1. Acceptance. The Seller named and identified on the face side of this invoice form (herein "Seller") hereby sells to the Customer named and identified on the face side of this invoice form (herein "Customer") the goods and products described on the face side of this invoice form. Seller hereby acknowledges receipt of Customer’s order and accepts Customer’s order expressly conditional on Customer’s assent to the terms and conditions herein contained whether additional to or different from those contained in Customer’s purchase order or any other form or document heretofore or hereafter supplied by Customer to Seller. Customer will be deemed to have assented to these terms and conditions unless Seller receives written notice of any objection within 15 days after Customer’s receipt of the form. Seller’s failure to object to provisions contained in any purchase order or any other form or document from Customer shall not be construed as a waiver of these terms and conditions nor an acceptance of any such provision. This contract and the terms and conditions shall be governed by and construed in accordance with the laws of the State of Missouri.
2. Changes, cancellation. No change by Seller of any term or condition of this contract or any of Seller’s rights or remedies hereunder shall be binding on Seller nor shall the order hereby acknowledged be cancelled or changed by Customer unless Seller shall expressly consent thereto in writing by Seller’s authorized officer. There are no representations, agreements, promises or understandings between Customer and Seller that are not expressed herein.
3. Delivery, claims, delays. All sales of the products hereunder shall be F.O.B. at Seller’s facility. Seller reserves the right, in its discretion, to determine the exact method of shipment. Seller reserves the right to make delivery in installments to be separately invoiced and paid for when due in accordance with the invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Customer of Customer’s obligations to accept remaining deliveries. Immediately upon Customer’s receipt of the products shipped hereunder, Customer shall inspect the same and shall notify Seller in writing of any claims for shortages, defects or damages and shall hold the products for Seller’s written disposition. If Customer shall fail to so notify Seller within ten (10) days after the products have been received by Customer, the products shall conclusively be deemed to conform to the terms and conditions hereof and to have been irrevocably accepted by Customer. Seller shall not be liable for any loss, damages or penalty as a result of any delay in or failure to manufacture, deliver or otherwise perform hereunder due to any cause beyond Seller’s reasonable control, including, without limitation, act of Customer, embargo or other government act, regulation or request affecting the conduct of Seller’s business, fire, explosion, accident, theft, vandalism, riot, acts of war, strikes, shortage of labor, or other labor difficulties, lightning, flood, windstorm, or other acts of God, delay in transportation, default by common carriers or inability to obtain necessary labor, fuel, materials, supplies or power at current prices.
4. Allocation of goods. If Seller is unable for any reason to supply the total demand for goods specified in Customer’s order, Seller may allocate its available supply among any or all buyers on such basis as Seller may deem fair and practical, without liability for any failure of performance which may result therefrom.
5. Payment, Taxes. Terms of sale are net 30 days from date of invoice, unless otherwise stated on the face hereof. Products will be billed at the prices in effect at the time shipment is made. If the financial condition of Customer does not justify the terms of payment specified, Seller may demand full or partial payment in advance before proceeding with the delivery of the products. If Customer defaults in any payment when due with respect to any one or more orders for the products, Seller, at its option and without prejudice to its other lawful remedies (including the right of Seller to recover from Customer its expenses incurred in the collection of past due sums owed, including Court costs, attorney’s fees and other related expenses), may defer delivery of the products until payment is received. A service charge of the lesser of one and one-half percent (1-1/2%) per month or the highest rate, if any, permitted by law will be assessed on all past due balances of the purchase price for the products. Any use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transactions between Customer and Seller, shall be paid by Customer in addition to the prices quoted or invoiced. In the event Seller is required to pay any such tax, fee or charge, Customer shall reimburse Seller therefor.
6. Special Orders. If any products shall be manufactured and/or sold by Seller to meet Customer’s particular specifications or requirements, Customer agrees to defend, protect and save harmless Seller against all suits at law or in equity and from all damages, claims and demands for actual or alleged infringement of any United States or foreign patent, copyright, trademark or other proprietary right or claim of unfair trade or of unfair competition, and to defend any suit or action which may be brought against Seller for any alleged infringement because of the manufacture and/or sale of products covered thereby.
7. Warranty Disclaimer. SELLER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE PRODUCTS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER UNDERSTANDS AND AGREES THAT SELLER’S LIABILITY FOR DEFECTIVE OR NONCONFORMING PRODUCTS ORDERED IS EXPRESSLY LIMITED TO THE REPLACING OF SUCH PRODUCTS. IT IS FURTHER AGREED THAT SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONTINGENT, OR CONSEQUENTIAL DAMAGES OR EXPENSES OF ANY KIND OR CHARACTER, INCLUDING WITHOUT LIMITATION, THOSE LIABILITIES, DAMAGES OR EXPENSES WHICH MAY ARISE OUT OF THE USE OR RESALE OF THE PRODUCTS. The provisions of this limited warranty shall not apply and no warranty of any kind shall exist (i) as to any product or part thereof which has been subject to misuse, negligence or accident or which has been repaired, replaced or altered by anyone other than Seller or (ii) as to normal deterioration of any product or part thereof due to wear, usage or exposure.
8. Use of products. Customer agrees to comply with instructions, if any, furnished by Seller relating to the use of its products and not misuse the products in any manner; provided, however, notwithstanding the services and other actions taken by Seller at the request of Customer including the supplying by Seller to Customer of definitive or sample language, artwork, designs, labels, packaging or such other items, it shall be the duty and responsibility of Customer, and not Seller, to comply with all federal, state and local laws and regulations pertaining to the said artwork, design, labeling and other packaging and/or container contents used by Customer with respect to the products purchased hereunder. Customer shall notify Seller within 15 days of Customer’s receipt of knowledge of any accident involving Seller’s products resulting in personal injury or damages to property and Customer shall fully cooperate with Seller in the investigation and determination of the cause of such accident and shall make available to Seller all statements, reports and tests made by Customer or made available to Customer by others. The furnishing of such information to Seller and any investigation by Seller shall not constitute an assumption of any liability by Seller. Customer agrees to indemnify and hold Seller harmless from and against any and all losses, damages and expenses (including attorneys’ fees and other costs of defending any action) that Seller may sustain or incur as a result of any claim of negligence, breach of implied warranty or strict liability in tort by Customer, its officers, agents or employees, its successor and assigns, whether direct or indirect in connection with the products supplied hereunder.