A. Terms of Any Existing Agreement Control; Governing Law; Notices
In the event that a purchase order is issued by Buyer pursuant to an existing written supply agreement (the “Agreement”) between Buyer and U. S. Silica Company, or any of its subsidiaries (herein referred to collectively as “USS”), the terms and provisions of such Agreement shall control in all cases. Otherwise, the terms and conditions set forth herein shall govern the purchase of material by Buyer from USS, notwithstanding any contrary language that may appear on any purchase order or e-mail from Buyer. The purchase shall be governed by and construed in accordance with the laws of the State of Delaware. Any notice to be given relating to the purchase shall be in writing, and shall be sent by courier (Federal Express or UPS only), next-day air, fee prepaid, and shall be deemed effective the next business day after sending, and shall be sent to Buyer’s address as shown on Buyer’s purchase order or e-mail, or if none be shown, to USS at 8490 Progress Drive, Suite 300, Frederick, MD 21701, Attn.: Legal Dept.
USS is aware that delivery dates requested by Buyer in Buyer’s purchase orders are of critical importance to Buyer. Accordingly, USS agrees to advise Buyer immediately of any anticipated delays in a shipment to Buyer’s delivery destination, and will inform Buyer of the cause for such delay (assuming it is known to USS). USS further agrees to use all reasonable means within its control to resolve any delay.
C. Terms of Payment
Payment shall be made within thirty (30) days from the date of USS’s invoice, unless other payment terms are set forth in the Agreement.
D. Guarantee and Liability
USS warrants its material to meet USS standard product specifications. USS MAKES NO OTHER GUARANTEES OR WARRANTIES OF ANY KIND WHATEVER, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, GUARANTEES OR WARRANTIES OR PERFORMANCE, MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE. No person, agent, representative or dealer is authorized to give any warranties on behalf of USS, nor to assume for USS any other liability in connection with any of USS’s material. USS shall not be liable under any circumstances for consequential, incidental or punitive damages. Liability shall be limited to the replacement of material. To the extent permitted by law, Buyer hereby agrees to indemnify, hold harmless and defend USS from any and all claims, demands, liabilities, judgments, suits, damages, costs and expenses, including attorneys’ fees, arising from, or alleged to arise from, personal injury, including death, and property damage, including loss of use thereof, due to the negligent act, error or omission of Buyer, including, but not limited to any claims arising from the handling of crystalline silica by the Buyer, such silica having been heretofore or hereinafter sold by USS to Buyer, whether used within or outside the normal scope of the Buyer’s business, and any claims of Buyer’s employees or employees of Buyer’s customers that any of them sustained bodily injury due to silicosis.
Unless specified otherwise in an Agreement, failure to make a claim as to defective material within ten (10) days after the date of delivery shall constitute an unqualified acceptance of such material and a waiver by Buyer of all claims of any kind with respect thereto. USS reserves the right to inspect allegedly defective material before final disposition of a claim is made. Material may not be returned to USS or disposed of by Buyer except by prior permission of an authorized official of USS, which permission may not unreasonably be withheld in the case of obviously defective and/or contaminated product.
F. Title And Risk Of Loss
All product sold by USS to Buyer is sold Ex Works or FCA, Incoterms 2010 (as same has been or may be amended) USS’s Plants or other shipping points, as applicable. The fact that USS may have arranged for transport of the material by common carrier to Buyer’s facility/destination shall not alter that legal status.
G. Force Majeure
USS’s supply of product to Buyer shall be excused for such time as it is prevented, hindered or delayed due to acts of God (weather and fire-related), failure or breakdown of plant equipment, labor strikes or work stoppages, logistics issues beyond its control, etc. If a force majeure event occurs, USS shall immediately provide notice of same to Buyer. In the further event that such force majeure event continues for thirty days, Buyer shall have the right to cancel its order of material upon written notice to USS without penalty.
The products contain crystalline silica (quartz). Breathing respirable crystalline silica dust can cause silicosis, a lung disease that can lead to serious breathing difficulties and death. Silicosis increases the risk of tuberculosis. Breathing respirable crystalline silica dust can cause cancer and may cause other diseases. DO NOT USE FOR SANDBLASTING! Follow OSHA and other applicable health standards for crystalline silica (quartz). Warn your employees (and your customers in the case of resale) of the potential health effects and OSHA and other precautions. See the U.S. Silica Company Safety Data Sheet attached to the Agreement or located on USS’s website (www.ussilica.com) for more information on hazards and precautions. By ordering these products, Buyer represents and warrants that it will warn its employees (and customers in the event of resale) that breathing respirable crystalline silica dust can cause silicosis and cancer and may cause other diseases, and that it will tell its employees (and customers in the event of resale) about OSHA and other precautions.
The existence, terms and conditions of a purchase order, sales document or contract between the parties shall be considered confidential and proprietary to USS and shall not be disclosed to any third party without USS’s prior written consent.
Revised November 2017