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Terms and Conditions of Sale
1. Buyer shall take deliveries in approximately equal monthly quantities except as may be otherwise agreed upon in writing by the parties. If Seller is to pay freight, means of transportation and routing are at Seller’s sole discretion. Unless otherwise specified herein, Seller will not be liable for any damages for failure to deliver within the requested time, but will make reasonable efforts to make delivery within such time. Seller shall use reasonable efforts to supply Buyer’s emergency needs. If such needs arise due to causes outside of Seller’s control, Buyer shall assume any additional freight or related expenses. If Buyer does not accept delivery of an order, Buyer may return such order to Seller provided (a) the Product remains in its unopened container, (b) Buyer pays Seller a restocking fee equal to fifteen percent (15%) of the value of the returned Product and (c) Buyer pays all outbound and return freight.
2. Buyer shall observe all applicable laws concerning the transportation, handling, storage and use of the Product.
3. In the case of bulk railcar and truck shipments, shipper's weights shall be conclusive, unless proven to be in error.
4. Unless otherwise indicated herein, risk of loss, responsibility for, and title to all Product sold hereunder shall pass to Buyer upon Seller's delivery to carrier.
5. Unless otherwise indicated herein, Product is sold on a freight pre-paid and billed basis. Seller will pay the carrier for actual freight invoiced, including any carrier-imposed surcharges applicable to the shipment, and bill that amount to customer. The freight charges will not be adjusted for any allowances or payments Seller may receive from the carrier, including those for supply of equipment, or performance of services.
6. Buyer will bear all risk of loss and damage to the transportation equipment while the equipment is located on Buyer’s property.
7. Seller warrants the Product to its Specifications. Except as set forth in the preceding sentence, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING NO IMPLIED WARRANTY OF FITNESS FOR ANY PARTICULAR PURPOSE OR MERCHANTABILITY.
8. SELLER SHALL NOT BE LIABLE, AND BUYER WAIVES ALL CLAIMS AGAINST SELLER, FOR ANY INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER DUE TO OR ARISING OUT OF BREACH OF CONTRACT, NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION. Buyer's exclusive remedy for any cause of action hereunder shall be a claim for damages that in no event shall exceed the price of the specific Product as to which the claim is made.
9. Buyer shall indemnify, defend and hold Seller, and Seller’s affiliates, and their respective officers, directors, employees, agents and representatives, harmless from and against any and all losses, claims, costs, expenses (including, without limitation, reasonable attorneys’ fees and expenses), liability, demands and causes of action of every kind and character, including but not limited to the amounts of judgments, penalties and interest, relating to or arising from bodily injuries to or death of any person, or damage to property (including any contamination of or diminution in value of property), arising from or relating to (i) the Product sold to Buyer hereunder; or (ii) the Buyer’s performance hereof, negligence or willful misconduct or violation of law. This paragraph shall survive any termination hereof.
10. Buyer may test and inspect each shipment of Product upon receipt. If Buyer fails to notify Seller, in writing, within thirty (30) days after receipt of the Product and before any part of the Product (except reasonable test and inspection amounts) has changed, that the Product is defective or short in any respect, such failure shall constitute acceptance of the Product and Buyer shall have waived any rights or claims against Seller. Any cause of action by Buyer hereunder must be commenced within one (1) year after such cause of action has accrued.
11. Neither nonperformance nor delay in performance by either party (except payment by Buyer for Product delivered) shall be a breach hereof or create any liability for damages, if due to any cause or causes beyond the party's control, including but not limited to: labor controversies; governmental agency orders or court decrees; hurricanes or other natural disasters; acts of God; acts of war; acts of terrorism; changes in law; inability to use the full capacity of plants or facilities as a result of governmental action, machinery malfunctions or breakdowns; and inability to obtain fuel, power, or materials necessary to produce the Product, labor, containers or transportation facilities, all without litigation or the payment of penalties or unreasonable prices, or the acceptance of unreasonable terms and conditions.
12. If for any reason shortages occur in Seller’s supply of Product, Seller may allocate its available supply on such basis as is fair in Seller's sole judgment, without liability for any failure of performance which may result therefrom, taking into account factors Seller determines are relevant, which may include Seller’s shipments to each user during the past year, the percentage of each user’s requirements which such shipments represent, and each user’s needs at the time of the shortage.
13. Seller may terminate this Agreement or suspend further deliveries hereunder, among other remedies, if (a) Buyer fails to pay for any one shipment, when the same becomes due, in accordance with this Agreement, (b) Buyer breaches any other covenant hereof and fails to remedy such breach within thirty (30) days after written notice thereof from Seller or (c) Seller reasonably believes that the Product sold to Buyer is being used in an unsafe manner.
14. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns; provided, however, that Buyer may not assign its interests herein without the written consent of Seller, except:
(A) To an entity which shall succeed to its rights and obligations by merger, consolidation or other reorganization or transfer by operation of law or by purchase of the business of or substantially all of the assets of Buyer; provided that no such assignment shall relieve Buyer of its obligations hereunder without the written consent of Seller; or
(B) To a subsidiary or parent company, or parent or subsidiary of a parent company; provided that no such assignment shall relieve Buyer of its obligations hereunder without the written consent of Seller.
15. This Agreement constitutes the entire contract of sale and purchase of goods, and neither party shall be liable for, or bound in any manner by any representations, guarantees or commitments except as specifically provided herein. No modification of this Agreement shall be of any force or effect unless in writing and signed by the party claimed to be bound thereby, and no modification shall be affected by the acknowledgment or acceptance of purchase order forms containing different conditions.
16. At any time during the term of this Agreement, Seller may add a surcharge onto its invoices to cover any increases incurred by Seller in its costs of manufacturing or outbound transportation, or to cover the costs of any additional taxes, duties, levies or other charges imposed on Seller by any governmental entity, including but not limited to any tax on greenhouse gas emissions, by providing Buyer with written notification of the same at least thirty (30) days prior to the implementation of any such surcharge.
17. Seller may require Buyer to provide financial statements or other supporting documentation to evaluate Buyer’s financial condition relative to the level of business contemplated during the term of the Agreement. If Seller is not satisfied with Buyer's financial condition or if Buyer breaches the Payment Terms in Section 5 of the Agreement, Seller may, in its sole discretion, (a) alter or revoke any credit extended to Buyer, (b) suspend any pending or new shipments of Product and/or (c) require payment in cash prior to shipment of the Product. Notwithstanding anything herein to the contrary, Seller shall not be obligated to provide any credit to Buyer unless otherwise specifically agreed in a written contract signed by an authorized officer of Seller.
18. This Agreement shall be governed and construed in accordance with the laws of the State of Texas.
19. The failure of either party at any time to enforce any provision of this Agreement, to exercise its rights under any provision hereof, or to require a certain performance of any provision hereof, shall in no way be construed as a waiver of such provision, nor in any way affect the validity of this Agreement or the right of such party thereafter to enforce each and every provision hereof.
20. All technical advice and recommendations of Seller rendered to Buyer, if any, are intended for use by persons having the appropriate education and skill. Seller shall not be liable for any use or non-use of such advice and/or recommendations.
Revised January 2009
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