All sales are subject to Westervelt Lumber ("Seller") Terms and Conditions of Sale as set forth below:
1. All orders are subject to approval by Seller.
2. All goods are graded pursuant to Seller's specifications. Seller's grading specifications satisfy the grading requirements established and maintained by the Southern Pine Inspection Bureau ("SPIB") and Seller's grading practice is reviewed weekly by SPIB to confirm Seller's grading satisfies the requirements of SPIB. Accordingly, a specified percentage of the goods contained in Buyer's order may be either above or below the grade specified ("SPIB Tolerance Range"). Buyer acknowledges that goods within the SPIB Tolerance Range conform to Seller's specifications and cannot be rejected by Buyer.
3. Any shipping dates are estimates only and are not guaranteed. Seller shall not be liable for delay or default in delivery for any cause due to unforeseen circumstances or beyond Seller's control, including, but not limited to, government action, shortage of labor or raw materials, the unavailability of production or transportation facilities or delays in transportation, labor disputes, accident, fire, flood or any other acts of God.
4. Unless otherwise agreed upon by the parties in writing, all goods are sold F.O.B. Seller's facility. Title to goods and risk of loss shall pass to Buyer upon delivery to a carrier unless specified otherwise in writing.
5. All taxes and excises of any nature whatsoever now or hereinafter levied by any governmental authority upon the sale of any goods covered hereby shall be paid and borne by Buyer.
6. SELLER WARRANTS ALL GOODS TO MEET SELLER'S SPECIFICATIONS, WHICH WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES (EXCEPT TITLE) NOT EXPRESSLY SET FORTH HEREIN, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. Seller shall not be liable for any incidental or consequential loss, damage or expense, directly or indirectly arising from the sale, handling or use of goods, or from any other cause relating thereto, including, without limitation, personal injury, property damage, or lost profits. Seller's liability hereunder in any case is expressly limited to the replacement (in the form originally shipped) of goods not complying with Seller's warranties, or, at Seller's election, to the repayment of, or crediting Buyer with, an amount equal to the purchase price of such goods, whether such claims are based on breach of warranty or negligence. Any claim with reference to goods shall be deemed waived by Buyer unless made in writing to Seller upon the earlier of (i) five (5) days from Buyer's receipt of goods or (ii) before the goods are used in construction, fabrication or the character of the goods are changed in any way. Buyer acknowledges that the remedies herein constitute its sole and exclusive remedies.
8. Seller reserves the right to require payment for any shipment hereunder in advance or satisfactory security. If the financial responsibility of the Buyer becomes unsatisfactory to Seller, if the Buyer fails to make payment within thirty (30) days of receipt of Seller's invoice, or if Buyer fails to comply with any provision hereof, Seller may, at its option (and in addition to other remedies) cancel any unshipped portion of Buyer's order. Buyer shall remain liable for all unpaid accounts. In the event Buyer fails to make any payment to Seller when due, Buyer's entire account(s) with Seller shall become immediately due and payable without notice or demand. All past due amounts shall be charged interest at a rate of eighteen (18%) percent per annum or the maximum rate allowed by law, whichever is less.
9. Goods cannot be returned, and orders once accepted by Seller cannot be cancelled by Buyer without Seller's prior written consent.
10. Buyer's purchase of Seller's goods hereunder represents acceptance of Seller's terms and conditions of sale which constitute the entire agreement between the parties and supersedes any and all previous or contemporaneous communications, representations or agreements by either party, whether verbal or written. No terms or conditions in any way adding to, modifying or otherwise altering the provisions stated herein shall bind Seller unless in writing and signed and approved by an officer or other authorized person of Seller.
11. Buyer agrees to pay all costs, including reasonable attorney's fees, incurred by Seller in enforcing its rights under the terms of this contract.
12. Seller exclusively retains and reserves all rights, interests and ownership in and to all greenhouses gases contained or stored in all goods transferred by Seller to Buyer.
13. These terms and conditions of sale shall not be construed against the party preparing them, but shall be construed as if all parties jointly prepared these terms and conditions of sale and any uncertainty or ambiguity shall not be interpreted against any one party. Seller's failure to exercise any right or provision set forth herein shall not constitute a waiver of such right or provision. If any provision hereof is held to be illegal, invalid or unenforceable under any present or future laws, such provision shall be fully severable and the terms and conditions herein shall be construed and enforced as if such illegal, invalid or unenforceable provision had never been made a part hereof. The remaining provisions herein shall remain in full force and effect and shall not be affected by such illegal, invalid or unenforceable provisions or by their severance here from.
14. This Agreement shall be governed and construed in accordance with the laws of the State of Alabama, including the Uniform Commercial Code in effect from time to time in the State of Alabama. Buyer and Seller hereby agree that any claim arising out of this Agreement shall be enforced in any state or federal court located in Tuscaloosa County, Alabama. For the purpose of any action or proceeding instituted with respect to any such claim, Buyer and Seller hereby irrevocably submit to the jurisdiction of such courts.