Terms and Conditions of Sale

United Asphalt Company Terms and Conditions of Sale

All sales of products by United Asphalt Company (“Seller”) are made on the following terms and conditions.

Offer and Acceptance

The quotation and/or order acknowledgment provided by Seller, as may be amended from time to time, is an offer to enter into a contract with the buyer identified on the quotation or to whom the quotation is otherwise provided (hereinafter the “Buyer”) to sell to Buyer the products described on Seller’s quotation (the “goods”). These Terms of Sale and Seller’s quotation and order confirmation, together with any documents that are mutually executed by authorized representatives of each of the parties, constitute the “Contract”. Neither Seller’s quotation, any order confirmation or other document issued by Seller nor Seller’s manufacture or delivery of the goods shall constitute an acceptance of any terms and conditions attached to or incorporated into any purchase order or other document issued by Buyer, and any such general terms and conditions issued by Buyer are specifically excluded and not incorporated into the Contract. Any of the following acts by Buyer shall constitute its acceptance of Seller’s offer and these Terms of Sale in their entirety: (i) acknowledging Seller’s quotation; (ii) issuing a purchase order for the goods on the same or substantially the same terms as reflected on the face of Seller’s quotation; (iii) accepting delivery of the goods; or (iv) by other conduct which fairly recognizes the existence of a contract for the purchase and sale of the goods. Any additional or different terms proposed by Buyer, whether in its purchase orders, request for quotation, or other written materials, or otherwise are unacceptable to and expressly rejected by Seller and are not part of the Contract and shall have no effect with respect to any purchases of the goods by Buyer. Acceptance by Buyer of this offer and Seller’s performance under any purchase order issued by Buyer is expressly limited to and conditioned upon Buyer’s acceptance of the terms of Seller’s quotation and these Terms and Conditions of Sale exclusively. Quoted terms shall remain in effect for 30 days or such other time as is stated on Seller’s quotation. Stenographical and clerical errors in quotations are subject to correction. Buyer shall be solely responsible for determining the materials, dimensions and quantities required for a particular project or order. Seller’s quotation is based on various business factors and considerations and may not be used by any other contractor or any other person or entity without Seller’s written consent. Seller may change its quoted prices upon an unusual or unforeseen increase in Seller’s costs.

Delivery and Risk of Loss

Unless otherwise specified on Seller’s quotation or order confirmation, Seller shall deliver the goods FCA (Incoterms 2010) Buyer’s facility or other directed location. Title and risk of loss of the goods will pass to Buyer upon delivery of the goods as determined by the applicable delivery terms. Delivery dates are estimated and are not guaranteed.   Time is not of the essence to any delivery of goods. Seller will use reasonable commercial efforts to meet Buyer’s requested delivery dates, provided that Seller has been provided with sufficient lead-time. Seller may at its discretion, ship all the goods at one time or in multiple shipments. Seller shall have the right, but not the obligation, to determine the method of shipment and routing of the goods, unless otherwise stated in Seller’s quotation or acknowledgment. Buyer or its carrier shall be responsible for supervising the loading and unloading of goods and for securing all loads for safe transport, and shall defend, indemnify and hold Seller harmless from any liability for personal injury, death or property damage resulting from the loading, transport, delivery or unloading of the goods.

Unavoidable Delay

If Seller is unable to deliver goods or experiences a delay in its ability to deliver as a result of causes beyond Seller’s reasonable control (such as acts of God, natural disasters, casualty, labor trouble or disputes (including strikes or lockouts), accidents, unavailability of supplies, equipment, tooling or transportation, or Buyer’s failure to approve production samples), then the estimated date of delivery or performance time shall be extended for as many days beyond the estimated date of delivery as are required to obtain removal of any such causes, and Seller shall not be liable to Buyer for any damages caused by the delay or failure to perform.

Warranties and Limited Remedies

Unless otherwise set forth in the quotation, Seller warrants to Buyer only that, at the time of delivery, the goods will be free from defects in material and workmanship and will conform to any mutually agreed upon written specifications and/or drawings. If, however, Buyer’s representative agrees, either orally or in writing, to a change in or waiver of a portion of the specifications for any shipment of goods, then such goods shall be considered conforming if they conform to the specifications as changed or with such waived portion excluded. Buyer agrees to inspect all of the goods immediately upon receipt from Seller. In the event that Buyer believes that a good is non-conforming with the warranties specified herein, then Buyer will promptly notify Seller of the alleged defect in writing and provide to Seller as much information as is available to Buyer about the alleged non-conformity.  If requested by Seller, Buyer will return to Seller all (or, if not feasible, a statistically significant sample) of the allegedly non-conforming goods and the assemblies into which such goods are incorporated, if applicable, together with any additional information or documentation reasonably requested by Seller, for the purpose of determining if the goods are non-conforming with the warranties specified herein.



If Seller determines that the goods are non-conforming, Seller’s sole liability to Buyer and Buyer’s SOLE AND EXCLUSIVE REMEDY under this warranty (whether or not the non-conforming goods have been installed and must be the subject of a recall, customer satisfaction or other service campaign or similar action) is limited to the repair or replacement of the non-conforming goods only; provided, however, that written notice that the goods are potentially non-conforming must be given by Buyer to Seller within five (5) days after the delivery of the goods to Buyer or, if Buyer’s inspection of the goods could not have uncovered the potential non-conformance, within thirty (30) days after Buyer knew or reasonably should have known that the goods were potentially non-conforming, including, but not limited to, through information received from Buyer’s direct or indirect customer or any other third party.  For clarity, Seller shall not be responsible for the expense of locating or removing the non-conforming goods or re-installing any repaired or replacement goods. Except as stated herein, Buyer shall not have any right of rejection or revocation of acceptance of goods.

SPECIFICALLY EXCLUDED FROM THIS PARAGRAPH AND ANY WARRANTY ARE THE FOLLOWING, FOR WHICH SELLER SHALL HAVE NO LIABILITY WHATSOEVER: (i)  Design defects in the goods, to the extent that the goods are designed, in whole or in part, by Buyer or a third party; (ii) defects or damage caused by unauthorized or improper installation, alteration, repair, maintenance (including failure to provide appropriate maintenance), storage, handling or operation of the goods by Buyer or any third party; (iii) goods considered by Seller to be samples, prototype, development or pre-production, which are provided on an “AS IS” basis only; (iv) goods sold by Seller but manufactured by a different entity, which are sold by Seller on an “AS IS” basis, provided, however, that Seller assigns to Buyer any warranties provided by the manufacturers of such goods, to the extent that they are assignable;  (v) any product, system, or assembly not manufactured or sold by Seller and/or the integration, incorporation, interaction, connection, placement, or use of the goods in or with any such product, system, or assembly, (vi) goods that have been subject to damage attributable to or caused by: (a) misuse, abuse, or vandalism or any transit related damage; (b) acts of God or insurrection; (c) normal wear and tear; (d) or any other acts that are beyond Seller’s reasonable control.

THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE GIVEN AND ACCEPTED IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND AGAINST INFRINGEMENT, AND BUYER IS SOLELY RESPONSIBLE FOR THE SELECTION OF THE GOODS AND DETERMINING THE PROPER APPLICATION AND USE OF THE GOODS. THE REMEDIES OF THE PURCHASER SHALL BE LIMITED TO THOSE PROVIDED HEREIN TO THE EXCLUSION OF ANY AND ALL OTHER REMEDIES. NO AGREEMENT VARYING OR EXTENDING THE FOREGOING WARRANTIES, REMEDIES, OR THIS LIMITATION WILL BE BINDING UPON SELLER UNLESS IN WRITING AND SIGNED BY A DULY AUTHORIZED OFFICER OF SELLER.

Limitation on Liability

In the event any remedy hereunder fails of its essential purpose and monetary damages may be imposed, Seller’s liability, whether founded in contract or tort (including negligence), arising out of or resulting from (i) this Contract or the performance or breach thereof, (ii) the design, manufacture, delivery, sale, repair, replacement or use of the goods, or (iii) the furnishing of any such service, except in the case of Seller’s gross negligence and/or willful and intentional misconduct, shall not exceed the cost of the goods at issue in the claim. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, SELLER SHALL NOT BE LIABLE TO BUYER OR ANY OTHER PERSON FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION,   LOSS OF PROFITS, RECALL-RELATED EXPENSES, AND LOSS OF USE OF THE GOODS.

Changes

Seller shall have the right to make changes, in its sole discretion, to the design, engineering, manufacture, or material composition of its goods, component parts, raw materials and other supplies, tooling, equipment, designs, processes and methods of manufacture, but Seller will not, without Buyer’s approval, make a change to operational or dimensional specifications submitted by Buyer and agreed to by Seller.

Solvency and Security Interest

Buyer represents to Seller that Buyer is solvent and capable of timely fulfilling its payment and other obligations to Seller. Until the goods and any other indebtedness of Buyer have been paid for in full by Buyer, Buyer, or any agent of Buyer or third party: (i) will hold the goods subject to a security interest or lien in favor of Seller allowing for the right or re-possession by Seller to the extent permitted by applicable law, (ii) will not alter, remove, destroy, or damage any identifying mark on the goods or their packaging, and (iii) will keep the goods separate from any other products. Seller may take possession of the goods at any time after payment for the goods or any other payment owed to Seller has become due.

Resale

On any resale of the goods, Buyer shall contractually limit its customer’s rights and remedies against both Buyer and Seller to the same extent that Sections 6 and 7 above limit Buyer’s rights and remedies.

Quantities

Any claim by Buyer that Seller failed to deliver the agreed-upon quantity of goods must be submitted to Seller in writing within five days after Buyer receives the goods. If Buyer fails to do so, then it shall be conclusively presumed that the proper quantity was delivered.

Permits and Compliance

Seller is not responsible for obtaining any permits, inspections, or licenses required for use, installation or operation of the goods. Seller does not make a representation or promise that the goods will conform to a law, ordinance, regulation, code or standard.

Components of Another Product

If any of the goods constitute parts or components that are to be incorporated or installed in a product that is manufactured or assembled by or for Buyer, then (a) Buyer shall obtain, or cause the end-user of the product to obtain, all permits, inspections and licenses that are required for installation or operation of the product, (b) Buyer shall cause the product to conform to all applicable laws, ordinances, regulations, codes and standards and (c) Buyer shall place on the product all required or otherwise appropriate safety devices and warnings, and shall furnish to its customer all operating instructions that are necessary or desirable to prevent death, personal injury or property damage from being caused by use or operation of the product.

Safety Features

Buyer shall install and operate the goods properly and according to Seller’s operating instructions, if any, and shall not remove or change a safety device, warning or operating instruction that Seller placed on the goods.

Intellectual Property and Confidentiality

All inventions, devices, technologies, ideas, improvements, processes, systems, software, and other works and matters that Seller designs, generates, creates or develops in the course of Seller’s performance of the Contract and all samples, diagrams, plans, drawings and specifications that Seller provides to Buyer (collectively “Seller’s Intellectual Property”) and all intellectual property rights embodied therein (whether patentable or not) shall be Seller’s sole property, and Buyer shall have no right, title or interest in Seller’s Intellectual Property. Buyer shall not disclose or use any of Seller’s Intellectual Property or any information about Seller’s business, operations or activities, or any quotation or acknowledgment except to the extent necessary for Buyer to use the goods.

Indemnity

Buyer shall defend, indemnify and hold harmless Seller, its affiliates, officers, directors, employees, agents, successors and assigns from and against any and all liabilities, losses, claims, expenses and damages (including attorney and professional fees) of any kind or nature whatsoever, including, without limitation, claims for personal injury (including death) or property damage, whether such claims are premised on contract, tort or otherwise, including strict liability, arising or resulting from, connected with, or in any way related to (a) Buyer’s breach of any of Buyer’s obligations under these Terms of Sale, (b) Buyer’s use or installation of the goods or (c) any claimed unfair competition or patent, trademark or copyright infringement or any other claim resulting from Seller’s manufacture of the goods to Buyer’s specifications.

Seller’s Rights

Seller has all rights and remedies that applicable law gives to sellers. Seller’s rights and remedies are cumulative, and Seller may exercise them from time to time. No waiver shall be effective unless it is in writing. The failure of Seller to require performance under any provision of this Contract shall in no way affect Seller’s right to require full performance at any subsequent time, nor Seller’s waiver of a breach of any of the terms and conditions of this Contract on one occasion constitute a waiver of any other breach of the same or any term.

Time for Bringing Action

Any action arising out of or related to this Contract, whether alleging breach of warranty or other breach, default or tortious conduct by Seller, must be brought by Buyer within one year after the cause of action accrues. Buyer shall pay Seller’s reasonable attorney fees, costs, and expenses incurred in enforcing any provision of this Contract.

Applicable Law

The validity, interpretation, and enforcement of this Contract, matters arising out of or related to this Contract or its making, performance of breach, and any and all related matters shall be governed by and interpreted according to the laws of the State of New Jersey. Any and all disputes arising hereunder shall be settled by arbitration to be conducted in Camden County, New Jersey under the authority of and pursuant to the rules of the American Arbitration Association (“AAA”).

Complete Agreement; Amendment

This Contract contains the entire understanding of the parties and is intended as a final expression of their agreement and a complete statement of the terms thereof, and may not be amended, modified or otherwise supplemented unless any such amendment, modification, or supplementation is done so in writing and explicitly references this Contract and is signed by both authorized representatives of both parties hereto.

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