HOME ABOUT US PRODUCTS LOGISTICS CONTACT Terms and Conditions of Sale GENERAL. These terms and conditions (“Seller’s Terms and Conditions”) shall apply to any contract (“Contract”) for the sale of goods (“Goods”) by Barnett Corporation or any direct and indirect subsidiaries, joint ventures and/or any other affiliated entities of Barnett Corporation (collectively and individually, “Seller”). These Seller’s Terms and Conditions shall be incorporated in and deemed a material part of the following documents: (a) any bid, quote, response to a request for quote, letter, proposal, or any other form of offer for the sale of Goods (“Proposal”) by Seller to a buyer (“Buyer”); (b) any form of order acknowledgment by Seller to Buyer for Goods (“Order Acknowledgment”); and (c) any invoice or similar document submitted by Seller for the sale of Goods (“Invoice”). These Seller’s Terms and Conditions shall supersede and replace any terms and conditions offered by Buyer and shall be the only terms and conditions applicable to Buyer’s purchase of Goods pursuant to the terms appearing on the Contract. These Seller’s Terms and Conditions shall not be modified or changed without Seller’s prior written consent. Seller specifically and expressly objects to and rejects any terms and conditions or other provisions in Buyer’s purchase orders, printed forms, correspondence or any other writings or oral representations which are different from, inconsistent with or in addition to these Seller’s Terms and Conditions. Buyer’s efforts to change these Seller’s Terms and Conditions or the terms set forth on any Contract shall constitute a material alteration of Seller’s offer and shall not be binding on Seller. Receipt of Buyer’s purchase order for Seller’s Goods or Seller’s initiation of any work to supply the Goods shall constitute acceptance by Buyer of these Seller’s Terms and Conditions. Notwithstanding any prior custom, practice or course of dealing between Buyer and Seller or generally within the industry, Seller may insist on strict adherence to these Seller’s Terms and Conditions. PRICE. The Goods and other items covered by any Contract shall be sold and invoiced at the price or prices on the Contract. Unless otherwise specified in writing, prices are subject to change upon at least thirty (30) days written notice from Seller. If Buyer has not accepted Seller’s Proposal or offer at the stated prices within such thirty (30) day period, Seller reserves the right to adjust its prices for such Goods. Unless otherwise specified in writing, prices do not include federal, state, provincial, municipal or local sales, value-added, goods and services, excise, use or other taxes now in effect or hereafter levied by reason of a Contract. All such taxes shall be paid by Buyer. If Seller pays any such taxes or assessments, Buyer shall, upon demand, reimburse Seller for such amounts. Should there after the conclusion of the contract occur a substantial increase of not less than ten per cent (10%) of the total costs for the production and the transportation of the goods, the Seller shall have the right to demand a renegotiation of the price in respect of quantities due for delivery thirty (30) days after notice of renegotiation has been served in order to obtain reimbursement for his increased costs as long as these continue. If agreement cannot be reached within these thirty (30) days, the Seller may cancel the undelivered part of the contracted quantity. DELIVERY, TRANSPORTATION AND RISK OF LOSS. UNITED STATES Unless otherwise agreed in writing by the parties, all Goods herein sold by Seller to Buyer within the United States, including to a “ship to” location in the United States, shall be sold, transported and delivered, as determined by Seller, pursuant to the following under § 2-319(1) of the Uniform Commercial Code: (a) F.O.B. Destination. Seller shall (i) select the method, routing and agency of transportation, (ii) add the cost of such transportation and delivery to the Invoice, and (iii) retain title and bear the risk of loss, damage or other incidents of ownership until delivery is made to Buyer’s designated destination. EXPORT “SHIP TO” SALES Unless otherwise agreed in writing by the parties, all Goods sold by Seller to Buyer from a Seller location in country “A” to a “ship to” location in a different country “B”, shall be sold, transported and delivered, as determined by Seller, to Buyer CPT (Carriage Paid To) the “Ship To” location (Incoterms® 2020). Title to (ownership of) the Goods shall transfer to Buyer at the same time as the risk of loss under such Incoterms® 2020 rule, upon delivery to the first carrier. Buyer must comply with all applicable customs, trade and export laws, and shall indemnify, defend and hold harmless Seller and Indemnified Parties in accordance with Section 14 hereof from and against all Claims and Damages resulting from any breach or violation of such laws, including, to the extent applicable, the diversion of the Goods contrary to applicable law. Subject to the applicable Incoterms® 2020, Buyer shall be responsible for processing all registrations and importation permits to import the Goods into any country of transit and the country of final destination, and shall comply, prior to importing the Goods, with all applicable laws and other requirements in respect thereof. INSPECTION. Buyer shall inspect the Goods within ten (10) days after the Goods’ arrival at the designated delivery destination. Buyer must accept any tender of the Goods that are substantially in conformity with the specifications for the Goods considering standard industry tolerances and the terms hereof, subject to Buyer’s remedies set forth below. Buyer will be deemed to have accepted tender of the Goods if Buyer fails to so inspect, or fails to give Seller written notice of rejection, within such ten (10) day period, which notice shall describe in reasonable detail the rejected Goods and the non-conformities or defects upon which Buyer’s rejection is based. QUALITY CLAIMS. (a) It shall be the responsibility of the Buyer to check the quality of delivered Goods before their processing. If the quality is not in accordance with the quality contracted for or if the Buyer has reason to believe that the quality of the Goods is such as to give rise to difficulties in processing, then the Buyer shall not allow processing to commence unless he has received permission to do so from the Seller in writing or by telecommunication. (b) If the Buyer should discover a defect in the goods during processing, he shall immediately give notice of such defect by telecommunication to the Seller. (c) A claim for a defect in quality that is of such a nature, that it can be ascertained from the Seller’s documents or from a sample provided by the Seller, must be made by the buyer within seven (7) days of receipt of the documents or the sample by the Buyer. (d) Claims in respect of other defects of quality shall be made by the buyer: (1) immediately, if the defect can be ascertained upon visual inspection of the Goods or their packing; (2) as soon as the defect is discovered, but at the latest within thirty (30) days in the event of the defect relating to grammage, size, color, cleanness, strength or other reason that can be determined through the taking of samples; and (3) as soon as the defect is discovered, but at the latest within three (3) months in the event that it has not been possible to find the defect through visual inspection or to determine it through the taking of samples. PAYMENT. Payment terms shall be those agreed to in writing by Seller as indicated in the Sales Confirmation document. Whenever reasonable grounds for insecurity arise with respect to full and timely performance by Buyer, Seller may demand terms of payment different from those specified herein and may demand assurance of Buyer’s full and timely performance. Seller may, upon making such demand, suspend manufacture, production, performance, shipment and/or deliveries. If, within the period stated in such demand, Buyer fails or refuses to agree to such different terms of payment and/or fails or refuses to give adequate assurance of full and timely performance (as determined by Seller), Seller may: (a) by notice to Buyer, treat such failure or refusal as a repudiation by Buyer of the portion of the transaction not then fully performed, whereupon Seller may cancel all further manufacture, production, performance, shipment and/or deliveries and any amounts unpaid hereunder shall immediately become due and payable, or (b) produce, perform or make shipments or deliveries under reservation of a security interest and demand pre-payment against tender of the Goods. In addition, Seller may charge interest on any unpaid or overdue amounts (including judgments), up to the maximum amount permissible under applicable law, from the date such amount was due until such amount, plus interest, is paid in full. Buyer agrees to pay all costs and expenses of collection, including attorneys’ fees, incurred by Seller if Buyer fails to pay any amounts, obligations or indebtedness when due. Any extension of credit made to Buyer in connection with any sale of Goods hereunder shall be deemed to have been made by any applicable Seller. DEFAULT / TERMINATION BY SELLER. Buyer shall be in default if (a) Buyer breaches any of its obligations hereunder in any material respect and (i) fails to remedy such breach within ten (10) days of its occurrence or (ii) such breach reasonably results in actual or imminent harm or damage to Seller or Seller’s business interests, as determined by Seller in its reasonable judgment; (b) Buyer takes any action in respect of liquidation, winding up, or an assignment for the benefit of creditors or has a receiver, trustee, monitor or liquidator appointed for all or substantially all of its property; or (c) Seller, in its reasonable judgment, determines that Buyer is refusing or is unable to pay Seller in full on a timely basis for the Goods or Services as they become due, that Buyer is otherwise no longer able to meet Seller’s credit requirements or that Buyer is refusing or unable to pay in full on a timely basis its other creditors. For the avoidance of doubt, Buyer’s failure to pay any amount when due to Seller shall constitute a material breach. Seller shall have the right to immediately terminate or withdraw any Contract in the event of conditions occurring under subsections (a), (b) or (c) of this Section 7. Further, unless otherwise agreed in writing by Seller and notwithstanding subsection (a) above, Seller may, in the exercise of reasonable judgment under the circumstances, terminate or withdraw any Contract and any of its obligations thereunder with or without cause upon written notice to Buyer. REMEDIES AND DISCLAIMERS. Inasmuch as the value of the Goods sold hereunder may be substantially disproportionate to the value of the products to be used in conjunction therewith, and, for the express purpose of limiting the liability of and remedies against Seller to an extent which is reasonably proportionate to the commercial value of the contemplated transactions, Buyer and Seller hereby specifically and expressly agree to the terms and provisions set forth in this Section with regard to disclaimers and limitations on Seller’s liabilities. In accordance with Section 4 above, all claims for shortages or alleged defects in quality shall be deemed waived unless made within ten (10) days of Buyer’s receipt of Goods or completion of the applicable Services. BUYER HEREBY AGREES THAT SUCH TEN (10) DAY PERIOD IS A REASONABLE PERIOD OF TIME IN WHICH TO INFORM SELLER OF SUCH CLAIMS. In no event shall any such claim entitle Buyer to relief if such claim is made after Goods have been used, processed or transferred by Buyer. Defective or non-conforming Goods shall be held by Buyer for Seller’s prompt inspection. TO THE GREATEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WHATSOEVER SHALL SELLER BE RESPONSIBLE OR LIABLE TO BUYER OR TO ANY THIRD PARTY FOR INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE OF FACILITIES OR EQUIPMENT, LOSS OF REVENUE, LOSS OF PROFITS OR LOSS OF GOODWILL) REGARDLESS OF (A) WHETHER EITHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) THE LEGAL THEORY UPON WHICH SUCH CLAIM IS BASED, INCLUDING, BUT NOT LIMITED TO, THEORIES BASED ON WARRANTY, CONTRACT, NEGLIGENCE, PRODUCTS LIABILITY, TORT OR RELIANCE. THE PARTIES HEREBY FURTHER AGREE THAT SELLER’S CLAIMS ARISING OUT OF BUYER’S FAILURE TO PAY IN FULL AND ON TIME FOR CONFORMING GOODS AND SERVICES, PURSUANT TO THE PAYMENT TERMS SET FORTH HEREIN, SHALL BE DIRECT DAMAGES AND NOT CONSTITUTE CONSEQUENTIAL DAMAGES. SELLER’S LIABILITY AND BUYER’S EXCLUSIVE REMEDIES ARE, UNDER THESE SELLER’S TERMS AND CONDITIONS AND UNDER THE UNIFORM COMMERCIAL CODE OR OTHER APPLICABLE LAW, HEREBY LIMITED TO SELLER’S CHOICE OF ONE (1) OF THE FOLLOWING REMEDIES, AS APPLICABLE: (a) THE REPAIR OF ANY DEFECTIVE OR NON-CONFORMING GOODS; (b) THE REPLACEMENT OF ANY DEFECTIVE OR NON-CONFORMING GOODS WITH CONFORMING GOODS AT THE DESIGNATED DELIVERY DESTINATION; (d) THE REPAYMENT OF THE PURCHASE PRICE ACTUALLY PAID BY BUYER FOR THAT PORTION OF ANY GOODS PROVIDED THAT ARE DEFECTIVE OR NON-CONFORMING; OR (e) THE GRANTING OF A REASONABLE ALLOWANCE TO BUYER ON ACCOUNT OF SUCH DEFECTS OR NON-CONFORMITIES. BUYER SHALL BE ENTITLED TO NO OTHER REMEDIES, REGARDLESS OF THE LEGAL THEORY UPON WHICH SUCH CLAIM IS BASED, INCLUDING, BUT NOT LIMITED TO, THEORIES BASED ON WARRANTY, CONTRACT, NEGLIGENCE, PRODUCTS LIABILITY, TORT OR RELIANCE, EXCEPT AS PROVIDED HEREIN. UNDER NO CIRCUMSTANCES SHALL SELLER’S LIABILITY EXCEED THE PURCHASE PRICE ACTUALLY PAID BY BUYER WITH RESPECT TO THAT PORTION OF THE GOODS OR SERVICES WHICH ARE DEEMED TO BE DEFECTIVE OR NOT IN COMPLIANCE WITH SELLER’S WARRANTY OBLIGATIONS HEREUNDER. Replacement of defective or non-conforming Goods, repayment of the purchase price for the Goods or the granting of an allowance to Buyer under subsections (c), (d) or (e) of this Section 8 will be made only upon return of defective or non-conforming Goods to Seller, which Goods shall not be returned until Seller has consented thereto and has delivered to Buyer written shipping instructions. Under no circumstances shall Buyer be permitted to set off or credit any amounts due and owing to Seller under these Seller’s Terms and Conditions or under any Contract unless Seller has agreed to such in writing. Any claim or cause of action by Buyer for breach of Seller’s obligations hereunder must be brought within one (1) year from the date of Seller’s tender of the subject Goods or Services to Buyer. FORCE MAJEURE DELAYS. Seller’s obligations hereunder shall be excused and Seller shall have no liability to Buyer for the failure to perform under these Seller’s Terms and Conditions or under any Contract due to any of the following and during the period when any of the following conditions exists: (a) strikes, work stoppages, or other labor troubles, difficulties, disruptions or disturbances of any kind; (b) fires, floods, earthquakes, inclement weather, explosions, or other natural or man-made disasters or acts of God; (c) riots, war, sabotage, foreign or domestic terrorism (including cyber-terrorism or cyber-attacks), act of a public enemy, national emergency, epidemic, pandemic, disease outbreak, quarantine or shelter in place restrictions, or other disturbances of the peace; (d) breakdowns, shutdown, destruction, or failure of any kind of Seller’s equipment or facilities necessary for performance hereunder arising from any cause whatsoever, or accidents at Seller’s facilities; (e) transportation embargoes or delays, reductions, shortages, curtailment, disruption or cessation of supplies, materials, equipment, facilities, power, utilities, labor, transportation, fuel or other factors of production or performance; (f) increases in the price of supplies, materials (including, but not limited to, the price of raw materials), equipment, facilities, power, utilities, labor, transportation, fuel or other factors of production or performance or the inability to obtain such items at a reasonable commercial price; (g) actions, legislation, regulations, rules or orders of any government or governmental agency (including executive orders and proclamations), or Seller’s voluntary or involuntary participation in any plan of general public interest, any of which adversely affect manufacture, production, performance, shipment and/or deliveries hereunder; (h) delays of other suppliers or subcontractors; (i) any other cause beyond the reasonable control of Seller, whether or not similar to the causes or occurrences enumerated above; or (j) the escalation or worsening of any of the foregoing. In the event of any such delay or failure in performance, Seller shall have such additional time within which to perform its obligations hereunder as may reasonably be necessary under the circumstances. In the event of the occurrence of any of the above affecting Seller’s ability to perform, Seller shall have the right to negotiate new pricing for the Goods or Services. Further, Seller shall also have the right, to the extent necessary in Seller’s reasonable judgment, to apportion fairly among its customers (including Seller’s own production operations, and subsidiaries and affiliates), in such manner as Seller may consider equitable, the Goods and Services then available for shipment, delivery or performance. WEIGHT AND PIECE SHIPPING TOLERANCES. Unless otherwise expressly set forth in any Contract executed by Seller, Seller shall be entitled to a plus or minus tolerance of fifteen percent (15%) based on the weight or number of pieces or other unit of measurement of Goods requested by Buyer under each transaction. CANCELLATION / TERMINATION BY BUYER. Buyer may terminate any Contract upon written notice to Seller if Seller breaches any of its obligations thereunder in any material respect and fails to remedy such breach within forty-five (45) days of its occurrence. Buyer may not cancel or terminate a Contract for convenience for the purchase of Goods or Services hereunder. Buyer shall, in the event of cancellation or termination of a Contract for any reason by either party, pay Seller on demand the full purchase price for all completed work for Buyer’s order(s) or in reasonable anticipation of Buyer’s needs for Goods, all other costs (including work-in-process and raw materials) incurred up to the date of cancellation or termination, all lost profits due to the cancellation or termination, and all other reasonable cancellation or termination charges. INDEMNIFICATION. Each party (the “Indemnifying Party”) agrees to indemnify, defend and hold harmless the other party and its affiliates, and their respective shareholders, members, officers, directors, managers, agents, employees, successors and permitted assigns (collectively, the “Indemnified Parties”) from and against all third party claims, actions, demands, suits and causes of action (“Claims”) involving (a) reasonable, actual, out-of-pocket and direct damages to real or physical personal property, or (b) personal injury, including death, along with reasonable, actual, out-of-pocket costs and expenses, including, without limitation, interest, penalties and reasonable attorneys’ fees and disbursements (collectively, “Damages”), to the extent (but only to the extent) such Claims cause Damages resulting from (i) any negligent act, negligent omission or willful misconduct on the part of the Indemnifying Party, its employees, independent contractors or agents, in connection with performance under these Seller’s Terms and Conditions or any Contract, (ii) a breach by the Indemnifying Party, its employees, independent contractors or agents, of any covenant, warranty, representation or any other obligation set forth in these Seller’s Terms and Conditions or any Contract, (iii) a breach or violation of law, governmental rules or regulations by the Indemnifying Party, its employees, independent contractors or agents. Notwithstanding the above, Buyer hereby agrees that Seller shall not be liable for any Claims resulting from a recall of any products which are contained within Seller’s Goods or in which Seller’s Goods have been incorporated; and the parties acknowledge, understand and agree that such Claims are not part of the basis of the bargain in the transactions anticipated hereunder. GOVERNING LAW; DISPUTE RESOLUTION. EACH PARTY HERETO WAIVES ITS RIGHT TO TRIAL OF ANY ISSUE HEREUNDER BY JURY. The parties agree that the terms of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to these Seller’s Terms and Conditions or to any Contract hereunder. (a) For Goods herein sold by Seller to Buyer within the United States, the validity, construction and performance of these Seller’s Terms and Conditions and any Contract t hereunder shall be governed by the Uniform Commercial Code as enacted by the state of New York and by the laws of the state of New York without regard to any other state’s or nation’s conflict of laws rules. Any controversy, claim or dispute arising out of or relating to these Seller’s Terms and Conditions or any Contract may, at Seller’s exclusive option, be submitted for mediation in an effort to amicably resolve such controversy, claim or dispute. In the event that mediation is not elected by Seller or, if elected, does not result in a resolution, then the dispute shall be subject to resolution by litigation in either the state or federal court with jurisdiction New York. Buyer agrees, without challenge, to submit to the jurisdiction and venue of such courts. MISCELLANEOUS. (A) The waiver by Seller of any terms, conditions, or provisions hereof or of any Contract shall not be construed to be a waiver of any other term, condition or provision, nor shall such waiver be deemed a waiver of a subsequent breach by Buyer of the same term, condition or provision. (B) Neither these Seller’s Terms and Conditions nor any Contract, nor any of Buyer’s rights, interests, duties or obligations hereunder or under any Contract may be assigned, subcontracted or delegated by Buyer except with the prior written approval of Seller in each instance. (C) The entire understanding and agreement of the parties with respect to the transactions contemplated herein are contained in these Seller’s Terms and Conditions and in any Contract. Any prior understandings, agreements and representations, oral or written, shall be deemed superseded hereby. No changes, modification or discharge of the parties’ obligations hereunder shall be effective unless signed by both parties. (D) Stenographic and clerical errors, whether in mathematical computations or otherwise, made by Seller in any Contract shall be subject to correction. (E) Any clause required by any applicable law, order or administrative regulation, to be included in a contract of the type evidenced by any Contract, shall be deemed to be incorporated therein. (F) The remedies and rights reserved to Seller herein shall be cumulative with, and in addition to, all other rights and remedies provided in law or equity. The remedies and rights reserved to Buyer herein shall be Buyer’s sole and exclusive rights and remedies available to Buyer hereunder. (G) These Seller’s Terms and Conditions and any Contract, and the rights, interests, duties and obligations hereunder and thereunder, shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. (H) If any provision of these Seller’s Terms and Conditions or any Contract shall be adjudicated to be invalid or unenforceable, such provision shall be deemed amended to delete therefrom the portion thus adjudicated to be invalid or unenforceable. All remaining portions shall be deemed enforceable. (I) In the event that Buyer determines that it needs to give notice to Seller of its alleged breach of its obligations hereunder or of any action or demand arising hereunder, or otherwise in accordance with these Seller’s Terms and Conditions, Buyer shall give notice to Seller by using certified mail or a reputable overnight service to: Barnett Corporation Attention: [XXXXX] 77 Spruce Street, 3rd Floor Cedarhurst, NY 11516 United States of America THE UNITED STATES FOREIGN CORRUPT PRACTICES ACT. Buyer shall not engage in any bribery, kickbacks, collusive bidding, price fixing, or other unfair trade practices. Buyer (and its partners, employees, representatives and agents) shall comply with the U.S. Foreign Corrupt Practices Act (“FCPA”) and the applicable anti-bribery and anticorruption laws of any country outside the United States applicable with respect to the Goods and Services and Buyer’s performance hereunder or under any Contract (“Corrupt Practices Laws”). If Buyer learns of or has reason to know of any payment, offer or agreement relating to the Goods and Services that is contemplated or that has occurred and that represents or could represent a violation of the FCPA or Corrupt Practices Laws, Buyer shall immediately advise Seller’s General Counsel, in writing, at the address provided in Section 16(J) above. Seller shall be permitted to take reasonable steps to avoid, mitigate or investigate such an actual or potential violation of the FCPA or Corrupt Practices Laws, which may include reviewing Buyer’s books and records and auditing for these purposes at any time upon reasonable notice. Seller may disclose these Seller’s Terms and Conditions and any Contract and any information that it obtains hereunder to any government agency, regulatory authority or other persons or entities that Seller has determined, in its discretion, have a need for such information. In addition to the foregoing, while the Goods and Services are being provided, Buyer must promptly notify Seller in writing upon learning or forming a reasonable belief that Buyer, directly or through any agent or service provider, paid any bribe that is punishable under the FCPA (or would be if Buyer was subject to that statute) or Corrupt Practices Laws. The preceding sentence applies to Buyer’s conduct irrespective of whether the bribe in question relates to or benefits the Goods and Services or Seller; however, the provision of such advice shall not represent a breach hereunder unless the actual or suspected bribe relates to the Goods and Services contemplated hereunder. Buyer shall ensure that any representatives and agents acting on behalf of Buyer with respect to the Goods and Services or Buyer’s performance hereunder shall agree in writing to the terms of this Section. Neither Buyer nor any representative or agent of Buyer may interact with any government agency on behalf of Seller without the prior written approval of Seller. Contact If you have any questions, please contact us and a representative will reach out to assist. info@barnett corporation.com (516) 371 - 3500 Copyright © 2021 • Barnett Corporation • All rights reserved • 77 Spruce St, Cedarhurst, NY 11516