The Chemical Company’s General Terms & Conditions of Sale
1. TCC represents and warrants that all materials, supplies and equipment (herein collectively: “the Materials”) delivered and services furnished hereunder will conform with all applicable laws, statutes, ordinances and regulations and that the Materials, the process by which they are created and the use for which they are specifically designed will not infringe any person’s intellectual property rights (“IP Rights”).
2. In case of a material default by TCC, the buyer may obtain the Materials from other sources as its sole and exclusive remedy.
3. TCC represents and warrants that the Materials shall (except when otherwise specified on the face of this order) be new and of first grade. TCC represents and warrants that the Materials are fit for the purpose for which they are purchased and meet any and all specifications of TCC. TCC will make good any defects in Materials covered by the purchase order, which defects become apparent and are reported to TCC within Thirty six (36) hours from the date of the customer’s receipt of possession of the shipment. TCC shall provide buyer a current material safety data sheet for each material or product supplied by TCC hereunder.
4. All Materials shall be subject to inspection and testing by the buyer upon arrival at their facility and at all reasonable times and places prior to offloading. Materials delivered in error, in excess of the quantity called for or otherwise not in conformance with these Terms and Conditions may be returned at TCC’s expense. TCC shall replace any defective or nonconforming Materials at its expense within fifteen (15) days of receipt of notice of same from the buyer. TCC may substitute materials with the prior written consent of the buyer. Buyer shall notify TCC of any nonconformities in quantity, quality and/or specification within Thirty six (36) hours of buyer’s receipt of the Materials.
5. If TCC has provided samples or prior supply of Materials to the buyer, TCC represents that the process used to manufacture the Materials, including but not limited to the raw materials, testing or quality control have not changed.
6. Bills of lading showing full routing, car numbers, etc. will be dated and sent at the time of shipment. Invoices will be dated and sent any time after the delivery of the Materials and a separate invoice will be made for each destination showing point of shipment and how shipped. Unless otherwise stated on the face of the Purchase Order issued by the buyer or agreed in a writing signed by an authorized representative of TCC, payment shall be made Net 45 days from the date of TCC’s issuance of an invoice.
7. TCC shall notify buyer if timely delivery cannot be made, in which case buyer may cancel the order, in whole or in part. All deliveries shall be accompanied by a certificate of analysis for the applicable Materials and such other analytical, manufacturing and quality control information reasonably requested by the buyer.
8. If this purchase order requires TCC to furnish, for a lump sum amount, Materials, TCC shall furnish the buyer with an analysis of such amount that buyer may reasonably and timely require.
9. If the manufacturing, transportation, delivery, receipt or use by either party hereto of any Materials covered hereby is prevented, restricted or interfered with by reason of any event or cause whatsoever beyond the reasonable control of the party so affected, such party, upon prompt notice to the other party (and, in case buyer gives such notice, in advance of actual shipment) shall be excused from making or taking deliveries hereunder to the extent and duration of such prevention, restriction or interference.
10. Buyer shall hold in strict confidence and trust all information disclosed or made available to it and/or its representatives by TCC (hereinafter: “ConfidentialInformation”) and shall not disclose, directly or indirectly, any Confidential Information to any person or entity without the prior written consent of TCC. Buyer shall use the Confidential Information only in connection with the performance of its obligations hereunder and not for any other purpose whatsoever. Confidential Information shall not include any information which (i) is or becomes available to the public other than as the consequence of a breach of any obligation of confidentiality; (ii) is actually known to or in the possession of buyer without any limitation on use or disclosure prior to receipt from the disclosing party; or (iii) is rightfully received from a third party in possession of such information who is not under obligation to TCC and/or its customers not to disclose the information. Upon the written request of TCC, buyer shall promptly return to TCC or, at TCC’s option, destroy any and all Confidential Information received by buyer from or on behalf of TCC or its customers, including any and all copies or duplicates of the Confidential Information or summaries or synopses thereof prepared by buyer.
11. Neither party may assign its rights or delegate its obligations hereunder without the other party’s written consent which shall not be unreasonably withheld.
12. IN NO CASE WILL TCC OR ITS SUPPLIERS BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, WHETHER OR NOT SUCH PARTY KNEW OR HAD REASON TO KNOW OF THE LIKELIHOOD OF SUCH DAMAGES. TCC’S TOTAL LIABILITY TO BUYER SHALL BE LIMITED TO PAYMENT AS SET FORTH IN SECTION 6 HEREOF.
13. Buyer agrees to protect, defend, indemnify and save TCC harmless from and against any and all expenses, claims, demands or causes of action of every kind and character arising in favor of any persons, including employees of both TCC and buyer, on account of personal injuries or death or damage to property, arising out of, incident to or resulting directly or indirectly from the performance by buyer hereunder.
14. To the extent this document requires or results in TCC preparing, writing, designing or composing any written pictorial, graphic, musical or three-dimensional work (such as, but not limited to, reports, manuals, books, literature, forms, print, radio and television advertising and promotional material, video tapes, slides, movies and audio-visual materials and computer programs and operating systems), buyer agrees that all worldwide copyright rights in same, and in derivative works based on same, are the property of TCC. Depositing payment from buyer pursuant hereto constitutes written assignment by buyer of such rights to TCC, and buyer agrees to execute without cost any further assignment or other documents requested by TCC so as to further evidence and confirm TCC’s ownership of all rights therein.
15. In the event of buyer’s breach, bankruptcy or insolvency, or if any proceeding is brought against buyer under the bankruptcy or insolvency laws, TCC shall be entitled to cancel any or all orders then outstanding. All warranties, limitations of liability, indemnitees, and other terms that by their nature are intended to extend beyond termination of the applicable order shall survive termination.
16. No failure by TCC to take any action or assert any right hereunder shall be deemed to be a waiver of such right in the event of the continuation or repetition of the circumstances giving rise to such right. The rights and remedies of TCC herein shall be cumulative of and in addition to all other rights and remedies now or hereafter available to TCC at law or in equity.
17. The parties hereto are and for all purposes shall be independent contractors.
18. If any term or condition herein should be declared invalid by any competent court of law, it shall be considered deleted herefrom and all other terms and conditions hereof shall remain in full force and effect.
19. The validity of this agreement as well as its interpretation, operation, and effect shall be determined exclusively by the laws of Rhode Island, without reference to its conflict of laws principles. Any dispute arising out of and/or in connection with this agreement and/or any purchase orders submitted to TCC by buyer shall be adjudicated exclusively in the state courts for Newport County, Rhode Island and all parties hereto consent to personal jurisdiction and venue therein.
20. If the manufacturing, transportation, delivery, receipt or use by either party here to of any Materials covered hereby is prevented, restricted or interfered with by reason of any event or cause whatsoever beyond the reasonable control of the party so affected (“Force Majeure Event”), such party, upon prompt notice to the other party (and, in case buyer gives such notice, in advance of actual shipment) shall be excused from making or taking deliveries hereunder to the extent and duration of such Force Majeure Event.
21. ENVIRONMENTAL HAZARDS. By accepting Materials, Buyer represents that it has reviewed and understands the contents of Seller’s material safety data sheet (“MSDS”) for Materials. Buyer understands that some Materials may be hazardous substances under various laws and regulations when handled or processed. Buyer agrees to familiarize itself (without further reliance on Seller) with any hazards of the Materials, their processing and applications and the containers in which the Materials are shipped. Buyer agrees to provide the MSDSs to all those required by law to receive same and to inform and train its employees, and properly warn and instruct its customers, as to hazards identified in the MSDSs or discovered by Buyer in its investigations. Buyer agrees to properly manage and dispose of all wastes and residues resulting from its use of all Materials, including any disposable packaging, in accordance with applicable disposal or recycling laws. Buyer shall comply with all environmental laws and regulations concerning the use and disposal of the Material including, without limitation, the Federal Clean Water Act, 33 USC §1251 et seq; the Clean Air Act, 42 USC §7401 et seq; TSCA, 15 USC §2601-2629; REACH and all relevant state or local regulations concerning human health and safety or protection of the environment.
22. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.
