All sales are subject to the following terms and conditions:
All sales are subject to and expressly conditioned upon the terms and conditions contained herein, and upon Buyer’s assent thereto. No variation of these terms and conditions will be binding upon seller unless agreed to in writing and signed by an officer or other authorized representative of Seller.
Orders arising hereunder may be changed or amended only by written agreement signed by both Buyer and Seller, setting forth the particular changes to be made and the effect, if any, of such changes on the price and time of delivery. Buyer may not cancel this order unless such cancellation is expressly agreed to in writing by Seller. In such event, Seller will advise buyer of the total charge for such cancellation, and Buyer agrees to pay such charges, including, but not limited to, storage and shipment costs, costs of producing non-standard materials, costs of purchasing non-refundable materials, cancellation costs imposed on Seller by its suppliers, and any other cost resulting from cancellation of this order by Buyer which is permitted by Seller. Certification of such costs by Seller’s independent public accountants shall be conclusive on the parties hereto.
3. DELIVERY, CLAIMS, DELAYS, CONTAINERS
All sales are at Seller’s shipping point. If Shipping and Handling Charges are quoted or invoiced, they will include charges in addition to actual freight costs. Delivery of goods to be loaded by the carrier at Seller’s plant or other loading point, shall constitute delivery to Buyer and regardless of shipping terms, all risk of loss or damage to the goods commencing at the time loading on the carrier first begins, shall be borne by Buyer. The general method of shipping for each item will be in accordance with the method specified by Buyer. However, Seller reserves the right, in its discretion, to determine the exact method of shipment and, Buyer shall nonetheless bear all risk of loss or damage. Seller reserves the right to make delivery in installments, all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve buyer of Buyer’s obligation to accept remaining deliveries. Immediately upon Buyer’s receipt of any goods shipped hereunder, Buyer shall inspect the same and shall notify Seller in writing of any claims for shortages, defects or damages and shall hold the goods for Seller’s written instructions concerning disposition. If Buyer shall fail to so notify Seller within five days after the goods have been received by Buyer, such goods shall conclusively be deemed to conform to the terms and conditions hereof and to have been irrevocably accepted by the Buyer.
Seller shall not be liable for any loss, damage or penalty as a result of any delay in or failure to manufacture, deliver, or otherwise perform hereunder due to any cause beyond Seller’s reasonable control, including, without limitation, unsuccessful reactions, limited quantities, act of Buyer, embargo or other governmental act, regulation or request affecting the conduct of Seller’s business, fire, explosion, accident, theft, vandalism, riot, acts of war, strikes or other labor difficulties, lightning, flood, windstorm or other acts of God, delay in transportation, or inability to obtain necessary labor, fuel, materials, supplies, or power at current prices. The estimated delivery of seller’s non-TSCA-listed products and chemical substances may be subject to delays to allow for approval of regulatory applications or notices. These delays can vary depending on individual circumstance and firm delivery dates will be provided at the time the order is confirmed.
Unless otherwise specified, containers holding the goods are the property of Seller and shall be promptly returned by Buyer in as good condition as when leaving Seller’s point of shipment, and all risk of loss or damage is borne by Buyer. Buyer shall be responsible for payment to Seller of a demurrage charge for any container not promptly returned. Prior to shipment in any container owned by Seller, Seller may require Buyer to provide a deposit of cash or other security in the amount of 110% of the replacement cost of the container as security for the return of the container in accordance with the terms of the foregoing. Such security shall be applied by Seller as necessary for cleanup, repair or replacement of any container not timely returned in good condition, and any balance not so applied shall be returned to the Buyer without interest; provided, that, if other sums are outstanding from Buyer to Seller then Seller may apply such remaining amount toward sums so owing.
Buyer is responsible for complying with all applicable federal, state and municipal laws and regulations for the protection and safety of persons and property commencing at the time of loading the goods at Seller’s point of shipment first begins, and through and including return of any container owned by Seller, and Buyer shall be responsible for assuring any necessary labeling and marking and method of shipment to comply with the foregoing are carried out. Buyer shall indemnify, defend, hold and save harmless the Seller from any and all claims, damages, suits, judgments, expenses and costs of all kinds, including but not limited to, attorney fees incurred, which arise from or in connection with any personal injury or property damage or any fines, penalties, cleanup costs or any regulatory action which may arise from failure to comply with the foregoing or for escape of any material commencing with the time that loading the goods at Seller’s point of shipment first begins and through and including return to Seller of any containers owned by Seller.
4. ALLOCATION OF GOODS
If Seller is unable, for any reason, to supply the total demands for goods specified in Buyer’s order, Seller may allocate its available supply among any or all buyers on such basis as Seller may deem fair and practical, without liability for any failure of performance that may result therefrom.
Terms of sale are net 30 days of date of invoice, unless otherwise stated. If the financial condition of buyer results in the insecurity of Seller, in its sole and unfettered discretion, as to the ultimate collectability of the purchase price, Seller may, without notice to Buyer, delay or postpone the delivery of the products; and Seller, at its option, is authorized to change the terms of payment to payment in full or in part in advance of shipment of the entire undelivered balance of said products. Any payment not received within five (5) days of the due date shall result in a late charge of five percent (5%) of the payment owing, and shall bear interest (including any late charge) at the rate of eighteen percent (18%) per annum compounded monthly from the due date until paid.
In the event of default by Buyer in the payment of the purchase price or otherwise, of this or any other order, Seller, at its option, without prejudice to any other of Seller’s lawful remedies, may defer delivery, cancel this Contract, or sell any undelivered products on hand for the account of Buyer and apply such proceeds as a credit, without setoff or deduction of any kind, against the contract purchase price, and Buyer agrees to pay the balance then due to Seller on demand. Buyer agrees to pay all costs, including, but not limited to, reasonable attorney and accounting fees and other expenses of collection resulting from any default by Buyer in any of the terms hereof. All such costs and expenses shall bear interest at the rate of eighteen percent (18%) per annum, compounded monthly, from the date incurred by Seller until fully reimbursed by Buyer.
6. TAXES AND OTHER CHARGES
Any use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee, or charge of any nature whatsoever imposed by any governmental authority, on the goods, or on or measured by the transaction between Seller and Buyer, shall be paid by Buyer in addition to the prices quoted or invoiced. In the event Seller is required to pay any such tax, fee, or charge, Buyer shall reimburse Seller therefor; or, in lieu of such payment, Buyer shall provide Seller, at the time the order is submitted, an exemption certificate or other document acceptable to the authority imposing the tax, fee, or charge.
Seller warrants that its products shall conform to the description of such products as provided to Buyer by Seller through Seller’s catalog, analytical data, or other literature; provided, that, if Buyer has specified compounds, processes or goods not developed by or in common usage by Seller, Seller warrants only that it shall meet the reasonable specifications of the order. THIS WARRANTY IS EXCLUSIVE, AND SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
Seller’s warranties made in connection with this sale shall not be effective if Seller has determined, in its sole discretion, that buyer has misused the products in any manner, has failed to use the products in accordance with industry standards and practices, or has failed to use the products in accordance with instructions, if any, furnished by Seller.
Seller’s sole and exclusive liability and Buyer’s exclusive remedy with respect to products proved to Seller’s satisfaction to be defective or non-conforming shall be the replacement of such products without charge, or refund of the purchase price, in Seller’s sole discretion, upon the return of such products in accordance with Seller’s instructions.
SELLER SHALL NOT IN ANY EVENT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE PRODUCTS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS OR OPPORTUNITIES, FAILURE TO REALIZE SAVINGS, LOSS OF PRODUCTS OF BUYER OR OTHER USE OR ANY LIABILITY OF BUYER TO A THIRD PARTY ON ACCOUNT OF SUCH LOSS, OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE OR LOSS OCCASIONED BY SUCH PRODUCT INCLUDING PERSONAL INJURY OR PROPERTY DAMAGE UNLESS SUCH PERSONAL INJURY OR PROPERTY DAMAGE IS CAUSED BY SELLER’S GROSS NEGLIGENCE. All claims must be brought by Buyer within one (1) year of shipment, regardless of their nature and if not so brought, shall be forever barred.
8. BUYER’S USE OF PRODUCTS
Seller’s products are not to be used for in vitro diagnostic purposes, in foods, drugs, medical devices, or cosmetics for humans or animals.
Buyer acknowledges that the products have not been tested by Seller for safety and efficacy in food, drug, medical device, cosmetic, or any other use, unless otherwise stated in Seller’s literature furnished to Buyer. Buyer expressly represents and warrants to Seller that Buyer will properly test, use, manufacture, and market any products purchased from Seller and/or materials produced with products purchased from Seller in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with all applicable laws and regulations, now and hereinafter enacted. Buyer further warrants to Seller that any material produced with products from Seller shall not be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act and shall not be materials which may not, under Sections 404, 505, or 512 of the Act, be introduced into interstate commerce.
Seller’s product(s) may be subject to limitations on allowable or intended use(s) as well as availability in order to comply with the Toxic Substances Control Act (TSCA). Specifically, the intended use(s) of certain products (i.e. chemical substances) manufactured and offered for sale herein may be restricted and/or require filing of regulatory application or notification. In general, product(s) or chemical substances not listed in the public TSCA inventory are limited to certain end uses excluded from TSCA, or to low-volume or R&D-use-only exemptions, and any end use limitations will be listed on product labels.
Buyer has the responsibility to verify the hazards involved in using products purchased from Seller. Buyer also has the duty to warn Buyer’s customers and any auxiliary personnel (such as freight handlers, etc.) of any risks involved in using or handling the products. Buyer agrees to comply with instructions, if any, furnished by Seller relating to the use of the products and not misuse the products in any manner. If the products purchased from Seller are to be repackaged, relabeled, or used as starting materials or components of other products, Buyer will verify Seller’s assay of the products. No products purchased from Seller shall be considered to be foods, drugs, medical devices, or cosmetics.
9. BUYER’S REPRESENTATIONS AND INDEMNITY
Buyer represents and warrants that it shall use all products ordered herein in accordance with paragraph 9 “Buyer’s Use of Products”, and that any such use of products will not violate any law or regulation. If Buyer has specified compounds, processes, or goods not developed by or in common usage by Seller, Buyer hereby warrants and represents that it shall provide to Seller all necessary information about any hazards and appropriate methods for handling the materials and compounds and appropriate safety methodology. Seller may elect to decline to provide the goods, in whole or in part, if Seller determines, in Seller’s sole discretion at any time, that the safety, reliability, or other aspect of the products, compounds or processes specified by Buyer present conditions unacceptable to the Seller in which case the Buyer shall have no claim against Seller and Seller shall be entitled to that portion of the purchase price which represents Seller’s costs including overhead and a reasonable profit upon the work performed to the date of Seller’s election to terminate production; and Buyer shall indemnify and hold harmless Seller from any losses or damages incurred by Seller as a result of any inaccurate representations or warranties of the Buyer, or caused by Seller’s faithful compliance with the specifications of the Buyer. Buyer agrees to indemnify and hold harmless Seller, its employees, agents, successors, officers, and assigns, from and against any suits, losses, claims, demands, liabilities, costs and expenses (including attorney and accounting fees) that Seller may sustain or incur as a result of any claim against Seller based upon negligence, breach of warranty, strict liability in tort, contract, subrogation, or any other theory of law brought by Buyer, its officers, agents, insurers, employees, successors or assigns, by Buyer’s customers, by end users, by auxiliary personnel (such as freight handlers, etc.) or by other third parties, arising out of, directly or indirectly, the use of Seller’s products, or by reason of Buyer’s failure to perform its obligations contained herein. Buyer shall notify Seller in writing within fifteen (15) days of Buyer’s receipt of knowledge of any accident, or incident involving Seller’s products which results in personal injury or damage to property, and Buyer shall fully cooperate with Seller in the investigation and determination of the cause of such accident and shall make available to Seller all statements, reports and tests made by Buyer or made available to Buyer by others. The furnishing of such information to Seller and any investigation by Seller of such information or incident report shall not in any way constitute any assumption of any liability for such accident or incident by Seller.
Seller does not warrant that the use or sale of the products delivered hereunder will not infringe the claims of any United States or other patents or any trade secrets, licenses, proprietary claims, copyrights or other intellectual rights covering the product itself or the use thereof in combination with other products or in the operation of any process. If the Buyer has specified compounds, processes or goods not developed by or in common usage by Seller, Buyer hereby represents and warrants that Buyer has the rights to the same and Buyer shall indemnify and defend Seller from any suits, losses, claims, demands, liabilities, costs and expenses (including attorney and accounting fees) that Seller may sustain or incur as a result of any claim against Seller based upon any claim of any person that the acts of Seller pursuant to the Buyer’s specifications violate any patent, trademark, copyright, trade secret, proprietary right, license, or other property or right of any third party. Such indemnification shall include all costs and expenses of Seller reasonably incurred, including reasonable attorney and accounting fees, expert witness fees, and all other costs and expenses.
Goods may not be returned for credit except with Seller’s permission, and then only in strict compliance with Seller’s return shipment instructions. All costs of and all risk of loss or damages during storage, loading, transit and unloading shall be borne by Buyer.
12. TECHNICAL ASSISTANCE
At Buyer’s request, Seller may, at Seller’s discretion, furnish technical assistance and information with respect to Seller’s products. SELLER MAKES NO WARRANTIES OR ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, WITH RESPECT TO TECHNICAL ASSISTANCE OR INFORMATION PROVIDED BY SELLER OR SELLER’S PERSONNEL ANY SUGGESTIONS BY SELLER REGARDING USE, SELECTION, APPLICATION OR SUITABILITY OF THE PRODUCTS SHALL NOT BE CONSTRUED AS AN EXPRESS WARRANTY UNLESS SPECIFICALLY DESIGNATED AS SUCH IN A WRITING SIGNED BY AN OFFICER OR OTHER AUTHORIZED REPRESENTATIVE OF SELLER.
Seller’s failure to strictly enforce any term or condition of this order or to exercise any right arising hereunder shall not constitute a waiver of Seller’s right to strictly enforce such terms or conditions or exercise such right thereafter. All rights and remedies under this order are cumulative and are in addition to any other rights and remedies Seller may have at law or in equity. Any waiver of a default by Buyer hereunder shall be in writing and shall not operate as a waiver of any other default or of the same default thereafter.
If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. The paragraph headings herein are for convenience only; they form no part of the terms and conditions and shall not affect their interpretation.
This Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto, and their respective heirs, personal representatives, successors and assigns.
All Buyer’s representations, warranties, indemnifications in favor of Seller, and performance requirements of the Buyer hereunder shall survive the performance, and the termination, of this Agreement.
14. GOVERNING LAW
All disputes as to the legality, interpretation, application, or performance of this order or any of its terms and conditions shall be governed by the laws of the State of Colorado, including its conflict of laws principles. Each party to this order agrees that any dispute arising between them which results in either party instituting court proceedings shall be litigated in either the Federal District Court for the District of Colorado, or in the County or District Courts of Weld County, Colorado.
Buyer shall not use or disclose any data, designs, processes, information or other information belonging to or supplied by or on behalf of Seller, except in the performance of this or other orders for Buyer. Upon Seller’s request such data, designs, or other information and any copies thereof shall be returned to Seller. Where Seller’s data, designs, or other information are furnished to Buyer’s suppliers for procurement of supplies by Buyer for use in connection with the Seller’s products, Buyer shall insert the substance of this provision in its orders.
16. ENTIRE AGREEMENT
This Agreement contains the entire agreement of the parties. It may not be modified or terminated orally, and no claimed modification, termination or waiver shall be binding on Buyer unless in writing signed by a duly authorized representative of Buyer. No modification or waiver shall be deemed affected by Seller’s acknowledgment or confirmation containing other or different terms. All titles to clauses contained in this order are for identification only and shall not be construed as being a substantive part of the Agreement.
Doc. ID: ADM FM 05.0 01, effective 11/22/2006 (web version)