Terms and conditions of sale
The following terms and conditions of sale (“Purchase Order”) govern all quotations, offers, telephone orders, purchase orders, order acknowledgments, contracts, and deliveries for the sale of all products and goods (the “Products”) supplied by CHEMICA SAS FRANCE and CHEMICA USA, CORP. (“Seller”), to the original purchaser only thereof ("Buyer"). Unless modifications or additions are expressly accepted in writing by an officer of Seller, the provisions contained in this Purchase Order are controlling and no other inconsistent or additional provisions shall be of any effect whatsoever. Seller's acceptance of Buyer's order is expressly conditioned on Buyer's assent to all of the terms and conditions contained in this Purchase Order and such terms and conditions are the only terms and conditions upon which Seller is willing to accept orders. Additional or different terms contained on Buyer’s purchase order or other documents are objected to and rejected and shall be deemed a material alteration hereof.
1. Acceptance
All orders shall be in writing, and no telephone orders shall be accepted unless promptly confirmed in writing or by e-mail within ninety (90) days. Seller’s independent agent(s), if any, do(es) not have the power to bind Seller. Consequently, orders communicated to and transmitted by Seller’s independent agent(s) are subject to acceptance by Seller. This Purchase Order shall become effective, and is accepted by Buyer, upon the execution hereof by Buyer, or, if there is no execution hereof by Buyer, upon Buyer's receipt of all or part of the Products sold hereunder. All orders and modifications of a previous order from Buyer shall be subject to acceptance by Seller. Data, such as illustrations, drawings or specifications, supplied by Seller shall be considered approximations, unless Seller has specifically stated otherwise in writing.
2. Purchase price and payment terms
Buyer shall, without offset or deduction, make payment of the purchase price for the Products as indicated in Seller’s price schedule and payable to the Seller’s registered head office. The purchase price is exclusive of any federal, state, and local sales taxes, regardless of denomination (Euros or U.S. Dollars), as well as all use, excise, or other similar taxes arising out of the sale of the Products, other than taxes on Seller’s income, and Buyer shall pay any and all customs duties, tariffs, bank costs or commissions (collectively, the “Taxes”). The purchase prices quoted to Buyer are valid for deliveries to locations within the continental United States and Canada only and do not include insurance and packing. Purchase price does not include transportation costs and all transportation costs are charged to Buyer.
Prices are subject to change without notice for reasons including, but not limited to, cost price or monetary fluctuations. Unless otherwise indicated, Seller reserves the right to invoice at prices in effect on the date of delivery. Payment for the initial two (2) shipments shall be made in advance, unless otherwise agreed to in writing by Seller. Payment within thirty (30) days after invoice is allowable for “Confirmed” Buyers, as decided at Seller’s discretion prior to the Purchase Order and only after positive approval from a Credit Insurance Company. Seller agrees to extend Buyer a discount of two percent (2%) for payments made in advance or at receipt of invoice. Amounts not paid when due bear, regardless of Buyer status (“Confirmed” or “Unconfirmed”), interest at the rate of eighteen (18%) per annum, compounded monthly, or the highest rate allowed under applicable law. In addition, Buyer agrees to pay all expenses of collection, including reasonable attorneys' fees, if amounts owing by Buyer are collected by or through an attorney at law. Terms of payment are within the sole discretion of the Seller. Seller at its own discretion may agree separately in writing to payment of price by installments. Unless otherwise agreed to in writing, any missed installment shall trigger acceleration of all future payments, as well as Seller’s total relinquishment of all obligations to proceed with subsequent shipments. Seller retains the discretion of delaying shipments in this event until a written settlement, satisfactory to the Seller, is reached with Buyer. Time is of the essence as to the payment obligations of Buyer.
3. Minimum charge
There is no minimum order.
4. Delivery and acceptance
Seller will deliver the Products upon receipt by Seller of a signed Purchase Order from “Confirmed” Buyer. Seller will deliver the Products upon receipt by Seller of a signed Purchase Order from Buyer as well as Buyer’s advanced payment in full, including all pertinent fees, costs, and Taxes, for the Buyer’s initial two shipments. Buyer specifically agrees that Seller shall have no obligation to deliver the Products to Buyer unless Buyer has fully complied with this Purchase Order, including advanced payments for initial shipments where applicable.
All Products delivered to Buyer shall be delivered “Ex Works” as defined in the Incoterms 2000, unless otherwise agreed in writing between the parties. Any date(s) or time(s) quoted or acknowledged for delivery of the Products by Seller are given for information and estimate purposes only and Seller will seek to comply with such estimated times but such times are not guaranteed, and are not binding in the event of unforeseen circumstances, including delay of delivery of essential materials, third party interference on site and other events beyond Seller's reasonable control. Seller shall not be liable for failure to deliver the Products on or within such date(s) or time(s) nor shall Buyer be entitled to reject any consignment of the Products or to treat the Purchase Order as repudiated in the event of such failure. Time shall not be of the essence in respect of quoted delivery dates or times.
If Buyer fails to take delivery of the Products within three (3) days after receiving notice from Seller that they are ready for collection, Seller may store them at Buyer’s expense.
Unless otherwise agreed in writing with Seller, Buyer shall be bound to accept partial deliveries of the Products or delivery of the Products by installments and the terms and conditions herein contained shall apply to such partial delivery or delivery by installment. Where the Products are to be delivered in installments, each delivery shall constitute a separate contract and failure by Seller to deliver any one or more of the installments in accordance with these terms and conditions or any claim by Buyer in respect of any one or more installments shall not entitle Buyer to treat the Purchase Order as a whole as repudiated.
Buyer shall retain the responsibility to notify Seller in writing of any visible defects in the Products within three (3) days of delivery. No attempt at notice of revocation of acceptance by Buyer shall be effective if not made in writing. Buyer may not cancel this Purchase Order without Seller’s prior written consent. Products delivered to Buyer which are defective shall be taken and kept in custody by Buyer until Seller has disposed of, or has given instructions to Buyer to dispose of, the Products. Any claim for breach of warranty by Buyer in respect of the Products shall remain unaffected.
Seller reserves the right to make changes in design and specifications of the Products to be supplied. Seller further retains the right to modify, update, suspend, or otherwise alter any production method used in manufacturing the Products without notice to Buyer. Neither the aforementioned modifications to methods of production nor suspension of a Product in any way may lead to forced deliveries by, or make liable for damages to, the Seller.
5. Trials and returns of products
Buyer may return the Products for any reason within three (3) days of delivery. To return the Product, Buyer shall request a Return Good Authorization form (“RGA”). The RGA will provide detailed instructions on the return process. All returned goods must be accompanied by a copy of the original invoice. The Buyer shall bear the transportation costs and risk for loss or damage on all return Products except in cases of damaged or defective Product. Products must be in resaleable condition, be returned in their original packaging including any manuals, blank warranty cards, accessories, and any other documentation included with the original shipment. Any used, missing or damaged Products, components, or accompanying items shall result in rejection of the returned goods or an additional restocking fee at the Seller's discretion.
6. Risk of loss and title to products
The risk of loss of the Products passes to Buyer upon delivery from Seller’s warehouse. The title in the Products will not pass to Buyer until total payment of the price and any additional costs have been made in full by Buyer. If the Products are resold or otherwise disposed of by the Buyer, (i) Buyer will ensure that the entire proceeds of the sale are held on behalf of Seller and shall not be mixed with any other monies or paid into an overdrawn bank account and shall at all times be identifiable as monies belonging to Seller; (ii) Buyer shall be obliged to keep the Products free from the rights of third parties and shall not pledge or purports to transfer title to the Products, as security; and (iii) Seller shall retain the right to recover the Products from Buyer’s premises (and for this purpose may enter into Buyer’s premises) at Buyer’s expense.
7. Cancellation and rescheduling
Any request for cancellation or rescheduling must be made in writing, stating the nature and detailed reasons for the request. Cancellation and rescheduling requests cannot be accepted within the ten (10) day period prior to the scheduled delivery date. Outside of that ten (10) period, Seller reserves the right to refuse any request for cancellation or rescheduling. Should the request be accepted, Seller reserves the right to invoice Buyer for costs and losses associated with the cancellation or rescheduling up to the Price.
Seller shall have the sole and absolute right to terminate this agreement and/or to cancel the delivery of all or any portion of the Products ordered pursuant hereto, without any liability to Buyer thereof upon the occurrence of any of the following events: (i) Buyer makes a general assignment for the benefit of creditors or admits in writing any inability to pay its debts as they mature or takes advantage of, or files under any federal, state or foreign insolvency statute or law, including, without limitation, the United States Bankruptcy Code, or consents to the institution of proceedings or the filing of any petition thereunder, or any proceeding is filed or commenced against Buyer, under any insolvency statute or law which is not stayed and dismissed promptly or any substantial part of the properties of Buyer are placed in the control of a receiver, custodian, trustee or similar official, or Buyer consents to the appointment thereof; (ii) if Seller is prohibited by any cease and desist order, injunction or other valid order, decree, process of law, or restraint from shipping, selling, exporting, importing, or distributing any Products pursuant to the terms hereof. Seller shall have no liability on account of exercising its right to cancel hereunder.
8. Security interest
Until all amounts owed by Buyer to Seller with respect to the delivered Products provided hereunder and under any other transactions between Seller and Buyer are paid in full, Seller retains security title to the delivered Products and Buyer agrees to execute all documents and to do and perform all other acts and things which Seller in good faith considers necessary, desirable or appropriate to further establish, perfect or protect Seller's security interest. Buyer hereby authorizes all present and future officers of Seller to execute, and to file, in Buyer's name and on Buyer's behalf, any and all financing statements or other documents deemed necessary by Seller to accomplish same. In the event of default by Buyer of any of its obligations to Seller, Seller shall have the right, in addition to any other rights and remedies available to Seller, to repossess the delivered Products sold hereunder and without liability to Buyer. In such event, Buyer agrees to make the delivered Products available to Seller so that Seller can repossess them without a breach of the peace.
9. Intellectual property rights
Seller retains ownership, title and all copyright and patent and intellectual property rights in and to all information, quotations, drawings, designs, and documents (collectively the “Property") furnished by Seller or produced in the performance of this Purchase Order. Possession by Buyer of the Property does not convey any permission to design or manufacture any Products depicted thereby. Buyer shall have no claim to, nor ownership interest in, any Property, in whatever form and any copies thereof, shall be promptly returned to Seller upon written request from Seller.
The Products are offered for sale and sold by Seller subject in every case to the condition that such sale does not convey any license, expressly or by implication, estoppel or otherwise, under any intellectual property rights of Seller with respect to any inventions of Seller or others, patented or not patented, embodied in Seller’s Products, processes, sales literature or manufacturing operations. Seller expressly reserves all its rights under such intellectual property rights. No manufacture to Buyer’s specifications entails ownership by or conveyance to Buyer of any property right in any invention.
10. Confidentiality
The Buyer shall hold all information furnished or made available by Seller to Buyer in connection with the subject matter of this Purchase Order in confidence. Seller covenants and agrees not to disclose to third parties, except upon the prior approval of Buyer, any confidential plans or specifications delivered by Buyer to Seller, whether or not same have been marked by Buyer as confidential. The obligations in this paragraph will not apply to any information which (a) at the time of disclosure was or thereafter becomes, generally available to the public by publication or otherwise through no breach by the Buyer of any obligation herein, (b) the Buyer can show by written records was in the Buyer’s possession prior to disclosure by Seller, or (c) is legally made available to the Buyer by or through a third party having no direct or indirect confidentiality obligation to Seller with respect to such information.
11. Limited warranty
Subject to the other provisions of this Purchase Order, Seller warrants to Buyer (only) that for a period of twelve (12) months valid from delivery of the Products to Buyer the Products will conform to the description and quantity of the Products contained in this Purchase Order. This limited warranty also covers all parts of the Products. This limited warranty will not apply unless Buyer gives written notice by registered mail to Seller of the specific breach of warranty within three (3) business days of discovery of such breach and Buyer has met its own obligations under this Purchase Order, including its payment obligations. Buyer shall grant Seller a reasonable time and opportunity after Buyer's written notice to comply with its limited warranty obligations and Seller reserves the right to make adjustments and design modifications to the Products prior to initial operation and during the warranty period to meet its warranty.
12. Disclaimer and limitation of remedies
THE LIMITED WARRANTY CONTAINED IN SECTION 11 ABOVE IS THE SOLE AND EXCLUSIVE WARRANTY OF SELLER AND IS EXPRESSLY IN LIEU OF ANY AND ALL OTHER OBLIGATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
BUYER'S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY AGAINST SELLER IS LIMITED TO THE REPAIR OR REPLACEMENT, AT SELLER'S OPTION, OF DEFECTIVE PRODUCTS. IN THE EVENT SELLER IS UNABLE OR OTHERWISE FAILS TO REPAIR OR REPLACE THE CORRESPONDING PRODUCT WITHIN A REASONABLE TIME, BUYER'S SOLE AND EXCLUSIVE REMEDY AGAINST SELLER IS LIMITED TO AN AMOUNT NOT IN ANY EVENT TO EXCEED THE PRICE ACTUALLY PAID FOR SUCH PRODUCT. DELIVERED PRODUCTS MAY NOT BE RETURNED BY BUYER OR ITS AGENT TO SELLER WITHOUT SELLER’S PRIOR WRITTEN CONSENT AND SELLER’S PRIOR APPROVAL OF SHIPMENT METHOD.
Except where expressly acknowledged in writing by a duly authorized executive officer of Seller, no person or entity is authorized to assume for Seller any undertaking, obligation, liability, or warranty.
13. Limitation of liability
SELLER SHALL IN NO EVENT BE LIABLE TO BUYER, NOR SHALL BUYER RECOVER FROM SELLER, FOR INJURY TO PERSONS OR DAMAGE TO PROPERTY, OR ANY OTHER LOSS OR DAMAGE WHATSOEVER, ARISING OUT OF OR IN CONNECTION WITH THE SALE, DELIVERY, ASSEMBLY, DISASSEMBLY, REPAIR, USE, OR INSTALLATION OF THE PRODUCTS (WHETHER ARISING FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT, PRODUCTS LIABILITY, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY), FOR ANY AMOUNT IN EXCESS OF THE AMOUNT ACTUALLY PAID BY BUYER TO SELLER FOR THE PRODUCTS; PROVIDED, HOWEVER, IN NO EVENT SHALL SELLER BE LIABLE TO BUYER IN ANY MANNER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR LOSSES ARISING OUT OF THE INOPERABILITY OF THE PRODUCTS, OPERATING LABOR, OVERHEAD, OR LOST PROFITS (WHETHER ARISING FROM CONTRACT, WARRANTY, TORT, PRODUCTS LIABILITY, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY), EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY THEREFOR. ANY ACTION FOR AN ALLEGED BREACH OF ANY CONTRACT OF SALE OR OF ANY WARRANTIES RELATING TO ANY PRODUCT SOLD BY SELLER TO BUYER MUST BE COMMENCED BY BUYER WITHIN ONE (1) YEAR OF THE DATE ON WHICH SUCH CAUSE OF ACTION ACCRUED.
14. Compliance
Buyer shall use and shall require its employees and others coming in contact with the Products to use safe operating procedures in and around the Products. Buyer shall comply at all times with all applicable laws and regulations, whether local, state, federal or otherwise, and seller reserves the right to stop delivery without liability should Buyer fail to fulfill that obligation. Buyer specifically agrees to maintain the Products in compliance with all laws and regulations of any and all government agencies or authorities having jurisdiction with respect to the sale, installation and use of the Products.
15. Indemnity
Buyer shall at its own expense apply for and obtain any permits and inspections required for the installation and/or use of the Products. Seller makes no promise or representation that the Products will conform to any federal, state or local laws ordinances, regulations, codes or standards, except as particularly specified and agreed upon in writing by an authorized representative of Seller. Buyer retains the responsibility, with the encouragement and advice of Seller, to conduct trials of the Products prior to the placement of any orders thereof. All pertinent Updated Technical Sheet(s) (UTS), available at anytime upon Buyer request, shall be reviewed, acknowledged, and the substance of such UTS implemented by Buyer prior to use of the Products. Seller shall not be responsible for any losses or damages sustained by Buyer or any other person as a result of improper installation or misapplication of the Products. Seller is limited to liability for damages to the Products only, and Buyer shall defend, indemnify and hold harmless Seller and its agents and employees against any loss, damage, claim, suit, liability, judgment or expenses (including, without limitation, attorney's fees) arising out of or in connection with any injury, disease or death of persons (including, without limitation, Buyer's employees, customers, and agents) or damage to or loss of any property, including any loss of profit whatsoever, or damage to the environment, by reason of any claim of negligence, breach of express or implied warranty, strict liability in tort or other theory of law, violation of any applicable laws or regulations, resulting from or in connection with the sale, transportation, installation, use, or repair of the Products by Buyer or of the information, designs, services or other work supplied to Buyer, whether caused by the concurrent and/or contributory negligence of Buyer, Seller, or any of their agents, employees or suppliers. The obligations, indemnities and covenants contained in this paragraph shall survive the consummation or termination of this transaction. In the event of any claim against Seller by an employee of Buyer or an employee of a subcontractor of Buyer or other person who might or would benefit from an immunity from making indemnity, contained in any state or federal workers' compensation law or similar law, Buyer specifically waives the immunity and agrees to indemnify Seller and hold Seller harmless from any claim for any type of injury or damages.
Buyer shall notify Seller within seven (7) days of Buyer's receipt of knowledge of any claim involving Seller's Products resulting in personal injury, death, 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. Any and all defective material shall be joined to each claim. The furnishing of such information to Seller and any investigation by Seller shall not constitute an assumption of any liability by Seller.
16. Termination
Seller may terminate the Purchase Order if: (i) Buyer is in breach of any of the terms and conditions set forth herein, or fails to provide security or to pay advances or prepayment agreed with Seller, or in event of default of payment; and (ii) except in the case of a default of payment which shall not benefit of a cure period, where the breach is remediable, Buyer has failed to remedy within thirty (30) days of Seller’s notice requiring remedy. Termination does not affect any rights of either party that may have accrued prior to termination.
17. Applicable law
Any claims, disputes or controversies arising out of or pertaining to the validity, construction, execution and performance of this Purchase Order shall be construed and governed in accordance with the applicable laws of France for Chemica SAS France and the law of the State of Georgia USA for Chemica US corp, without giving effect to principles of (i) comity of nations or (ii) conflicts of law.
18. Jurisdiction
The Court within the relevant District of Seller’s registered head office shall have the exclusive jurisdiction and venue over all controversies arising out of or relating to the terms and conditions of this Purchase Order.
<h2">19. Assignment
This Purchase Order shall be binding upon and inure to the benefit of the respective successors and assigns of each of the Parties hereto, but shall not be assigned by Buyer without the prior written consent of Seller.
20. Waiver
Seller's waiver of any breach, or failure to enforce any of the terms and conditions of this Purchase Order at any time shall not in any way affect, limit or waive Seller's right thereafter to enforce and compel strict compliance with every term and condition hereof.
21. Severable
All provisions of this Purchase Order are severable and divisible, and if any such term or provision should be held invalid or unenforceable for any reason, such term or provision shall be void to the extent of such invalidity or illegality, without invalidating any of the remaining terms.
22. Force majeure
Seller shall not be liable to Buyer for any loss, cost, expense or damage occasioned by Seller’s failure to make delivery or for any delay in making delivery when such failure or delay arises out of or from causes or events beyond Seller’s reasonable control, including, but not limited to, fires, floods, accidents or other acts of God, strikes, labor disputes or difficulties, acts or requirements of government or civil authority, riot, war, embargo, terrorist activity, truck or car shortage or other transportation delay or difficulty or inability to obtain or scarcity of labor, component parts or raw materials. In the event of any such occurrence or event precluding shipment, Seller reserves the right to apportion available supplies of the Products in any manner that is fair and reasonable and to adjust the purchase price as Seller will deem fit under the circumstances. In the event of a delay arising out of any such occurrence or event, the shipment date(s) shall be postponed for a period of time equal to the time required to remedy, correct or alleviate such cause or event, if capable of correction.
23. Survival
The following provisions will survive expiration or termination of the Purchase Order: indemnity obligations, confidentiality obligations, provisions limiting liability, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Purchase Order and will apply to both parties' respective successors and permitted assigns.