Chemtrade Terms and Conditions
- DEFINITIONS: “Seller” or “Chemtrade” means the legal entity which is supplying Product to Buyer. “Buyer” means the legal entity which orders Product pursuant to an Order. “Product” means the material(s) Seller will supply and Buyer will purchase. “Order” means a purchase order placed by Buyer to request Product and accepted by Seller.
- ENTIRE AGREEMENT; AMENDMENT: The terms and conditions contained in this document entitled “Chemtrade Terms and Conditions”, and solely the price, volume or other terms and conditions, if any, from the Order that have been specifically acknowledged and agreed to in writing by Seller, constitute the “Agreement” and the entire understanding and agreement between the parties relating to the Product covered. Buyer accepts these terms and conditions, and none of Buyer’s inconsistent and/or additional terms and conditions submitted in acknowledging or accepting this Agreement or in issuing Orders, releases, shipping instructions, other documents or otherwise shall be valid or applicable, and Seller hereby objects to and rejects any such terms and conditions. No additional notice of the foregoing need be given by Seller to Buyer. Notwithstanding the foregoing, if Buyer and Seller have previously executed a supply agreement or sales agreement related to the Product covered which has not expired or been terminated, then the terms and conditions of such agreement shall govern the Order to the exclusion of all other terms and conditions. Neither party shall be bound by any change in, addition to, or waiver of, any of these terms and conditions unless approved in writing by its authorized representative.
- PAYMENT; TAXES: Unless other payment terms are stated in this Agreement, all sums shall be payable net 30 days from the date of Seller’s invoice. Seller’s acceptance of any medium of payment is subject to collection. Seller may recover for each delivery as a separate transaction and Seller may, upon reasonable dissatisfaction with Buyer’s creditworthiness, or upon late payment or any other default by Buyer, decline to make delivery except for cash. Interest shall accrue on overdue payments at 1.5% per month. In addition to the purchase price, Buyer shall pay Seller the amount of all governmental taxes, excises, duties and/or other charges (including, without limitation, ‘Superfund’ taxes, and excepting taxes on or measured by net income), that Seller may be required to pay with respect to the production, sale or transportation of any Product delivered under this Agreement.
- SHIPPING INSTRUCTIONS: Deliveries shall be made in approximately equal monthly quantities or as specified under a mutually agreed delivery schedule and in accordance with shipping orders, which shall provide Seller with reasonable notice of the date of required delivery. Seller has no obligation for any quantities for which Buyer has not given such shipping instructions and is not obligated to sell in any one month more than one-twelfth of the maximum annual quantity specified. If for any reason Buyer fails to take such monthly amount, its total purchase obligation shall not be reduced unless Seller elects to cancel the quantity not taken.
- TITLE and RISK OF LOSS: If carrier has been retained by Seller, title to and risk of loss of Product shall pass from Seller to Buyer at Buyer’s plant gate. If carrier has been retained by Buyer, title to and risk of loss of Product shall pass from Seller to Buyer at Seller’s plant gate. Seller shall retain a security interest in the Product and its related accounts receivable until Buyer makes full payment therefor.
- CHANGES: Seller may increase the price payable for the Product hereunder by providing Buyer with at least thirty (30) days’ prior written notification of such increase (the thirtieth (30th) day of such thirty (30) day notice period being hereinafter referred to as the “Adjustment Date”). Such increased pricing shall be deemed to be accepted by Buyer unless, prior to the Adjustment Date, the Buyer provides written notice to the Seller that it does not accept such increased pricing, whereupon the Seller shall have the option of terminating forthwith this Agreement on the Adjustment Date or of continuing deliveries thereafter at the same prices and under the same conditions as prior to the Adjustment Date. Seller may decrease the price payable for the Product hereunder at any time without advance notice to the Buyer and in no case shall a decrease in price preclude subsequent increases.
- WARRANTIES; CLAIMS:
- WARRANTIES: Seller’s recommendations or instructions as to handling, use or disposal of any Product, including its use alone or in combination with other products, or as to any apparatus or process for the use of any Product, are based upon information believed to be reliable, but Seller shall have no liability with respect to any such recommendations or instructions, and Buyer acknowledges that it shall be solely responsible for the safe handling of Products delivered to it.
SELLER’S SOLE AND EXCLUSIVE WARRANTY IS THAT ITS PRODUCT COMPLIES WITH SELLER’S PUBLISHED CHEMICAL AND PHYSICAL SPECIFICATIONS, IF ANY. SELLER MAKES NO OTHER WARRANTIES EITHER EXPRESS OR IMPLIED, WHETHER WITH RESPECT TO ITS RECOMMENDATIONS, INSTRUCTIONS, PRODUCT, APPARATUS, PROCESS OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES, WHETHER OF QUALITY, MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE.
- CLAIMS LIABILITY: Buyer shall be deemed to have waived all product claims except those for which Buyer’s notice has been given to Seller within thirty (30) days of receipt of such Product. Buyer’s exclusive remedy and Seller’s exclusive liability under this Agreement or otherwise shall be, at Seller’s option, to replace Product not meeting specifications with Product that does meet specifications, or to pay as damages an amount that shall not exceed the purchase price of the portion of Product in respect of which such claim is made, plus any transportation charges paid by Buyer.
- LIABILITY and RESPONSIBILITY; LIMITATION OF LIABILITY:
- PRODUCT/CONTAINERS: Except to the extent such is solely and directly caused by any breach of Seller’s obligations, Buyer assumes full responsibility for any liability arising out of unloading, discharge, storage, handling, use and disposal of any Product or container, including the use of such Product or container alone or in combination with other substances; compliance or noncompliance with any laws or regulations and damage to or destruction of returnable containers from any cause whatsoever after delivery to Buyer and until their return to Seller or, if applicable, its affiliates in good condition. Buyer shall defend, indemnify and hold harmless Seller, and its affiliates, and their respective representatives and employees, from and against all losses, liabilities, damages, and expenses made against or incurred by Seller, and its affiliates, and their respective representatives and employees, arising out of any claim, suit or proceeding by any governmental agency or any third parties (including without limitation any employee of Buyer or member of his family) which claim, suit or proceeding alleges death, personal or economic injury or damages to any private or public property or resources caused or contributed to by the Product or container if such death, injury or damage occurred subsequent to title to Product passing to Buyer, except to the extent such is solely and directly caused by any breach of Seller’s obligations under this Agreement.
- PATENTS and PROPERTY RIGHTS: Seller’s recommendations or instructions are not intended to suggest operations which would infringe any patents or other third party property rights, and Seller assumes no liability or responsibility for any such infringement. Seller may, without liability to Buyer of any kind, decline to continue deliveries of any Product, the manufacture, sale or use of which, in Seller’s opinion, would infringe any patent or other third party property right now or hereafter issued. Buyer shall defend, indemnify and hold Seller, and its affiliates, and their respective representatives and employees, harmless against any damages, losses, costs and fees, including attorneys’ fees, for infringement of any patents or trademarks or other third party property rights which results from Buyer’s use of the Product or Seller’s compliance with Buyer’s designs, specifications or instructions.
- LIMITATION OF LIABILITY: As to any claim of any nature, whether in contract, tort, strict liability, patent infringement or otherwise, Seller’s and its affiliates’ total liability shall not exceed the purchase price of the portion of Product in respect of which such claim is made, plus any transportation charges paid by Buyer. In no event shall Seller and its affiliates be liable for any indirect, consequential, special, incidental or contingent damages, costs of litigation or for lost profits. The price stated for Product is a consideration in limiting Seller’s and its affiliates’ liability.
- SDSs; RESPONSIBLE CARE®; EMERGENCY RESPONSE:
- SDSs: Safety Data Sheet(s) (“SDS”s) concerning the Product(s) are available through the Seller’s website (www.chemtradelogistics.com) and Buyer shall obtain such SDSs prior to receipt of Product. Buyer will apprise its employees and customers of the hazards, proper use and handling requirements of Product, and shall comply with all applicable laws with all applicable laws and regulations while handling and using Product.
- RESPONSIBLE CARE®: Seller and Buyer are concerned with safety, health, security and environmental issues associated with Product being sold and used pursuant to this Agreement, and each views the other as a vital link in the stewardship of the Product. Therefore, each party agrees to manage its respective obligations under this Agreement in a manner to minimize the potential risks or exposures which may have adverse effects upon employees, customers, the community and the environment. Seller ascribes to the Responsible Care ethic and its codes of management practices.
- SAFETY AUDITS: Seller shall, upon reasonable notice, have the right to conduct an environmental, operations, security and safety audit or assessment of Buyer’s facility where Product is received or used, using employees or agents of Seller to which Buyer, acting reasonably, has no objection. The results of the audit or assessment shall be promptly provided in confidence to Buyer. If any issues or concerns are raised by such audit or assessment, the parties shall work together in good faith, being guided by the principles of Responsible Care®, to come to a mutually satisfactory solution.
- PRE-DELIVERY INSPECTION: Buyer acknowledges the Seller’s need to determine, prior to first delivery and from time-to-time, Buyer’s ability and infrastructure to safely and effectively receive delivery of the Product. Seller reserves the right to cease Product delivery at any time if Buyer’s site, receiving facilities/infrastructure, or procedures are unsafe or unfit for effective delivery of the Product as deemed by the delivering carrier or Seller, and may continue to withhold future delivery until such deficiencies are corrected to Seller’s satisfaction.
- EMERGENCY RESPONSE: The party responsible for the bill of lading shall ensure that Seller’s emergency responder information (including 24-hour emergency number and if transporting in Canada, ERAP number, if applicable) is included on the bill of lading. If carrier has been retained by Buyer or if Buyer is otherwise legally responsible for emergency response, Buyer shall be responsible to reimburse Seller for, and Buyer agrees to indemnify, defend and hold Seller, its affiliates and agents, harmless against, all losses, liabilities, damages, costs, expenses, suits, claims and proceedings incurred or arising in connection with any emergency response or their actions at or in respect of the emergency.
- SAFE HANDLING; CONTAINERS; WEIGHTS: Seller shall package and label Product in accordance with all applicable laws and regulations. Buyer shall promptly and carefully inspect Product upon receipt and shall maintain safe handling and use procedures appropriate to the Product. Product containers, whether disposable, returnable, or otherwise, are intended only for temporary storage of the Product originally contained in them; any other use of such containers may be hazardous or unlawful and Buyer will take all actions necessary to prevent their reuse. Tank cars, tank wagons, tote bins and other returnable containers used to deliver Product to Buyer are the property of Seller or its affiliates and are loaned to Buyer; Buyer shall promptly return them in good condition (DDP Seller’s shipping point unless otherwise specified) no later than the date specified by Seller. Seller’s weights and measures shall govern except in case of proven error.
- TRANSPORTATION; DEMURRAGE: Seller may, at its option, deliver from points other than those specified (but shall not be obligated to do so) provided that such delivery shall be at the Product price. If freight or other transportation costs are increased, Seller may add any increase to the Product price. If Seller pays freight, Seller has the right to select the route, mode and carrier. If Buyer requires a route, mode or carrier other than that selected by Seller, Buyer shall pay any extra cost incurred. If carrier has been retained by Buyer, Seller reserves the right to approve the carrier and the transportation route prior to transportation; however, such approval shall in no way increase Seller’s liability and Buyer remains responsible for all liabilities associated with such transportation. Buyer agrees to use commercially reasonable efforts to offload and return to Seller railcars and trucks used for transportation and shipment of Product in the shortest possible time. All applicable demurrage charges shall be for Buyer’s account. For railcars, there will be no charge for the first seven (7) days, after which a charge of $75.00/day (subject to annual review) shall apply. Demurrage will be counted from the day of arrival on Buyer’s siding and includes Sundays and holidays and day of release. For trucks, there will be no charge for the first 1.5 hours following arrival at Buyer’s plant gate, after which a $75.00/hour charge (subject to annual review) will apply until time of departure.
- FORCE MAJEURE: Performance of any obligation under this Agreement may be suspended by Seller without liability, to the extent that: a violent act of nature; war; riot; fire; explosion; accident; flood; sabotage; mechanical breakdown; plant shutdown of Seller or its customary customer supplier of Product; Seller’s inability to obtain fuel, power, raw materials, equipment or Product from its usual sources at prices it deems reasonable; governmental laws, regulations or orders; or any other cause (except financial) beyond the reasonable control of Seller; or labor trouble, strike, lockout or injunction (whether or not such labor event is within the reasonable control of Seller) delays, prevents, restricts, limits, or renders commercially infeasible, the performance of this Agreement or the consumption, sale or use of the Product, except as to Product already in transit. Seller shall invoke this provision by promptly notifying Buyer of the nature and estimated duration of the suspension period. The total Agreement quantity shall be reduced by the quantity not delivered during the term of such suspension and the Agreement shall otherwise remain unaffected. In no event shall Seller be required to ship Product from Seller’s or, if applicable, its affiliates’ other locations or to purchase Product or components from other sources to fulfill the Agreement requirements. If any of such contingencies occur, Seller may, without liability to Buyer of any kind, keep its available supply of any Product for its own uses, or distribute it among its customers upon such basis and in such manner as Seller deems fair and practicable.
- DEFAULT; BANKRUPTCY: Upon failure of Buyer to make any payment required, without deduction, setoff or counterclaim, within ten (10) days after the same becomes due, or if Buyer defaults in the performance of any other obligation, term or condition of this Agreement, or if Buyer shall make an assignment for the benefit of creditors, or in the event of a commencement of proceedings by or against Buyer involving bankruptcy, insolvency, reorganization or arrangement or the appointment of a receiver or trustee, Seller, without demand or notice of any kind and without prejudice to any other remedy of Seller, may terminate this and any other Agreement with Buyer (Buyer remaining liable for damages) or Seller may defer further deliveries until the default is remedied (in which event, if Seller elects, this Agreement shall be deemed extended for a period of time equal to that during which deliveries are deferred).
- APPLICABLE LAW: For all deliveries within the United States, this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to its conflict of laws provision. The parties agree that this Agreement is made and entered into in the State of Delaware and the parties consent to the jurisdiction of the state and federal courts of the State of Delaware.
For all deliveries within Canada, this Order shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws applicable therein without regard to its conflict of laws provision. The parties agree that this Order is made and entered into in the Province of Ontario and the parties consent to the jurisdiction of the courts of the Province of Ontario.
- NOTICE: SEVERABILITY; HEADINGS: Any notice shall be sufficiently given when duly mailed (registered or certified mail), sent by facsimile or e-mail (confirmation received), addressed to Seller or to Buyer at their respective addresses appearing in this Agreement; or to such other address for either party as that party may by notice designate. If any provision is or becomes invalid, illegal or unenforceable in whole or in part by a court of competent jurisdiction, such provision shall be deemed amended, as nearly as possible, to be consistent with the intent expressed in this Agreement; and if such is impossible, that provision shall fall by itself without invalidating any of the remaining provisions not otherwise invalid or illegal. Paragraph headings or titles are included for ease of reference and do not constitute a part of the text or affect its meaning or interpretation.
- WAIVER: Any waiver of any particular breach or default of this Agreement shall be in writing and shall not constitute a continuing waiver, unless otherwise expressed or provided, or a waiver of any other provision, breach or default, and acceptance by Seller of any payments with knowledge of any breach or default shall not constitute such waiver. Any payments to be made or obligations to be performed before, upon, or subsequent to the termination of this Agreement shall survive termination of this Agreement if not already made or performed at the date of termination. Any termination of this Agreement will not in any respect limit any of either party’s rights or remedies or relieve either party of any obligation incurred prior to the effective date of such termination.
- ASSIGNMENT: This Agreement shall bind the respective successors and assigns of the parties, but none of Buyer’s rights or obligations may be assigned without Seller’s prior written consent, except to its subsidiary or affiliated corporation, provided that such assignment shall not relieve the assignor of its obligations. Any such assignment without Seller’s written consent shall be void.
- EXCLUSION: The operation of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
- LANGUAGE: The parties acknowledge that they have required that this Agreement and any other agreements, documents or notices relating hereto be drawn up in English. Les parties on requis que cette entete ainsi que les autres entetes, documents ou avis qui s’y rapportent soient rédigés en anglais.