C. Irby Company ("Irby")
Terms And Conditions Of Sale
1. General. These Terms and Conditions of Sale (“Terms”) apply to 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 are part of any application for credit with Irby. These Terms also apply to any proposal, estimate or quote that Irby makes. These Terms may not be changed or superseded by any different or additional terms and conditions contained in any Customer purchase order, acknowledgement, form or other document. Irby hereby objects to and rejects any such additional or different terms and conditions. Additional or different terms shall only apply if an officer of Irby (Vice President or higher only) approves the additional or different terms in a signed writing expressing the officer’s intent to bind Irby to the additional or different terms and conditions. The Customer agrees not to assert Uniform Commercial Code § 2-207 (“§ 2-207”) or any statute based on § 2-207 to avoid, modify or add to these Terms.
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 Irby’s 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 Customer’s account is delinquent, Customer fails to pay any obligation when due or, in Irby’s opinion, there is an adverse change in Customer’s 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 uncondition¬ally 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 fed¬eral, 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 authori-ties. 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 a dispute arises between the parties, regardless of its nature, the parties submit to the exclusive jurisdiction and venue of the state and federal courts located in Jackson, Mississippi or within thirty (30) miles of Jackson, Mississippi. Litigation between the parties in any other venue or forum is prohibited. This provision is mandatory. It is not permissive. All depositions that are part of a litigated dispute between the parties will take place in Hinds County, Mississippi, and all documents and electronically stored information that the parties are entitled to obtain through discovery requests will be produced in Hinds County, Mississippi.
7. Security Interest. To secure the payment and performance in full of all of Customer’s 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 financ¬ing statements and amendments thereto, and to take such other actions as Irby deems necessary to protect Irby’s 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, Customer’s representative or a common carrier. Claims for Goods damaged or lost in transit should be made by Customer to the common carrier as Irby’s responsibility ceases upon tender of goods to Customer, Customer’s representative or a common carrier.
10. No Waiver.Irby’s failure to insist upon the strict performance of any term or condition herein shall not be deemed a waiver of Irby’s 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 of Irby.
11. Force Majeure. Irby’s 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 MANUFACTURERS’. IRBY EXPRESSLY DISCLAIMS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTIBILI-TY AND/OR FITNESS FOR A PARTICULAR PURPOSE. IRBY’S 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 SUB¬CONTRACTORS 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.