DIPSOL OF AMERICA, INC.
STANDARD TERMS AND CONDITIONS OF SALE
- TERMS. Under no circumstances will Seller contract with Buyer unless solely upon the terms and conditions herein (“Agreement Terms”). All sales of products are limited to and made expressly conditional on Buyer’s acceptance of the Agreement Terms, and Seller’s acceptance of Buyer’s purchase order is subject to Buyer’s acceptance of the Agreement Terms. There are no terms, understandings, agreements, other than those stated herein. Seller’s commencement of work on the Products subject to Buyer’s order or shipment of the Products, whichever occurs first, shall constitute an acceptance of Buyer’s purchase order and the Agreement Terms without any additional or different terms. The Agreement Terms may not be altered, amended, modified, or any provision waived unless in writing signed by both parties, and no modification shall be effected by the acknowledgement or acceptance of purchase order forms containing different terms and conditions. If any provisions of Buyer’s purchase order or other writings are different from, in addition to, or are otherwise in conflict with the Agreement Terms, the Agreement Terms shall govern and the terms and conditions contained in Buyer’s purchase order or other writings are deemed counteroffers which are hereby expressly rejected by Seller.
- PRICE. Quoted prices are based upon present taxes (other than sales taxes), freight rates, United States Tariff classifications and import duties. Buyer shall pay any increased costs resulting from such changes or from Buyer’s selection of means of transportation. Buyer shall reimburse Seller for all taxes or other charges by any national, state or municipal government upon the sale, use, production, or transportation of Product, which Seller is required to pay. At any time Seller may revise any price or other provision herein without notice and such revision shall prevail on and after the date of shipment regardless of when the related order was received. Buyer may suspend orders immediately upon notice of a price increase. In the event price protection is stated in a written agreement between the parties, Seller may temporarily suspend such Product’s price protection in extraordinary market conditions as determined by Seller in its sole and absolute discretion. Seller shall reinstate the Product’s price protection upon Seller’s determination that the market condition for the Product is no longer extraordinary.
- PAYMENT. Invoiced amounts shall be paid in United States currency. Seller Payment terms are net 30 days from date of invoice. Past due balances are subject to a late payment charge of one and one-half percent (1½%) per month, or the maximum amount permitted by applicable law, whichever is less. Buyer shall pay all charges, costs and legal fees incurred in collecting any past due balance. Seller reserves the right, among other remedies, either to cancel acceptance of an order or to suspend further deliveries in the event that Buyer fails to pay for any one shipment when payment becomes due.
- CONTAINERS. Seller retains ownership of all returnable containers. Buyer may use the containers only for the storage of original contents. Buyer shall return the containers to Seller empty and in good condition within 90 days from the date of delivery. Buyer shall pay a deposit on all returnable containers. Seller shall credit the deposit, less handling fee, to Buyer’s account if Buyer returns the containers F.O.B. Seller’s return point in good condition within 90 days. If not returned within 90 days, Seller may reject the containers and retain the full amount of the deposit.
- TITLE AND RISK OF LOSS. Title and risk of loss for Products transfers to Buyer at Seller’s shipping point. In the event of consignment stock at Buyer’s location, the Seller retains full title to the Product in Buyer’s possession until full payment by Buyer. Upon Seller’s delivery of Product hereunder to a common carrier or vehicle (“Delivery”), the Buyer assumes the entire risk of damage to or loss of any product shipped under order from any cause. The Buyer assumes the entire risk of delay in transportation and delivery, as well as all other risks of any kind, regardless of the form of bill of lading, whether title to such Products has passed, or the F.O.B. point specified herein. Upon Delivery, Buyer will immediately inspect the product and notify the Seller of any deficiencies without delay. Seller’s weights and measurements shall govern, except in the case of proven error. Buyer’s obligation to accept and pay for the balance of Product delivered or to be delivered pursuant the contract between Buyer and Seller shall not be affected in any way by any claim, as if each were a separate contract, and in no event shall Buyer have the right to reject any barrel or other shipping unit of conforming Product.
- WARRANTY. Seller warrants that Seller-branded Products conform to Seller’s standard specifications at the time of delivery to a common carrier or other carrier or vehicle for shipment to Buyer. SELLER MAKES NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, SUITABILITY OR FITNESS OF PRODUCT FOR A PARTICULAR PURPOSE, EVEN IF THAT PURPOSE IS KNOWN TO THE SELLER. ANY INFORMATION OR ASSISTANCE WHICH THE SELLER MAY FURNISH TO BUYER IS GRATUITOUS AND SHALL NOT BE DEEMED PART OF THE SALE OF PRODUCT HEREUNDER OR A WARRANTY OF RESULTS OBTAINED THROUGH THE USE OF SUCH PRODUCT. Buyer acknowledges that Seller acts as a distributor for Products not branded by Seller (“Resale Products”) and that matters relating to the quality of the Resale Products are not within Seller’s control. Accordingly, SELLER MAKES NO WARRANTIES WHATSOEVER CONCERNING RESALE PRODUCTS AND BUYER PURCHASES ALL RESALE PRODUCTS “AS IS”. THE FOREGOING WARRANTIES ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES EXPRESS OR IMPLIED. SELLER EXPRESSLY EXCLUDES WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY.
- REMEDIES. Seller’s liability for Products which do not conform to an applicable warranty herein is exclusively limited, at Seller’s sole and absolute discretion, to replacement of the defective Products or refund of the purchase price of such Products. The foregoing is Buyer’s sole and exclusive remedy for failure of the Seller to deliver or supply Products that are nonconforming. Failure to give Seller notice of any claim within 30 days of Delivery of the product concerned shall constitute a waiver of such claim by Buyer. Notwithstanding any applicable statute of limitations to the contrary, any action by Buyer relating to a claim hereunder must be instituted no later than 2 years after the occurrence of the event upon which the claim is based. All of the foregoing limitations shall apply irrespective of whether Buyer’s claim is based upon breach of contract, breach of warranty, negligence, gross negligence, tort, strict liability or any other legal or equitable theory. Seller’s liability with respect to the products purchased or delivered shall not exceed the purchase price of such product as to which the liability arises, and Seller shall not be liable for any injury, loss or damage, resulting from the handling or use of the product shipped. IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, including but not limited to, loss of profits, capital or business opportunity, downtime costs, carrying costs, injury to goodwill, or claims of customers of the Buyer.
- INDEMNITY. Buyer agrees to defend, indemnify and hold Seller, its shareholders, officers, directors, agents, and employees harmless from all claims, demands, actions and causes of action relating to personal injury or property damage to third parties, including attorney’s fees and actual costs.
- FORCE MAJEURE. Seller is not liable for nonperformance or delay in performance caused by circumstances beyond Seller’s control (“Force Majeure Event”). A Force Majeure Event includes, without limitation, (a) acts of God, war, riots, fire, explosions, floods, strikes, lockouts, injunctions, accidents, short supply of Product, unforeseen shutdown of major sources of supply, breakage of machinery or apparatus, or national emergency, (b) Seller’s inability to obtain the Product, fuel, power, raw materials, labor, containers or transportation facilities at prices Seller deems in its discretion to be commercially reasonable, (c) the occurrence of any unforeseeable contingency making performance impracticable, or (d) compliance in good faith with any applicable governmental statute, regulation, or order. Any delivery so suspended shall be cancelled without liability, but this Agreement shall otherwise remain unaffected. This section does not apply to payment obligations of Buyer for delivered Product.
- PRODUCT STEWARDSHIP. Buyer agrees that Products will be used, handled, stored, transported and disposed of in such a manner as is necessary for the safety and protection of persons, property and the environment, and in accordance with the manufacturer’s recommendations and applicable laws and regulations. Buyer agrees to instruct its employees with respect to, and to make certain that they know and understand the procedures necessary to enable them to comply with the requirements set forth herein and make certain that they are adequately trained in the use, handling, storage, transportation and disposition of the Products. Buyer further agrees to deliver the most recent edition of Product literature, including MSDSs, to its employees and customers and to maintain a written record of such deliveries. Buyer will only sell to those who can handle, use, store, transport and dispose of Products safely.
- TERMINATION. Any order or delivery may be terminated or suspended, (a) by either party if any proceeding under bankruptcy is brought by or against the other party, (b) by a party if the other party defaults in its material obligations and such default is not cured within a reasonable time if such default is curable, or (c) by Seller if it has reason to doubt the ability or willingness of Buyer to pay for the Products.
- AGREEMENT. The Agreement Terms constitute the entire terms and conditions of sale and purchase of the Product ordered hereunder and supersedes all prior understandings, agreements, and representations of the parties, whether written or oral, regarding such Product. Buyer may not assign this agreement without the written consent of the Seller, and any attempt by Buyer to assign the same without consent is void and without effect. If any portion of the Agreement Terms is or becomes a violation of any law or rule, order or regulation, Seller shall have the right in its sole and absolute discretion, upon notice to the Buyer, either (i) to cancel such provision, without affecting the other provisions of this Agreement or (ii) to cancel the transaction in its entirety. Waiver by Seller of any breach of these conditions shall not be construed as a waiver of any other present or future breach and failure and delay on the part of the Seller to exercise any of its rights hereunder shall not operate as a waiver thereof. There are no parties to the purchase order except the Buyer and Seller; these Agreement Terms are not made for the benefit of any third party; and no person other than Buyer, Seller and permitted assigns and successors shall have any rights to enforce these Agreement Terms.
- ARBITRATION. The parties will submit any dispute related to the purchase order and these Agreement Terms to arbitration in Wayne County, Michigan before one arbitrator under the American Arbitration Association’s Commercial Arbitration Rules. A party may seek interim relief from any court having jurisdiction without waiving any remedy under these Agreement Terms. The arbitrator may not award punitive damages or other damages not measured by actual damages, or limit, expand or otherwise modify the terms of these Agreement Terms. A party may enter a judgment on an award in any court having jurisdiction. The prevailing party is entitled to an award of reasonable attorney fees. The purchase order and these Agreement Terms are governed by the laws of the state of Michigan without regard to for its choice of law principles.