The following Terms and Conditions of Sale (hereinafter, the “Terms”) apply to the sale of all products (“Product”) sold by the entity identified in the Sales Order (the “Seller”) issued by Seller (the “Sales Order”) to the buyer identified in the Sales Order (the “Buyer”) subject to the Terms set forth herein. All Purchase Orders (as defined below) from Buyer are subject to acknowledgment and acceptance by Seller and are not binding on Seller unless and until acknowledged and accepted by Seller in a written Sales Order. Seller’s acceptance of a Purchase Order is expressly conditioned upon Buyer’s assent to these Terms and any modifications to the Purchase Order proposed by Seller in the Sales Order. These Terms and the Sales Order are collectively referred to as the “Agreement“. In the event of a conflict among this Agreement and any other agreement or writing between the parties, then the terms of this Agreement shall prevail and control. These Terms shall prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its Purchase Order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and Seller hereby expressly objects to any additional or different term or condition that may be contained in any prior, contemporaneous or subsequent communication (whether written, verbal or transmitted though electronic means) from Buyer that is in addition to or contrary to the terms of this Agreement.
- Taxes and other charges. Buyer shall be solely responsible for all taxes (other than taxes based on the income of Seller), duties, charges, and assessments levied or imposed by any foreign governmental entity, or by any local, state, or federal governmental entity of the United States on the production, sale,transportation, export and/or import, or delivery of the of the Product (including, without limitation, United States state sales and use taxes, Canadian Harmonized Sales Tax and other value added taxes, where applicable, and any customs duty, excise taxes, special import measures or other duties or charges imposed by a customs authority on the export and/or import of a Product from Seller to Buyer), whether in effect on the date of this Agreement or thereafter enacted, increased or levied and irrespective of whether such taxes, duties, charges or assessments are quoted on Seller’s quotation, Sales Order, or invoice. In the event Seller is required to pay any such tax, duty, charge or assessment, Buyer agrees to promptly reimburse Seller for said amount.
- Payment. Buyer agrees to pay the prices quoted in Seller’s Sales Order and is responsible for any additional costs or price changes in effect on the date of shipping. All prices quoted are in U.S. Dollars ($USD). The payment terms for approved credit accounts is thirty (30) days from the invoice date unless otherwise agreed in writing. Seller reserves the right to require advance payment at its discretion. All past due amounts shall bear interest at the lesser of 18% per annum (1.5% per month) or the maximum rate allowed by law from the date due until paid. Buyer shall pay all collection costs, including, without limitation, attorneys’ fees and costs, incurred by Seller in collecting any past due amount. The rights and remedies herein reserved to Seller shall be cumulative and in addition to all other rights and remedies available to Seller under applicable law. The Buyer shall not be entitled to withhold or set-off payment for the Products for any reason whatsoever. Unless expressly provided otherwise in Seller’s Sales Order, any transportation charges, customs duties, insurance charges, packaging costs, consular fees and any other similar charges are not included in the sales price and shall be Buyer’s responsibility. Buyer further grants to seller a security interest in Buyer’s equipment, contract rights, inventories, receivable and proceeds of sales as collateral to secure the Buyer’s performance of all obligations herein. Buyer hereby appoints any employee, agent, or attorney of Seller as Buyer’s attorney in fact to endorse and file on behalf of Seller any UCC 1 form to perfect or record the security interest.
- Purchase Orders and Specifications. Buyer shall submit a purchase order to Seller (“Purchase Order”) identifying the Product(s) requested for purchase, including any applicable specifications of the Products (“Specifications”) and the amount or volume of Product(s) requested, and Buyer shall be responsible for ensuring theaccuracy of the terms of any Purchase Order and for giving the Seller any necessary information relating to the Products within a sufficient time to enable the Seller to perform the Agreement. Buyer warrants that any Specifications provided to Seller does not infringe on any patent, copyright, trade secret or other intellectual property right of a third party. Seller will identify and confirm the Product(s) sold, the quantity of Product sold, the sales price, delivery terms, and the estimated ship date in the applicable Sales Order. Any technical advice or recommendation provided by the Seller as to the storage, application or use of the Products (whether provided verbally or in writing) is given only to the best of the Seller’s knowledge; is given “AS-IS” without warranty of any kind; and shall not relieve the Buyer from undertaking its own Buyer shall be fully responsible for, and shall comply with all export and import laws of all countries involved in the sale of Product under this Agreement or any resale of the Product by Buyer, including, but not limited to, (i) US antiboycott laws and regulations, including, but not limited to, the Export Administration Act and the Internal Revenue Code, (ii) all US laws or regulations related to economic sanctions and trade embargoes, including, but not limited to, US Export Administration Regulations and the International Traffic in Arms Regulations, (iii) antibribery laws, including, but no limited to the US Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
- Delivery and Title. Terms of delivery, shipment, risk of loss, and insurance related to the Product shall be determined based on the pre-defined commercial terms published by the International Chamber of Commerce (ICC) and collectively referred to as INCOTERMS 2020. Seller shall designate the applicable Incoterm in its Sales Order, along with any additional terms and conditions related to these matters. AllProduct is packaged for ground Buyer shall provide Seller detailed shipping instructions within a reasonable time prior to shipment. Buyer shall be responsible for any increased costs or delays in delivery resulting from Buyer’s failure to supply such instructions in a timely manner. ALL DELIVERY DATES GIVEN ARE APPROXIMATE. Seller does not guarantee delivery on or before the delivery dates given. Seller reserves the right to modify the delivery dates with notice to Buyer. In the event Buyer requests a change in the scheduled delivery date within three (3) business days of the scheduled shipping date and such change is accepted by Seller, a fee of $500 may be applied to the order. Notwithstanding delivery or the passing of risk of loss in the Products, or any other provision of this Agreement, title to, or ownership in the Products shall not pass to the Buyer until Seller has received payment in full of the price of the Products.
- Acceptance; Non-Conforming Product; Cancellation. Buyer is responsible for promptly inspecting all Products to ensure they are delivered without damageand that the correct volumes, Specifications, and types of Products sold have been Buyer will be deemed to have accepted the Product unless it notifies Seller in writing of any Nonconforming Product within seven (7) days of delivery. “Non-conforming Product” means any Product that falls outside of the Specifications for such Product (as determined by Seller) or is not in the quantity or volume as specified in Seller’s Sales Order. If Buyer timely notifies Seller of any Nonconforming Product and Seller confirms such nonconformance, Seller shall, in its sole discretion, either (i) replace such Nonconforming Product with conforming Product, or (ii) reduce total purchase price of the Product under the Sales Order by the purchase price of the Non-conforming Product(s). Buyer acknowledges and agrees that the remedies set forth in this Section 5 are Buyer’s sole and exclusive remedies for the delivery of Non-conforming Product. Except as provided in this Section, all sales of Product to Buyer are made on a one-way basis and Buyer has no right to return Product purchased under this Agreement to Seller. Cancellation of any Product order will be subject to acceptance by Seller and to a cancellation charge in accordance with Seller’s policy then in effect. Buyer further agrees that Seller may invoice, and the Buyer will pay Seller’s invoice within thirty (30) days from date of cancellation, all applicable cancellation charges due to the Seller, which shall be a minimum of 15% of the total purchase price and a maximum of 100% of the total purchase price.
- Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED HEREIN, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED CONCERNING THE PRODUCT AND SELLER EXPRESSLY EXCLUDES ANY WARRANTIES OF MERCHANTIBILITY, FITNESSFOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OF ANYTHIRD PARTY, AND WARRANTIES AS TO QUALITY OR CORRESPONDENCE WITH PRIOR DESCRIPTION ORSAMPLE. Buyer acknowledges that on occasion Seller acts as a distributor for Products not branded and/or not packaged by Seller (“ResaleProducts”) and that matters relating to the quality of such Resale Products are not within the Seller’s ACCORDINGLY,SELLERMAKESNOWARRANTIESWHATSOEVERCONCERNING RESALEPRODUCTS,INCLUDINGWARRANTYOFMERCHANTABILITYAND/ORFORAPARTICULARPURPOSE.
- SDS/Labeling. If Seller is toll manufacturing or distributing Products for Buyer and Buyer wants Seller to applyBuyer’s label to such Products and to transmit such Products with Buyer’s safety data sheet (“SDS”), Buyer is solely responsible for ensuring that the content of each SDS and label for its Products is accurate and fully compliant with all applicable federal, state, and local laws, statutes, rules, regulations and ordinances, including, but not limited to, the Hazard Communication Standard (29 C.F.R. § 1910.1200) promulgated by the Occupational Safety and Health Administration (“OSHA”), as well as any parallel regulation adopted or promulgated by an OSHA-approved state occupational safety and health plan. Seller may provide feedback and information relating to Buyer’s SDS and/or label, however, such feedback and information (whether provided verbally or in writing) are opinions only; given only to the best of the Seller’s knowledge; and are given “AS-IS” without warranty of any kind. Buyer acknowledges that it remains solely responsible for consulting with legal and/or regulatory advisors and/or counsel as needed in order to ensure it provides Seller with an accurate and legally compliant SDS and label to apply to Products to be toll manufactured or distributed by Seller retains the right to reject a purchase order from Buyer for toll manufactured or distributed Products if Seller reasonably believes the SDS or label provided by Buyer fails to comply with any applicable law, and after being notified of such by Seller, Buyer fails or refuses to adequately address and/or correct the issue(s) raised by Seller.
8.1 BUYER ACKNOWLEDGES THAT THE PRODUCTS SOLD UNDER THIS AGREEMENT ARE OR MAY BE SUSPECTED TO BE HAZARDOUS TO HUMAN HEALTH AND BUYER ASSUMES ALL RISK AND LIABILITY FOR THE USE (OR MISUSE) OF THE PRODUCTS. BUYER SHALL FAMILIARIZE ITSELF AND KEEP INFORMED (WITHOUT RELIANCE ON SELLER) WITH RESPECT TO ANY HAZARDS TO PERSONS OR PROPERTY INVOLVED IN HANDLING AND USING THE PRODUCTS AND THE CONTAINERS IN WHICH SUCH PRODUCTS ARE SHIPPED. BUYER SHALL ADVISE ITS EMPLOYEES, INDEPENDENT CONTRACTORS, AND OTHERS WHO HANDLE AND USE THE PRODUCTS FOR BUYER AND SHALL TAKE SUCH ACTION AS IS REASONABLY NECESSARY TO ADVISE OTHERS, INCLUDING WITHOUT LIMITATION THE CUSTOMERS OF THE BUYER, WHO ARE FORESEEABLY THE ULTIMATE USERS OF THE PRODUCTS, OF THE SUSPECTED OR PROVEN HAZARDS OF THE PRODUCTS. BUYER ASSUMES ALL RISKS AND RESPONSIBILITY RESULTING FROM THE HANDLING, USE, STORAGE, SALE OR RESALE OF THE PRODUCTS, WHETHER USED SINGLY OR IN A COMBINATION WITH OTHER PRODUCTS. SELLER ASSUMES NO OBLIGATION OR LIABILITY FOR ANY TECHNICAL OR SAFETY ADVICE GIVEN BY SELLER WITH REFERENCE TO THE USE OF THE PRODUCTS OR RESULTS WHICH MAY BE OBTAINED THEREFROM, AND ALL SUCH ADVICE IS GIVEN AND ACCEPTED AT BUYER’S SOLE RISK. SELLER SHALL HAVE NO LIABILITY TO BUYER HEREUNDER IF THE PRODUCT IS NOT USED IN ACCORDANCE WITH ITS INTENDED PURPOSE, THE MANUFACTURE’S INSTRUCTIONS OR THE REQUIREMENTS OF APPLICABLE LAW.
8.2 NOTWITHSTANDING ANY TERM IN THIS AGREEMENT TO THE CONTRARY, IN NOEVENTSHALLSELLER (OR SELLER’S AFFILIATES) BELIABLE TO BUYER, BUYER’S CUSTOMER, OR ANYONE CLAIMING LOSSES THROUGH ANY OF THEM OR ANY OTHER USER OR BENEFICIARY OF THE PRODUCTS FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, STATUTORY, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES OF ANY NATURE OR KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ECONOMIC LOSS, LOSS OF REVENUES OR PROFITS OR ANTICIPATED REVENUES OR PROFITS, LOSS OF PRODUCT, LOST OR DAMAGED DATA, LOSS OF USE OF SERVICES, PROPERTY OR EQUIPMENT (INCLUDING THOSE PROVIDED BY THIRD PARTIES), BUSINESS INTERRUPTIONS, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF USE OF ANY PROPERTY OR SERVICES OF ANY KIND, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, DAMAGE TO ASSOCIATED EQUIPMENT, DOWNTIME COSTS, OR CLAIMS OF THEIR RESPECTIVE CUSTOMERS FOR SUCH DAMAGES) WHETHER KNOWN TO SELLER AT THE DATE OF SALE OR NOT, REGARDLESS OF WHETHER SUCH LIABILITY ARISES UNDER CONTRACT, TORT, EQUITY OR BREACH OF DUTY (WHETHER STATUTORY OR OTHERWISE) AND BY WHOMSOEVER CAUSED.
8.3 NOTWITHSTANDING ANY TERM IN THIS AGREEMENT TO THE CONTRARY, SELLER’S MAXIMUM AGGREGATE LIABILITY HEREUNDER OR ARISING OUT OF THE SALE OF PRODUCT,WHETHERINCONTRACT,TORT,ORSTRICTLIABILITYOROTHERWISESHALLBE LIMITED TO THE PURCHASE PRICE PAID BY BUYER FOR THE PRODUCT WITH RESPECT TO WHICH SUCHCLAIMISMADE. BUYER HEREBY SPECIFICALLY WAIVES ALL OTHER RIGHTS, IF ANY, TO INDEMNIFICATIONBYSELLERWHICHMAYBEAVAILABLEATLAWORINEQUITY,INCLUDINGINDEMNIFICATION UNDER STATE, FEDERAL OR COMMON LAW.
8.4 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BUYER SHALL RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS SELLER, SELLER’S AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OWNERS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, VENDORS, SUPPLIERS, AND SUBCONTRACTORS (OR THEIR SERVANTS) (“SELLER GROUP”) FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, LIABILITIES, FINES, PENALTIES, DAMAGES AND EXPENSES OF ANY NATURE (INCLUDING ATTORNEYS’ FEES) (“LOSSES”) ARISING OUT OF OR IN CONNECTION WITH: (A) BUYER’S PERFORMANCE OF, OR FAILURE TO PERFORM, ANY OF ITS OBLIGATIONS HEREUNDER; (B) BUYER’S USE OR MISUSE OF THE PRODUCT; (C) ANY PRODUCT LIABILITY OR OTHER CLAIM OR ACTION WITH RESPECT TO ANY PRODUCTS PURCHASED; (D) BUYER’S FAILURE TO COMPLY WITH APPLICABLE LAWS; OR (E) BUYER’S NEGLIGENT OR WRONGFUL ACTS OR OMISSIONS. IT IS THE INTENTION OF BUYER AND SELLER THAT SUCH RELEASE AND INDEMNITY SHALL APPLY REGARDLESS OF WHETHER SUCH LOSSES ARISE IN WHOLE OR IN PART FROM THE SOLE, CONCURRENT OR CONTRIBUTORY NEGLIGENCE OF ONE OR MORE OF SELLER’S GROUP, AND REGARDLESS OF ANY DEFECT IN PREMISES, EQUIPMENT OR MATERIALS, IRRESPECTIVE OF WHETHER SAME PRE-EXISTED THIS AGREEMENT, EXCEPT FOR SUCH LOSSES RESULTING SOLELY FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A MEMBER OF SELLER GROUP.
- ForceMajeure. For purposes of these Terms, “Force Majeure” shall mean acts of God, acts, orders, decrees, instructions or other requirements of governmental entities or instrumentalities, insurrections, mobilizations, riots, acts of terrorism, vandalism, sabotage, strikes, lock-outs or other labor disturbances, quarantines, pandemics, floods, storms, hurricanes, tornadoes, droughts or other adverse weather conditions, fires, explosions, embargoes, or by other cause not reasonably within the control Seller. In the event Seller is hindered or prevented from performing its obligations under this Agreement as a result of any Force Majeure, the time for Seller’s performance hereunder shall be extended for a period equal to the duration such Force Majeure hinders or prevents Seller’s performance, and Seller shall not be liable for any direct, indirect or consequential damage or loss due to any such delay. Seller shall have the additional right, in the event of any of the above contingencies, at Seller’s option, to cancel this sale, in whole or in part, without any resulting liability.
- Termination & Suspension. Seller may terminate this Agreement effective immediately upon written notice to Buyer in the event that (a) Buyer fails to pay any Seller invoice by its due date or otherwise breaches any term of this Agreement;(b) Buyer generally fails to pay its debts as they become due; (c) Seller reasonably believes Buyer’s creditworthiness has deteriorated or Buyer is insolvent (whether based on the reasonable belief by Seller that Buyer’s liabilities exceed its assets; the existence of a bankruptcy or reorganization, assignment for the benefit of creditors or other similar proceeding involving Buyer; a liquidation of a significant portion of the assets of Buyer; or otherwise); and (d) a sale of a majority of the assets, or a change of control of the ownership, of If Buyer is in default hereunder, Seller may pursue all remedies available to Seller at law or in equity.
11.1 This Agreement will be governed by and construed in accordance with the laws of the State of Texas, without giving effect to any choice of law or conflict provision or rule that would cause the laws of any other jurisdiction to be applied. The parties exclusively and voluntarily submit to the jurisdiction and venue of the federal or state courts of the state of Texas located in Harris County, Texas for the adjudication of their liabilities and responsibilities under this Agreement.
11.2 All terms contained herein are severable, and any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof or thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. Buyer may not assign, delegate or transfer any rights or obligations under this Agreement without the prior written consent of Seller.
11.3 This Agreement shall constitute the entire agreement between Seller and Buyer and supersedes all prior oral or written agreements or representations. Neither course of performance or dealing, nor usage of trade, nor prior writings or agreements shall be used to qualify, explain, supplement or contradict this Agreement. These Terms shall be binding on the parties and their permitted assigns, heirs, executors and personal representatives.