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| 1. TERMS |
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| These Terms and Conditions of Sale are
the exclusive contract between Buyer and CHEMPOINT.COM
("CHEMPOINT"), there are no terms, understandings, agreements,
other than those stated herein. CHEMPOINT’s acceptance of a
written order placed by the Buyer, CHEMPOINT’s commencement of
work on the Products subject to Buyers order, shipment of the
Products, or performance of all or a portion of the services
subject to a Buyer’s order, whichever occurs first, shall
constitute conclusion of an agreement between Buyer and
CHEMPOINT and these Terms and Conditions will apply without any
additional or different terms. These Terms and Conditions may
not be altered amended, nor waived except in writing signed by a
duly authorized representative of the party to be bound thereby.
CHEMPOINT’s acceptance of Buyer’s purchase order is subject to
Buyer’s acceptance of the express Terms and Conditions contained
herein. If any provisions of Buyer’s purchase order or other
writings are different from or are otherwise in conflict with
these Terms and Conditions, these Terms and Conditions shall
govern and the terms contained in Buyer’s purchase order or
other writings are expressly rejected by CHEMPOINT. [
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| 2. PRICE |
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| Unless otherwise agreed in writing, all
prices are quoted exclusive of VAT and other taxes or charges,
transport and insurance costs and all other costs, to be
determined in accordance with these terms and conditions. Buyer
shall reimburse CHEMPOINT for all taxes or other charges by any
national, state or municipal government upon the sale, use,
production, or transportation of Product, which CHEMPOINT is
required to pay. All payments must be made in mutually agreeable
currency. [
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3. PRICE ADJUSTMENTS
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| CHEMPOINT may adjust Product prices at
any time on notice to Buyer, in the event of increases in
cost-determining factors such as fluctuations in the exchange
rates, raw materials, labour costs or in the event of government
measures. 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, CHEMPOINT may temporarily
suspend such Product’s price protection in extraordinary market
conditions upon agreement with Buyer. CHEMPOINT shall reinstate
the Product’s price protection upon CHEMPOINT’s determination
that the market condition for the Product is no longer
extraordinary. [
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| 4. PAYMENT |
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| Payment terms are net thirty (30) days
from date of invoice. Past due balances are subject to a late
payment charge of 1 1/2% 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 amounts
owed. [
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| 5. CONTAINERS |
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| CHEMPOINT retains ownership of all
returnable containers. Buyer may use the containers only for the
storage of original contents. Buyer shall return the containers
to CHEMPOINT empty and in good condition within ninety (90) days
from the date of delivery. Buyer shall pay a deposit on all
returnable containers. CHEMPOINT shall credit the deposit, less
handling fee, to Buyer’s account if Buyer returns the containers
FCA (Free Carrier) CHEMPOINT’s return point in good condition
within ninety (90) days. If not returned within ninety (90)
days, CHEMPOINT may reject the containers and retain the full
amount of the deposit. [
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| 6. RETENTION OF TITLE AND RISK OF LOSS. |
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| CHEMPOINT shall retain title over all
Products sold to Buyer pursuant to these Terms and Conditions of
Sale until CHEMPOINT receives by Buyer full payment of the
amounts set forth in the relevant invoices. Until that moment,
Buyer cannot pledge, transfer the ownership or grant any right
to any third party on the Products, and Buyer shall give notice
to CHEMPOINT of any seizure or attachment of the Products by
Buyer’s creditors. Buyer shall keep and maintain the Products
under retention of title in good condition and shall handle the
Products with the highest care, provided, however, that the
Products shall be kept in a separate section of Buyer’s
warehouse, marked and identified as containing "Products
belonging to CHEMPOINT." The risk of loss and damages for
Products transfers to Buyer from the moment of shipment, which
will be effected EXW Seller’s warehouse. [
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| 7. WARRANTY |
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| CHEMPOINT warrants that CHEMPOINT
branded Products conform to CHEMPOINT’s published specifications
at the time of delivery. CHEMPOINT warrants that services
provided by CHEMPOINT will be consistent with CHEMPOINT’s
standard specifications or, if none, with CHEMPOINT’s standard
practices. Buyer acknowledges that CHEMPOINT acts as a
distributor for Products not branded by CHEMPOINT (Resale
Products) and that matters relating to the quality of the
Products are not within CHEMPOINT’s control. Accordingly,
CHEMPOINT MAKES NO WARRANTIES WHATSOEVER CONCERNING RESALE
PRODUCTS. THE FOREGOING WARRANTIES ARE IN LIEU OF AND EXCLUDE
ALL OTHER WARRANTIES EXPRESS OR IMPLIED. CHEMPOINT EXPRESSLY
EXCLUDES WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND
MERCHANTABILITY. Buyer is, therefore, solely responsible for
ensuring, prior to placing the order, that the Products are fit
for the particular purpose envisaged by Buyer.
Moreover, Buyer is required to inspect the Products, from the
time of their delivery, for compliance with the order with
respect to their quantity and quality. This inspection by Buyer
shall take place in any event prior to the release or the
production of a Product. Moreover, Buyer undertakes to not use a
Product delivered by CHEMPOINT in a production cycle without
ensuring in advance that the Product corresponds to the required
specifications for the proposed production. [
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| 8. REMEDIES |
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| Except in cases of gross negligence or
willful misconduct, CHEMPOINT’s liability for nonconforming
Products is exclusively limited, at CHEMPOINT’s option, to
replacement of the defective Products or refund of the purchase
price of such Products. Except in cases of gross negligence or
willful misconduct, CHEMPOINT’s liability for any defective or
negligent service is limited to CHEMPOINT re-performing the
service or a refund of an amount not to exceed the amount paid
for the service, or, if the services were provided free of
charge, to pay an amount not to exceed the amount paid for the
Products to which the services related in the 12 months prior to
the occurrence of the liability. [
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| 9. LIMITATION ON LIABILITY
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| The failure of Buyer to inspect the
goods for compliance with the specifications guaranteed by
CHEMPOINT pursuant to Article 7 shall trigger the liability of
Buyer for all consequences which could have been avoided had the
inspection taken place. Also, the acceptance by Buyer of a
Product whereas the specifications thereof appear, after
inspection by Buyer, not to correspond to the specifications of
the Product ordered shall cover and replace the original order.
CHEMPOINT shall in no event be liable under the foregoing
circumstances.
CHEMPOINT shall in no event be liable in case of reuse of the
delivered containers after their first use.
EXCEPT IN CASES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN
NO EVENT WILL CHEMPOINT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL,
OR INDIRECT DAMAGES FROM ANY CAUSE OR FOR ANY REASON WHATSOEVER,
IRRESPECTIVE OF WHETHER THE CLAIM ARISES FROM ACTUAL OR ALLEGED
BREACH OF WARRANTY, INDEMNIFICATION, BREACH OF CONTRACT, PRODUCT
LIABILITY, CONTRIBUTION OR ANY LEGAL THEORY AND IN NO EVENT WILL
CHEMPOINT BE LIABLE FOR LOST PROFITS, COSTS OR LOSSES NOT
ASSOCIATED WITH DIRECT PHYSICAL DAMAGE TO PROPERTY FOR ANY
CLAIMS MADE UNDER OR RELATED TO THE SALE OF PRODUCTS OR SERVICES
TO BUYER.
EXCEPT IN CASES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN
NO EVENT SHALL CHEMPOINT’S LIABILITY EXCEED THE PURCHASE PRICE
OF THE PRODUCTS OR SERVICES THAT ARE THE SUBJECT OF ANY CLAIMS
MADE BY BUYER. [
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| 10. INDEMNITY |
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| Buyer agrees to defend, indemnify and
hold CHEMPOINT, its 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 ("Claims") incurred
as a result thereof, to the extent of its negligence or arising
after delivery of the Products to Buyer. CHEMPOINT agrees to
defend, indemnify and hold Buyer, its officers, directors,
agents, and employees harmless from Claims to the extent of its
negligence. [
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| 11. CLAIMS |
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| Any claim for shortage or non conforming
Products must be made in writing to CHEMPOINT within 5 days
after Buyer’s receipt of the Product. Any claim for non-delivery
of Product must be made within five (5) days after the date upon
which the Product was to be delivered. As to any claim not
reasonably discoverable within such five (5) day period
(including claims discoverable only in processing, further
manufacture, other use or resale), such claim must be in writing
and received by CHEMPOINT within twenty (25) days after Buyer’s
receipt of the Products. Failure of CHEMPOINT to receive written
notice of any such claim within the applicable time period shall
be deemed an absolute and unconditional waiver by Buyer of such
claim. Products may not be returned without CHEMPOINT’s
permission and transportation for return will not be paid by
CHEMPOINT unless authorized in advance. Amounts owing to or
payable by either party hereunder shall be deemed finally
reconciled on the first anniversary of the final delivery under
these Terms and Conditions and any outstanding rights of either
party to receive overpayments or under payments including rights
to unclaimed credits or refunds shall expire on such date. [
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| 12. FORCE MAJEURE |
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| CHEMPOINT is not liable for
nonperformance or delay in performance caused by circumstances
beyond CHEMPOINT’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, Product short supply, unforeseen
shutdown of major sources of supply, breakage of machinery or
apparatus, or national emergency, (b) CHEMPOINT’s inability to
obtain at prices CHEMPOINT deems in its discretion to be
commercially reasonable, the Product, fuel, power, raw
materials, labor, containers or transportation facilities, (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
these Terms and Conditions shall otherwise remain unaffected.
This section does not apply to payment obligations. [
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| 13. QUANTITY |
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| CHEMPOINT is not obligated to deliver in
any month more than a proportionate part of the maximum quantity
specified, determined by dividing such maximum quantity by the
total number of months included in the period of performance.
When in the opinion of CHEMPOINT there is a period of shortage
of supply of said products for any reason, CHEMPOINT may
allocate its available supply among any or all of its various
customers upon such basis as it shall deem fair and practicable,
with no liability on its part for failure to deliver the
quantity or any portion therein specified. [
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| 14. PRODUCT STEWARDSHIP |
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| 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, 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 (Material Safety
Data Sheets), to its employees and customers and to maintain a
written record of such deliveries. Buyer shall only sell to
those who can handle, use, store, transport and dispose of
Products safely. [
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| 15. TERMINATION |
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| Any order or delivery may be terminated
or suspended, (a) by either party if any proceeding under
bankruptcy is brought by or against the 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 CHEMPOINT if it has reason to doubt the
ability or willingness of Buyer to pay for the Products because
Buyer is unable to provide adequate security for the performance
of its obligations upon CHEMPOINT’s first request. [
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| 16. APPLICABLE LAW AND DISPUTE
RESOLUTION |
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| These Terms and Conditions of Sale as
well as all offers and orders referred to in Article 1 hereto
will be governed by the laws of the Netherlands, to the
exclusion of the provisions of the UN Convention on Contracts
for the International Sale of Goods (CISG). Shipping terms used
in this Agreement shall be as defined in the International
Chamber of Commerce’s Incoterms, 2000 edition. In the event of
any controversy or claim arising out of or relating to this
these Terms and Conditions of Sale, shall be settled by
arbitration in accordance with the International Arbitration
Rules of the International Center for Dispute Resolution. The
parties will select one neutral arbitrator from a panel of
persons having experience with or knowledge of international
purchase and sales of the Products. The language of the
arbitration shall be English. Either party may apply to the
arbitrator seeking injunctive relief until the arbitration award
is rendered or the controversy is otherwise resolved. Either
party may also without waiving any remedy under this Agreement,
seek from any court having jurisdiction any interim or
provisional relief that is necessary to protect the rights or
property of that party, pending the establishment of an
arbitrator (or pending the arbitrators determination of the
merits of the controversy). The award may be entered by any
court having jurisdiction. The place of arbitration and the
shall be in Amsterdam which shall also be the venue for any
disputes arising out of or in connection with these Terms and
Conditions of Sale, Buyer hereby consents to the non-exclusive
jurisdiction of the courts located in Seattle, Amsterdam,
Netherlands. The parties agree not to contest venue before such
courts on grounds of forum non conveniens or otherwise. [
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