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Terms and Conditions
These Terms and Conditions of Sale are the exclusive contract between Buyer and Seller; there are no terms, understandings, or agreements other than those stated herein. Seller’s commencement of work on the Products subject to Buyer’s order, shipment of the Products, or performance of all or a portion of the services subject to an order, whichever occurs first, shall constitute an acceptance of Buyer’s purchase order and these Terms and Conditions without any additional or different terms. These Terms and Conditions may not be altered amended, or waived except in writing signed by an officer of the party to be bound thereby. Acceptance of Buyer’s purchase order is subject to acceptance of the express Terms and Conditions contained herein. If any provisions of Buyer’s purchase order or other writings are different from or 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 Seller.
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. Product not purchased by Buyer within the first twelve (12) months of Seller’s initial inventory investment may incur a price increase for each subsequent year in the contract term subject to mutual agreement. New pricing will become effective 1/1 of each contract year.
3. PRICE ADJUSTMENTS
Seller may adjust Product prices at any time. 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 at its 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 terms are net 30 days from date of invoice. Past due balances are subject to a late payment charge of 1.5% 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. The failure of Buyer to pay any amount when due or perform any of the terms of this Agreement, may, at the election of Seller be deemed a breach of the entire Agreement by Buyer. Upon such breach of this Agreement, Seller may, at Seller’s sole discretion:
(a) suspend deliveries hereunder until such payment has been made or such terms have been performed;
(b) immediately terminate this Agreement or terminate this Agreement at any time during any suspension period; and/or
(c) immediately terminate any and all contracts of any kind or nature between Buyer and Seller (“Party Contracts”) or terminate such Party Contracts at any time during any suspension period.
No forbearance, course of dealing or prior payment shall affect this right of Seller. Nothing herein contained shall limit the remedies of Seller in the event of a breach of this Agreement by Buyer. Buyer shall defend, indemnify and hold harmless Seller from and against any and all claims arising out of or in connection with the suspension of deliveries of Product or the termination of this Agreement or any Party Contracts.
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.
6. TITLE AND RISK OF LOSS
Title and risk of loss for Products transfers to Buyer at Seller’s shipping point, unless Products are shipped in Seller’s vehicles, in which case title and risk of loss transfers to Buyer when the vehicle first enters Buyer’s property. Buyer shall unload railroad tank cars within 48 hours (Sundays and holidays excepted).
Seller warrants that Product delivered hereunder meets the Product manufacturer’s specifications, as set forth in Exhibit A. This is Seller’s sole warranty with respect to Product. ALL OTHER WARRANTIES, OTHER THAN TITLE, EITHER EXPRESS (INCLUDING BY VIRTUE OF SELLER PROVIDING ANY PRODUCT SAMPLE) OR IMPLIED, WHETHER ARISING UNDER LAW OR EQUITY OR CUSTOM OF TRADE, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED FROM THIS AGREEMENT. Seller’s sole liability and Buyer’s exclusive remedy for any breach by Seller of Seller’s warranty with respect to Product specifications shall be, at Seller’s sole discretion, either (a) Seller’s refund to Buyer of the purchase price for any nonconforming Product, including freight charges paid by Buyer, or (b) replacement by Seller of the nonconforming Product at no additional cost to Buyer.
8. LIMITATION ON LIABILITY
IN NO EVENT WILL SELLER BE LIABLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL, INDIRECT, EXEMPLARY OR PUNITIVE 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 SELLER 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. IN NO EVENT SHALL SELLER’S LIABILITY EXCEED THE PURCHASE PRICE OF THE PRODUCTS OR SERVICES THAT ARE THE SUBJECT OF ANY CLAIMS MADE BY BUYER.
Buyer agrees to defend, indemnify and hold Seller, 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. Seller agrees to defend, indemnify and hold Buyer, its officers, directors, agents, and employees harmless from Claims to the extent of its negligence.
10. INSPECTION AND CLAIMS
Upon arrival of Product at the delivery location, Buyer agrees to inspect Product for quality and quantity and Buyer’s receipt of any Product delivered hereunder shall be an unqualified acceptance of, and a waiver by Buyer of any and call claims with respect to such Product, unless Buyer gives Seller written notice of such claim in writing within ten (10) days after such receipt. Any claim for nondelivery of Product must be made within ten (10) days after the date upon which the Product was to be delivered. To the extent Buyer makes any claim that the Product does not meet the specifications set forth in Exhibit A, any such claim must be made within ten (10) days of receipt and must be further supported by documents and testing supporting any such claim. Seller shall only be liable to accept returns for Product that does not comply with manufacturer’s specification. Buyer shall be obligated to buy all Product that complies with Manufacturer’s specifications. Products may not be returned without Seller’s permission and transportation for return will not be paid by Seller unless authorized in advance. Amounts owing to or payable by either party hereunder these Terms and Conditions 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 underpayments including rights to unclaimed credits or refunds shall expire on such date.
11. HOLD HARMLESS
Seller agrees to defend at its expense and to hold Buyer harmless against any suit founded on a claim that the sale or delivery of any Product delivered hereunder, the specifications of which were set by Seller, infringes on any U.S. patents, and Seller agrees to indemnify Buyer against any judgments and costs resulting from any such suit. Seller does not agree to defend or hold Buyer harmless against any suit founded on a claim that:
(a) the sale or delivery of any Product delivered hereunder, the specifications of which were set by Buyer, infringes on any U.S. patents; or
(b) the use of Product delivered hereunder (regardless of who set the specifications of such Product) when combined with other components or in the practice of any process infringes on any U.S. patents.
12. FORCE MAJEURE
Neither Party shall be liable for nonperformance or delay in performance (except for obligations to make payments to the other Party) due wholly or partly to any cause, whether or not foreseeable, if such nonperformance or delay in performance is caused by an event either not within the Party’s reasonable control or which the Party could not by reasonable diligence have avoided, including acts of God, fires, explosions, storms, earthquakes, hurricanes, floods, drought, accidents, sabotage, blockade, embargo, war (whether or not declared and whether or not the United States is a participant), riots, labor disputes or shortages, strikes, governmental laws, ordinances, orders, rules and regulations (including but not limited to priorities, requisitions, allocations and price adjustment restrictions), and any other similar or different contingency. Without limiting the foregoing, the following shall also be considered not within a Party's control for purposes hereof: (i) labor controversies; (ii) court decrees (other than those with respect to a Party’s breach of its obligations hereunder); (iii) inability to use the full capacity of plants or facilities as a result of governmental action or intervention; (iv) machinery malfunctions or breakdowns; and (v) the inability (without the payment of penalties or unreasonable prices, or the acceptance of unreasonable terms and conditions) to obtain items such as (a) Products from the manufacturer, (b) other supplies, feedstock, raw materials, materials or equipment, (c) labor, (d) containers, (e) transportation facilities, or (f) utilities. Upon the occurrence of any such contingency, which contingency prevents the manufacture, shipment, acceptance or consumption, the Party so affected shall have the right, in addition to its other rights as set forth herein or at law or equity, to (i) suspend or reduce deliveries during the period of such contingency, and the total quantity deliverable under this Agreement shall be reduced by the quantities so omitted or (ii) sell the Product to Buyer at an adjusted price to reflect the increased costs and expenses incurred by Seller as a result of the contingency or force majeure event. In addition to and cumulative of the other rights set forth herein, if for any reason Seller is unable to supply the total demand for Product, Seller shall have the right to allocate its available supply among its customers, whether contract or noncontract, and its departments and divisions in such manner as it, in its sole discretion, deems fair and equitable. In no event shall Seller be obligated to purchase material from others in order to enable it to deliver Product to Buyer hereunder. The rights granted herein with respect to contingencies and force majeure events are cumulative and are not intended to limit any rights that Seller may have at law or equity, including any rights arising under Section 2-615 of the Uniform Commercial Code.
Seller 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 Seller there is a period of shortage of supply of said products for any reason, Seller 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.
14. 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, 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 shall only sell to those who can handle, use, store, transport and dispose of Products safely.
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 Seller if it has reason to doubt the ability or willingness of Buyer to pay for the Products.
The parties will submit any dispute related to this Agreement to arbitration in Seattle, Washington 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 this Agreement. The arbitrator may not award punitive damages or other damages not measured by actual damages, or limit, expand or otherwise modify the terms of this Agreement. 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. This Agreement is governed by the laws of the state of Washington.
Effective date – June 2, 2023
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