The following terms and conditions shall be deemed an integral part of the sale agreement between Atomix, Inc. (the “Seller”) and Buyer. Seller hereby gives notice that it objects to the inclusion of any different or additional terms proposed by the Buyer in his acceptance (or acknowledgement) of the transaction, unless specifically agreed upon by Seller in writing, and if such terms are included in the Buyer’s order, acceptance or acknowledgement, a contract for sale will result solely upon Seller’s terms herein.
1) Seller reserves the right to suspend shipments of material hereunder (a) so long as Buyer is in default in payment for any prior shipment, and/or if in Seller’s opinion any conditions of foreign exchange or any measures of foreign exchange control affect Seller’s receipt of prompt payment for shipments made or to be made hereunder, it being understood that if such suspension shall continue for more than six (6) months, then Seller shall not be obligated to thereafter ship the quantity of material with respect to which suspension was made.
2) Seller shall not be liable for its failure to perform hereunder due to force majeure contingencies beyond its control, including, but not limited to, acts of God, fire, floods, wars, sabotage, accidents, labor disputes or shortages, government laws, ordinances, rules and regulations, whether valid or invalid (including, but not limited to, import or export prohibitions or limitations, priorities, requisitions, allocations and price adjustment restrictions) and inability to obtain material, equipment or transportation. Seller shall have the right to omit during the period of such contingency all or any portion of the quantity deliverable during such period, whereupon the total quantity deliverable hereunder shall be reduced by the quantity so omitted. If due to any such contingency, Seller is unable to supply the total demands for any material to be delivered hereunder Seller shall have the right to allocate its available supply among its customers and its departments, divisions, subsidiaries and affiliates in such manner as Seller deems fair and equitable.
3) SELLER MAKES NO GUARANTEE OR WARRANTEE, EXPRESS OR IMPLIED, INCLUDING THAT OF MERCHANTABILITY, OR THAT OF THE FITNESS OR SUITABILITY OF THE MATERIAL FOR ANY SPECIFIC PURPOSE EVEN IF THAT PURPOSE IS KNOWN TO SELLER, except that Seller warrants the material sold hereunder shall conform to the description or specifications stated herein. Buyer’s receipt of any material delivered hereunder shall be an unqualified acceptance of and a waiver by Buyer of any and all claims with respect to such material unless Buyer gives Seller notice of claim within thirty (30) days after such receipt. Buyer assumes all risk and liability for the results obtained by the use of any material delivered hereunder in manufacturing processes of Buyer or in combination with other substances. No claims of any kind, whether as to material delivered or for non-delivery of material shall be greater in amount than the purchase price of the material in respect of which such claim is made.
4) Where the transportation of the material delivered hereunder is at Seller expense, Seller reserves the right to select the means of transportation.
5) Buyer has complied and/or will comply with all applicable laws, rules and regulations of the Unites States of America, and any country concerned, pertaining to the purchase and movement of, and the payment for the material to be delivered hereunder.
6) All bank collection charges are for the account of the buyer.
7) The validity, interpretation and performance of the sale shall be governed by the law of the State of New Jersey, United States of America. No Change in, addition to, or waiver of, the terms and conditions hereof shall be binding upon Seller unless approved in writing by an authorized representative of Seller.
8) It is expressly understood that any technical advice furnished by Seller and/or Seller’s Representatives with reference to the use of the products delivered hereunder, is given gratis and Seller assumes no obligation or liability for the advice given or results obtained, and all such advice being given and acceptance is at Buyer’s risk.
9) All disputes will be settled by arbitration by the American Arbitration Association in the State of NJ