Standard Terms and Conditions for the Sale of Goods and/or Services

1. ACCEPTANCE.  All Purchase Orders (as defined herein) or other proposed agreements for the sale of goods (“Goods”) or for the performance of services (“Services”) by Natgascar LLC (“Seller”) are subject to acceptance, in writing, by Seller, and are not binding on Seller unless so accepted.  These Standard Terms and Conditions for the Sale of Goods and/or Services (“Standard Terms of Sale”) are applicable to all purchase orders, quotations, schedules or ancillary agreements concerning the sale of Goods and/or Services, of any nature whatsoever, by Seller (collectively, “Purchase Orders”), except as otherwise agreed to in a writing executed by an authorized officer or agent of Seller.  Any term or condition or standard of performance different from or in addition to those set forth in these Standard Terms of Sale, whether set forth on the Purchase Order or otherwise proposed by Buyer, must be agreed to in advance, in writing, by an authorized officer or agent of Seller.  Seller hereby expressly objects to and rejects any other terms and conditions proposed by Buyer by way of Purchase Order or otherwise, which are different from or in addition to those set forth in these Standard Terms of Sale, unless accepted by Seller in writing.  Buyer agrees that Buyer’s submission of a Purchase Order to Seller, or Buyer’s acceptance of any Goods or Services provided by Seller, shall constitute Buyer’s acceptance of these Standard Terms of Sale.
2. DELIVERY; RISK OF LOSS; TRANSPORTATION; INSURANCE.  Seller shall use reasonable commercial efforts to make delivery of Goods or to perform Services within the time requested on Buyer’s Purchase Order.  Unless otherwise agreed to by Seller and Buyer in writing, (i) all deliveries of Goods and/or Services shall be F.O.B Seller’s facility and (ii) Goods shall be deemed to be delivered and risk of loss shall pass to Buyer at such time as possession of such Goods is given to Buyer or a transportation carrier.  Seller has the right to make partial deliveries of Goods and/or Services when Seller reasonably deems appropriate.  Seller has no obligation to obtain insurance for Buyer covering Goods in transit to Buyer.
3. PRICING; TAXES; SECURITY INTEREST.  Prices and charges for Seller’s Goods and/or Services shall be invoiced at Seller’s current prices and charges in effect at the time of shipment unless otherwise provided in a Purchase Order duly accepted, in writing, by an authorized employee or agent of Seller.  Unless otherwise provided by law, Buyer shall pay to Seller any and all taxes or other charges (other than taxes on or measured by Seller’s net income) which are based on or measured by the sale, transportation, delivery or use of Goods sold, or Services performed, by Seller.  Buyer agrees that any claim regarding overpayment must be asserted within ninety (90) days after the date of the invoice.  All claims not asserted within such 90-day period shall be deemed irrevocably waived.   Until the purchase price and all other sums payable to Seller are paid in full, Seller shall retain a security interest in the Goods and in all proceeds of the Goods.  Buyer authorizes Supplier to file appropriate financing statement(s) to reflect or to perfect such security interest.
4. TRANSPORTATION.  Freight prepaid shipments shall be made by Seller’s normal routing.  Transportation and freight costs for prepaid shipments will be invoiced to Buyer.  If Seller arranges transportation for Buyer, such arrangements shall be at Buyer’s sole risk and expense, and transfer of title and risk of loss shall not be affected thereby.  In the event of any general increases or any ruling or regulation affecting transportation that results in increased freight costs or in the event any extraordinary transportation costs are charged to Seller subsequent to its invoice to Buyer, including but not limited to fuel surcharges, Seller, in its sole discretion, may include all such costs on Buyer’s next invoice following the charge.
5. CANCELLATION.  Buyer’s wrongful non-acceptance of Goods, or cancellation or repudiation of any Purchase Order to purchase Goods or Services, shall entitle Seller to recover, in addition to any incidental damages caused by Buyer’s wrongful non-acceptance, cancellation or repudiation, either (i) in the case of Goods the risk of loss of which has passed to Buyer at the time of non-acceptance, cancellation or repudiation, or Goods which cannot reasonably be resold by Seller to a third party, or Services which have already been performed, the price of such Goods or Services, or (ii) in the case of Goods for which other buyers exist or for Services not yet performed, or where an action for the price is not otherwise permitted by law, damages equal to the profit (including reasonable overhead) which Seller would have realized had Buyer fully performed or, at Seller’s option, 20% of the contract price as liquidated damages, plus, in the case of special orders, Seller’s expenses, if any, incurred prior to receipt by Seller of notice of cancellation by Buyer, in connection with providing special services, developing special tooling, purchasing special supplies and the like.  In each situation set out in the preceding clause (i) or (ii) above, Seller shall also be entitled to recover any applicable costs of collection (including Seller’s reasonable attorneys’ fees) plus interest at the rate of eighteen percent (18%) per annum or the maximum interest rate permitted by law (collectively, “Costs”).
6. QUANTITY VARIATIONS.  On any individual Purchase Order or release against a Purchase Order for Seller’s Goods not stocked as a standard item, or not packed in standard cartons or packages, or with respect to which special fabrication or construction was involved, Seller reserves the right to ship to and invoice Buyer for a quantity of Goods which may vary by up to 10 percent (10%) over or under the quantity specified in the related Purchase Order or release, and Buyer shall accept delivery and pay for such revised quantity.  Shortages or errors in quantity of Goods must be reported, in writing, by Buyer within thirty (30) days after receipt of shipment to secure an adjustment for the same.  In addition, claims for proof of delivery of a shipment must be made with fifteen (15) days after the delivery date.
7. FORCE MAJEURE; ALLOCATION OF GOODS.   Seller  will not be responsible for any failure or delay in the performance of all or any part of any Purchase Order caused by an act of God, intervention of government, war or threat of war, act of terrorism, conditions similar to war, sanction, blockade, embargo, strike, lockout or other cause or circumstance beyond the reasonable control of Seller.  However, Seller shall use commercially reasonable efforts to give written notice to Buyer whenever such contingency or other act becomes reasonably foreseeable.  Seller shall not be required to resolve a strike, lockout or other labor problem in a manner which does not, in Seller’s sole discretion, deem advisable.  Seller may experience shortages, as a result of raw material shortages or as a result of unexpected increases in demand for its Goods.  Under such circumstances, or in the event of any contingency referenced above, Seller reserves the right to allocate its Goods among its customers, in its sole discretion.  Buyer agrees to excuse Seller from any and all liability resulting from such shortages or such allocation decisions.
8. LIMITED WARRANTY; DISCLAIMER OF OTHER WARRANTIES.  In the case of Goods sold by Seller with a separate written warranty provided by Seller in writing, that warranty shall apply.  Otherwise, Seller warrants only that (i) Goods manufactured by Seller shall be manufactured in accordance with Seller’s specifications for such Goods and (ii) Services shall be performed as specified.  THE PRECEDING WARRANTY IS THE ONLY WARRANTY PROVIDED BY SELLER AND IS OFFERED IN LIEU OF ANY OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY EXCLUDED.  In no event shall Seller be responsible for any Goods manufactured by other parties; and such Goods shall carry only the warranty (if any) of the manufacturer.
9. BUYER’S REMEDIES; LIMITATION OF LIABILITY.
1. As further described below, the resolution of any warranty claims by Buyer may include, at Seller’s option, repair or replacement of the affected Goods or Services or monetary compensation.  Unless otherwise agreed in writing by Seller, Buyer will be responsible for transportation to Seller of any Goods to be repaired or replaced.  Some warranty claims may require a physical inspection to determine whether the limited warranty has been breached and, if so, the appropriate remedy, and Buyer agrees to permit Seller to conduct such physical inspections.  Buyer’s sole and exclusive remedy, and the limit of Seller’s liability for Goods or Services proven to be other than as warranted, shall be, at Seller’s option, (i) repair of the applicable Goods or Services; (ii) replacement of the applicable Goods or Services, or (iii) refund of the purchase price paid for the applicable Goods or Services.  To effect this sole and exclusive remedy, Buyer must make its claim for breach of warranty within sixty (60) days after the date of shipment of the Goods or performance of the Services, and any such claim not made within such 60-day period shall be deemed to have been irrevocably waived.
2. Seller’s sole liability with respect to the Goods and Services, for any and all loss or damage to Buyer, or any other loss, damage, expense or claim, resulting from any cause whatsoever (whether based on damaged or defective Goods, irrespective of whether such damages or defects are discoverable or latent, or Seller’s limited warranty shall fail of its essential purpose, or any other reason), and whether based on breach of warranty, negligence, strict liability, tort, breach of contract or any other theory, shall in no event exceed the aggregate purchase price of the particular Goods or the price of the Services with respect to which losses, damages, expenses or costs are claimed.  Seller shall have no liability to any person other than Buyer (including, without limitation, any repurchaser of any Goods) by virtue of the sale of any Goods or Services to Buyer, or any other matter.  The limitation of liability set forth in this paragraph shall survive the termination or cancellation of ant related agreement.
3.  In no event shall SELLER be liable to Buyer or any third party for any liabilitIES, claimS, obligations, damages, costs or expenses, including without limitation any special, indirect or consequential damages, arising out of or relating to the sale of the Goods and/or Services by SELLER to Buyer, any third party rights in the Goods, or any use of the Goods or the results or decisions made or obtained by users of the Goods, even if SELLER has been advised of the possibility of such damages.  Consequential damages shall include, without limitation, loss of use, income or profit, increased expense of inspection, operating down-time, or losses sustained as the result of injury, including death, to any person, or loss of or damage to property.
4. No statement or recommendation made or assistance given by Seller, or any of its representatives, whether oral or in writing, and provided to Buyer or any other party, shall constitute a waiver by Seller of any provision of these Standard Terms of Sale or affect Seller’s limited liability as set forth herein; and no such statement, recommendation or assistance shall subject Seller to any further liability of any nature whatsoever.
10. SAFETY AND HEALTH INFORMATION.  Seller has supplied or made available to Buyer information and warnings regarding safety matters relating to the Goods and/or Services.  Buyer agrees to further communicate such information and warnings to all persons that Buyer may reasonably foresee will be exposed to, or may handle, the Goods.
11. TRADEMARKS.  Unless otherwise agreed to in writing by an authorized officer or agent of Seller, the purchase of Goods or Services from Seller shall not entitle Buyer to use, register, or otherwise identify Buyer or its business with any name, trademark, service mark or other identity of Seller.  Should Buyer violate this provision, Seller may avail itself of all remedies provided for by law or in equity, including, without limitation, injunctive relief.
12. EXPORT SALES.  Buyer  represents and warrants that it has complied and/or will comply with all applicable laws, rules and regulations pertaining to the export, import and movement of Goods sold hereunder.  All drawbacks of duties paid on items used in the manufacture of the Goods delivered hereunder shall accrue to Seller, and Buyer agrees to furnish Seller with all documents and cooperation necessary to obtain payment of such drawbacks.
13. TERMS OF PAYMENT.  Terms of payment shall be net thirty (30) days from the date of Seller’s invoice, unless other specific terms of payment are stated in the Purchase Order and accepted, in writing, by an authorized officer or agent of Seller.  If at any time Seller, in its sole discretion, deems Buyer’s credit to be unsatisfactory or in any way impaired, Seller reserves the right, among other remedies, to terminate the Purchase Order and to suspend further deliveries, or to require cash payment with any order.  No future dating may be provided on an invoice.  Except as otherwise agreed to in writing, all invoices shall payable in U.S.A. currency only.  If Buyer fails to pay the price for goods when due, Seller shall be entitled to recover, in addition to the purchase price and Seller’s Costs (as defined above), all additional costs and damages resulting from Buyer’s breach.  If Buyer makes payment by check or draft which is returned due to non-sufficient funds, Buyer will be assessed a fee of Fifty Dollars ($50.00) for each returned check.  Notwithstanding any provision contained herein to the contrary, each shipment of Goods by Seller shall be deemed to be a separate and independent transaction, and payment therefore shall be made accordingly.
14. RETURN OF GOODS.  At Seller’s sole discretion, Goods may be returned for credit with the written permission of Seller within thirty (30) days after the date of delivery of such Goods; provided, however, that only standard Goods regularly maintained in stock by Seller and in resalable condition will be considered for return by Buyer for credit; provided further, in no event shall Buyer’s credit exceed eighty-five percent (85%) of the lower of the original or then current purchase price for the Goods delivered to Buyer, less freight paid by Seller on the original shipment to Buyer, if any.  Goods must be returned to Seller in good, resalable condition, freight prepaid.  Special packaging by Buyer may be necessary to protect Goods returned in less than full truckload quantities.
15. DEFAULT.  If Buyer makes an assignment for the benefit of creditors, is adjudicated a bankrupt or in the event of the filing of any voluntary or involuntary petition in bankruptcy against Buyer or the appointment of a receiver for Buyer or any substantial part of its properties, then Seller may cease selling or delivering any Goods or Services to Buyer.  Furthermore, if Buyer fails to perform any of its obligations to Seller, then Seller may defer its performance obligations until the default is cured by Buyer, or at its option may treat such default as a breach of the entire agreement and, if such default is not cured within ten (10) days after the giving of notice thereof to Buyer, may immediately terminate any related obligations by written notice to Buyer.
16. ENTIRE AGREEMENT.  These Standard Terms of Sale, together with the terms and conditions contained in any Purchase Order duly accepted by Seller in writing, constitute the entire agreement between Seller and Buyer with respect to the matters contained herein and therein, and supersede all prior oral or written representations, proposals, correspondence, discussions, negotiations and agreements relating to such subject matter.  No course of prior dealings, samples, or usage of the trade shall be relevant to supplement, explain or modify any terms contained herein.
17. PRIORITY.  In the event of any inconsistency between these Standard Terms of Sale and any Purchase Order, precedence shall be given first to the special terms and conditions contained in the Purchase Order (provided the Purchase Order has been accepted in writing by Seller), and second to these Standard Terms of Sale.
18. RELATIONSHIP OF PARTIES.  Seller and Buyer are independent contracting parties and nothing in these Standard Terms of Sale or in any Purchase Order shall be construed as constituting or making Buyer or Seller as franchiser, franchisee, partner, broker or agent of the other.  Each party is an independent contractor and neither shall have any power, right or authorization to bind the other party or to assume or create any obligations or responsibilities, express or implied, on behalf of the other party or in the other party’s name.
19. GOVERNING LAW; VENUE.  These Standard Terms of Sales, and any Purchase Order, shall be construed according to the laws of the State of Ohio, without regard to its conflict of laws provisions.  Each of Seller and Buyer submits to the non-exclusive jurisdiction of any state or federal court sitting in Ohio in any action or proceeding relating to or arising out of these Standard Terms of Sale or any Purchase Order.
20. SEVERABILITY.  If any provision of these Standard Terms of Sale or any Purchase Order is deemed invalid or unenforceable by any court of competent jurisdiction such provision shall be deleted or modified, but only to the extent deemed necessary by such court, and the remaining provisions of these Standard Terms of Sale and the Purchase Order shall remain in full force and effect.
21. NON-WAIVER.  No change, modification or waiver of any provision of these Standard Terms of Sale shall be valid or binding unless it is accepted in writing by an authorized officer or agent of Seller.  A waiver by either party of any breach or failure to enforce any term  or condition of these Standard Terms of Sale shall not in any way affect, limit or wave such party’s right at any time to enforce strict compliance with that or any other term or condition of these Standard Terms of Sale.
22. NON-ASSIGNMENT.  Buyer may not assign its rights or delegate its obligations hereunder or under any Purchase Order without Seller’s prior written consent.