(a) Any controversy or claim arising out of or relating to the Contract, or breach thereof, shall be settled by arbitration in Spartanburg, South Carolina under the commercial arbitration rules then obtaining of the American Arbitration Association (“AAA”). Three independent councilors shall serve as the arbitration committee: one picked by Seller , one picked by Buyer, and one picked by the first two. These councilors shall follow the rules set forth by the AAA, but shall not employ the AAA. Any process or notice may be served either personally, by nationally recognized overnight courier, or by certified mail, return receipt requested, provided a reasonable time for appearance is allowed. The arbitrators sitting in any such controversy shall have no power to alter or modify any express provision of the Contract including, but not limited to, the rendering of any award of consequential, indirect, special and/or punitive damages or damages for any loss of profit or any award that in any other manner effects any such alteration or modification. The Arbitrators shall have no power to direct Seller to deliver or release goods to Buyer until Buyer has fulfilled all of its obligations to Seller under all of the Contracts involved in the arbitration.
(b) Seller shall have all rights to provisional remedies which it would have at law or equity, notwithstanding the existence of this requirement to arbitrate.
(c) Buyer shall not be entitled to join, implead, interplead or intervene other parties or assert other disputes with Seller by offset, defense or counterclaim or by consolidation of proceedings or otherwise with any arbitration proceeding hereunder.
(d) Any claim by Buyer of any kind, nature or description is barred and waived unless Buyer institutes arbitration proceedings within one (1) year after the claimed breach occurs. The failure to institute arbitration proceedings within this one-year period shall constitute an absolute bar to the institution of any arbitration or other proceedings by Buyer and a waiver of all claims on Buyer’s part. All issues relating to Statutes of Limitations (which include the provisions of this subparagraph) barring or preventing the commencement of proceedings shall be determined by a court of competent jurisdiction and not by the Arbitrators, who shall have no power or jurisdiction to determine such issues. Participation in the arbitration shall not constitute a waiver of the Statute of Limitations.
2. PAYMENT. All invoices are payable in United States dollars. Credit card payments can be accepted; however, a 4% processing fee will be added to the invoice total. No discount may be taken unless specified in the Contract. Buyer shall pay interest on overdue bills at the highest rate permitted by South Carolina and the United States of America. Any check or remittance received from or for the account of the Buyer may be accepted and applied by Seller or its Agent against any indebtedness or obligation owing by Buyer, as shown by the books and records of Seller or its Agent, without prejudice to or without the discharge of the remainder of any such indebtedness or obligation, regardless of any condition, provisions, statement, legend or notation appearing on, referring to or accompanying such check or remittance. Any goods or services sold to Buyer, whether under this and/or any other Contracts, and not in dispute shall be paid for when due, without offset, defense or counterclaim and regardless of controversies relating to other goods or services.
3. CREDIT. No credit will be extended or accepted by Seller. All payments are due upon receipt of goods or services by Buyer unless a different time is specified in the Contract.
4. DELIVERY. All goods are FOB Seller’s facility. It is Buyer’s responsibility at no expense to Seller to get goods to and arrange pick up of goods from Seller. All prices quoted do not include freight to or from Seller.
5. FORCE MAJEURE. Seller shall not be liable if any aspect of performance by Seller under the Contract is delayed or prevented due to casualty, accident, strike, labor disturbance, embargo, lack of shipping facilities, delay or inability to obtain supplies, labor, raw materials or energy through Seller’s usual and regular sources, fires, floods, war, governmental requests, requirements or regulations or by Seller’s acceptance of government contracts or subcontracts, Acts of God or any cause or circumstance whatsoever (whether like or unlike the foregoing) beyond Seller’s control. In such event, Seller may, in its discretion and without notice to Buyer: (i) extend Seller’s time for performance for a time which is reasonable under all of the circumstances; (ii) cancel all or any portion of this and any other Contracts with Buyer; or (iii) apportion Seller’s available supply among its customers in any reasonable manner. If embargo or lack of shipping facilities prevents or delays shipment of any goods ready for shipment, Seller may immediately invoice the goods, at which time title to the goods shall pass to Buyer (subject to Seller’s rights referred to herein), and Seller shall hold the goods for the account of Buyer, who shall pay the invoices rendered when due.
6. WARRANTIES. Buyer agrees that there is no warranty by Seller in fact or in law that the goods or services which are the subject of the Contract are suitable for any particular use or purpose, or for any particular type of installation, and that the suitability of the goods or services for the use contemplated by Buyer is the sole responsibility of Buyer in all respects to be ascertained by Buyer’s sampling and testing. Seller makes no warranty express or implied, including without limitation as to: physical or chemical properties, qualities or characteristics. Notwithstanding anything to the contrary herein, Seller makes no representation or warranty, beyond any explicit statements included on the specifications contained in the Contract.
7. TECHNICAL ASSISTANCE. Representatives of Seller or Seller’s agent may, upon Buyer’s reasonable request, furnish technical advice with reference to the goods or services sold hereunder, if and to such extent as said representative has such advice conveniently available; but it is expressly agreed that there is no obligation to furnish any such advice and that if any advice or assistance is furnished it will be without charge and shall be given and accepted at Buyer’s risk. Neither the said representative nor Seller or Seller’s agent shall be responsible or liable for the advice or assistance given or the results thereof.
8. BUYER’S TESTING. It is Buyer’s obligation, in advance of purchase, to determine that the goods or services purchased are satisfactory for Buyer’s particular use. To meet Buyer’s obligation, sample runs and tests of the goods (at the Buyer’s expense) in all processes should be made to the point that Buyer finds that the goods are satisfactory for Buyer’s requirements, processes and production.
9. CLAIMS. All claims of any kind, nature or description are barred and waived unless made in writing, and Buyer shall be deemed to have accepted the goods or services and its right to cancel, reject or claim damages shall expire unless Buyer’s written and particularized claim is received by Seller (i) within fifteen (15) days from date of tender for all claims other than those for latent defects; or (ii) within one (1) year from date of tender if the claim relates to a latent defect. Under no circumstance can the claim be for more than the price of the value added by Seller. No claims for disassembly, reassembly, freight, lost time, lost profit or any other cost shall be eligible for claim.
10. PATENT INFRINGEMENT. Seller, at its option, may cancel this or other Contracts with Buyer for the sale of any goods, the manufacture, sale or use of which, in Seller’s opinion, infringes any patent under which Seller is not licensed. Buyer agrees to hold Seller harmless against all damages and expenses arising from claims of infringement of patent rights on materials specifically produced at Buyer’s request and against all damages or expenses arising from any infringement or from any misuse of any trade name, trademark, symbol, identification of material content or other labeling used by Seller at Buyer’s instructions.
11. PRICES. Seller may change the price specified in the Contract on the undelivered portion of the goods or services subject to this Contract at any time by giving Buyer at least 15 days prior written notice. Buyer shall have the right to cancel this Contract as to any goods or services to which such change in price applies by written notice given to and received by Seller prior to the date when the change is to become effective. If Seller should be prevented from making change in price, or continuing a price already in effect, by law, governmental decree, order or regulation, Seller may terminate the Contract by giving Buyer 30 days prior written notice.
12. SELLER’S REMEDIES. All rights and remedies of Seller hereunder shall be in addition to all other rights and remedies of Seller under any other contract, under the Uniform Commercial Code and other applicable law, all of which rights and remedies shall be nonexclusive and cumulative and may be exercised or asserted as Seller shall elect.
13. CHANGES. The Contract contains all of the terms and conditions of the Contract between Buyer and Seller. It may not be altered nor modified by Buyer except by written consent, signed by Seller or Seller’s authorized agent. There are no representations, options, warranties or conditions, express or implied, statutory or otherwise, except those herein specifically contained. No waiver by either party of any default shall be deemed a waiver of any subsequent default.
14. ASSIGNMENT. No rights of Buyer under, or arising out of, the Contract may be assigned without the express written consent of Seller.
15. NOTICES. All communications provided for hereunder shall be in writing and, if to Seller, mailed or delivered to Seller c/o Abrasive Blasting & Coating Services, 2700 Fairforest-Clevedale Rd., Spartanburg, SC 29301 or at such other address as Seller or its Agent may hereafter designate; or if to Buyer, mailed and delivered to Buyer at its address designated in the Contract or at such other address as Buyer may hereafter designate.