Terms of Sale

General Conditions and Terms of Sale 
QUAKER HOUGHTON INSIDE SALES 
STANDARD TERMS AND CONDITIONS OF SALE 

1. Agreement.  The terms and conditions of sale set forth herein (this “Agreement”) apply to and govern all sales of products (“Products”) by XA Direct, Inc., d/b/a QUAKER HOUGHTON INSIDE SALES (“Seller”), to a purchaser (“Purchaser”) pursuant to an order submitted by Purchaser and accepted by Seller in the manner specified in Section 2.  Seller will not be bound by, and specifically objects to, any term, condition, or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) which is proffered by Purchaser in any purchase order, receipt, acceptance, confirmation, correspondence, or otherwise, unless Seller specifically agrees to such provision in a written instrument signed by Seller.  Seller’s acceptance of any order by Purchaser is expressly conditioned on Purchaser's assent to the terms and conditions of this Agreement. 
   
   
2.  Purchase and Sale.  Seller will sell to Purchaser and Purchaser will accept and pay for all Products ordered by Purchaser pursuant to an order accepted by Seller.  All orders are subject to acceptance by Seller either in writing or by shipping Products.  Seller may accept any order in whole or in part and Seller’s shipment of less than all Products ordered will constitute acceptance of the order only as to those Products shipped. 
   
   
3. Firm Order.  Purchaser’s order may be modified, rescinded or canceled, in whole or in part, only upon mutual written agreement of Seller and Purchaser. 
   
   
4. Delivery Schedule.  Seller will make every reasonable effort to meet the delivery dates quoted or acknowledged, but will not be liable for any failure to meet such dates. 
   
   
5. Delivery, Title and Risk of Loss.  Seller will deliver the Products FOB carrier at Seller’s facility in the United States.  Unless otherwise agreed upon by Seller in writing, Purchaser is responsible for all import fees, duties, transportation costs (including, but not limited to, shipping charges, premiums for freight insurance, inspection fees and assessments) and all other costs incurred in transporting the Products to the shipping destination.  Purchaser will pay such amounts directly or reimburse Seller for any such amounts paid by Seller.  Title to, and all risk of loss of or damage to, the Products will pass to Purchaser upon delivery to the carrier at Seller’s shipping point.  Purchaser will be responsible for any claims against the carrier arising from or relating to shipment. 
   
   
6. Prices.  The prices for Products will be as specified by Seller in a written quotation to Purchaser or, if no quotation, in Seller’s then-current standard price list.  Seller may adjust Product prices at any time. 
   
   
7. Taxes.  The prices for Products do not include sales or other taxes.  Purchaser will pay or reimburse Seller for all taxes or other amounts payable to national, state or municipal governmental authorities on account of the sale of the Products, or will provide Seller with an exemption certificate satisfactory to Seller. 
   
   
8. Payment.  Unless otherwise agreed upon by Seller in writing, payment terms are cash with order.  Any amount not paid when due will be subject to a finance charge equal to 1.5% per month or the highest rate allowable by applicable law, whichever is less, determined and compounded daily from the date due until the date paid.  Payment of such finance charges will not excuse or cure Purchaser's breach or default for late payment.  Further, Purchaser will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Seller to collect any amount which is not paid when due.  Seller may accept any check or payment in any amount without prejudice to Seller’s right to recover the balance of the amount due or to pursue any other right or remedy.  No endorsement or statement on any check or payment or in any letter accompanying a check or payment or elsewhere will be construed as an accord or satisfaction.  All amounts payable are denominated in United States dollars, and Purchaser will pay all such amount in lawful money of the United States unless expressly agreed otherwise. 
   
   
9. Quantity.  When, in the opinion of Seller, there is a period of shortage of supply of Products for any reason, Seller may allocate its available supply among any or all of its customers upon such basis as it will deem fair and practicable, with no liability on its part for failure to deliver the quantity or any portion ordered. 
   
   
10. Termination.  Any order or delivery may be terminated or suspended (a) by a party if the other party defaults in its material obligations and such default is not cured within a reasonable time if such default is curable, or (b) by Seller if it has reason to doubt the ability or willingness of Purchaser to pay for the Products. 
    
    
11. Warranty and Remedy.  Purchaser acknowledges that Seller is a reseller or distributor of the Products and that matters relating to the design, manufacture or quality of the Products are not within Seller’s control.  However, Seller makes the following exclusive commitments with respect to Product it distributes: 
    
    (a)  Seller will pass through and furnish to Purchaser any and all Product warranties that are made by the manufacturer of the Product if, as and to the extent such manufacturer warranties are transferrable to Purchaser.  If any Product fails to comply with a valid manufacturer warranty, and Purchaser notifies Seller of such nonconformance within the time required under the applicable manufacturer warranty, Seller will work with Purchaser to obtain the applicable remedy provided by the manufacturer. 
    
    (b) Seller warrants that, as of the date of shipment of the Product to Purchaser under this Agreement, the Product or Product packaging has not been knowingly modified or altered by Seller while the Product was in its possession in a way that would cause the Product to be (i) adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act, as amended (the “Act”) or (ii) an article which may not, under the applicable provisions of the Act, be introduced into interstate commerce. 
    In all cases, Seller’s liability for nonconforming Products is exclusively limited, at Seller’s option, to replacement of the Products or refund of the purchase price paid. 
    
    
12. DISCLAIMER.  EXCEPT AS SET FORTH IN THIS AGREEMENT, SELLER DISCLAIMS AND PURCHASER HEREBY WAIVES ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE PRODUCTS AND ANY OTHER GOODS OR SERVICES DELIVERED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO:  (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; AND (D) ANY WARRANTY OF NON-INFRINGEMENT. 
    
    
13. Excused Performance.  Seller will not be responsible for or be considered to be in breach of or default under this Agreement on account of any cause or condition beyond Seller’s reasonable control. 
    
    
14. LIMITATIONS OF LIABILITY.  SELLER’S LIABILITY (WHETHER IN TORT, CONTRACT, OR OTHERWISE, AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE, STRICT LIABILITY, OR PRODUCT LIABILITY OF SELLER WITH REGARD TO ANY PRODUCT OR OTHER GOODS OR SERVICES FURNISHED UNDER THIS AGREEMENT) WILL IN NO EVENT EXCEED THE PURCHASE PRICE PAID BY PURCHASER TO SELLER UNDER THIS AGREEMENT FOR THE PRODUCT(S).  SELLER WILL HAVE NO OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY, OR PRODUCT LIABILITY), OR OTHERWISE, FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INDIRECT DAMAGES (EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME), OR FOR LOSS OF REVENUE, LOSS OF BUSINESS, OR OTHER FINANCIAL LOSS, ARISING OUT OF OR IN CONNECTION WITH ANY PRODUCT OR OTHER GOODS OR SERVICES FURNISHED UNDER THIS AGREEMENT. 
    
    
15. Indemnification.  Purchaser will defend, indemnify and hold harmless Seller, its officers, directors, agents, and employees, from all claims, demands, actions and causes of action by any third party (including Purchaser’s employees and customers) arising out of or relating to Purchaser’s use, storage or handling of the Products. 
    
    
16. Claims.  Any claim for shortage or non-conforming Products must be made in writing to Seller within thirty (30) days after Purchaser's receipt of the Product.  Any claim for non-delivery of Product must be made within thirty (30) days after the date upon which the Product was to be delivered.  As to any claim not reasonably discoverable within such thirty (30) day period (including claims discoverable only in processing, further manufacture, other use or resale), such claim must be in writing and received by Seller within one hundred eighty (180) days after Purchaser's receipt of the Products.  Failure of Seller to receive written notice of any such claim within the applicable time period shall be deemed an absolute and unconditional waiver by Purchaser of such claim.  Products may not be returned without Seller's permission and transportation for return will not be paid by Seller unless authorized in advance.  Amounts owing to either party under this Agreement shall be deemed finally reconciled on the first anniversary of the final delivery under this Agreement and any outstanding rights of either party to receive overpayments or under payments including rights to unclaimed credits or refunds shall expire on such date. 
    
    
17. Product Handling.  Purchaser will ensure that Products will be used, handled, stored, transported and disposed of in such a manner as is necessary for the safety and protection of persons, property and the environment, and in accordance with the manufacturer’s recommendations and applicable laws and regulations.  Purchaser will instruct and train its employees with respect to the procedures necessary to enable them to comply with these requirements and make certain that they are adequately trained in the use, handling, storage, transportation and disposition of the Products.  Purchaser will deliver the most recent edition of Product literature, including material safety data sheets, to its employees and customers and maintain a written record of such deliveries.  Purchaser will only sell to those who can handle, use, store, transport and dispose of Products safely. 
    
    
18. Compliance With Laws.  Purchaser will comply with all applicable laws, regulations and other requirements, now or hereafter in effect, of governmental authorities having jurisdiction (including, without limitation, the U.S. Export Administration Act, the regulations of the U.S. Department of Commerce and other export controls of the United States of America). 
    
    
19. Unenforceable Provision.  The invalidity or unenforceability of any term of this Agreement will not affect the other terms hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable term were replaced with a valid and enforceable term as similar as possible to the one replaced. 
    
    
20. Nonwaiver.  Any failure by Seller to insist upon or enforce performance by Purchaser of any of the provisions of this Agreement or to exercise any right or remedy under this Agreement or otherwise by law will not be construed as a waiver or relinquishment to any extent of Seller’s right to assert or rely upon any such provision, right or remedy in that or any other instance; rather the same will be and remain in full force and effect. 
    
    
21. Assignment.  This Agreement will inure to the benefit of and be binding upon the parties and their respective successors, assigns and legal representatives. 
    
    
22. Entire Agreement.  This Agreement constitutes the entire agreement, and supersedes any and all prior agreements, between Seller and Purchaser with regard to the Products.  No amendment, modification, or waiver of this Agreement will be valid unless set forth in a written instrument signed by the party to be bound. 
    
    
23. Applicable Law.  This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of Washington, without reference to its choice of law principles.  The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.