Merchandise of PARKWAY JANITORIAL or PARKWAY JANITORIAL FRANCHISING OF AMERICA, LLC or BAXXAN HOLDINGS CORPORATION ("Seller") covered hereby is delivered to and accepted by the Customer upon the express condition that the Customer acknowledges and agrees to all of the terms and conditions set forth below.
1. In the event Seller shall be unable or fail at any time to make or supply the goods covered hereby because of fire, explosion, earthquake, windstorm, accident, breakdown, strike, lockout combination of workmen or other labor trouble, flood, drought or other adverse weather conditions, embargo, war, riot, governmental authority or agency, delay or failure of carriers or contractors, labor shortage, or inability to obtain from regular sources raw materials, operating materials, plant equipment or materials required for maintenance and repairs of any contingency or delay or failure or cause beyond the reasonable control of the Seller, whether or not of the kind herein above specified, and whether or not any such contingency is presently occurring SELLER SHALL NOT BE LIABLE TO THE CUSTOMER FOR FAILURE TO SUPPLY THE GOODS AND SHALL BE EXCUSED FROM ANY PERFORMANCE HEREUNDER. If any event of the nature referred to in this paragraph shall prevent or interfere with shipment by the Seller via the carrier or carriers normally used, shipments shall not be made via different or more costly carriers unless the Customer shall notify the Seller in writing of its willingness to bear the additional cost of transportation by such different or more costly carriers. The additional cost of transportation brought about by unusual circumstances may or may not be waived by the Seller depending on the circumstances and the amount of additional cost involved.
2. All sales are final and not subject to cancellation, Seller's responsibility ceases upon delivery to carrier. Title to the goods shall pass to the Customer upon delivery F.O.B. cars and the mill or mills or vessels or trucks at point of origin of the shipment to the Customer. All claims by Customer for loss or damage occurring after delivery to carrier must be brought against carrier and not Seller. When delivery is made by Seller's truck or trucks it is understood that ownership of the merchandise passes to the buyer when received or when a receipt of the merchandise is signed on behalf of the Customer.