STANDARD TERMS AND CONDITIONS OF SALE
1. General. These Standard Terms and Conditions of Sale (“STCS”) shall apply to all orders, offers, confirmations and agreements between (“Seller”) and the business, entity, company or person(s) purchasing any products or services (“Buyer”), as each Buyer and Seller are identified in Seller’s written quotation, confirmation or invoice respective to such purchase. If a written supply or service agreement between Buyer and Seller is fully executed, these STCS shall be supplemental to the terms of such written supply or service agreement and, in the event of any conflict between the two, the terms of the written supply or service agreement shall prevail. No terms presented by Buyer to Seller (for instance in a purchase order, request for proposal, confirmation of order, specification or otherwise) shall form part of the contract between Buyer and Seller.
2. Acceptance. Any order or contractual offer shall be subject to acceptance by Seller and shall not be considered a binding agreement on Seller unless and until so accepted in writing by Seller or by Seller’s full performance thereof. Seller shall consider every order or acceptance of a quote by Buyer as acceptance of these STCS. Seller is under no obligation to accept any order. Seller reserves the right to discontinue any Product or Service and/or to change the formulation or components of any Product or Service.
3. Pricing. Unless otherwise agreed by the Buyer and Seller in writing, product pricing shall be based on Seller’s then-current pricing in effect on the earlier date in which Seller provides acceptance of or fully performs on Buyer’s offer. All amounts quoted by Seller, listed in the contract or agreed with Buyer shall be exclusive of any applicable taxes or customs duties.
4. Taxes and Duties. Seller shall honor legally valid declarations evidencing an exemption from taxes, duties and/or levies if submitted by Buyer in a timely manner. Any applicable taxes or customs duties will be for Buyer’s account. For purposes of these terms and conditions, “tax” and “taxes” shall mean and include all present and future taxes, excises and customs duties, corporate income tax or gross revenue taxes, sales taxes, property taxes, levies, withholding taxes, employment taxes, and fees, charges and other assessments in the nature of the taxes, including any fines, penalties or interest, assessed or levied by the appropriate tax authority. Additionally, “sales tax” means any transfer tax, gross receipts tax, compensating use tax, use tax, sales tax, value added tax, goods and services tax, environmental tax, business tax, consumption tax or other transactional taxes which may be assessed as a result of sales or use of Products and/or services hereunder, whether measured by quantity or receipts (excluding taxes based on or measured by net income) that are or may be imposed by any tax authority and are arising or payable as a result of the provision of Products and/or services under this agreement. Furthermore, “customs duties” shall mean all existing or future duties, payments, fees, charges, levies, taxes, or contributions payable to or imposed by any authority as a result of import or export, whether permanent or temporary of any personnel, plant, or equipment into or out of any jurisdiction.
5. Payment. Payment shall be made within the period for payment stated in the invoice or, if not stated, within net thirty (30) days from the invoice date. Time for payment shall be of the essence. All Buyer payments shall be made in full without any set off, counterclaim or deduction. Buyer agrees to establish an Electronic Funds Transfer (“EFT”) or similar account as designated by Seller with a suitable financial institution and to authorize transfers of funds between Buyer’s account and Seller’s designated account in accordance with procedures established by Seller. Any good faith queries or disputes by Buyer regarding Seller invoices should be notified to Seller within ten (10) days of receipt of the relevant invoice; the absence of which all such claims, disputes or complaints shall be waived. Seller shall have the right to demand full or partial payment in advance or postpone subsequent deliveries for as long as any previous delivery remains unpaid, or if Buyer fails to provide adequate security. Any owing amounts remaining due and payable following the invoice due date are subject to: (i) a late payment interest service charge of one percent (1%) per month or the maximum interest rate permitted by applicable law, whichever is lower. (ii) Buyer shall provide cash in advance of any future deliveries. (iii) Withdrawal or reduction of Buyer credit facilities. (iv) Withholding future deliveries.
6. Quantity. Unless notified otherwise by Buyer with ten (10) days of Product receipt, Seller’s determination of quantity delivered shall be binding and final.
7. Deliveries. Delivery times are approximate and shall not be of the essence. Seller shall inform Buyer of the delivery time as soon as is practicable, which shall exclude public holidays or customary non-business days of the week. Delivery times are not guaranteed. Unless Seller specifically agrees with Buyer in writing, Buyer will not be entitled to any form of compensation if Seller does not meet the requested delivery time. Buyer agrees to provide safe reception for the Products and services ordered. Seller will not make any delivery to Buyer unless Seller considers it to be safe to do so. Buyer has the sole responsibility for providing suitable means and facilities for the reception of the Products and services and for the storage of the Products after delivery. If Buyer breaches any of these conditions Seller may without prejudice to any other right or remedy, withhold delivery of any Products or services which have not yet been delivered.
8. Returns. Product may only be returned upon Seller’s prior written consent and in accordance with Seller’s reasonable instructions with regard to packaging and transportation. Buyer agrees to pay a service charge in the amount of 20% of the original Purchase Price for all Product returns.
9. Title and Risk of Loss or Damage. All sales are F.O.B. Seller’s shipping point, unless otherwise specified by Seller in writing. Title and risk of loss with respect to the purchased Products will pass to Buyer when the Products are loaded into trucks, tankers or other conveyances at our shipping point; provided, however, that for export sales title will transfer to Buyer in international waters and if transfer of title in international waters is not geographically feasible, title shall transfer from Seller to Buyer within the USA. Unless Seller specifically agrees with Buyer in writing to pay all or some part thereof, Buyer will pay the freight or other delivery charges, inspection fees, and all other charges levied or imposed on the Products after the loading is completed. If Buyer is using Seller’s trucks, tankers or other conveyances for transportation, Buyer will unload and return such conveyance to the carrier within the tariff or contracted period, free of demurrage and/or detention charges. Buyer will indemnify Seller from and against all losses, liabilities, damages, and claims, including, without limitation demurrage and/or detention charges, resulting from Buyer’s use of said conveyances, except to the extent caused by Seller’s sole negligence. Buyer hereby grants Seller a security interest in all Products purchased from Seller (collectively, the “Collateral”). Buyer acknowledges and agrees that Seller has a security interest in the Collateral and that Seller has the right to and are authorized to file financing statements and other appropriate documentation (including, without limitation, UCC filings) and to take any other action which is necessary to perfect and/or protect Seller’s security interest in the Collateral. If, before Seller receives payment from Buyer for the Products, Buyer becomes subject to an insolvency event, Seller shall be entitled, without prejudice to any other remedy Seller may have, to enter the premises where the Products are kept and remove the Products or any part thereof.
10. Inspection. Upon receipt of any product, Buyer shall inspect such product for defects and shall ascertain through reasonable visual inspection that (i) the correct product was delivered, (ii) the quantity is accurate, and (iii) where applicable, the labels or other documents relating to the product correspond to the product ordered. If Buyer discovers that any product does not conform to an agreement or Seller’s published product specifications, Buyer shall, before any of the product has been consumed, resold, altered or processed, notify Seller in writing within ten (10) days from the delivery date of such product. Such notification shall provide detailed information as to the claimed variation, defect or shortage, and Buyer shall afford Seller a reasonable opportunity to inspect the product. Buyer’s failure to adhere to the terms of this Section shall constitute a waiver by Buyer of all claims based on any variation, defect or shortage of any product, and shall be conclusive evidence that Seller has satisfactorily performed its obligations under the applicable agreement. The exclusive remedy for any shortage, defective or non-compliant product manufactured, distributed, packaged, and delivered by Seller, whether or not arising from negligence or any other cause, shall be limited to, at Seller’s sole discretion, either (i) the product being replaced at the original point of delivery, or (ii) a credit or refund of sales price in proportion to the defect(s) to which the claim relates including, without limitation, transportation costs and taxes. The foregoing remedy shall not apply to product damaged during Buyer’s transit, or to product damaged or lost due to Buyer’s willful misconduct, negligence, improper storage, environmental conditions, or failure to follow Seller’s oral or written instructions. SELLER MAKES NO EXPRESS OR IMPLIED WARRANTIES AND ALL SUCH WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR OR SPECIAL PURPOSE, NON-INFRINGEMENT OR SKILL AND CARE.
11. Limitation of Liability. SELLER SHALL NOT BE LIABLE TO BUYER – WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE – FOR ANY CLAIM ARISING IN CONNECTION WITH THE CONTRACT FOR: (i) ANY LOSS, DAMAGE OR INJURY CAUSED FROM ANY HAZARD INHERENT IN THE NATURE OF THE PRODUCTS OR SERVICES; (ii) ANY LOSS OF PROFIT OR ANTICIPATED PROFIT, LOSS OF BUSINESS OR DEPLETION OF GOODWILL, LOSS OF TIME OR HIRE, COST OF OVERHEADS THROWN AWAY, DEMURRAGE OR LOSS OF SCHEDULE, COSTS OF SUBSTITUTE MACHINERY OR EQUIPMENT, LOSS RELATED TO LOSS OF OPERATIONAL USE OF MACHINERY OR EQUIPMENT, PHYSICAL LOSS OR DAMAGE (IN WHOLE OR IN PART) OF OR TO MACHINERY OR EQUIPMENT, IN EACH CASE WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL; OR (iii) ANY CLAIMS FOR CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY LOSSES OR DAMAGES WHATSOEVER (HOWSOEVER CAUSED). SELLER’S TOTAL LIABILITY TO BUYER (INCLUDING ANY LIABILITY FOR THE ACTS OR OMISSIONS OF OUR EMPLOYEES, AGENTS AND SUBCONTRACTORS) IN CONTRACT, TORT, MISREPRESENTATION, RESTITUTION OR OTHERWISE, ARISING IN CONNECTION WITH THE CONTRACT SHALL BE LIMITED TO THE PRICE PAID FOR THE RELEVANT PRODUCT OR SERVICE UNDER THE CONTRACT. ALL CLAIMS FOR ANY CAUSE WHATSOEVER, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), BREACH OF WARRANTY, MISREPRESENTATION, RESTITUTION OR OTHERWISE, SHALL BE DEEMED WAIVED UNCONDITIONALLY AND ABSOLUTELY UNLESS SELLER RECEIVES A WRITTEN NOTICE OF SUCH CLAIM NOT LATER THAN 90 DAYS AFTER BUYER’S RECEIPT OF THE PRODUCT OR SERVICE AS TO WHICH THE CLAIM IS MADE. ANY CAUSE OF ACTION THAT BUYER MAY HAVE AGAINST SELLER AND WHICH MAY ARISE UNDER THIS AGREEMENT WHICH HAS NOT BEEN WAIVED MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED OR IT SHALL BE DEEMED WAIVED. BUYER AGREES TO INDEMNIFY SELLER AGAINST ANY LOSS, DAMAGES, LIABILITY OR CLAIM AND ALL COSTS AND EXPENSES ARISING OUT OF OR IN CONNECTION WITH ANY SPILL, ACCIDENT OR EMERGENCY INCIDENT OCCURRING DURING THE DELIVERY OF PRODUCTS OR SERVICES OR BUYER’S FAILURE TO COMPLY WITH ANY OF YOUR OBLIGATIONS UNDER THESE CONDITIONS OR BUYER’S NEGLIGENCE OR WILLFUL MISCONDUCT, EXCEPT TO THE EXTENT CAUSED OR CONTRIBUTED TO BY SELLER’S GROSS NEGLIGENCE. NOTHING IN THESE CONDITIONS OF SALE SHALL AFFECT ANY RIGHTS THAT ARE GIVEN TO BUYER BY LAW.
12. Health, Safety and Environment. Seller shall provide Buyer with Safety Data Sheets, including warnings and safety and health information concerning the Product sold under an agreement. The Buyer agrees to provide such information warning of possible hazards to those persons with whom Buyer can reasonably foresee may be exposed to such hazards, including but not limited to Buyer’s employees, agents, contractors and customers. Buyer shall fully indemnify and hold the Indemnified Persons harmless against all Demands arising out or related to Buyer’s or any of Buyer’s end user’s use of the product (or any component thereof) where (i) Buyer failed to provide adequate hazard warnings or safety or health information concerning the product, (ii) Buyer failed to adhere to any applicable law, rule, ordinance, or regulation, (iii) Buyer is in breach of an agreement or these STCS, or (iv) the product (any portion thereof) was substituted, modified, changed, or comingled or combined with any other non-Seller material or substance without Seller’s written consent.
13. Force Majeure. Excluding Buyer’s payment obligations under an agreement or these STCS, any whole or partial, temporary or permanent, delayed, obstructed or impeded performance by Seller or Buyer shall be excused without liability on the occurrence of a Force Majeure Event until such Force Majeure Event ceases. A “Force Majeure Event” shall mean circumstances beyond a Party’s foreseeable or commercially reasonable control, including, without limitation, those related to: war, acts of terrorism, acts of God, embargoes, actions or requests of any government, changes in any applicable law, rule or regulation, foreign or domestic, or any agency or subdivision thereof, strikes, labor disputes, casualties, fires, accidents, any impediments, changes, difficulties or restrictions whatsoever on the production, manufacture, supply, receipt, transportation, exportation and/or importation of raw or auxiliary materials, labor, fuel, parts or machinery for the product, and stock shortages. The Party experiencing a Force Majeure Event shall promptly notify the other Party in writing of the circumstances giving rise to such occurrence. If the period during which a Party cannot fulfill its obligations due to a Force Majeure Event exceeds or will exceed net sixty (60) days, Buyer and Seller shall both be entitled to terminate the affected agreement, without any liability or obligation.
14. Termination. Unless otherwise prohibited by applicable law, in Seller’s sole discretion and without liability therefor or prejudice to any other right or remedy available to Seller, Seller shall be entitled to suspend performance or to terminate an agreement by notifying Buyer writing. Seller may immediately end the contract or suspend deliveries without liability if (i) a liquidator (other than for the purposes of amalgamation or reconstruction), trustee in bankruptcy, receiver or equivalent officer is appointed in respect of Buyer, any of Buyer’s assets or undertakings or associated companies, or Buyer enters into an arrangement or composition with Buyer’s creditors or if Seller has reason to expect any such appointment, arrangement or composition; (ii) Buyer fails to make any payment to Seller by the invoice due date; (iii) Buyer breaches any obligations under clause 12. In addition to any other rights Seller may have, Seller may end the contract immediately without liability if: (1) Buyer commit a material or persistent breach of any of the provisions of the contract and, in the case of a breach capable of being remedied, fail to remedy that breach to Seller’s satisfaction within 14 days of receiving written notice of the breach, or (ii) continued performance of the contract would cause Seller to contravene any local, state, national or international regulation or law. If the contract is ended, then clauses 5, 6, 11, and 12 shall survive. Without prejudice to any other rights or remedies Seller may have, if the contract ends Buyer shall immediately pay in full to Seller all sums which at the date of termination are due and payable.
15. Trade Regulations. The parties (along with their affiliates) agree that this Agreement and all matters arising under it are subject to economic sanctions and export control laws of the states and jurisdictions where they operate or conduct business, including without limitation, where this Agreement will be performed (“Trade Regulations”); and affirm that they (along with their affiliates) have established and will maintain compliance programs and controls that, at a minimum, meet industry standards for compliance with applicable Trade Regulations. A party’s failure to comply with the Trade Regulations constitutes a material breach of this Agreement by that party. If the Product purchased hereunder is shipped (whether by Buyer or Seller) to a location outside of the USA, Buyer shall constitute the importer of record with respect to the Product. Seller will not be considered the importer of record. As the importer of record, Buyer shall comply with all laws of the country the Products are imported into. Buyer acknowledges and agrees that Seller is not responsible for ensuring that the Products and their packaging and labels comply with the legal requirements of any country the Products are imported into. Buyer shall be responsible for all registrations, filings, and compliance in connection with the importation of the Products. Buyer shall ensure that all government filings, registrations, consents and approvals necessary or advisable in connection with the importation of the Products are timely completed in compliance with all applicable legal requirements. Buyer is responsible for ensuring, and shall ensure that the Products (including, without limitation, the labels and packaging) comply with all legal requirements of the country into which the Products are imported.
16. Notice, Language, Law, Forum and Miscellaneous. All correspondence relating to the contract should be made either by email, fax or recorded delivery sent to the address set out on the contract or as otherwise notified. Correspondence shall be considered to have been made when it has been received. No failure by Seller to enforce any right under the contract shall be considered to be a waiver of any form of such right. A waiver will only be effective if in writing and will not constitute a waiver of any other breach or default. The rights and remedies provided by the contract are cumulative and are not exclusive of any rights or remedies provided by law. The contract is personal to Buyer and cannot be assigned or subcontracted by Buyer in whole or in part. Seller may assign or subcontract all or part of our rights and/or obligations under this contract to any of our affiliates or in connection with a merger or acquisition. If a term of this Agreement is held not to be valid by any competent court or authority, then it should be read to the full extent that it is valid or, to the extent required, deleted. The other terms of this Agreement shall continue in full force unaffected. The English language version shall be the authoritative version. Michigan law shall govern the contract and any non-contractual obligations arising out of or in connection with it without regard to that state’s rules on conflicts of law that may direct the application of any other jurisdiction. The United Nations Convention on International Sale of Goods shall not apply to this Agreement. Any dispute arising out of this Agreement shall be referred to an executive of each party for attempted resolution. If not so resolved, any dispute arising out of or in connection with this contract shall be solely submitted for resolution to the jurisdiction, as applicable, of the state courts located in Kent County, Michigan or the federal courts of Michigan, unless otherwise indicated by Seller. Buyer and Seller irrevocably submit to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Buyer and Seller irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
17. Confidential Information. Buyer shall refrain from using or exploiting any Confidential Information for any purposes or activities other than those specifically authorized by Seller in writing. The Buyer shall not disclose any Confidential Information to any third party without the prior written authorization of Seller. The Buyer shall protect and keep any Confidential Information secret at all times and shall implement effective security procedures in order to avoid disclosure or misappropriation of any Confidential Information. For the purpose of this Article, “Confidential Information” shall mean and include any data, material, process, or information in any form whatsoever that is not in the public domain, including know-how and trade secrets, relating to, or contained or embodied in, any Seller products and/or the business or affairs of Seller, but excluding where Buyer has paid Seller in full for title of such. Any data, material, process and information shall be considered to be Confidential Information hereunder (i) if Seller has marked them as such, (ii) if Seller, electronically, orally or in writing, has advised the Buyer of their confidential nature, or (iii) if, due to their character or nature, a reasonable person in a like position and under like circumstances would treat them as confidential. All designs, drawings, plans, specifications, manuals, instructions, estimates, prices, and other documents, materials, or information that Seller prepares, discloses or provides to Buyer, and all related intellectual property rights, will remain Seller’s property. Seller grants Buyer a limited, non-exclusive, non-transferable, revocable license to use any such material solely for Buyer’s use of the Products. Buyer shall not disclose any such material to third parties without Seller’s prior written consent.