2.Purchase Agreement. The PA sets forth the entire agreement between the parties regarding this transaction. No waiver or modification of any of the terms or conditions hereof nor any additional or inconsistent terms shall be effective against Seller unless approved in writing by an officer of Buyer. In the event that Buyer has or hereafter submits a purchase order or other document to Seller regarding this transaction and such document contains any additional or inconsistent terms, such additional or inconsistent terms shall be deemed material alterations within the meaning of California Uniform Commercial Code section 2207(2)(b) and shall not become a part hereof unless approved in writing by an officer of Seller.
3. NO WARRANTY OR GUARANTEE. SELLER MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR THE MECHANICAL PROPERTIES OF THE GOODS. EXCEPT ONLY THAT SELLER WARRANTS THAT THE GOODS TO BE SOLD OR CONVERTED/EXCHANGED BY SELLER PURSUANT TO THIS PA SHALL SUBSTANTIALLY CONFORM TO THE DESCRIPTION SET FORTH IN THE PA. SELLER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. Seller acknowledges that Buyer has made no representations, warranties or covenants of any kind regarding this transaction except as expressly set forth in the PA.
4. DELIVERY. Unless otherwise approved in writing by Seller, all Goods sold by Seller under the PA shall be delivered to Buyer at the address set forth on the PA hereof. Buyer acknowledges that a delivery date may be an approximate date only and that the actual date of delivery may vary due to freight schedules, and other causes. Buyer shall provide any appropriate shipping documents. All expenses incurred due to changes or delays to shipping documents shall be at Buyer’s expense.
5. EXCUSABLE DELAY. Notwithstanding anything herein to the contrary, Seller’s performance hereunder shall be suspended where prevented or hindered by causes beyond the control of Seller, such as accidents, strikes or other labor disturbances, fire, flood, earthquake, natural disaster, war, civil disturbance, governmental or military order, sabotage, equipment failure or repair, plant shutdown, theft, acts of terrorism, or acts of God. If Seller’s performance is delayed for more than one month as a result of such event, Buyer shall have the right to terminate any remaining performance of Seller under this PA.
6. RISK OF LOSS. Title and risk of loss and damage to any Goods subject to this PA shall pass to Seller immediately upon loading of the Goods on the carrier’s trucks, rail cars or vessels. Unless otherwise provided in this PA, Buyer shall have no obligation to insure any Goods. Buyer consents to any chartering or other transportation arrangements made by Seller. If Buyer has any particular requirements regarding chartering or transportation arrangements, Buyer must notify Seller thereof at least thirty (30) days prior to the scheduled date of shipment or delivery. Seller reserves the right to reject any such requirements which are unacceptable to Seller.
7. PRICE; TAXES. The purchase price for the Goods is payable in United States currency without deduction or offset, and free of any exchange unless provided otherwise herein. Any taxes, levies or other charges which may be imposed or levied on the sale or conversion/exchange of the Goods by Seller shall be paid by Buyer. Buyer shall be responsible for all personal property taxes imposed on its scrap materials and any taxes based or measured upon Buyer’s net income.
8. CLAIM NOTIFICATION. Buyer must notify Seller in writing of any claims of rejection, downgrades, defectiveness, weight shortages, or other nonconformity of Goods so that the Seller actually receives the written notice within seven (7) business days after Buyer has received the Goods. If Seller does not receive a timely written notice of claim, Buyer has waived any rights to assert any claims of rejection, downgrades, defectiveness, weight shortages, or other nonconformity of Goods.
10. DELETERIOUS ELEMENTS. PGM Recovery Systems, Inc. reserves the right to reject or penalize for any catalyst containing unreported lead, zinc, arsenic, barium, chlorine, fluorine, mercury, selenium, benzene or any other deleterious materials. Material must be dry and contain no toxic or dangerous elements. “Carbon content greater then 2% will be rejected (additional charges will apply)”.
11. SEVERABILITY. If any provision of this PA shall be found to be invalid or unenforceable, that shall not affect the remainder of this PA. The offending provision shall be reformed so as to make it as near as possible in intent and effect as originally written but yet be valid and enforceable.
12. GOVERNING LAW; ATTORNEYS FEES. This PA shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of laws principles. No course of dealing or performance between the parties shall be utilized in interpreting this PA. In the event of any dispute arising out of or otherwise relating to this PA or for the interpretation or enforcement hereof, the matter shall be decided by the State courts of the State of California, County of Riverside, which shall have exclusive jurisdiction and venue over this PA and transaction. Seller and Buyer hereby agree to such exclusive jurisdiction and venue. The prevailing party in any dispute or action between the parties shall be entitled to recover its reasonable attorneys’ fees, costs, and expert costs including any fees and costs incurred in enforcing any judgment hereon. This PA is entered into at Murrieta, County of Riverside, California USA.
13. ASSIGNMENT AND BINDING EFFECT; NON-WAIVER. This PA shall inure to and shall be binding upon the parties hereto and their respective heirs, representatives, successors and assigns. In the event that Buyer consents in writing to waive any of the provisions hereof with respect to a particular matter or event, that shall not constitute a waiver of such provision with respect to any other matter or event.
Any wire transfer fees shall be for the account of Seller.