Terms and Conditions of Sale

These terms and conditions govern the purchase of the product(s), as described on the Order Acknowledgement, Invoice or other relevant document, from Blair Sales Inc. and its affiliates (“Blair”) by its customers (“Buyer”). By ordering and accepting delivery of the Products, Buyer agrees to be bound by these terms and conditions.

1. Terms and Conditions to Govern:

These Terms and Conditions of Sale supersede and take precedence over any contrary terms and conditions contained in any other document, including any terms and conditions contained in any form of purchase order or other documents submitted by Buyer to Blair. No amendment to these Terms and Conditions of Sale or the Blair warranty will be valid and binding on Blair unless agreed to in writing and signed by an authorized corporate officer of Blair. An employee of Blair who is not an authorized corporate office of Blair has no actual, apparent or implied authority to legally bind Blair in any manner.

2. Price and Payment Terms:

All prices are subject to change without notice. All shipments will be billed at prices in effect on the date of shipment. Payment terms are Net 30 days unless otherwise specified in writing on the Order Acknowledgement. Interest will accrue on late payment at the rate of 1.5% per month until paid. All prices are exclusive of taxes, customs, duties, transportation and insurance, and any and all current or future tax or governmental charges (including, without limitation, any sales or use tax) applicable to the sale, delivery, shipment, storage or use of the Products that Blair is required to pay or collect, shall be for Buyer’s account and shall be added to the price and not subject to reduction. Buyer will be responsible for all expenses attendant to collection of past due amounts, including attorneys’ fees and costs. 

3. Shipment, Title; Risk of Loss:

Blair reserves the right to accept or refuse any order for Products received at its sole discretion. All shipping dates are approximate and not guaranteed. No delivery delay will entitle Buyer to a charge back, set off or claim for direct, indirect, incidental or consequential or other damages of any kind. Title and risk of loss shall pass from Blair to Buyer once the Products are loaded on the first carrier at our facility in Seville, Ohio, and all claims for loss or damage from that point in time and on, including in transit, must be filed against the carrier by Buyer. Freight will be billed as Prepaid and Add or Collect. Buyer shall unload shipments promptly and all demurrage shall be borne by Buyer. Restrictions on delivery and any delivery discounts or surcharges shall be on terms set forth by Blair from time to time.

4. Force Majeure:

Blair will be excused from performance hereunder or otherwise if performance is prevented or delayed due to acts of God, war, terrorism, riot, fire, labor trouble (including strikes, lockouts and labor shortages), failure of computer or telecommunications systems to operate properly, destruction or loss of electronic records or data, plant shutdowns, unavailability of materials or components, unavailability of or delays in transportation, insufficient production capacity, unavailability or shortage of fuel products, explosion, accident, compliance with governmental requests, laws, regulations, orders or actions, or other unforeseen circumstances or other causes beyond Blair’s reasonable control. Without limiting the generality of the foregoing, Blair will be excused for any delay or failure to perform as a result of any epidemic or pandemic threats and guidelines and advisories in respect thereto, whether recommended by the World Health Organization, the Centers for Disease Control, or any governmental or local health authority having jurisdiction, pursuant to which Blair determines to suspend all or a part of its operations for the health and safety of its employees, contractors or the community at large. In any such event, Blair may, without liability, allocate and distribute the Products among its customers in such proportions, including to the exclusion of some customers such as Buyer, as Blair, in its sole discretion, determines.

5. Limited Material Warranty:

Blair warrants those Products manufactured by Blair for a period of 12 months following its installation in accordance with and subject to the terms and conditions set out in Blair’s 1 year Material Only Warranty as published from time to time at www.blairrubber.com/warranty (the “Blair Warranty”).  SAVE AND EXCEPT FOR SUCH WARRANTY OR THE TERMS OF ANY OTHER EXPRESS WRITTEN WARRANTY GIVEN BY BLAIR IN RESPECT OF THE PRODUCT, THE PRODUCT IS SOLD “AS IS, WITH ALL FAULTS”, WITHOUT RECOURSE, AND WE DO NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY CONDITIONS OR WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PRIVATE LABEL GOODS, GOODS DESCRIBED AS “SECONDS”, “ECONOMY”, “DAMAGED”, “OFF-GRADE”, AND OTHER SIMILAR DESIGNATIONS ARE DEEMED TO BE SOLD “AS IS, WITH ALL FAULTS”.

6. Limitation of Remedy and Liability:

IF THE PRODUCTS ARE SUBJECT TO A LIMITED MATERIAL WARRANTY AS SET FORTH ON OUR WEBSITE OR OTHER EXPRESS WRITTEN LIMITED WARRANTY PROVIDED BY BLAIR, THE SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY NATURE ARISING FROM THE FAILURE OF THE PRODUCT TO CONFORM TO THE APPLICABLE WARRANTY SHALL BE LIMITED TO THE REMEDY SPECIFIED IN THE APPLICABLE WARRANTY. UNLESS OTHERWISE EXPLICITLY SET FORTH IN AN APPLICABLE LIMITED WARRANTY, IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), SHALL BLAIR’S CUMULATIVE LIABILITY EXCEED THE PURCHASE PRICE FOR THE SPECIFIC PRODUCT GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. BLAIR SHALL NOT IN ANY EVENT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE OR DELIVERY. BUYER AGREES THAT IN NO EVENT SHALL OUR LIABILITY INCLUDE INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES. THE TERM “CONSEQUENTIAL DAMAGES” SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO, COST FOR LABOR, LOSS OF ANTICIPATED PROFITS, LOSS OF USE, LOSS OF REVENUE, AND COST OF CAPITAL.

7. Rejection of Non-Conforming Products:

Unless otherwise set forth in the Blair Warranty or other express limited warranty provided by Blair for the applicable Products, rejection of non-conforming Products must be made by Buyer in writing within ten (10) days of receipt, and all defects ascertainable at the time of giving notice shall be stated with particularity or deemed waived. In the event of any complaint, shipment shall be held intact, and specification of objections, accompanied by tally of objectionable Products, shall be submitted directly to Blair. If requested by Blair, Buyer shall provide a requested sample of the purported non-conforming Products, at Buyer’s expense. If Blair determines that the Products are non-conforming, Blair will, at its option, allow for a full credit allowance or ship replacement Products to Buyer at Blair’s expense.  Unless otherwise set forth in the Blair Warranty or other express limited warranty provided by Blair, the non-conforming Products must be retained intact at the delivery point, and Blair shall have 90 days from the date of such allowance or shipment of replacement Products to dispose of such non-conforming Products as it determines. Under no circumstances are Products to be returned to Blair unless Buyer has written permission of Blair’s Plant Manager and Director of Sales to do so. A claim that Products are non-conforming or any other claim shall not entitle Buyer to deduct any sum from any invoice unless such claim and deduction has been allowed and acknowledged by Blair in writing. Invoices shall be paid in full, and, in the event of subsequent allowance by Blair of any claim, Blair shall promptly make payment to Buyer for the amount so allowed.

8. Return of Products:

Return of Products other than pursuant to Section 7 shall require the prior written approval of Blair’s Director of Sales at his or her discretion. Products pre-approved for return will be subject to a 15% restocking charge, and reconditioning, repackaging and freight charges as set by Blair from time to time.

9. Security Interest:

Blair reserves and Buyer grants to Blair a purchase money security interest in all Products sold and any cash receivables or cash from resale thereof to secure the full payment and performance by Buyer of its liabilities and obligations to Blair. Buyer shall be in default under these Terms and Conditions of Sale, and the security interest created hereunder shall become enforceable if: (a) Buyer fails to pay the balance of the invoice value when due or fails to remedy any other default within ten (10) days after being notified of such default by Blair; (b) Buyer threatens, appears to or ceases to carry on its business or substantially changes the nature of its business, all as determined by Blair in its sole discretion; (c) Buyer becomes or acknowledges being insolvent, becomes bankrupt or generally takes measures to arrive at a compromise, an arrangement or an agreement with its creditors, or arrives at the liquidation of its assets or its bankruptcy; (d) proceedings are instituted against Buyer in order to liquidate its assets or declare it bankrupt, which are not diligently contested by Buyer and are not dismissed or cancelled within twenty-one (21) days from the day on which they are instituted; (e) a prior notice is given by a creditor purporting to hold or holding a prior claim of its intention to exercise its purported or prior claim or any other security interest, or if such right or security interest is exercised or if a secured creditor takes possession or appoints a receiver with respect to any part of the Products sold; or (f) an order of execution is filed against the Buyer or a seizure is brought against the Products sold and should it not be quashed within ten (10) days thereafter. Buyer acknowledges that this document may be filed with the appropriate authorities as a financing statement and agrees to execute and deliver such documents as Blair may request in order to perfect its security interest.

10. Indemnity:

Buyer shall indemnify, defend and hold harmless Blair, its affiliates and their respective officers, directors, managers, employees, representatives and agents from and against, any and all claims, losses, liabilities, costs and expenses (including attorneys’ fees) arising out of or resulting from the use, handling, manufacture, processing, alteration, distribution, sale or marketing of the Products, or any other action or inaction with regard to the Products, in each case after the delivery thereof to Buyer; provided however, that Buyer shall not be liable to Blair for damages directly caused by the sole negligence of Blair or by Blair’s breach of the Blair Warranty or any other applicable written limited or other warranty issued by Blair upon request.

11. Intellectual Property Rights:

Blair is the exclusive owner of certain trademarks (including designs and logos), trade secrets, copyrights, specifications, formulas, and other valuable intellectual property rights relating to the Products. The composition and formulation of the Products, including without limitation, chemical composition and methods and instructions for formulation, processing and production and all intellectual property, processes, know-how, trade secrets and other related proprietary information are the sole and exclusive intellectual property of Blair. Buyer agrees not to assert or claim, at any time, any interest in or do anything that may adversely affect the validity of Blair’s exclusive intellectual property, including, but not limited to, taking any action or allowing any action to be taken which may damage, detract from, or be otherwise detrimental to Blair’s intellectual property rights.

12. Regulatory Compliance:

Buyer is solely responsible and solely liable for its compliance with all applicable laws, rules, regulations, governmental requirements, and industry standards applicable to Buyer’s business operations related to the Products, including, without limitation, Buyer’s purchase, use, resale or distribution of the Products.  Without limiting the generality of the foregoing, Buyer agrees not to divert or resell the Products contrary to the export control laws of the United States.

13. Governing Law:

These Terms and Conditions of Sale shall be governed by the laws of the State of Delaware, without reference to the choice of law, conflicts of law, or principles of any other state or country which might otherwise be applied. Further, the United Nations Convention on Contracts for the International Sales of Goods shall not apply to the sale of Products. Buyer irrevocably and unconditionally attorns to the exclusive jurisdiction and venue of the state and federal courts located in New Castle County, Delaware in respect of any dispute arising out of or in connection with these Terms and Conditions of Sale or in respect of any legal relationship associated with or derived from these Terms and Conditions of Sale.

14. Severability:

If any provision of these Terms and Conditions of Sale is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired, and the parties shall use their best efforts to substitute a valid, legal and enforceable provision, which, insofar as practical, implements the purpose of these Terms and Conditions of Sale. Without limiting the generality of the foregoing, some states may not allow an exclusion of certain implied warranties or conditions or limitation of certain incidental, consequential or other damages. In such event, Sections 5 and 6 shall be construed to the greatest extent permissible to implement the purpose of these Terms and Conditions of Sale.

15. Miscellaneous:

These Terms and Conditions of Sale shall be binding on and inure to the benefit of the respective successors and permitted assigns of the parties. Buyer shall not assign its rights or obligations under these Terms and Conditions of Sale without Blair’s prior written consent, which may be withheld for any reason in Blair’s sole discretion. Any assignment by Buyer except as permitted herein shall be null and void. Unless otherwise explicitly set forth in the Blair Warranty or any applicable written warranty provided by Blair to Buyer, no warranty shall be assignable under any circumstances. No waiver of any provision of these Terms and Conditions of Sale by an authorized corporate officer of Blair will be valid unless the same is in writing and signed by such officer.