Terms & Conditions Applicable for Sales Originating in the United States
IMPORTANT INFORMATION ABOUT ESTABLISHING A RELATIONSHIP WITH SELLER: To help the United States Government fight terrorism and money laundering, Federal law requires Seller to obtain, verify and record information that identifies each person or business that opens an account or establishes a relationship with it. When Buyer opens an account or establishes a relationship with Seller, Seller will ask for Buyer’s name, street address, date of birth (if an individual) and identification number, such as a social security number or taxpayer identification number.
ACCEPTANCE. The acceptance given by this invoice/acknowledgement creates a complete and binding contract between Seller and Buyer in accordance with the terms and conditions appearing herein. Acceptance is at all times subject to availability for delivery of the goods covered by each order and is subject to Seller’s prices in effect for said goods at the time of shipment, unless otherwise agreed in a separate written agreement signed by Buyer and Seller. Prices on the face hereof are those in effect on the date this invoice/acknowledgement was prepared and Seller, in its sole discretion, may adjust such prices up to the time of delivery. The acceptance given by this invoice/acknowledgement is expressly conditioned upon Buyer’s acceptance of all terms and conditions stated in this invoice/acknowledgement, including any additional or different terms and conditions, and upon the express understanding that any additional or conflicting terms and conditions contained in Buyer’s purchase order or other communications are deemed material, are hereby objected to and rejected by Seller and will not be applicable to the order evidenced by this invoice/acknowledgement. Buyer’s issuance of a release, if applicable, or acceptance of goods from Seller shall be deemed an acceptance by Buyer of all terms and conditions stated in this invoice/acknowledgement. No changes in the terms and conditions of this invoice/acknowledgement, and no additional or inconsistent terms and conditions in the order evidenced by this invoice/acknowledgement, shall be effective unless approved in writing by Seller. Reference to Buyer’s purchase order shall not be construed as incorporating the terms and conditions of such offer and shall not amend these terms.
QUOTATIONS. If this invoice/acknowledgement is provided by Seller to Buyer as a quotation, then, unless otherwise specified on the face hereof, such quotation is for information only and is not intended as an offer and is subject to change without notice in all respects, including prices, delivery dates, terms, quantities, and/or specifications.
TERMS OF PAYMENT. Terms of payment shall be as stated on the face hereof. Buyer represents to Seller that Buyer is presently solvent. If Buyer’s credit is unsatisfactory to Seller, Seller reserves the right to require payment by (a) cash with order, (b) cash payment at sight draft against bill of lading, or (c) cash on delivery (“C.O.D.”). (Under (b) and (c), Buyer, at Seller’s option, may be charged all collection fees.) Any amount not paid when due will bear interest at a rate equal to the lesser of 18% per year or the maximum amount permitted under applicable law, from the date due to the date of payment. Until an invoice has been paid in full, Seller will have and Buyer hereby grants to Seller a “purchase money security interest” in all goods delivered under that invoice and in all proceeds (if any) received by Buyer from the sale of such goods. Buyer agrees that this acknowledgment is a written record that expressly authorizes Seller to execute (in the name of and on behalf of Buyer) and file any financing statements and other documents as may be required to perfect this “purchase money security interest”. If Buyer fails to pay any invoice when due, then Seller may exercise all rights with respect to the goods subject to its “purchase money security interest” in accordance with applicable law. If Buyer is located in one of those places which recognizes reservation of title, Buyer agrees that Seller retains title to the goods to secure Buyer’s payment for them, and Buyer assigns to Seller all proceeds from their sale or pledge. Invoices are payable in United States currency unless otherwise specified in writing by Seller.
TAXES. Unless otherwise stated on the face hereof, prices do not include any applicable federal, state or local taxes. Any tax or other charge now or hereafter levied upon the production, sale, use or shipment of goods ordered or sold may, at Seller’s option, be added to the purchase price.
FREIGHT. Shipments within the United States and Canada will be made F.O.B. Seller’s warehouse with freight charges collected from Buyer except as may otherwise be specified on the face hereof. The most economical routing will be used at the discretion of Seller. Any delivery dates quoted by Seller are estimates. Seller cannot guarantee delivery on a specific date. Additional transportation costs incurred at Buyer’s direction or resulting from its request will be at Buyer’s expense. Freight charges on shipments beyond the United States and Canada will be as specified on the face hereof or on the price sheet for the goods. In the event of any general increase in freight costs or any ruling or regulation affecting freight rates which results in increased freight costs, Seller may, at its option, increase the price for the goods to reflect such additional freight costs without advance notice.
TITLE AND RISK OF LOSS. Title and risks of loss or delay to all goods supplied hereunder shall pass to Buyer upon Seller’s delivery thereof to carrier at shipping point.
CONTINGENCIES. In the event of war, fire, flood, unusually severe weather, strike, labor trouble, epidemic, accident, riot, act of governmental authority, terrorist act, act of public enemy, act of God, or other contingencies beyond the control of the parties interfering with the supply of raw materials or the production, supply, transportation or consumption of the goods covered by this invoice/acknowledgement, quantities so affected may be eliminated from the contract without liability on the part of Seller, but the contract shall otherwise remain unaffected. Seller may, during any period of shortage due to any of said causes, prorate its supply of such goods among its customers under this and other orders and contracts in such manner as Seller may deem fair and practical.
QUANTITY VARIATIONS. On any individual order or release against an order for goods not stocked as a standard item, or not packed in standard cartons or packages, or on which special fabrications or constructions are involved, Seller reserves the right to ship and invoice for a quantity of goods which may vary up to 10% over or under the quantity specified on such order or release and Buyer shall accept delivery of and pay for such revised quantity.
ORDERS – CHANGES/CANCELLATIONS/DELIVERY. Seller will give due consideration to any request by Buyer for modification or cancellation of the order or release against an order evidenced by this invoice/acknowledgement, but the same may not be modified or canceled without the written consent of Seller. Orders with indefinite delivery dates are accepted upon the understanding that Seller shall have the right to fill said order as it sees fit in the course of its manufacturing schedules and to hold the goods for Buyer’s account at Buyer’s expense and risk pending receipt of definite shipping instructions and, where required, of governmental authorization.
RETURN OF GOODS. Goods sold by Seller may be returned for credit only if permission for such return is granted by Seller in accordance with its return policy.
END USE. Determination of the suitability of goods described on the face hereof for the use contemplated by Buyer or by Buyer’s customers for such goods is the sole responsibility of Buyer and Seller shall have no responsibility in connection therewith. Each of Buyer and Buyer’s customers assumes all risks and liability for loss, damage or injury to property of Buyer, Buyer’s customers or others arising out of the use or possession of the goods furnished hereunder. Buyer agrees that Seller is not responsible for any loss, damage or injury to person or property arising out of Buyer’s purchase, possession, or use of any goods supplied by Seller. Buyer shall comply with all applicable laws and regulations relating to the use, storage and/or handling of the goods. Buyer shall have sole control and responsibility over any warnings to be given to end users concerning the use and handling of the goods or property. Buyer shall indemnify Seller against any and all losses, damages, liabilities, claims, suits, costs and expenses (including reasonable attorney’s fees and court costs) which may be brought against, suffered or incurred by Seller as a result of any personal injury (including death) and/or any property damage arising out of or connected with the utilizing, handling, storing, transporting, processing, further manufacturing or other use or resale of such goods or property, used alone or in connection with any other materials. Buyer shall comply with all applicable laws and regulations relating to the use, storage and handling of the goods or property.
CONFIDENTIALITY. Buyer agrees and understands that all formula and technical information relating to Seller’s goods are confidential and proprietary to Seller and that Buyer is purchasing the goods solely for use in Buyer’s manufacturing processes and not for analysis, reverse engineering resale or other distribution to third parties. Buyer will not disclose any confidential or proprietary information about Seller or Seller’s goods to any other person or use any such information for any purpose other than Buyer’s purchase and use of the goods. Buyer will not provide samples or extra goods to any third parties.
WARRANTY-LIMITATIONS AND REMEDIES. ALL GOODS BEING SUPPLIED HEREUNDER ARE SOLD “AS IS.” Seller’s only warranty with respect to the goods supplied hereunder is that such goods shall meet the description or specifications stated on the face hereof. BUYER’S EXCLUSIVE REMEDY AND SELLER’S SOLE LIABILITY HEREUNDER SHALL BE LIMITED TO A REFUND OF THE PURCHASE PRICE OF, OR REPLACEMENT OF, ALL GOODS SHOWN TO BE OTHERWISE THAN AS WARRANTED AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, SELLER SHALL IN NO CASE BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOSS OF USE OF THE GOODS, INCONVENIENCE OR DAMAGES OF ANY CHARACTER, WHETHER DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL (INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOSS OF REVENUE OR PROFIT, ECONOMIC LOSS, PROPERTY DAMAGE OR WORK STOPPAGE AND INCLUDING ATTORNEYS’ FEES). Such refund or replacement is conditioned upon Buyer giving Seller written notice within ninety (90) days from the date of shipment by Seller that such goods are otherwise than as warranted. Failure by Buyer to give such notice within such period shall constitute a waiver by Buyer of all claims hereunder with respect to such goods. If requested by Seller, Buyer shall promptly return to Seller’s plant all unconsumed goods alleged by Buyer to be otherwise than as warranted and Seller will pay freight thereon. This limited warranty is given only to the original purchaser of the goods and does not extend to any subsequent purchaser or transferee.
THE ABOVE LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR UNWRITTEN, STATUTORY, EXPRESS OR IMPLIED, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, SELLER DISCLAIMS ANY OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ALL IMPLIED WARRANTIES AND IMPLIED CONDITIONS CONTAINED IN THE SALE OF GOODS ACT AS ADOPTED IN THE PROVINCES OF CANADA, IT BEING UNDERSTOOD THAT ALL GOODS ARE BEING SUPPLIED TO BUYER “AS IS.”THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY TO THIS WARRANTY STATEMENT OR TO SALES OF GOODS BEING SUPPLIED HEREUNDER.
PATENTS. If any suit is instituted against Buyer for infringement of any United States patent alleging that the goods furnished hereunder or Seller’s method of manufacturing such goods infringe any such United States patent, Seller shall at its own expense defend and control such suit against such allegations only, and shall pay, in its sole discretion, any award of damages assessed against Buyer in such suit to the extent only that the damages are awarded in connection specifically with said alleged infringement, provided Buyer gives Seller prompt written notice of the institution of any such suit and, to the full extent of Buyer’s power to do so, Buyer permits Seller to defend and control such suit against such allegations. THE FOREGOING FULLY EXPRESSES BUYER’S EXCLUSIVE REMEDY AND SELLER’S SOLE LIABILITY WITH RESPECT TO INFRINGEMENT OF ANY UNITED STATES PATENT BY THE GOODS SUPPLIED HEREUNDER AND SELLER HEREBY EXPRESSLY DISCLAIMS ANY WRITTEN OR UNWRITTEN, EXPRESS OR IMPLIED WARRANTY AGAINST INFRINGEMENT WITH RESPECT TO SUCH GOODS. In no case will Seller be liable to defend, or pay any award of damages assessed against Buyer in, any suit or cause of action alleging that the use of the goods supplied hereunder infringes any patent. Buyer shall hold Seller harmless against any claim, loss or expense (including attorneys’ fees) arising out of Seller’s compliance with any specifications furnished by Buyer with respect to the goods supplied hereunder.
FAIR LABOR STANDARDS. Seller certifies that the goods supplied hereunder to Buyer were produced in compliance with the requirements of the Fair Labor Standards Act, as amended, and of regulations and orders of the United States Department of Labor issued thereunder.
RETURNABLE CONTAINERS. In accordance with the Chem-Trend Tote Tank Agreement, each container in which goods are shipped by Seller hereunder remains the property of Seller and shall not be used for the shipment or storage of any other material. All such containers shall be emptied and returned to the point from which shipped with transportation charges paid by Buyer. Damage to such containers is the responsibility of Buyer.
TERMINATION. Subject to the following provisions, either party may terminate this contract upon thirty (30) days’ prior written notice in the event the other party breaches any material term hereof; provided, however, that during any such notice period, the party in default may cure its default and thereby abate the termination. Notwithstanding the foregoing, Seller may terminate this contract effective immediately upon written notice to Buyer in the event (a) of Buyer’s failure to pay any of Seller’s invoices within the time provided in this contract, (b) Buyer generally fails to pay its debts as they become due, (c) of Buyer’s insolvency (whether based on Seller’s reasonable belief that Buyer’s liabilities exceed assets, the existence of a bankruptcy, assignment for the benefit of creditors or other similar proceedings involving Buyer, a liquidation of a significant portion of Buyer’s assets or otherwise) and (d) of a sale of substantially all the assets or a change of control of the ownership of Buyer. If Buyer is in default hereunder, including by failure to pay invoices, Seller may suspend shipments of goods, without liability to Seller, until the default has been cured, all invoices are current and Seller receives adequate assurance of future performance.
NOTICES. Any written notice or demand may be given to a party by mailing it to the party at its address set forth above, or at such address as the party may provide in writing to the other party and shall be effective when deposited in the United States mail, duly addressed and with postage prepaid for certified mail delivery with return receipt requested.
CHOICE OF LAW; COMMENCEMENT OF ACTION; COSTS AND EXPENSES. This contract shall be governed and interpreted in accordance with the laws of the State of Michigan and, for the purpose of resolving any issue pertaining to conflict of laws, this contract shall be deemed to be fully and solely executed, performed and/or observed in the State of Michigan. Seller and Buyer irrevocably agree and consent that any action or proceeding arising from the transactions contemplated herein shall be brought in Livingston County, Michigan Circuit Court and/or the Federal District Court for the Eastern District of Michigan, Southern Division, and that such Courts shall have personal jurisdiction over Seller and Buyer for purposes of such action or proceeding. Any action against Seller for breach of contract, breach of warranty or otherwise must be commenced within one (1) year after the cause of action has accrued. Buyer shall be obligated to Seller for all costs and expenses (including reasonable attorney’s fees and expenses and fees for collection agencies) incurred by Seller in collecting any amounts not timely paid by Buyer hereunder or in exercising any of its other rights hereunder.
ENTIRE AGREEMENT; WAIVER; SEVERABILITY. This writing constitutes the entire agreement between Buyer and Seller with respect to the sale of goods supplied hereunder and cannot be modified except by a new written contract signed by both Seller and Buyer covering the sale of goods. Buyer agrees, however, that Seller may insert missing information or correct obvious errors in this invoice/acknowledgement. Waiver by a party of any provision hereof in one instance shall not constitute a waiver as to any other instance. If any provision of this writing is unenforceable, invalid or illegal, the remaining provisions will continue to be effective.