1. Binding Agreement
The following Agreement ("Agreement") is between ASTI ("ASTI"), a Delaware corporation, and the undersigned purchaser ("Buyer") of any product or products ordered online through ASTI's FiberBuys.Com web site ("Product"). This Agreement is a contract that has legal implications. BY PURCHASING PRODUCTS ON FIBERBUYS.COM, BUYER ACCEPTS AND AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS.
2. Amendment
ASTI may amend the terms and conditions of this Agreement at any time by providing notice to Buyer, or by posting the amended terms and conditions on this web site. The amended terms and conditions shall automatically become effective upon Buyer's receipt of notice, or when Buyer first uses ASTI's services after the initial posting, or thirty (30) days after they are initially posted on this site, whichever occurs earlier. THESE TERMS AND CONDITIONS WERE LAST UPDATED IN 1999.
3. Entire Agreement; Other Documents
This Agreement constitutes the entire understanding of ASTI and Buyer with respect to the subject matter hereof and supersedes all prior written and oral communications and understanding. This Agreement may not be altered, supplemented, or amended by the use of any other documents(s). Any attempt to alter, supplement, or amend this document or to enter an order for the Product which is subject to additional or altered terms and conditions will be null and void, unless otherwise agreed to in a written agreement signed by ASTI.
4. Authority
By purchasing products on FiberBuys.com Buyer represents that it is the person or persons stated in the ASTI registration form, and that if Buyer is a corporation, partnership, limited liability company, or the like, that Buyer is validly existing and in good standing under the laws of the state of incorporation. The person(s) executing this Agreement on behalf of Buyer represents that he or she has all requisite power and authority to accept the Terms and Conditions of this Agreement on Buyer's behalf.
5. Agency
Buyer acknowledges, that, except for Product described as having been produced and sold by, and on behalf of, ASTI, ASTI is acting as a agent for each of the manufacturers, sellers, of distributors, or resellers ("Sellers") described in the FiberBuys.Com web site, with respect to Product described as being sold by or on behalf of such Sellers. ASTI shall have no responsibility for any such sale and Buyers shall look exclusively to the Sellers of such Products with respect to any claim it may have. No agency, partnership, joint venture, employer-employee, or franchisor-franchisee relationship is intended or created by this Agreement between Buyer and ASTI.
6. Governing Law
This Agreement will be governed by the laws of the State of Virginia.
7. Purchases
Neither ASTI nor any Sellers shall have any obligation to fulfill timely orders for which the Product is out-of-stock or otherwise unavailable, but ASTI will promptly notify Buyer of such unavailability or delay as soon as it becomes aware of it.
Under certain circumstances orders arising hereunder may, at ASTI's or Sellers discretion be changed or canceled by Buyer after initially placed. An authorized representative of ASTI must accept the change in writing, facsimile, or electronic transmission. In such event, ASTI will advise Buyer of the total charges for such cancellation or change, and Buyer hereby agrees to pay such charges, including, but not limited to, storage and shipment costs, costs of producing non-standard materials, costs of purchasing non-returnable materials, cancellation costs, and any other cost resulting from cancellation or change of this order by Buyer which is permitted by Seller.
8. Price and Other Expenses
All prices are published by ASTI at its web site and are F.O.B. destination for delivery in the Continental U.S., and F.O.B. Port for all other destinations. Prices are subject to change at any time effective for all orders made after ASTI posts a price change on the web site.
ASTI reserves the right to determine the exact method of shipment. All shipments will be made by third-party carriers in accordance with terms and conditions established from time to time by such carriers.
Unless Buyer provides ASTI with a valid and correct tax exemption certificate applicable to the Product ship-to location prior to ASTI's acceptance of the order, Buyer is responsible for sales and all other taxes associated with the purchase of the Product, however designated, except for ASTI's or Sellers franchise taxes and taxes on their net income.
9. Delivery; Delays
Seller may reserve the right to make delivery in installments, all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of Buyer's obligations to accept remaining deliveries.
ASTI shall not be liable for any loss, damage or lost production, down time or penalty as a result of any delay in or failure to manufacture, deliver or otherwise perform hereunder due to any cause beyond ASTI's or Seller's reasonable control including, without limitation, act of Buyer, embargo or other governmental act, regulation or request affecting the conduct of Seller's business, fire, explosion, accident, theft, vandalism, riot, acts of war, strikes or other labor difficulties, lightning, flood, windstorm or other acts of God, delay in transportation, or inability to obtain necessary labor, fuel, materials, supplies or power at current prices.
10. Payment and Credit
Buyer shall pay the full amount indicated on the invoice accompanying the Product, including purchase price, shipping costs, applicable taxes, and all other costs and expenses for which Buyer is responsible, within thirty (30) days of the invoice date of the Product shipment. Unless otherwise indicated by ASTI in writing, Buyer agrees to remit payment in full to the address and account indicated on ASTI's invoices issued from time to time for all shipments, including shipments of any portion of the Product.
When payment in full is not remitted according to the applicable terms, Buyer shall be delinquent without further notice from ASTI. A late payment charge of one and one-half percent (1.5%) per month or the maximum late fee allowed by law shall be added to all invoices which are delinquent, subject to federal, state and local laws, calculated from the original due date of the invoice until payment in full. In the event Buyer is delinquent, Buyer shall pay all costs of collection, including but not limited to reasonable attorneys' fees. Should Buyer become delinquent, all contractual or other obligations of ASTI to Buyer shall terminate without further notice to Buyer. ASTI retains, and Buyer hereby grants ASTI, a security interest in the Product, including all accessions to and replacements of it until Buyer has made payment in full in accordance with the terms hereof, and Buyer shall cooperate fully with ASTI in executing such documents, including a Uniform Commercial Code financing statement, and accomplishing such filings and/or recordings thereof as ASTI deem necessary for the perfection and protection of such security interest.
Buyer's right to purchase any Product is conditioned upon approval of Buyer's credit and may be withdrawn or amended at any time by ASTI at its sole discretion. ASTI reserves the right to change the credit terms, refuse shipment, or cancel unfilled orders at any time when, in its opinion, the financial condition or previous payment record of Buyer so warrants.
11. Acceptance; Non-Conforming Products, Sole Remedy
Immediately upon Buyer's receipt of any Product shipped hereunder, Buyer shall inspect the same and shall notify ASTI of any claims for shortages or damages and shall hold the Product for ASTI's written instructions concerning disposition. Buyer agrees to accept the Product upon delivery to Buyer where the Product is in material conformity with ASTI's or the applicable Seller's published description or specifications of the Product. In any event, the Product shall be deemed automatically and conclusively accepted without defects when Buyer has had possession of the Product for ten (10) days and has failed to notify ASTI that the Product has been rejected.
Seller's weights are to govern settlement. On sales made F.O.B. Buyer's destination, no allowances for shortage or damage will be made by Seller unless Buyer furnishes acknowledgement from the carrier that same occurred in transit. On all sales made F.O.B. Seller's plant or warehouse, Buyer will, in the event of loss or damage in transit, file its own claim with carrier.
To properly reject non-conforming products, Buyer shall notify ASTI Customer Service to receive a return authorization number and make shipping arrangements for return of the Product to the Seller.
Buyer's sole remedy hereunder for the failure to deliver the Product in material conformity with applicable published description or specifications of the Product shall be, at ASTI's or Seller's option, the replacement of such non-conforming Product with conforming Product, or refund of the applicable purchase price paid.
In any circumstance where the product was (a) damaged prior to the buyer's acceptance, (b) shipped in error, or (c) out of specification, as represented by the Seller, the Buyer may return the product after obtaining a return authorization number from ASTI. Shipping and restocking charges may be waived in these cases.
12. Compliance with Law
Buyer shall be solely responsible for the use and disposition of the Product, including, without limitation, the obtaining of all permits, licenses or certificates required for the use thereof. Buyer represents and warrants that it shall use the Product only in accordance with all laws, rules and regulations applicable thereto, including, but not limited to, Environmental, Health and Safety Laws as defined in Section 17 of this Agreement.
13. Indemnification
Buyer shall indemnify, defend and save ASTI harmless from any and all liabilities, claims, demands, causes of action, or suits of whatever nature including, but not limited to, attorneys' fees and litigation expenses, arising from any: (i) breach by Buyer of any representation or covenant made by Buyer under this Agreement or under the ASTI Registration Form; (ii) breach by Buyer of the terms or conditions of this Agreement; (iii) failure of Buyer to comply with all applicable laws, including, but not limited to, Environmental, Health and Safety Laws as defined in Section 11 of this Agreement, and (iv) any use by Buyer or third parties of the Product sold to Buyer.
14. Disclaimer of Warranties
ASTI MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, ABOUT THE SUITABILITY OF THE PRODUCT AND SERVICES CONTAINED ON, OR OBTAINED THROUGH, THIS SITE OR THE RESULTS THAT MAY BE OBTAINED FROM USING THIS SITE OR THE ACCESSIBILITY OF THIS SITE. ASTI SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
15. Exclusive Remedies; Limitation of Liability; Non-Waiver
THE REMEDIES PROVIDED HEREIN ARE BUYER'S SOLE AND EXCLUSIVE REMEDIES. ASTI SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON CONTRACT, TORT, OR OTHER LEGAL THEORY ARISING OUT OF THE SALE, INSTALLATION, SERVICE OR USE OF THE PRODUCT BY BUYER OR ANY THIRD PARTY, EVEN IF ASTI HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH LOSSES, AND IN NO EVENT SHALL THE LIABILITY OF ASTI EXCEED THE UNIT PRICE OF THE PRODUCT. ASTI NEITHER ASSUMES NOR AUTHORIZES ANY AGENT, EMPLOYEE, REPRESENTATIVE, OR ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE, DELIVERY, SERVICE, OR USE OF ITS PRODUCT; AND UNLESS AN AFFIRMATION, REPRESENTATION, OR WARRANTY MADE BY AN AGENT, REPRESENTATIVE, OR EMPLOYEE IS SPECIFICALLY CONSENTED TO IN WRITING BY AN AUTHORIZED OFFICER OF ASTI, IT SHALL NOT BE ENFORCEABLE BY BUYER. ASTI'S FAILURE TO EXERCISE ANY OF ITS RIGHTS FOR ANY PERIOD SHALL NOT CONSTITUTE OR BE DEEMED A WAIVER OR FORFEITURE OF SUCH RIGHTS.
16. Authority to Export
All orders accepted for export are subject to issuance of an export license by the United States Government for export of the Product, and subject to Buyer's providing ASTI with the relevant import certificate, or any other document necessary to secure such export license and/or to permit the import of the Product into the country of destination.
17. Hazards; Precautions; Warnings
If applicable, computer generated Material Safety Data Sheets("MSDS"), required by Occupational Safety and Health Administration Hazard Communication Standard, 29 C.F.R. 1910.1200, are sent by Seller to Buyer when the Product is shipped. Buyer is responsible for providing the MSDS to its employees prior to handling and use of the material. The Seller also provides comprehensive warnings on labels. The absence of warnings should not be interpreted that the Product has no risks of exposure. There is little or no health effect information available on many substances, and the Buyer is responsible to follow standard laboratory safety procedures and avoid any contact with the chemicals used.
Buyer hereby represents that Buyer has the appropriate knowledge regarding the Product to properly use the Product; that Buyer has fully investigated all applicable Environmental, Health and Safety Laws associated with the use, transportation, storage, or handling of the Product; that Buyer shall comply with all such Environmental, Health and Safety Laws; and that under no circumstances shall ASTI be responsible for compliance with any such Environmental, Health and Safety Laws after delivery of the Product F.O.B. shipping point. As used in this Agreement, the term "Environmental, Health and Safety Laws" means, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Resource Conservation and Recovery Act of 1976, and the Occupational Safety and Health Act of 1970, each as amended, together with all other laws (including rules, regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and charges thereunder) of federal, state, local, and foreign governments (and all agencies thereof) concerning pollution or protection of the environment, public health and safety, or employee health and safety, including but not limited to laws relating to emissions, discharges, releases, or threatened releases of pollutants, contaminants, or chemical, industrial, hazardous, or toxic materials or wastes into ambient air, surface water, ground water, or lands or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport (of any type whatsoever), or handling of pollutants, contaminants, or chemical, industrial, hazardous, or toxic materials or wastes.
18. General
Notice. Except as otherwise provided herein to the contrary, notice to be provided to ASTI shall be given by actual delivery or by registered or certified, pre-paid U.S. Postal Service mail delivery, return receipt requested, to ASTI at 15801 Woods Edge Road, I-95 Exit 58, Colonial Heights, Virginia 23834, or such other address as ASTI shall publish on its web site for notices to be given to ASTI. Notice to Buyer shall by given by ASTI by any means reasonably calculated to provide actual notice to buyer, including facsimile transmission, e-mail or other electronic mail
Headings. The section headings used herein are for convenience of reference only and do not form a part of this Agreement, and no construction or inference shall be derived therefrom.
19. Severability
If any provision in this Agreement is invalid or unenforceable under applicable law, the remaining provisions will continue in full force and effect.
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