STANDARD TERMS & CONDITIONS
(1) Seller and Buyer are independent contracting parties, not principals or agents, partners, or joint venturers. Seller’s acceptance of Buyer’s order is made expressly conditional on Buyer’s assent to these terms and conditions, and Buyer’s acceptance of product shall constitute assent to these terms and conditions. Upon Seller’s acceptance of Buyer’s order, these terms, together with Buyer’s order, shall together comprise the “Order”. Notwithstanding inconsistent, supplemental, additional, or different terms contained in Buyer’s purchase order, acknowledgment, acceptance, or other documents, any Order shall be governed solely and exclusively by these terms and conditions and those contained in any applicable sales contract or credit application executed by the parties. Seller may revise these Terms and Conditions at any time, with such revisions to take effect when published at Seller’s website.
(2) Seller warrants that, on the date an Order is released for shipment, the products sold to Buyer conform to the specifications on Seller’s invoice or published Seller’s website. THE FOREGOING IS AN EXCLUSIVE STATEMENT OF ALL WARRANTIES APPLICABLE TO SELLER’S PRODUCTS. Buyer shall notify Seller in writing of any alleged defects in the product(s), latent or otherwise, within seven (7) days after Buyer learns of the alleged defects, but in no event later than thirty (30) days after Buyer receives the product. Failure to give such notice, or the grinding, processing or in any other manner altering or changing the form of the products, or combining with other materials, shall constitute a waiver of all claims for defects. Buyer shall submit with its notification a sample of the product supplied by Seller and the Buyer’s finished good claimed to be defective and shall afford Seller the opportunity to inspect any product in Buyer’s possession. Buyer shall not return any product unless authorized in writing by the Seller.
(3) Seller’s liability (and Buyer’s sole and exclusive remedy) with respect to any defective product or warranty nonconformity shall be limited to the replacement of that portion of product or a credit to Buyer in the amount of the invoice for such product, as Seller may elect. Seller’s liability is conditional upon Buyer’s proper use, handling, and storage of the product. For claims of shortage, Seller’s analysis of quality and weights shall govern except in the case of proved error. Any claims for shortages must be greater than one-half of one percent (0.5%) of the gross weight of any shipment of packaged product or greater than one percent (1%) of the gross weight of bulk shipments. Claims for bulk shipments shortages must be supported by certified scale tickets and Seller shall have the opportunity to have an independent weighing.
(4) Except for obligations to make payments when due, neither party shall be responsible for any failure to perform obligations assumed under any Order where such failure is directly or indirectly attributable to a Force Majeure Event, provided that the impacted party must provide the other party prompt written notice of the Force Majeure Event. As used herein, “Force Majeure Event” means any event or circumstance beyond the impacted party’s reasonable control that prevents said party from complying with its obligations under an Order, whether or not foreseeable. When Seller is impacted by a Force Majeure Event, Seller may increase the purchase price by the amount of Seller’s increased costs, may allocate its available supply of product in an equitable manner, and may terminate this transaction without liability as to any unallocated portion of the order.
(5) Seller will not sell or sample product for any application which is (i) governed at any level by the Federal Acquisition Regulations, 48 C.F.R. §1.001-99.9999; or (ii) intended for use as a Class III medical device as defined in 21 C.F.R. §862-892. Any Buyer purchasing product for use in a federal contract (including federal subcontracts) or for manufacture of a Class III medical device must notify Seller of Buyer’s intended end use at the time of Buyer’s order. If Buyer fails to notify Seller in accordance with this section, Buyer shall indemnify Seller against any and all claims, liabilitIES, or expenseS (including fines and penalties and legal fees) arising DIRECTLY OR INDIRECTLY from Buyer’s failure to provide such notice.
(6) SELLER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILTY, FITNESS FOR ANY PURPOSE OR USE, OR ALLEGEDLY ARISING FROM ANY USAGE OF ANY TRADE OR FROM ANY COURSE OF DEALING, OR OTHERWISE. NO ORAL OR WRITTEN STATEMENT OR REPRESENTATION – INCLUDING WITHOUT LIMITATION ANY TECHNICAL SUPPORT – BY SELLER, ITS AGENTS, OR ITS EMPLOYEES SHALL CREATE OR EXPAND A WARRANTY OBLIGATION BEYOND THE WARRANTY EXPRESSLY PROVIDED IN THE ORDER, AND BUYER DISCLAIMS RELIANCE, AND IS NOT RELYIING, ON ANY SUCH ORAL OR WRITTEN STATEMENT OR REPRESENTATION NOT EXPRESSLY PROVIDED IN THE ORDER IN EVALUATING WHETHER TO SUBMIT THE ORDER.
(7) Any action by the Buyer for claimed breach by Seller must be commenced within one (1) year after the date Buyer receives the product. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, LOSSES OR EXPENSES OF ANY KIND OF BUYER OR OF ANY OF BUYER’S CUSTOMERS, INCLUDING, WITHOUT LIMITATION, PRODUCTION COSTS, CLAIMED LOSS OF ANTICIPATED PROFITS, INJURY TO CREDIT, REPUTATION OR GOOD WILL. BUYER ASSUMES ALL RISKS AND LIABILITY FROM THE HANDLING AND USE OF THE PRODUCTS AND SHALL BE SOLELY RESPONSIBLE FOR TESTING AND DETERMINING SUITABILITY OF USE IN A PARTICULAR APPLICATION. Under no circumstances will Seller’s aggregate liability for any cause of action directly or indirectly arising out of the Order exceed the Order price.
(8) Seller makes no representation that Buyer’s use or resale of the product, whether alone or in combination with another material or substance, will not infringe any third party patent or intellectual property rights. Buyer assumes all risk of infringement by accepting the product.
(9) Seller may, at its option, provide complimentary technical support, advice, product processing consultations, and other information to Buyer in conjunction with Buyer’s product purchase (the “Technical Support”). Buyer represents that it is a sophisticated party and shall utilize its independent skill and expertise in the application of any Technical Support. Buyer shall employ any Technical Support at its own risk. BUYER AGREES SELLER’S LIABILITY (AND BUYER’S SOLE AND EXCLUSIVE REMEDY) FOR ANY AND ALL DAMAGES ARISING FROM, SELLER’S TECHNICAL SUPPORT, INCLUDING SELLER’S NEGLIGENCE OR GROSS NEGLIGENCE IN THE PROVISION OF SUCH TECHNICAL SUPPORT, SHALL BE LIMITED TO DIRECT DAMAGES ACTUALLY INCURRED BY BUYER, AND IN NO INSTANCE SHALL BE MORE THAN THE PRICE PAID BY BUYER FOR THE PRODUCTS. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, LOSSES OR EXPENSES OF ANY KIND OF BUYER OR OF ANY OF BUYER’S CUSTOMERS, INCLUDING, WITHOUT LIMITATION, PRODUCTION COSTS, CLAIMED LOSS OF ANTICIPATED PROFITS, INJURY TO CREDIT, REPUTATION OR GOOD WILL.
(10) Title and risk of loss or damage to product shall pass to Buyer as the product passes into the transportation equipment at Seller’s shipping point. However, for product sold by Seller for export overseas to a non-U.S. location, title and risk of loss of product shall transfer from Seller to Buyer at the first point upon which the delivering marine vessel crossed the outer boundary of the United States Exclusive Economic Zone. For product sold by Seller to Buyer that is transported by land to Mexico or Canada, title and risk of loss of the product shall transfer from Seller to Buyer at the frontier in the relevant border city between the U.S. and the adjoining jurisdiction (not unloaded) but prior to the customs border of the applicable foreign jurisdiction. If Seller is to pay freight, selection of the carrier and routing of shipments is at Seller's option.
(11) Shipping dates are approximate and conditional upon availability of product. Seller does not guarantee delivery on a specific date and time.
(12) Seller’s quoted price does not include taxes. Any tax (other than on Seller’s income), excise, duty or governmental charge imputed to the products or Seller’s acquisition, storage, or shipment of the products, shall be for the account of Buyer. All sums shall be considered due and payable within terms as invoiced, are payable in legal US tender unless otherwise indicated, and made payable to the order of Seller at the designated address. If Buyer is in any respect in default of any provisions of this contract, Seller may elect to defer further deliveries until the breach is cured, or terminate the contract without prejudice as to any other remedy available. If, in Seller's sole discretion, the financial responsibility of Buyer becomes unsatisfactory, Seller may reduce or eliminate the credit limit then in effect (if any) and/or demand advance cash payment and may withhold shipments until receipt. Interest on unpaid balances shall accrue at the lesser of 1% per month or the highest rate permitted by law.
(13) Seller shall not be obligated to deliver in any month more than a proportionate part of the maximum quantity specified in a sales contract between the parties, determined by dividing such maximum quantity by the total number of months included in the contract period. If Buyer fails to take in any month all of such proportionate part, the undelivered quantity may, at Seller’s election, be cancelled from the contract.
(14) Buyer shall comply with all applicable laws and regulations governing the product, use of the product, or resale of the product or goods made with the product, including but not limited to laws and regulations governing the export of product, trade restrictions, embargos, and the United States Foreign Corrupt Practices Act.
(15) The products sold hereunder may be or become hazardous, whether singly or in combination with other goods or products. Buyer will take all steps necessary to familiarize, inform and warn its employees, agents, customers, and contractors who may handle or come into contact with the products of all the hazards pertaining to, and proper procedures for safe use of, the product and of the containers or equipment in which the product may be handled, shipped, or stored. Buyer also undertakes to label as appropriate any materials which it makes or resells that includes the product sold hereunder. BUYER WILL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM AND AGAINST ANY CLAIM, LIABILITY OR EXPENSE (INCLUDING LEGAL FEES) INCLUDING, BUT NOT LIMITED TO, INJURY OR DEATH ARISING DIRECTLY OR INDIRECTLY FROM BUYER’S FAILURE TO SO FAMILIARIZE, INFORM, AND WARN. THESE UNDERTAKINGS APPLY IN FULL MEASURE WHETHER SELLER IS ALLEGED OR FOUND TO BE CONCURRENTLY, PARTIALLY OR JOINTLY NEGLIGENT OR AT FAULT OR LIABILITY WITHOUT FAULT IS SOUGHT TO BE IMPOSED ON SELLER. BUYER HEREBY DISCLAIMS AND WAIVES ANY AND ALL OBLIGATIONS (WHETHER ARISING UNDER STATUTE OR OTHERWISE) OF SELLER TO INDEMNIFY, DEFEND, OR HOLD BUYER HARMLESS AGAINST ANY LOSS, INJURY, OR DAMAGE ARISING OUT OF PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE ALLEGEDLY CAUSED BY BUYER’S OR BUYER’S END CUSTOMER’S USE OF SELLER’S PRODUCT.
(16) Seller’s waiver, whether express or implied, of any breach of these terms and conditions shall not be deemed to be a continuing waiver of any subsequent or continuing breach, whether of like or different nature nor shall such waiver limit or waive, by reason of any course of performance, dealing, usage of trade or otherwise, Seller’s rights to enforce and compel strict compliance with every term and condition herein.
(17) The terms of this contract (i) may not be modified, terminated, or waived except as expressly provided herein or agreed to in writing by the party to be charged; (ii) may not be assigned by Buyer; and (iii) shall be governed by and construed in accordance with the laws of the State of Texas without giving effect to choice of law principles. All claims, including tort claims, arising directly or indirectly out of these terms and conditions or any incorporating Order will be filed exclusively in the state or federal courts located in Harris County, Texas. The Parties expressly waive all objections to this venue and assent to personal jurisdiction therein. Jury Waiver. THE PARTIES KNOWINGLY AND IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF THESE TERMS AND CONDITIONS OR ANY ORDER INCORPORATING THEM.
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ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO PURCHASES OF TOTALENERGIES PRODUCTS
In addition to Amco Polymer’s Standard Terms and Conditions, the following TotalEnergies terms are applicable to your purchase of TotalEnergies branded resin:
(1) TOTAL PETROCHEMICALS & REFINING USA, INC. (“MANUFACTURER” OR “TOTALENERGIES”) WARRANTS THAT THE PRODUCT SHALL MEET MANUFACTURER’S SPECIFICATION FOR THIS PRODUCT. MANUFACTURER MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE REGARDING PRODUCT. MANUFACTURER SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS, LOSS OF USE, LOSS OF REVENUE, DOWNTIME COSTS, LOSS OF BUSINESS OPPORTUNITY, AND COST OR CAPITAL. MANUFACTURER’S LIABILITY AND YOUR EXCLUSIVE REMEDY FOR CLAIMS IS EXPRESSLY LIMITED, AT MANUFACTURER’S OPTION, TO REPLACEMENT OF NONCONFORMING PRODUCT OR A CREDIT OR REIMBURSEMENT NOT TO EXCEED THE AMOUNT PAID TO MANUFACTURER WITH RESPECT TO THE PRODUCTS FOR WHICH THE CLAIM IS MADE.
(2) For any claim relating to the quantity or specifications of the Products for any reason, You (the purchaser) must provide notice, with supporting documentation, to Distributor (Amco Polymers) within thirty (30) days after delivery of Product that is the subject of the claim, or such claim shall be deemed to be barred and to have been waived. Distributor’s sole and entire liability and your sole and exclusive remedy for any such claims are limited, at Distributor’s option, to replacement of nonconforming Product or a credit or reimbursement not to exceed the amount paid to Distributor with respect to the Product for which the claim is made.
(3) THESE TERMS APPLY TO YOUR PURCHASE OF TOTALENERGIES PRODUCTS FROM AMCO POLYMERS (the “Distributor”) FOR USE IN MEDICAL APPLICATIONS:
“DISTRIBUTOR PARTIES” shall mean the Distributor and its employees, contractors, customers, or agents.
You agree to inform Distributor if you intend to purchase or obtain a sample of TotalEnergies’ resins for any medical application, medical device or medical device component (collectively “Medical Application”). Distributor agrees to inform Seller of such event.
You are to provide written specifications for the resin materials to Distributor and inform Distributor the intended use and application of the Product as well as the type of medical device or medical device component, the U.S. Food and Drug Administration (“FDA”) Class, and pertinent information concerning the FDA approval status. Distributor shall provide TotalEnergies such specifications and information provided by you.
You are solely responsible for the performance of biocompatibility testing appropriate to the intended end use of resin materials for medical devices or medical device components or any other medical applications. Biocompatibility evaluations are designed to assess various biological models with the test material or a suitable extract. The specific evaluation program is dependent on the nature, degree, frequency and duration of the resin material’s exposure to the body. This evaluation must include, as applicable, testing for suitability as to contact with body tissue and/or storage of solutions/liquids, including but not limited to, medication, blood or other bodily fluids. It is incumbent upon you to perform the appropriate biocompatibility tests to determine safety, efficacy and regulatory compliance. TotalEnergies is not responsible for determining whether its resin materials are biocompatible or suitable for your medical devices, medical device components or medical applications.
You are fully and solely responsible for the selection and suitability of appropriate resin materials for use in medical applications, and the design, manufacturing and biological evaluation of a finished medical device or medical device component.
You are solely responsible to ensure suitability for use and application of TotalEnergies’ resin material following any changes or alterations in the resin material that may occur as a result of handling, processing, application, assembly or integration of TotalEnergies’ resin material into a medical application, a medical device or medical device component.
You are solely responsible for appropriate notification to, and approval of use by the FDA of TotalEnergies’ resin materials in a medical application, medical device or medical device component. You agree to comply with all FDA and medical device rules and regulations, the Federal Food, Drug and Cosmetics Act, as amended, as well as all other applicable statutes, rules and regulations.
You shall notify Amco Polymers and TotalEnergies in writing within five (5) working days or as soon as practicable whenever you learn of or receive: (i) any potential or actual complaint or notice of same; (ii) report(s) pursuant to any Medical Device Reporting regulations; or (iii) any FDA recall relating to your medical application, medical device or medical device component containing TotalEnergies’ resin material.
The suitability of TotalEnergies’ resin material in a given end-use environment is dependent upon various conditions including, but not limited to, chemical compatibility, temperature, part design, sterilization method, residual stresses, and external loads. It is your responsibility as the medical device or medical device component manufacturer to evaluate your final product under actual end-use requirements. You agree to adequately advise and warn your purchasers and end-users of any limitations, risks, hazards or dangers of your finished product and to disseminate any and all appropriate and required information and data to your purchasers and end-users.
Single use medical devices are not suitable for multiple uses. If the medical device or component is designed for multiple uses, it is your responsibility as the medical device manufacturer to determine the appropriate number of permissible uses by evaluating the medical device or medical device component under actual sterilization and end-use medical conditions and to adequately advise and warn your purchasers and/or end-users of any limitations, risks, hazards or dangers thereof.
TOTALENERGIES MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, CONCERNING BIOCOMPATIBILITY AND/OR SUITABILITY OFTOTALENERGIES’ RESIN MATERIALS FOR MEDICAL APPLICATIONS, MEDICAL DEVICES, OR MEDICAL DEVICE COMPONENTS.
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TERMS GOVERNING PURCHASES OF WIDE-SPEC OR OFF-GRADE PRODUCTS
(1) Seller and Buyer are independent contracting parties, not principals or agents, partners, or joint venturers. Seller’s acceptance of Buyer’s order is made expressly conditional on Buyer’s assent to these terms and conditions, and Buyer’s acceptance of product shall constitute assent to these terms and conditions. Upon Seller’s acceptance of Buyer’s order, these terms, together with Buyer’s order, shall together comprise the “Order”. Notwithstanding inconsistent, supplemental, additional, or different terms contained in Buyer’s purchase order, acknowledgment, acceptance or other document, any Order shall be governed solely and exclusively by these terms and conditions and those contained in any applicable sales contract or credit application executed by the parties. Seller may revise these Terms and Conditions at any time, with such revisions to take effect when published at Seller’s website.
(2) THE PRODUCTS ARE OFFERED BY SELLER AND PURCHASED BY BUYER “AS-IS,” “WHERE IS”, AND “WITH ALL FAULTS,” WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE, EXPRESS, IMPLIED, OR OTHERWISE. SELLER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED. The purchase price and these terms and conditions are the result of arms-length bargaining between the parties, each of whom represents it is familiar with transactions of this kind. Buyer is not relying upon any Seller statements or representations regarding the product’s value, physical condition, environmental condition, or other attributes.
(3) Seller’s liability (and Buyer’s sole and exclusive remedy) with respect to any defective product or warranty nonconformity shall be limited to the replacement of that portion of product or a credit to Buyer in the amount of the invoice for such product, as Seller may elect. Seller’s liability is conditional upon Buyer’s proper use, handling, and storage of the product. For claims of shortage, Seller’s analysis of quality and weights shall govern except in the case of proved error. Any claims for shortages must be greater than one-half of one percent (0.5%) of the gross weight of any shipment of packaged product or greater than one percent (1%) of the gross weight of bulk shipments. Claims for bulk shipments shortages must be supported by certified scale tickets and Seller shall have the opportunity to have an independent weighing.
(4) Except for obligations to make payments when due, neither party shall be responsible for any failure to perform obligations assumed under any Order where such failure is directly or indirectly attributable to a Force Majeure Event, provided that the impacted party must provide the other party prompt written notice of the Force Majeure Event. As used herein, “Force Majeure Event” means any event or circumstance beyond the impacted party’s reasonable control that prevents said party from complying with its obligations under an Order, whether or not foreseeable. When Seller is impacted by a Force Majeure Event, Seller may increase the purchase price by the amount of Seller’s increased costs, may allocate its available supply of product in an equitable manner, and may terminate this transaction without liability as to any unallocated portion of the order.
(5) Seller will not sell or sample product for any application which is (i) governed at any level by the Federal Acquisition Regulations, 48 C.F.R. §1.001-99.9999; or (ii) intended for use as a Class III medical device as defined in 21 C.F.R. §862-892. Any Buyer purchasing product for use in a federal contract (including federal subcontracts) or for manufacture of a Class III medical device must notify Seller of Buyer’s intended end use time of Buyer’s order. If Buyer fails to notify Seller in accordance with this section, Buyer shall indemnify Seller against any and all claimS, liabilitIES, or expenseS (including fines and penalties and legal fees) arising DIRECTLY OR INDIRECTLY from Buyer’s failure to provide such notice.
(6) SELLER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR ANY PURPOSE OR USE, ALLEGEDLY ARISING FROM USAGE OF ANY TRADE OR FROM ANY COURSE OF DEALING, OR OTHERWISE. NO ORAL OR WRITTEN STATEMENT OR REPRESENTATION – INCLUDING WITHOUT LIMITATION ANY TECHNICAL SUPPORT – BY SELLER, ITS AGENTS, OR ITS EMPLOYEES SHALL CREATE OR EXPAND A WARRANTY OBLIGATION BEYOND THE WARRANTY EXPRESSLY PROVIDED IN THE ORDER, AND BUYER DISCLAIMS RELIANCE AND IS NOT RELYING, ON ANY SUCH ORAL OR WRITTEN STATEMENT OR REPRESENTATION NOT EXPRESSLY PROVIDED IN THE ORDER IN EVALUATING WHETHER TO SUBMIT THE ORDER.
(7) Any action by the Buyer for claimed breach by Seller must be commenced within one (1) year after the date Buyer receives the product. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, LOSSES, OR EXPENSES OF ANY KIND OF BUYER OR OF ANY OF BUYER’S CUSTOMERS, INCLUDING, WITHOUT LIMITATION, PRODUCTION COSTS, CLAIMED LOSS OF ANTICIPATED PROFITS, INJURY TO CREDIT, REPUTATION OR GOOD WILL. BUYER ASSUMES ALL RISKS AND LIABILITY FROM THE HANDLING AND USE OF THE PRODUCTS AND SHALL BE SOLELY RESPONSIBLE FOR TESTING AND DETERMINING SUITABILITY OF USE IN A PARTICULAR APPLICATION. Under no circumstances will Seller’s aggregate liability for any cause of action directly or indirectly arising out of the Order exceed the Order price.
(8) Seller makes no representation that Buyer’s use or resale of the product, whether alone or in combination with another material or substance, will not infringe any third party patent or intellectual property rights. Buyer assumes all risk of infringement by accepting the product.
(9) Seller may, at its option, provide complimentary technical support, advice, product processing consultations, and other information to Buyer in conjunction with Buyer’s product purchase (the “Technical Support”). Buyer represents that it is a sophisticated party and shall utilize its independent skill and expertise in the application of any Technical Support. Buyer shall employ any Technical Support at its own risk. BUYER AGREES SELLER’S LIABILITY (AND BUYER’S SOLE AND EXCLUSIVE REMEDY) FOR ANY AND ALL DAMAGES ARISING FROM SELLER’S TECHNICAL SUPPORT, INCLUDING SELLER’S NEGLIGENCE OR GROSS NEGLIGENCE IN THE PROVISION OF SUCH TECHNICAL SUPPORT, SHALL BE LIMITED TO DIRECT DAMAGES ACTUALLY INCURRED BY BUYER, AND IN NO INSTANCE SHALL BE MORE THAN THE PRICE PAID BY BUYER FOR THE PRODUCTS. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, LOSSES OR EXPENSES OF ANY KIND OF BUYER OR OF ANY OF BUYER’S CUSTOMERS, INCLUDING, WITHOUT LIMITATION, PRODUCTION COSTS, CLAIMED LOSS OF ANTICIPATED PROFITS, INJURY TO CREDIT, REPUTATION OR GOOD WILL.
(10) Title and risk of loss or damage to product shall pass to Buyer as the product passes into the transportation equipment at Seller’s shipping point. However, for product sold by Seller for export overseas to a non-U.S. location, title and risk of loss of product shall transfer from Seller to Buyer at the first point upon which the delivering marine vessel crossed the outer boundary of the United States Exclusive Economic Zone. For product sold by Seller to Buyer that is transported by land to Mexico or Canada, title and risk of loss of the product shall transfer from Seller to Buyer at the frontier in the relevant border city between the U.S. and the adjoining jurisdiction (not unloaded) but prior to the customs border of the applicable foreign jurisdiction. If Seller is to pay freight, selection of the carrier and routing of shipments is at Seller's option.
(11) Shipping dates are approximate and conditional upon availability of product. Seller does not guarantee delivery on a specific date and time.
(12) Seller’s quoted price does not include taxes. Any tax (other than on Seller’s income), excise, duty, or governmental charge imputed to the products or Seller’s acquisition, storage, or shipment of the products, shall be for the account of Buyer. All sums shall be considered due and payable within terms as invoiced, are payable in legal US tender unless otherwise indicated, and made payable to the order of Seller at the designated address. If Buyer is in any respect in default of any provisions of this contract, Seller may elect to defer further deliveries until the breach is cured or terminate the contract without prejudice as to any other remedy available. If, in Seller's sole discretion, the financial responsibility of Buyer becomes unsatisfactory, Seller may reduce or eliminate the credit limit then in effect (if any) and/or demand advance cash payment and may withhold shipments until receipt. Interest on unpaid balances shall accrue at the lesser of 1% per month or the highest rate permitted by law.
(13) Seller shall not be obligated to deliver in any month more than a proportionate part of the maximum quantity specified in a sales contract between the parties, determined by dividing such maximum quantity by the total number of months included in the contract period. If Buyer fails to take in any month all of such proportionate part, the undelivered quantity may, at Seller’s election, be cancelled from the contract.
(14) Buyer shall comply with all applicable laws and regulations governing the product, use of the product, or resale of the product or goods made with the product, including but not limited to laws and regulations governing the export of product, trade restrictions, embargos, and the United States Foreign Corrupt Practices Act.
(15) The product sold hereunder may be or become hazardous, whether singly or in combination with other goods or products. Buyer will take all steps necessary to familiarize, inform and warn its employees, agents, customers, and contractors who may handle or come into contact with the products of all the hazards pertaining to, and proper procedures for safe use of, the product and of the containers or equipment in which the product may be handled, shipped or stored. Buyer also undertakes to label as appropriate any materials which it makes or resells that includes the product sold hereunder. BUYER WILL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM AND AGAINST ANY CLAIM, LIABILITY OR EXPENSE (INCLUDING LEGAL FEES) INCLUDING, BUT NOT LIMITED TO, INJURY OR DEATH ARISING DIRECTLY OR INDIRECTLY FROM BUYER’S FAILURE TO SO FAMILIARIZE, INFORM, AND WARN. THESE UNDERTAKINGS APPLY IN FULL MEASURE WHETHER SELLER IS ALLEGED OR FOUND TO BE CONCURRENTLY, PARTIALLY, OR JOINTLY NEGLIGENT OR AT FAULT OR LIABILITY WITHOUT FAULT IS SOUGHT TO BE IMPOSED ON SELLER. BUYER HEREBY DISCLAIMS AND WAIVES ANY AND ALL OBLIGATIONS (WHETHER ARISING UNDER STATUTE OR OTHERWISE) OF SELLER TO INDEMNIFY, DEFEND, OR HOLD BUYER HARMLESS AGAINST ANY LOSS, INJURY, OR DAMAGE ARISING OUT OF PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE ALLEGEDLY CAUSED BY BUYER’S OR BUYER’S END CUSTOMER’S USE OF SELLER’S PRODUCT.
(16) Seller’s waiver, whether express or implied, of any breach of these terms and conditions shall not be deemed to be a continuing waiver of any subsequent or continuing breach, whether of like or different nature, nor shall such waiver limit or waive, by reason of any course of performance, dealing, usage of trade or otherwise, Seller’s rights to enforce and compel strict compliance with every term and condition herein.
(17) The terms of this contract (i) may not be modified, terminated, or waived except as expressly provided herein or agreed to in writing by the party to be charged; (ii) may not be assigned by Buyer; and (iii) shall be governed by and construed in accordance with the laws of the State of Texas without giving effect to choice of law principles. All claims, including tort claims, arising directly or indirectly out of these terms and conditions or any incorporating Order will be filed exclusively in the state or federal courts located in Harris County, Texas. The Parties expressly waive all objections to this venue and assent to personal jurisdiction therein. Jury Waiver. THE PARTIES KNOWINGLY AND IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF THESE TERMS AND CONDITIONS OR ANY ORDER INCORPORATING THEM.
(18) Canadian Buyers: THE PARTIES HERETO ACKNOWLEDGE AND ARE SATISFIED THAT THE FOREGOING BE DRAWN UP IN THE ENGLISH LANGUAGE; LES PARTIES AUX PRÉSENTES RECONNAISSENT QU’ILS ONT EXIGÉ QUE CE PRÉCEDE SOIT RÉDIGÉ EN ANGLAIS.
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If you have any questions, please contact your sales representative.