Vitro America, LLC.
Sole and Exclusive Terms and Conditions of Sale
Terms and Conditions Applicable to Sales and to Quotations for Sales

Conditions, Terms and Warranties.  Should a sale be consummated such sale transaction shall be subject, in any and all respects, to all the terms, conditions, covenants, warranties and other provisions hereof (hereinafter collectively referred to as the “Terms”).  The Terms are the SOLE and EXCLUSIVE writing governing any and all sale transactions by Vitro America, LLC. (“VA”) and any and all present and future divisions and/or business units thereof including, but not limited to, ACI Distribution, Binswanger Glass, Binswanger Mirror, Glasscraft, Vitro Auto Glass Sales and VVP Flat Glass Sales (VA and each of the same are hereinafter collectively referred to as “Vitro”).  All performance by Vitro is WHOLEY AND COMPLETELY CONTINGENT upon the Terms being the sole and exclusive writing governing any such sale.  Some of the Terms set forth herein may differ from those in buyer’s purchase order (should one exist).  Notwithstanding any different, or additional, terms that may be contained in buyer’s purchase order or other writings ANY AND ALL SUCH DIFFERENT AND/OR ADDITIONAL TERMS ARE HEREBY REJECTED and all and any performance by Vitro is EXPRESSLY CONDITIONED upon assent by the buyer to the Terms which assent shall be conclusively and finally evidenced by the first to occur of (A) the buyer’s failure to advise Vitro, in writing, of any objection to the Terms within 15 calendar days, time being of the essence, of the Terms first being available for review by the buyer or (B) buyer’s initial receipt of the goods or services of Vitro subject to such sale transaction.  Vitro hereby REJECTS all prior communications and offers by the buyer and also REJECTS all subsequent communications and offers by buyer not in conformity, in all respects, with the Terms.      

Prices.  Typographical errors are subject to correction, at any time, by Vitro.  All prices are in U.S. Dollars and prices noted herein are valid only for goods to be delivered within 60 days from the date of the written quotation of Vitro and are subject to change, upon notice, by Vitro to the buyer at any subsequent time.   All goods will be packed in accordance with Vitro’s normal practices.

Payment.  With respect to any payment due to Vitro, and not received by Vitro, by the due date therefore, the buyer shall bear any and all costs of collection incurred by, or on behalf of, Vitro including, but not limited to, legal fees, costs and expenses, and any amount not paid to Vitro on, or before, the due date therefore shall bear interest, from and after said due date, until said sum is received by Vitro, at that interest rate which is the lesser of (a) the highest rate permitted by applicable law or (b) 1½% of the amount not so timely paid, per month, until, in either event, all of said sums, including interest and costs, are received by Vitro.  Vitro shall have the right to terminate, in whole or in part, this and any other agreement between Vitro and the buyer upon the failure by the buyer, or any affiliate of the buyer, to timely perform pursuant to the Terms.  All claims by the buyer for errors in shipment or invoice must be made, in writing, and received by Vitro, within 10 days after initial receipt of the goods or invoice, as the case may be.

Cancellation.  Orders accepted by Vitro may be cancelled or deferred, in whole or in part, by the buyer, only with the express prior written consent of Vitro and Vitro shall have the right to condition any such written consent on the payment, to Vitro, of a restocking and/or other charge or charges in an amount or amounts to then be determined, by Vitro, at its sole discretion.

Delivery.  Any delivery date quoted is not guaranteed nor is the date quoted for delivery a condition of the contract.  Vitro will not be liable, in any way, or in whole or in part, for any failure to meet a delivery date nor for loss or damages, of any kind, arising, in whole or in part, from a delay in delivery howsoever caused.

Taxes.  All taxes or similar charges are to be timely paid by the buyer and the buyer agrees to indemnify, defend and hold harmless Vitro from and against any and all loss, cost, damage or expense including, but not limited to, counsel fees, costs and expenses, arising therefrom.

Assurances.  If, at any time, Vitro is, for any reason, or for no reason, insecure with respect to the prospective timely and complete performance by the buyer, the buyer shall, within 7 business days of the request, furnish Vitro such reasonable written assurances as Vitro may request.

Product Use.  VITRO SHALL HAVE NO LIABILITY, DIRECT OR INDIRECT, CONTINGENT OR OTHERWISE, BASED UPON ANY ACTUAL, OR ALLEGED, USE, OR MISUSE, OR MISINSTALLATION, OF ANY PRODUCT OF VITRO INCLUDING, BUT NOT LIMITED TO, ANY USE OR INSTALLATION OR MODIFICATION THEREOF NOT IN COMPLIANCE WITH APPLICABLE LAW, RULE AND/OR REGULATION OR CODE OR INDUSTRY PRACTICE OR GUIDELINES OR GUIDANCE IN EFFECT NOW, OR AT ANY TIME FROM, OR AFTER, THE DATE HEREOF, ALL THE SAME BEING THE SOLE AND EXCLUSIVE OBLIGATION OF THE BUYER.  The buyer agrees, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, to indemnify, defend and hold harmless Vitro  from, and against, any and all loss, cost, damage or expense (including, but not limited to, counsel fees, costs and expenses) based, in whole or in part, upon the products and/or services of Vitro acquired by the buyer not being used and/or installed in accordance with applicable law, rule and/or regulation or code or industry practice or guidelines in effect now, or at any time from and after the date hereof.

Specifications.  Purchase orders for safety glazing materials must refer, specifically, to the safety standard to which the product must be manufactured, certified and labeled.  Annealed glass must not be glazed in hazardous locations, as defined by applicable law, rule and/or regulation.

Waiver of Claims.  Every claim by the buyer, from any cause, shall be deemed waived unless made, in writing, within 10 days of the receipt by the buyer of the goods to which such claim relates.  No legal proceedings may be brought by, or on behalf of, the buyer, for any breach of this contract more than 6 months after the accrual of the cause of action therefore.

Indemnity.  Buyer agrees to release, indemnify, defend and hold harmless Vitro from, and against, any and all loss, cost, damage or expense, including injuries to and death of any person and loss of or damage to property by whomsoever owned arising, directly or indirectly, from the products and/or services sold hereunder other than such claims, demands, obligations and liabilities which result exclusively and directly from the sole and exclusive intentional gross negligence of Vitro and the aggregate liability of Vitro pursuant hereto shall not exceed, even in the instance of the sole and exclusive  intentional gross negligence of Vitro, the amount received by Vitro, on an after – tax basis, pursuant to the terms hereof.  If any product sold by Vitro was manufactured, in whole or in part, according to the specifications of the buyer the buyer does hereby release and agree to indemnify, defend and hold harmless Vitro from any and all claims or liabilities (including, but not limited to, legal fees, costs and expenses) with respect to, or arising out of, actual or alleged violation of the intellectual property rights of any party on account of such manufacture.  Buyer does hereby release and agree to indemnify, defend and hold harmless Vitro from and against any violation by the buyer of any law, rule or regulation regarding this transaction.  If buyer fails to indemnify Vitro, in any way, Vitro may, at its option, take such actions and make any necessary payments as Vitro deems prudent and buyer shall be required to indemnify, defend and hold harmless Vitro with respect to each of the foregoing and repay, upon demand, Vitro for such amounts. 

Defects, etc.  Goods and/or services sold to the buyer shall not be considered as non-compliant even though not in precise conformity with the specifications, if any, if the product or service has not been fully paid for by the buyer or substantially fulfills performance requirements noted, in writing, by the buyer to Vitro or is in accordance, in all material respects, with the warranties of Vitro as set forth on the Vitro website, www.vitroamerica.com, each of which is incorporated herein by reference.  Further, no warranty of Vitro shall apply, at all, to any products or services of Vitro which have not been fully paid for by the buyer or been subject, in the opinion of Vitro, which shall be conclusive, to misuse, neglect, accident or improper application or installation nor to any products which have been repaired or altered, without the express prior written consent of Vitro, by any party other than Vitro.  The buyer shall, within 10 days of the receipt of goods in connection herewith inspect the same and, advise, in writing, Vitro, TIME BEING OF THE ESSENCE, if any of such goods are, in the opinion of the buyer, not in compliance herewith.  In the event that no such notification is received by Vitro the goods shall be, for any and all purposes hereof, deemed to be compliant with the order. 

Integration.  Agents or salesman of Vitro may have made oral statements or written representations about the products subject hereto.  Such statements and representations are not binding upon Vitro, do not constitute warranties, shall not be relied upon by buyer and are not part of the contract between buyer and Vitro.  The entire contract is embodied in this writing and this writing constitutes the final expression of the parties' agreement and is the complete and exclusive statement of the terms of that agreement.

SOLE AND EXCLUSIVE WARRANTY.  THE BUYER IS REFERRED HEREBY, AND IS URGED TO CAREFULLY REVIEW THE SAME, TO HTTP://WWW.VITROAMERICA.COM OR, AS TO ACI DISTRIBUTION, VITRODISTRIBUTION.COM/VITRO-WEST/RESOURCES/WARRANTIES.HTM, FOR THE SPECIFIC AND SOLE WARRANTIES, SAID WEB SITES BEING INCORPORATED HEREIN BY REFERENCE, APPLICABLE TO THE PRODUCTS OF VITRO. IN THE EVENT THAT BUYER DOES NOT HAVE ACCESS TO A WEBSITE INDICATED OR WISHES, FOR ANY REASON, TO RECEIVE A PRINTED VERSION THEREOF, THEN THE BUYER IS URGED TO PROMPTLY CALL 901-537-8341.

In the event of any inconsistency between the warranties stated on that web site, and the terms hereof, the warranties on the website, if applicable, shall govern and control.  Vitro’s sole and exclusive liability and claimant’s sole and exclusive remedy for breach of any warranty shall be as stated on the website.  OTHER THAN AS OTHERWISE EXPRESSLY SET FORTH IN THIS SECTION VITRO MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, BY OPERATION OF LAW, OR OTHERWISE, AS TO THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE GOODS SOLD HEREUNDER.  VITRO WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR ANY DAMAGES INCLUDING, BUT NOT LIMITED TO, ANY LABOR FEES, COSTS OR EXPENSES OF ANY KIND OR UNDER ANY CIRCUMSTANCE.  Vitro and the buyer expressly agree that no warranty shall be provided as to goods not fully paid for by the buyer and this warranty cannot be changed or otherwise altered unless the price for the goods sold hereunder is correspondingly altered.  Vitro makes no warranties with respect to any services or labor supplied by Vitro other than those warranties specifically set forth or referred to in this section 14.
The Buyer does agree that the Buyer has been offered the opportunity, for an additional purchase price, to receive other, further and additional warranties from Vitro but has declined to pay such additional consideration.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO THE BUYER.
THIS WARRANTY GIVES THE BUYER SPECIFIC LEGAL RIGHTS AND THE BUYER MAY ALSO HAVE OTHER LEGAL RIGHTS WHICH VARY FROM STATE TO STATE.

Legal Compliance.  Vitro shall not be responsible for the compliance of the goods sold pursuant hereto with any governmental safety, environmental or health laws, rules or regulations.  It is solely buyer’s responsibility to determine the compliance of said goods with such laws, rules and regulations.

Assignments.  The buyer may not assign any of the rights or obligations hereunder, in whole or in part, without the express prior written consent of Vitro.  Vitro may subcontract any part hereof.

Force Majeure.  Vitro shall not be responsible for any damages, delays or non-performance directly, or indirectly, caused by any cause beyond Vitro’s reasonable control and in such case Vitro may wholly, or partially, suspend shipment of the goods.

Waiver.  No delay or failure by Vitro to exercise any right or remedy will operate as a waiver of the right or remedy, and any waiver of a default by Vitro shall constitute a waiver with respect to that default only, and not of any prior or subsequent default.

Duration of Covenants. The parties here to do hereby agree that all covenants and obligations of the buyer contained herein shall, notwithstanding anything to the contrary contained herein, or elsewhere, never terminate and/or expire.

20. Choice of Law; Severability.  The transaction contemplated hereunder, and the Terms, shall be governed by, and construed in accordance with, the internal laws of the State of Delaware.  Any action, suit or proceeding brought with respect to the subject matter hereof that is raised by, or on behalf of, the buyer shall be brought in the courts of the State of Tennessee or in the federal court for the western district of Tennessee.  If any paragraph, provision or requirement of this agreement is declared or found to be void or unenforceable, the balance of this agreement shall be interpreted and enforced as if the void and unenforceable paragraphs, provision or requirement was never a part of the Terms.

21. Uniform Electronic Transaction Act. Other than transactions involving, in whole or in part, an individual involved in an electronic transaction primarily for personal, family or household purposes, or unless otherwise agreed to, by the parties, any transaction by, or between, the parties may be conducted by electronic means. For all purposes hereof "electronic" relates to "technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities." Should a transaction be affected, Vitro shall be entitled to rely, unless otherwise advised, in writing, upon the information processing systems that a buyer, or potential buyer, has designated or used for the purpose of receiving electronic records or information.