SELLER’S TERMS AND CONDITIONS

1. DEFINITIONS AND EXPLANATION. "Seller" means any of the Asbell Companies, such as Jeff Asbell Excavating & Trucking, Inc., Asbell Trucking, Inc., Meridian Oil & Equipment, LLC or Alpha Air Center, LLC. "Buyer" means the party with whom Seller is contracting by means of a Purchase Order and a Sales Order or Estimate, which transaction(s) is/are governed by the Seller’s Terms and Conditions and any reference to "vendor," "subcontractor," "contractor" or "supplier" shall also mean Seller. The words or phrases "Sale Order" or “Estimate” means the name or title of the instrument of contracting, including all documents, exhibits and attachments referenced thereon, and accepted by Buyer by its issuance of a Purchase Order to Seller which shall constitute a valid and binding agreement between Seller and Buyer for the Sale and Purchase of those goods, services, supplies, materials, articles, items, parts, components or assemblies ("Products") described therein. In the event of a conflict between these Seller’s Terms and Conditions and the terms set forth in any signed written agreement between Seller and Buyer, the terms of any signed written agreement between Seller and Buyer shall prevail.
2. ACCEPTANCE OF TERMS OF ORDER. This Acknowledgment is Seller's acceptance of Buyer’s Offer as set out in Buyer’s Purchase Order or Order, subject to the terms and conditions herein expressed. Seller's acceptance is expressly limited to the terms of the Purchase Order that are identical to the terms expressed herein and Seller hereby objects to any additional or different terms in Buyer's Purchase Order. Buyer agrees hereto by not withdrawing its Purchase Order in writing within five (5) days of the date of this Acceptance.
3. COMPLETE AGREEMENT. This Order (together with any written agreements in existence between the parties) is the complete and exclusive statement of the terms of the agreement between Seller and Buyer.
4. MODIFICATION. No modification of this Order shall be binding on Seller unless agreed to in writing and issued by Seller's Sales Representative.
5. DELIVERY. As commercially practicable, deliveries of the Products shall be in accordance with the quantities and schedule specified in the Order. If it appears Seller may not meet such schedule, Seller shall immediately by verbal means (to be confirmed in writing) notify Buyer of the reasons for and estimated duration of the delay and if requested by Buyer, make every commercially reasonable effort to avoid or minimize the delay to the maximum extent possible. Any additional cost caused by these requirements shall be borne by Seller, unless the delay in delivery arises out of causes beyond the control and without the fault or negligence of Seller or its subcontractors. The foregoing requirements are in addition to all of Seller's other rights and remedies as may be provided by law or this Order.
6. TITLE AND RISK OF LOSS. Unless otherwise specified herein, title to and the risk of any loss of or damage to the Products shall pass from Seller to Buyer F.O.B. Seller's plant or subcontractor’s plant. Passing of title upon such delivery shall not constitute acceptance of the Products by Buyer or relieve Seller of any of its obligations hereunder, unless expressly set forth herein.
7. INVOICE AND PAYMENT. Unless otherwise specified, a separate invoice shall be issued for each shipment. No invoice shall be issued prior to shipment of Products. No payment will be made prior to receipt of Products and correct invoice and Buyer reserves the right to delay payment until the Products have been accepted. Payment terms are net thirty (30) days. Payment due dates, including discount periods, will be computed from date of receipt of Products and correct invoice (whichever is later). Unless freight and other charges are itemized, any discount taken will be taken on the full amount of invoice.
8. PRICE WARRANTY. Seller warrants that the price of the ordered Products does not exceed the price charged by Seller to any other customer purchasing the same Products in like or smaller quantities, and under similar conditions of purchase.
9. INSPECTION, ACCEPTANCE AND REJECTION. All Products are subject to final inspection and acceptance at destination, notwithstanding the F.O.B. point or any payment or prior inspection at source. Final inspection will be made at a reasonable time after receipt of Products. Buyer's failure to inspect any of the Products hereunder shall relieve Seller from responsibility for such Products as are not in accordance with the requirements of the Order. Upon inspection, Buyer may reject nonconforming Products and shall notify Seller as to such rejection and Seller shall have all the remedies as provided by law and this Order.
10. WARRANTIES. Seller warrants that all Products delivered under the Order shall conform to the Products set forth the Order, subject to the Manufacturer’s substitutions which are beyond the control of Seller. Seller further warrants that it will have good title to the Products, free and clear of all liens and encumbrances and will transfer such title to Seller. These warranties shall survive any inspection, delivery, acceptance or payment by Seller. NO OTHER EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR PARTICULAR PURPOSE OR MERCHANTABILITY IS MADE. This warranty is also subject to the conditions and limitations stated herein. Buyer and all users shall promptly notify this company of any claims whether based in contract, negligence, strict liability, other tort or otherwise. * * * * * * THE EXCLUSIVE REMEDY OF THE USER OR BUYER AND THE LIMIT OF THE LIABILITY OF THIS COMPANY OR ANY OTHER SELLER FROM ANY AND ALL LOSSES, INJURIES OR DAMAGES RESULTING FROM THE USE OR HANDLING OF THIS PRODUCT (INCLUDING CLAIMS BASED IN CONTRACT NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE) SHALL BE THE PURCHASE PRICE PAID BY THE USER OR BUYER FOR THE QUANTITY OF THIS PRODUCT INVOLVED, OR, AT THE ELECTION OF THIS COMPANY OR ANY OTHER SELLER, THE REPLACEMENT OF SUCH QUANTITY, OR, IF NOT ACQUIRED BY PURCHASE, REPLACEMENT OF SUCH QUANTITY IN NO EVENT SHALL THIS COMPANY OR ANY OTHER SELLER BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES. The Buyer and all users are deemed to have accepted the terms of this LIMIT OF WARRANTY AND LIABILITY which may not be varied by any verbal or written agreement.
11. TERMINATION FOR CAUSE. Buyer may terminate its Order or any part hereof for cause in the event of any default by the Seller, or if the Seller fails to comply with any of the terms and conditions of this offer. Without limiting any other rights of termination that Seller may have, late deliveries, deliveries of products which are defective, or which do not conform to this order, and failure to provide Seller, upon request, of adequate assurances of future performance shall all be causes allowing Seller to terminate this Order for cause.
12. COMPLIANCE WITH LAWS. Buyer warrants that in the performance of this Order, it will comply with all applicable Federal, State and Local laws.
13. NONWAIVER. Any failure at any time of Seller to enforce any provision of this Order shall not constitute a waiver of such provision or prejudice the right of Seller to enforce such provision at any subsequent time.
14. PARTIAL INVALIDITY. If any provision of this Order is or becomes void or unenforceable by force or operation of law, the other provisions shall remain valid and enforceable.
15. CLEARANCE OF MATERIALS INTENDED FOR PUBLIC RELEASE. No news release, including photographs and films, advertisement, public announcement, denial or confirmation of same, or any part of the subject matter of Seller’s Order or any phase of any program hereunder shall be made without prior written approval of Seller.
16. TAXES. All prices herein, unless otherwise provided, include all applicable Federal, state and local taxes as may be assessed against Seller, except those sales or use taxes required by law to be paid by Seller.
17. INDEMNIFICATION. Buyer shall indemnify and hold harmless Seller, its agents, consignees, employees and representative from and against all expenses, losses, claims, demands, or causes of action of whatever kind, including negligence, breach of express or implied warranty, failure to warn, or strict liability, and from and against all special, indirect, incidental, or consequential damages, including lost profits, of every kind whatsoever arising out of, by reason of, or in any way connected with, accidents, occurrences, injuries or losses to or of any person or property, including to Buyer, Seller or Buyer’s property, Seller's property and/or Buyer’s Customer and/or Buyer’s Customer’s property which may occur before or after acceptance of the Products by Buyer, in any way due or resulting from in whole or in part, the specification, design, preparation, manufacture, construction, completion, warning or failure to warn, or of delivery or non-delivery of Products including such as are caused by any subcontractor of Seller. Immediately upon receipt from Seller of written notice of any suit or claim relating to any risk described in this section and upon written request by Seller, Buyer shall assume the defense of the litigation and/or negotiation of the claim. In any event, Buyer shall pay for or reimburse Seller for all costs and expenses, including attorneys' fees and other costs, arising out of any suit or claim relating to any risk described in this Section. If requested by Seller, Buyer shall maintain policies of liability insurance, declaring Seller as a named insured, in such amounts as Seller shall designate, to protect Seller from all the risks described in this Section. Such policies of insurance shall not be cancelable except upon ten days' written notice to Seller. Upon request, Buyer shall furnish proof of such insurance to Seller.
18. SAFETY. If the Products supplied hereunder or the services performed hereunder involve any risk of injury or death to persons or damage to property, Buyer shall provide Seller with a written description of the nature and extent of such risk, including a description of any precautions which should be taken to minimize risk.
19. ELECTRONIC ACKNOWLEDGEMENT. Buyer agrees that an electronic acknowledgement of these Seller’s Terms and Conditions or any other form of acceptance via electronic signature shall be considered an electronic signature under 15 USC §7001, and submitting these Seller’s Terms and Conditions via any Seller website or via the Internet to Buyer is the legal equivalent of submitting an executed document by hand, and the acceptance by Buyer manifests Buyer's desire and intent to enter into a binding contract with Seller under the terms described herein.
20. APPLICABLE LAW AND FORUM FOR DISPUTE RESOLUTION. Buyer agrees that the terms of this agreement with Seller shall be interpreted under the laws of the State of Missouri, without regard to the conflicts of law provisions thereof. In the event of a dispute, the resolution shall occur in the State Court of Missouri, Circuit Court of Jasper County.