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without seller s prior written authorization 3 price and terms 3 1 price the price shall be seller s price in effect at the time of shipment a different price shall apply only if the other price is contained in a supply contract 1 3 a firm offer 2 1 a writing provided by seller s customer service department or a writing that is signed by seller s authorized representative 9 4 3 2 other charges buyer is responsible for and shall reimburse seller for all taxes excises and other charges that seller is required to pay to any government or taxing authority upon the sale production or transportation of the products other than income taxes if omitted from an invoice seller may bill buyer subsequently buyer shall reimburse seller for all demurrage charges due to buyer s failure to unload and return delivery equipment in a timely manner seller may also charge buyer for unusual packaging special labeling requirements and other appropriate charges 3 3 payment terms except as authorized by seller in writing buyer shall pay the entire amount it then owes seller with no setoffs or discounts payment shall be collect on delivery cod unless seller has extended credit in writing 3 4 credit terms whenever seller has extended credit buyer s terms are net 30 unless a different period is stated in a supply contract 1 3 a firm offer 2 1 a writing from seller s credit department or a writing signed by seller s authorized representative 9 4 3 4 1 due date for invoices an invoice will be sent by seller to buyer on the same date product is shipped payment terms are always measured from the invoice date to be timely buyer s payment must be received by seller within that time a payment mailed by the due date but received afterwards is a late payment 3 4 2 missed or late payments if a payment is missed or late seller may i accelerate buyer s outstanding debt ii decline or suspend deliveries iii change future terms to cod or cod plus iv demand credit enhancements v require any other credit requirements seller in good faith deems appropriate and or vi immediately charge a late penalty fee in the amount of 1 5 of the unpaid amount 3 4 3 additional rights seller may also exercise the rights in 3 4 2 above if buyer fails to provide financial statements or other financial data requested by seller or in accordance with ucc 1 309 when seller in good faith believes its prospects for obtaining payment or performance from buyer have been impaired 3 5 pmsi seller may claim a purchase money security interest pmsi in the products until buyer pays for them in full seller is hereby authorized by buyer to notify its other secured creditors of this pmsi file financing statements and take any and all other actions required to make this pmsi enforceable by seller under ucc 9 312 and other laws 4 delivery 4 1 title risk of loss unless agreed by seller in writing seller may select the method of shipment and the carrier except as provided in 4 1 1 and 4 1 2 below or as seller agrees in writing all shipments are fob shipping point and title risk of loss pass from seller to buyer when seller delivers the products to the carrier at the shipping point 4 1 1 bulk shipments all bulk shipments are fob shipping point title risk of loss pass from seller to buyer when the products pass the flange of the transportation vehicle 4 1 2 seller motor vehicles all shipments on seller motor vehicles are fob delivery point title risk of loss pass from seller to buyer upon arrival at the dock of buyer s facility 4 2 transportation costs shipments are freight prepaid allowed for product shipped by bulk shipments 4 1 1 seller motor vehicles 4 1 2 or when seller otherwise agrees in writing in all other cases the shipment shall be freight collect when an independent motor carrier is used seller may sign the section 7 block on the bill of lading the following quantities apply for prepaid orders 1 80 drums for standard resins 2 20 or 80 drums for vinyl ester and mvr resins 3 10 or more drums for mixed load gel coats putties and colorants when direct and 4 20 or more drums for mixed load gel coats putties and colorants through distribution order changes must be pre approved in writing by seller in seller s sole discretion at least ten 10 calendar days prior to the scheduled delivery date or fourteen 14 calendar days for ftl and ltl 4 3 delivery date buyer understands that seller s delivery times are only estimates and are always subject to factory schedules production limits and other factors under no circumstances shall seller be liable for a late delivery unless otherwise stated in a supply contract 1 3 or a writing signed by seller s authorized representative 9 4 4 4 inspection requirement following receipt buyer shall promptly i inspect the products to see if they conform to buyer s order and ii perform all quality control tests needed to determine whether the products delivered to buyer conform to its order weights and quantities within two percent 2 of the amount ordered shall be deemed to be a conforming shipment provided however that buyer need only pay for the amount which seller actually shipped 4 4 1 notice requirement buyer must notify seller in writing of any product shortage damage or nonconformity within 10 days following delivery or for defects that cannot reasonably be discovered within such time within 10 days from when buyer should reasonably have discovered the defect 4 4 2 failure to give timely notice notwithstanding anything else in these t cs or in the ucc to the contrary unless buyer gives timely notice pursuant to 4 4 1 above buyer shall have no claim against seller for any alleged product shortage damage or nonconformity and all such claims are deemed to have been waived 4 5 carrier claims buyer is solely responsible for filing claims against a carrier for products shipped fob shipping point under 4 1 and 4 1 1 that buyer did not receive were received in damaged condition or for which buyer has other claims against the carrier seller will provide buyer with all information that buyer reasonably requires for its claim 5 warranties 5 1 in general seller hereby warrants to buyer that at the time of shipment its products shall conform to seller s written specifications specs the preceding warranties do not cover damage to the product or any other damages of any kind that result from or arise out of i improper use of the product ii storage below 40 degrees f or above 77 degrees f and or iii buyer s failure to take any other precautions described by seller in its product literature buyer understands and agrees that the following provisions are a material part of the bargain between the parties 5 1 1 warranty of good title seller hereby warrants to buyer that i the title in the products conveyed from seller to buyer is good and its transfer rightful and ii the products are delivered free of all security interests liens and liens except for any pmsi of seller and other liens filed of record to which buyer previously consented 5 1 2 warranty of non infringement seller warrants to buyer that the products do not infringe any u s patent however such warranty does not cover any claims of infringement arising as a result of a modification of the products combination of the products with other goods and seller s compliance with buyer s specs in the event of any of the foregoing buyer must hold seller harmless against any such claims 5 1 3 ucc 2 313 buyer may include in its specs all properties it wants and upon seller s written acceptance those specs are governed by 5 1 above except to the extent expressly included in specs buyer agrees that the basis of the bargain between the parties does not include i any affirmation of fact or promise by seller relating to the products ii any description of the products or iii any warranty that the products shall conform to any model or sample of either party buyer hereby waives all rights to assert anything to the contrary seller makes no warranty concerning buyer s particular application of any product 5 1 4 other express warranties seller makes no other express warranty of any kind other express warranties are binding on seller if and only if they are made in writing and signed by seller s authorized representative 9 4 no written or oral statement from any other person shall be an express warranty enforceable against seller buyer understands and agrees to the preceding and hereby waives all rights to assert anything to the contrary 5 2 implied warranties seller hereby disclaims all of the implied warranties in the ucc and any other applicable law this disclaimer includes but is not limited to the implied warranty of merchantability and any implied warranty of fitness for a particular purpose 5 3 odd lot products certain products called odd lot in the industry have wide specifications and are typically sold at low cost as a result odd lot notwithstanding anything in 5 1 above to the contrary all odd lot is sold as is and with no warranties seller describes its odd lot as such to buyers and stamps odd lot on the invoices 6 claims and remedies 6 1 remedies no monetary award shall ever exceed the purchase price of the products at issue alternatively seller may at its option i accept return of the products and credit the buyer for their price and or ii repair or replace the nonconforming products these remedies are exclusive under no circumstance shall these remedies be deemed to fail their essential purpose buyer understands and agrees to the preceding and hereby waives all rights to assert anything to the contrary seller shall not be liable for a breach of warranty unless a buyer gives written notice of the defect reasonably described to seller as prescribed in 4 4 1 b seller is given a reasonable opportunity to inspect the allegedly defective products and c seller verifies buyer s claim that the products are defective 6 2 damages not recoverable except as prohibited by law neither party shall recover any i consequential or incidental damages ii lost profits or damages for lost business opportunities iii wages for salaried personnel or others payable in any event iv personal injury damages v damages to equipment or any other property damages of any kind vi environmental or natural losses and vii punitive special indirect or exemplary damages 6 3 loser pays plaintiff is the prevailing party and defendant is the losing party whenever plaintiff is awarded i at least 67 of plaintiff s monetary demand and or ii a substantial portion of plaintiff s request for injunctive relief if plaintiff is awarded neither of the preceding then the prevailing party is defendant and the losing party is plaintiff 6 3 1 costs disbursements in all cases the losing party must pay all of the prevailing party s costs and disbursements including without limitation fees and expenses of expert witnesses however neither party may recover for time spent by its employees or any of their travel costs hotel charges meals or related items 6 3 2 arbitration expenses in arbitration proceedings the losing party must pay directly or provide reimbursement for i all aaa filing fees and other aaa charges and ii all of the arbitrator s fees and expenses 6 3 3 attorney fees in all cases the losing party shall pay the prevailing party s reasonable attorney fees and their expenses a contingency fee up to one third 1 3 is reasonable legal fees may be charged by outside attorneys and despite 6 3 1 above by in house counsel provided there is no double counting 6 4 interest any claim by seller against buyer for a liquidated sum or by buyer against seller for a liquidated sum shall accrue interest on the unpaid amount at the rate of eighteen percent 18 or if less at the maximum legal rate 6 5 collection costs until the award is paid in full interest shall accrue on the unpaid amount at the rate in 6 4 above in the event the full payment is not made within 30 days of the award the prevailing party shall be entitled to recover all of its reasonable collection coasts including additional attorney fees relating to collection of those unpaid amounts 7 dispute resolution 7 1 in general these dispute resolution provisions may be modified by the parties in writing nothing herein prevents the parties from utilizing mediation to the extent they so agree as used below the amount of a party s requested claim or counterclaim excludes i interest ii the monetary value of injunctive relief sought iii any arbitration and arbitrator fees iv all costs disbursements and attorney fees and v damages not recoverable hereunder 6 2 7 2 claims of 150 000 or less court any controversy or claim arising out of or relating to these t cs or the contract between the parties or the breach thereof shall be resolved by a court under the provisions below whenever the parties claims and counterclaims are each 150 000 or less even if the aggregate exceeds that dollar threshold 7 2 1 exclusive jurisdiction venue the court proceeding must be commenced in a federal or state district court in the minneapolis st paul standard metropolitan statistical area and those courts shall have exclusive jurisdiction and venue to determine all legal and equitable disputes between the parties 7 2 2 buyer consent to jurisdiction venue buyer i consents to the jurisdiction and venue of the above courts ii waives any right to contest the same or claim that those courts are inconvenient forums and iii agrees that those courts shall have exclusive jurisdiction and venue 7 3 claims above 150 000 arbitration except as otherwise provided in 7 2 above or 7 3 4 below any controversy or claim arising out of or relating to these t cs or the contract between the parties or the breach thereof shall be settled by binding arbitration administered by the american arbitration association aaa under the aaa s then existing commercial arbitration rules and judgment on the arbitrator s award may be entered in any court having jurisdiction 7 3 1 aaa rules the expedited procedures of the aaa shall be used when the parties claims and counterclaims are each less than 500 000 even if the aggregate equals or exceeds that dollar threshold the procedures for large complex commercial disputes shall be used if either party s claim or counterclaim is at least 500 000 in all cases the standard fee schedule of the aaa shall be used and there shall be just one arbitrator 7 3 2 venue of proceeding the arbitration shall be in the minneapolis st paul standard metropolitan statistical area in the aaa offices or another location therein selected by the arbitrator including his or her own offices 7 3 3 arbitrator s powers the arbitrator has all powers in the aaa rules including the ability to grant injunctive relief all jurisdiction issues shall be decided solely by the arbitrator not a court however the arbitrator has no jurisdiction to hear class actions proceedings shall be limited to the buyer seller and any other party they mutually agree to join in the proceeding with that party s ...