C. Irby Company ("Irby")
Terms And Conditions Of Sale
1. General. These Terms and Conditions of Sale are made
a part of any order from or sale to a customer of Irby (any such
customer as well as any applicant for credit with Irby may be referred
to as a "Customer") and any application for credit with Irby, and
any purchase order, agreement, proposal, confirmation, estimate
or quote (each, an "Agreement"), if any, submitted by either party.
These terms and conditions, together with the Agreement, if any,
constitute the entire agreement between the parties and supersede
all prior communications and agreements regarding any order or sale.
Acceptance by Irby of any order or Customer's acceptance of any
Agreement is expressly limited to and conditioned upon Customer's
acceptance of these terms and conditions (Customerís payment for,
or acceptance of, any performance by Irby being acceptance). Except
as described below, the Agreement (incorporating these terms and
conditions) may not be changed or superseded by any different or
additional terms and conditions proposed by Customer (or in any
Customer purchase order, acknowledgement, form or other document)
to which additional or different terms and conditions Irby hereby
expressly objects and rejects. Additional or different terms shall
only apply if an officer of Irby (Vice President or higher only)
shall approve such additional or different terms in writing by affixing
such officerís signature approving same to any document containing
such additional or different terms, and only to the extent so indicated
thereon. Unless the context otherwise requires, the term "Goods"
means all of the goods referenced or sold under an order.
2. Type of Business. Customer certifies that it qualifies
as the business type stated on page 2 of the Irby Credit Application
and shall notify Irby of any changes which might affect its liability
for sales and/or use tax on any future purchase.
3. Payment. Terms of all sales are cash or check (payable
in U.S. dollars). No payment may be made by credit, debit or charge
card. If an invoice or obligation of Customer is not paid by the
net due date indicated on Irbyís invoice to Customer, Irby shall
levy a "service charge" to cover the additional cost of handling
the account in an amount equal to one and one-half percent (1.5%)
per month or part thereof until paid. Customer acknowledges and
agrees that this charge is a "service charge" levied by Irby to
reimburse Irby for the additional cost of carrying its delinquent
account and that such charge is not an interest charge. Irby reserves
the right at any time to revoke or decrease any credit extended
to the Customer, require payment security satisfactory to Irby or
cancel any order if Customerís account is delinquent, Customer fails
to pay any obligation when due or, in Irbyís opinion, there is an
adverse change in Customerís financial condition. Delays in delivery
or nonconformities in any installments delivered shall not relieve
Customer of its obligation to accept and pay for remaining installments.
4. Collection Costs. If it becomes necessary for Irby
to retain legal or collection agency assistance to collect an overdue
account, Customer shall pay all such costs of same, including any
necessary and related incidental expenses (collectively, "Collection
Costs"). Customer unconditionally waives its right to assert any
statute, regulation or judicial decision that places limits on the
amount of necessary Collection Costs that Irby can recover from
the Customer to collect the account.
5. Prices. Unless otherwise specified in writing by Irby,
all proposals expire thirty (30) days from the date thereof. Prices
do not include any federal, state or local property, license, privilege,
sales, use, excise, gross receipts, or other like taxes. Such taxes,
if any, shall be added to the purchase price and shall be paid by
Customer unless Customer provides Irby with an exemption certificate
acceptable to the taxing authorities. Any such taxes which Irby
may be required to pay or collect under any existing or future law
shall be for the account of Customer, who shall promptly pay the
amount thereof to Irby upon demand.
6. Jurisdiction. If either party brings any lawsuit against
the other party regarding any sale, delinquent account or any other
matter arising from or relating to their relationship, such party
may file its lawsuit or other action in a state or federal court
located in Jackson, Mississippi. The parties submit to the jurisdiction
of those courts and consent to venue in those courts.
7. Security Interest. To secure the payment and performance
in full of all of Customerís debts and obligations under and in
connection with any Agreement and any order, Customer hereby grants
to Irby a security interest in any unpaid Goods purchased from Irby,
and all proceeds and products thereof. Customer hereby irrevocably
authorizes Irby at any time and from time to time to file in any
filing office any initial financing statements and amendments thereto,
and to take such other actions as Irby deems necessary to protect
Irbyís rights in such Goods.
8. All Sales Final. All purchases are final and no Goods
purchased from Irby shall be returned for credit without prior written
approval and acceptance of Irby. All items returned are subject
to restocking charges.
9. Shipment. All shipments are F.O.B. point of origin
and Customer is responsible for all claims with carriers and shipping
insurance costs. Customer shall bear risk of loss upon tender of
Goods by Irby to Customer, Customerís representative or a common
carrier. Claims for Goods damaged or lost in transit should be made
by Customer to the common carrier as Irbyís responsibility ceases
upon tender of goods to Customer, Customerís representative or a
10. No Waiver. Irbyís failure to insist upon the strict
performance of any term or condition herein shall not be deemed
a waiver of Irbyís rights or remedies hereunder, nor of its right
to insist upon strict performance of the same or any other term
herein in the future. No waiver of any term or condition herein
shall be valid unless in writing and signed by an authorized representative
11. Force Majeure. Irbyís failure to perform any term
or condition of an order or Agreement as a result of conditions
beyond its control such as, but not limited to, war, strikes, fires,
floods, acts of God, governmental restrictions, power failures,
or damage or destruction of any facilities or infrastructure, shall
not be deemed a breach of an order or Agreement.
12. DISCAIMER OF WARRANTIES. ALL WARRANTIES ON GOODS ARE SOLELY
THE MANUFACTURERSí. IRBY EXPRESSLY DISCLAIMS AND MAKES NO REPRESENTATIONS
OR WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES OF MERCHANTIBILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.
IRBYíS SOLE RESPONSIBILITY IS LIMITED TO RETURN OF GOODS AND REPAYMENT
OF THE PRICE OR TO THE REPAIR AND REPLACEMENT OF NON-CONFORMING
GOODS OR PARTS. IN NO EVENT SHALL IRBY, ITS SUPPLIERS OR SUBCONTRACTORS
BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY
OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR
REVENUE, LOSS OF USE OF GOODS, COST OF CAPITAL, COST OF SUBSTITUTE
GOODS, FACILITIES OR SERVICES, DOWNTIME COSTS, DELAYS, AND CLAIMS
OF CUSTOMERS OF THE CUSTOMER OR OTHER THIRD PARTIES FOR ANY DAMAGES.
IRBY NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR
IT ANY LIABILITY IN CONNECTION WITH ANY SALE OF GOODS.