer shall produce the policy or policies of insurance toSeller. Further, until title to the Goods and/or Services passes to Buyer,Buyer shall hold the proceeds of any claim under any such insurance policy orpolicies in trust for Seller and shall immediately account to Seller with theproceeds.
8. PURCHASE MONEYSECURITY INTEREST (“PMSI”).
In accordance with theUCC, Buyer hereby grants, and Seller hereby retains, a PMSI in all Goods and/orServices sold by Seller to Buyer, along with any products into which such Goodsand/or Services are converted or included by Buyer and the proceeds of sale orother transfer by Buyer of any and all said products or of the Goods and/orServices themselves, until such time as Seller is fully paid all amounts owingby Buyer for such Goods and/or Services, at which time said PMSI shall beimmediately released. In the event Seller is not timely paid for any Goodsand/or Services, in addition to any other rights to which Seller may beentitled hereunder or at law or equity, Seller shall have all rights grantedunder the UCC in regard to enforcement of its PMSI. Seller reserves the rightto, and Buyer acknowledges and agrees that Seller may, notify any of Buyer’ssecured creditors of Seller’s PMSI. Buyer also authorizes Seller to file withappropriate authorities financing statement(s) and/or other documents deemednecessary by Seller to give notice of Seller’s PMSI. Buyer shall take allreasonable steps and cooperate with Seller in perfecting Seller’s PMSI.
9. TERMINATION.
If, at any time, (i)Buyer fails to pay to Seller any amount in full when due, or otherwise fails toperform any other obligation owed to Seller; (ii) Buyer becomes insolvent ormakes an assignment for the benefit of creditors or is adjudged bankrupt or areceiver or trustee of Buyer’s property is appointed; or (iii) a levy,execution or attachment is made of any material portion of Buyer’s property,Seller may, in its sole and absolute discretion, terminate the contract, ifany, with Buyer for the purchase and sale of Goods and/or Services as createdhereby and refuse to make further deliveries and/or repossess any Goods and/orServices for which Seller has not been paid in full (in cash or cleared funds)or continue to perform but refuse to make any shipments except upon the receiptof payment in full (in cash or cleared funds) prior to shipment. All amountspayable to Seller are due immediately upon termination pursuant to this Section9 despite any other provision to the contrary herein.
10. CONTROLLING LAW.
These Terms of Sale andthe contract by and between Buyer and Seller for the purchase and sale of Goodsand/or Services created hereunder is deemed made in Missouri and shall begoverned as to validity, interpretation, construction, effect, and in all otherrespects, by the laws of the State of Missouri, without giving effect to theconflict of laws principles thereof. Venuein any legal action brought by either Buyer or Seller in connectionherewith shall be deemed proper in any stateor county with a nexus to the Buyer, Seller or the Goods and/or Services and shallbe at the choosing of Seller, in its sole and absolute discretion. The provisions of the United NationsConvention on Contracts for the International Sale of Goods shall not apply tothese Terms of Sale or the sale of goods or services from Seller to Buyer.
11. WAIVER.
Neither any failure norany delay on the part of Seller in exercising any rights hereunder shalloperate as a waiver of any of Seller’s rights. Any waiver by Seller of anybreach of, or any default under, any provision of these Terms of Sale by Buyerwill not be deemed a waiver of any subsequent breach or default. All rights andremedies granted herein are in addition to all remedies available at law or inequity.
12. ASSIGNMENT.
Buyer may not assign itsrights or obligations hereunder (whether voluntarily, involuntarily, byoperation of law, transfer of majority or controlling interest or otherwise)without the prior written consent of Seller. These Terms of Sale shall bebinding upon Buyer and its successors and permitted assigns.
13. SEVERABILITY.
If any provision ofthese Terms of Sale shall be unlawful, void or for any reason unenforceable,then that provision shall be deemed severable from these Terms of Sale, and theremaining Sections shall continue in full force and effect.
14. EXCLUSIVE AGREEMENT.
The contract by andbetween Buyer and Seller for the purchase and sale of Goods and/or Servicescreated hereby constitutes the entire agreement by and between Buyer and Sellerwith regard to the subject matter hereof and shall exclusively determine the rightsand obligations of Buyer and Seller with regard to the purchase and sale ofGoods and/or Services, any prior course of dealing, custom or usage of trade orcourse of performance notwithstanding, and may not be modified by Buyer exceptin separate writing signed by an authorized agent of Seller.
