Terms and Conditions of Sale (US)

TERMS AND CONDITIONS OF SALE (US)

1. Deliveries shall be as ordered by Buyer, provided that each order placed by Buyer with GAF ("Seller") hereunder shall be subject to acceptance by Seller as to quantity and delivery. Seller reserves the right not to ship in any one month more than a pro-rated amount of the maximum quantity of each item of merchandise covered hereby. Seller also reserves the right not to ship to any customer of Buyer.

2. Deliveries shall be as ordered by Buyer, provided that each order placed by Buyer with Seller hereunder shall be subject to acceptance by Seller as to quantity and delivery. Seller reserves the right not to ship in any one month more than a pro-rated amount of the maximum quantity of each item of merchandise covered hereby. Seller also reserves the right not to ship to any customer of Buyer.

3. If Buyer is in default under this or any other contract with Seller, or if Seller at any time shall not be satisfied with Buyer’s financial condition, Seller shall have the right, without prejudice to any other legal remedy, to declare all amounts shown on the face of the invoice to be due and payable immediately, to suspend deliveries hereunder until such default or conditions is remedied, or to decline to make further deliveries except upon receipt of cash or security satisfactory to Seller, or upon notice to Buyer at any time during the continuation of such default or condition, to treat same as equivalent to a definite refusal by Buyer to perform any further.

4. Buyer shall pay to Seller the amount of any and all taxes, excises, or other charges which Seller may be required to pay to or to collect for any government, national, state or local, upon, or measured by, the production, sale, transportation, delivery or use of the merchandise sold hereunder.

5. a. Seller shall have the right to increase any or all of the prices stated herein without prior notice to Buyer. Such price or prices shall be paid for all merchandise shipped hereunder on and after the date the increase becomes effective.

b. If Seller desires to increase any price specified herein pursuant to any provision hereof, but is prevented from doing so by any law, government decree, order or regulation, or any court order, judgment or decree, or if any price at any time in effect hereunder is nullified or reduced by reason of any law, government decree, order or regulation, or any court order, judgment or decree, Seller shall have the right to terminate this contract as to such merchandise by giving 30 days prior written notice to Buyer.

6. a. Neither party shall be liable for delay or failure to perform in whole or part by reason of contingencies beyond its control, whether herein specifically enumerated or not, including among others, Act of God, force majeure, war, acts of war, revolution, civil commotion, riot, acts of public enemies, blockade or embargo, delays of carriers, car shortage, fire, explosion, breakdown of plant, failure of sources of supply of labor, raw materials, power or supplies, or excessive cost thereof, contingencies interfering with the production or with customary or usual means of transportation of the merchandise herein described, or with the supply of coal or fuel or any raw material of which said articles are a product or which may be used in their manufacture, delays of vendors, or, where merchandise covered hereby is not manufactured by Seller, then lack of failure of sources of supply of said merchandise; or by reason of any law, order, proclamation, regulation, ordinance, demand, requisition or requirement or any other act of any governmental authority, national, state, or local, including court orders, judgments, or decrees, or any other cause whatsoever, whether similar or dissimilar to those above enumerated, beyond the reasonable control of the party. Quantities so affected may be eliminated by Seller from this contract without liability.

b. If by reason of any of the foregoing contingencies or of national emergency, the quantities of merchandise covered hereby, or any materials used in the production thereof, reasonably available to Seller shall be less than Seller’s total needs for its own use and for sale, Seller may distribute its available supply, among any or all purchasers or Seller’s own departments, divisions, or branches, on any basis Seller deems fair and practical, without liability for any failure to perform this contract which may result therefrom.

7. Seller reserves the right to discontinue, without liability hereunder, deliveries of any merchandise, the manufacture, use and/or sale of which, in the opinion of Seller, would infringe any United States or Canadian Letters Patent now or hereafter issued and under which Seller is not licensed.

8. Seller warrants that, at the time of delivery, the merchandise delivered hereunder shall conform to Seller’s specifications therefore. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, RECOMMENDATIONS MADE BY SELLER ARE BELIEVED TO BE RELIABLE BUT SELLER MAKES NO WARRANTY OF RESULTS TO BE OBTAINED. BUYER’S SOLE AND EXCLUSIVE REMEDY, REGARDLESS OF THE THEORY ON WHICH A CLAIM MAY BE BASED, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, CONTRACT, BREACH OR WARRANTY, STRICT PRODUCT LIABILITY OR MISREPRESENTATION, IS THE PURCHASE PRICE STATED ON THE FRONT OF THE INVOICE IN RESPECT OF WHICH DAMAGES ARE CLAIMED. IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES. BUYER’S FAILURE TO GIVE WRITTEN NOTICE OF CLAIM WITHIN SIXTY (60) DAYS AFTER DELIVER OF THE MERCHANDISE SHALL CONSTITUTE AN UNQUALIFIED ACCEPTANCE OF THE MERCHANDISE AND WAIVER BY BUYER OF ALL CLAIMS WITH RESPECT THERETO.

9. This document sets forth the entire understanding of the parties and supersedes all prior understandings, negotiations, and dealings between the parties with respect to the purchase and sale of the goods or services covered herein. No agreement or understanding, oral or written, in any way purporting to modify the terms hereof, or changes in or additions to any of the terms hereof, described as an amendment to or extension of this contract and signed by Seller. NOTWITHSTANDING ANY DIFFERENT OR ADDITIONAL TERMS THAT MAY BE EMBODIED IN YOUR ORDER, THIS ACCEPTANCE IS EXPRESSLY CONDITIONAL ON YOUR ASSENT TO THE ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS SET FORTH HEREIN. IF THESE TERMS AND CONDITIONS ARE NOT ACCEPTABLE, YOU SHOULD NOTIFY US AT ONCE.

10. This contract is not assignable by Buyer, in whole or part, except with the prior written consent of Seller.

11. This contract shall be deemed to have been made in, and shall be construed in accordance with the laws of, the State of New Jersey.

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