WE HEREBY CERTIFY THAT THESE GOODS WERE PRODUCED IN COMPLIANCE WITH ALL APPLICABLE REQUIREMENTS OF SECTIONS 6, 7 & 12 OF THE FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED AND OF REGULATIONS AND ORDERS OF THE ADMINISTRATOR OF THE WAGE & HOUR DIVISION ISSUED UNDER §14 THEREOF.
These Terms and Conditions are referred to herein as the “Terms.” Each contract document and/or agreement that incorporates these Terms, together with the Terms and any schedules, exhibits or other documents incorporated by reference in such contract document, is referred to below as the “Contract.” Each product referred to in the Contract is referred to below as a “Product.” The Contract contains the entire and exclusive agreement between the parties regarding the sale and purchase of each Product referenced in the Contract. Acceptance or use by Buyer of a shipment of Product after the inception of the term specified in the Contract, but before the Contract is signed by either party or before Buyer otherwise makes a definite and timely act or expression of acceptance, shall constitute acceptance of the terms of the Contract as to that shipment but shall not in itself constitute an acceptance of the final written expression of the Contract with respect to future shipments.
Payment for the Product shall be made in accordance with Contract, in United States currency. All claims by Buyer shall be made by written notice to Seller in accordance with the provisions of these Terms, and no offset or deduction from any invoice is permitted. Acceptance by Seller of bank draft, check, or other media of payment is subject to immediate collection of the full face amount thereof.
If Buyer breaches any term of the Contract or any other contractual obligation in favor of Seller, SELLER may: (i) choose to defer any or all further shipments or other performance under the Contract; (ii) choose to defer any or all performance of any other contractual obligation in favor of Buyer until Buyer cures its breach; and/or, (iii) by delivery of written notice to Buyer describing the breach, immediately terminate the Contract and any other contractual obligation to Buyer; provided that, Buyer shall have twenty (20) days alter receipt of the written notice to reinstate the Contract (and any other terminated contractual obligations) by curing the breach. In the event of a termination, all outstanding payment obligations or other indebtedness of Buyer to Seller shall be due and payable no later than thirty (30) days after delivery of notice of termination, subject to the right of reinstatement.
Notwithstanding any provision in the Contract, Seller shall have no obligation to pay any rebate, issue any credit or make any other payment of any kind to Buyer unless Buyer is fully in compliance with its payment and other obligations under the Contract and any other contractual obligation in favor of Seller. In addition, in the event that Buyer fails to make any payment when due, Seller shall have the right to offset any and all outstanding payment obligations or other indebtedness of Buyer to Seller against any outstanding payment obligations or other indebtedness that Seller or any of its affiliates may owe Buyer.
Failure of Seller to make, or Buyer to take, any one or more deliveries when due, if caused by (a) fire, storm, flood, strike, lockout, accident, act of war or terrorism, riot, civil commotion, embargo or similar circumstances, (b) any regulation, law, or restriction of any governmental department, commission, board, bureau, agency, court, or other instrumentality of any supranational organization of sovereign states, country, state, province, territory, commonwealth, municipality, or other political subdivision thereof (a “Governmental Authority”), any seizure or requisition of Product by any Governmental Authority, or any compliance with a demand or request for such Product for purposes of national or supranational defense, (c) inability of Seller to obtain any required Product, chemical, raw material, energy source, equipment, labor or transportation, at prices and on terms deemed (by Seller) to be practicable, or (d) any other cause or contingency beyond the reasonable control of that party (whether or not of the same kind or nature as the causes or contingencies above enumerated), shall not subject the party failing to perform to any liability to the other during the period such inability to make or take delivery shall exist, Quantities so affected may, at the option of either party, be eliminated from the Contract without liability, but the Contract shall remain otherwise unaffected.
In the event of Seller’s inability, for any reason, to supply the quantities of Product contemplated by the Contract, Seller may allocate its available supply among its purchasers, including departments and divisions of Seller on such basis as Seller may deem fair and practical without liability to Buyer for any failure of performance that may result therefrom.
Buyer recognizes and agrees that, due to inherent and volatile market fluctuations in costs of raw materials, Seller shall have sole discretion to adjust the sale price of any Product during the term of the Contract, and Buyer shall be bound by the adjusted price.
6. MSDS / COMPLIANCE WITH LAWS
Seller will provide or make available to Buyer a Material Safety Data Sheet (MSDS) for each Product delivered to Buyer. The MSDS sets forth information concerning such Product and describe precautions, if required, to be taken in the transportation, delivery, unloading, discharge, storage, handling and use of such Product. Buyer will familiarize itself with all information and precautions, including but not limited to such related to safety and health, contained in MSDSs or otherwise transmitted to Buyer by Seller at any time. Buyer will instruct its employees, agents, contractors, customers or any third party which may be exposed to the Product about such information and precautions and make available copies thereof to such parties.
Buyer shall comply with and assumes full liability and responsibility for compliance with the above-referenced information and precautions, and with all laws, statutes, ordinances and regulations of any Governmental Authority applicable to the processing, transportation, delivery, unloading, discharge, storage, handling, sale and use of each Product. Buyer further agrees to protect, defend and hold harmless Seller from and against all claims, demands, causes of action, damages, losses, liabilities, costs, expenses (including reasonable attorneys’ fees), penalties, and judgments (each, a “Claim”) associated with the processing, transportation, delivery, unloading, discharge, storage, handling, sale or use of any Product after delivery which is (i) inconsistent with any information provided to Buyer or (ii) in violation of any applicable law, statute, ordinance or regulation of any Governmental Authority. Seller assumes no liability for failure of discharge or unloading implements or materials used by Buyer whether or not supplied by Seller.
7. LIMITED WARRANTY
Seller represents and warrants its obligation to deliver the Product in accordance with Seller’s published specifications (or as otherwise referenced in the Contract). Since Seller has no control over Buyer’s production, manufacture, sale, marketing use, disposition, subsequent processing, admixing, reaction of any Product with other chemicals, materials, products or processes, Buyer assumes the entire liability and responsibility therefor and agrees to protect, defend and hold harmless Seller from and against all claims associated therewith including, without limiting the generality of the foregoing, claims associated with infringement of any third party’s intellectual property rights, patents on processes practiced by Buyer or patents on products made by Buyer.
Buyer shall inspect the Product supplied hereunder immediately after delivery. Buyer’s failure to give notice to seller of any claim within thirty (30) days after the date of delivery shall constitute unqualified acceptance of the Product and a waiver by Buyer of all claims with respect to such Product.
9. FINANCE & OTHER CHARGES
The finance charge entered on the billing date is computed by a periodic rate of 11⁄2% (or minimum of $0.50 cents on balances under $50.00 per month) which is an ANNUAL PERCENTAGE RATE of 18% applied to the previous balance before deducting credits, payments or adding purchases appearing on this statement. To avoid additional FINANCE CHARGES pay the “Balance Due” before the billing date next month. Buyer agrees to pay all costs of collection on past due accounts including the reasonable attorney’s fees. DEMURRAGE ON CYLINDERS WILL BE CHARGED AS FOLLOWS:
F6000 CYL. 2.75 PER DAY AFTER 60 DAYS F300 CYL. 1.50 PER DAY AFTER 60 DAYS F1000 CYL. 1.50 PER DAY AFTER 60 DAYS F100 CYL. 1.50 PER DAY AFTER 60 DAYS 10.
10. DISCLAIMER OF WARRANTY
TO THE FULLEST EXTENT ALLOWED UNDER THE LAW, UNLESS UNENFORCEABLE OR UNLAWFUL UNDER APPLICABLE LAW, SELLER MAKES NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, BY FACT OR LAW, OTHER THAN AS SET FORTH IN THE LIMITED WARRANTY, ABOVE. SELLER MAKES NO IMPLIED WARRANTIES OF TITLE, FREEDOM FROM ENCUMBRANCE, AND RIGHT TO TRANSFER SAME. SELLER MAKES NO WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTY OF MERCHANTABILITY.
ANY TECHNICAL ADVICE FURNISHED OR RECOMMENDATION MADE BY SELLER OR ANY REPRESENTATIVE THEREOF CONCERNING ANY USE OR APPLICATION OF ANY PRODUCT IS BELIEVED TO BE RELIABLE, BUT SELLER MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO ITS ACCURACY OR COMPLETENESS OR OF THE RESULTS TO BE OBTAINED. WITH REGARD TO ANY PROCESSING OF ANY PRODUCT, BUYER ASSUMES FULL RESPONSIBILITY FOR QUALITY CONTROL, TESTING AND DETERMINATION OF SUITABILITY OF PRODUCT FOR ITS INTENDED APPLICATION OR USE.
11. LIMITATION OF LIABILITY
BUYER ACKNOWLEDGES AND AGREES THAT IT IS AWARE OF AND HAS BEEN ADVISED AS TO THE POSSIBILITY OF INCIDENTAL, PUNITIVE, CONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES, LOST PROFITS, AND/OR LOST SAVINGS.
UNLESS UNENFORCEABLE OR UNLAWFUL UNDER APPLICABLE LAW, SELLER EXPRESSLY DISCLAIMS ANY LIABILITY, IF ANY, FOR DAMAGES ARISING FROM THE USE OR IN CONNECTION WITH THE PRODUCT. TO THE FULLEST EXTENT ALLOWED UNDER THE LAW, SELLER’S TOTAL LIABILITY AND BUYER’S EXCLUSIVE REMEDY FOR ANY CAUSE OF ACTION ASSOCIATED WITH THE CONTRACT, WHETHER BASED IN TORT, CONTRACT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY IS EXPRESSLY LIMITED TO REPLACEMENT OF NONCONFORMING PRODUCT OR PAYMENT IN AN AMOUNT NOT TO EXCEED THE ACTUAL PRICE BUYER PAID FOR THE SPECIFIC PRODUCT FOR WHICH DAMAGES ARE CLAIMED, AT SELLER’S OPTION. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY OTHER DAMAGES INCLUDING, WITHOUT LIMITATION, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES, OR LOST PROFITS, LOST SAVINGS OF ANY KIND, EVEN THOUGH SELLER IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
12. ENVIRONMENTAL CREDITS
Unless otherwise agreed in writing by both parties, Buyer recognizes and agrees that any and all environmental credits, including but not limited to carbon offset credits, or other rights, titles, privileges, licenses or interests with respect to the sale of any of Seller’s goods, including without limitation Ecomate® blowing agent, shall remain the property of Seller. Buyer further recognizes and agrees that it has not assigned any additional environmental and/or carbon offset credits or other rights, titles, privileges, licenses or interests that may otherwise arise out of Customer’s use of Seller’s goods and/or Customer’s use of Ecomate® blowing agent.
Failure of either party to exercise any right it has under the Contract on one occasion shall not operate or be construed as a waiver by such party of its right to exercise the same right on another occasion or any other rights it has. Except as previously provided herein, any waiver must be in a writing signed by the waiving party. Nothing in the Contract shall be construed as creating any direct or beneficial right in or on behalf of any third party.
To the fullest extent permitted by law, Buyer shall indemnify and save Seller harmless against any claims for damages to persons or property arising out of Buyer’s production, manufacture, sale, marketing use, disposition, subsequent processing, admixing, reaction of any Product with other chemicals, materials, products or processes, or transportation, delivery, unloading, discharge, storage, handling, sale and use of Product or any other liability incurred in connection with Product, including any and all costs, expenses, attorney’s fees, and liabilities incurred in defending against such claims, whether the same proceed to judgment or not. Customer agrees upon written request by Seller to defend Seller any such claim, suit or action at its own expense.
If any provision hereof is or becomes invalid and/or unenforceable under any applicable law, such provision shall be fully severable and shall have no adverse effect on the validity and enforceability of the remaining parts or provisions of this Agreement. The Parties shall replace any invalid and/or unenforceable provisions by new provisions which correspond most closely to the economic or commercial effect pursued by the invalid and/or unenforceable provision. The same shall apply in the event that this Agreement contains any omissions.
Any amendments or supplements of these Terms shall only become effective if made in writing and signed by both Parties.