TERMS AND CONDITIONS OF SALE
- Definitions. The following definitions shall apply to these Terms and Conditions of Sale and Seller’s order confirmation for all sales of goods or services from Seller to Buyer (collectively the “Agreement”). “Seller” means GreenChem Industries, LLC, and its successors and assigns. “Buyer” means the purchaser of the goods or services, and its successors and permitted assigns. (Buyer shall not assign this Agreement without Seller’s prior written consent. Any assignment in violation of this section shall be null and void.) The term “goods” mean the products or services sold by Seller to Buyer under this Agreement.
- Pricing. The price of the goods is Seller’s quoted price, which may be adjusted by Seller’s order confirmation at the time of its receipt of Buyer’s purchase order due to an increase in the pricing of raw materials, freight, taxes, exchange rates, or other costs relating to the goods, , and Buyer agrees to pay the adjusted purchase price. Seller reserves the right to correct errors in any Seller quotation, order confirmation or sales invoice, and Buyer shall be legally bound to the corrective terms. Seller’s goods are subject to availability. Seller’s weights, quantities and other measurements shall govern unless proven incorrect by Buyer. Pricing shall be in U.S. currency only.
- Taxes. Buyer must pay all taxes and other charges on the sale, transport or use of the goods, unless Buyer produces a tax exemption certificate from the applicable taxing authority. These charges are in addition to the purchase price of the goods.
- Freight. Unless otherwise specified in writing, all goods shall be shipped Ex Works (EXW) Seller’s designated location for deliveries in the U.S. and Free Carrier (FCA) Seller’s designated location for deliveries outside the U.S. (Incoterms®, in effect on date of purchase). Unless otherwise provided on Seller’s order confirmation, all shipment dates are approximate and time shall not be of the essence. If the delivery of goods is delayed or prevented by circumstances caused by Buyer, which detains the carrier for more than two (2) hours beyond the scheduled delivery time, Buyer shall pay for all demurrage, detention and related costs resulting from that delay. If shipment requires the use of returnable containers, Buyer shall pay a deposit for such use in an amount required by Seller when the shipment is ordered. Buyer acknowledges that all returnable containers shall remain the sole property of Seller, shall only be used for the storage of the goods, and must be returned to Seller in good and usable condition (absent normal wear and tear) not later than sixty (60) calendar days from the date of delivery for a deposit refund or Buyer shall be responsible for their full replacement cost.
- Payment. Payment for the goods shall be subject to the payment terms set forth in Seller’s order confirmation and in this Agreement. All payments shall be by check, wire or electronic transfer of immediately available funds. A finance charge at the maximum rate permitted under applicable law shall be charged on all past due invoices. If Buyer attempts to assign this Agreement without Seller’s prior written consent or Buyer fails to pay a sales invoice when due, Seller may: (a) suspend or cancel all shipments; (b) change payment and credit terms; or (c) require cash payments or satisfactory security on all future shipments. If Buyer breaches this Agreement, Seller shall have the right to suspend or cancel all shipments, , or to terminate this Agreement, and Buyer shall be liable for all costs and expenses of Seller resulting from that breach including, but not limited to, reasonable attorneys’ fees and costs of collection. Buyer grants a security interest in the goods to Seller for the full invoiced amount until paid in full. Buyer agrees to cooperate and execute appropriate documentation to perfect Seller’s security interest in the goods upon request.
- Warranty. Seller warrants that the goods sold shall be free and clear of all liens and conform to Seller’s product specifications in effect on the date of purchase. No employee, representative or agent of Seller is authorized to make any other warranty, promise, representation, or guarantee. ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXCLUDED. Buyer shall independently determine the suitability and compatibility of the goods for the intended purpose of the user and Buyer assumes all risk and liability. Buyer agrees to comply with all applicable laws and regulations concerning its handling, loading and unloading, transporting, storage, use, resale, and disposal of the goods, and Buyer shall always act in a safe and environmentally responsible manner.
- Governing Law and Dispute Resolution. This Agreement shall be governed under Florida law without regard to that state’s conflict of law provisions. The 1980 United Nations Convention on Contracts for the International Sale of Goods (as may be amended) shall not govern or apply to this Agreement. All legal disputes involving the goods shall only be decided in state or federal court in Palm Beach County, Florida; Buyer waives all objections to such venue; and Buyer also waives any right to a jury trial.
- Force Majeure and Allocation. Seller shall not be liable for any delay or inability to perform under this Agreement that is caused by an event beyond its control. Such causes include, but are not limited to Acts of God, severe weather, terrorism, war, labor strikes, fire, governmental action, embargoes, or shortages of raw materials, labor, or transportation. If a force majeure event continues for more than thirty (30) calendar days, then Seller may terminate this Agreement without any liability to Buyer. If Seller determines there is a shortage of supply of goods, Seller may allocate its inventory between Buyer and Seller’s other customers in its sole discretion, and Seller shall not be liable for delivering less than the quantity ordered by Buyer.
- Indemnity. Buyer agrees to defend, indemnify and hold Seller (and its parent company, affiliates, subsidiaries, successors and assigns, and all their officers, directors, shareholders, members, employees and agents, whether past or present for any of the above) harmless from and against all claims by any third party arising from Buyer’s handling, loading and unloading, transporting, storage, use, resale or disposal of the goods, or Buyer’s negligence, misrepresentation or breach of this Agreement. This indemnity obligation shall include Seller’s reasonable attorneys’ fees and costs at all judicial levels.
- Remedies. Buyer must inspect and test the goods at delivery and file a claim for any non-conforming goods with Seller not later than five (5) calendar days from the date of delivery or Buyer shall totally waive all related claims. In the case of bulk deliveries, Buyer must inspect and test the goods before they are transferred to a tank (ship, rail or lorry). The inspection of the goods shall be particularly concerned with the quality and identity of the goods delivered. If Buyer has no proof that such an inspection has been performed, Buyer shall lose all rights to make a claim against Seller. Buyer’s exclusive remedy for non-conforming goods shall either be a credit for the purchase price or replacement of those non-conforming goods, at Seller’s sole election, and that remedy is subject to Buyer’s satisfaction of the following conditions: (a) Buyer’s business account with Seller is current and in good standing; (b) Buyer’s delivery of written notice of non-conforming goods to Seller within the time period set forth above; (c) Buyer’s delivery to Seller of a written report from a reputable third party testing laboratory, certifying to Buyer and Seller that the goods are non-conforming; (d) Buyer’s delivery to Seller of a reasonably sufficient sample of the non-conforming goods for any testing that Seller may conduct; and (e) Buyer’s delivery to Seller of a written statement certified to Seller that: (1) Buyer properly stored the goods in accordance with Seller’s written instructions; (2) Buyer properly decontaminated the storage receptacles in accordance with applicable regulations and best business practices in the industry before any of the goods were stored; and (3) the goods were used for their intended purpose. UNDER NO CIRCUMSTANCES SHALL SELLER’S TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED THE PURCHASE PRICE FOR THE GOODS AND SELLER SHALL NOT BE LIABLE FOR DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR INCIDENTAL DAMAGES, LOST PROFITS, OR BUSINESS INTERRUPTION LOSS.
- Export Control Compliance. If the goods are exported, it is Buyer’s sole responsibility to fully comply with all applicable U.S. export laws.
- Anti-Corruption Compliance. Buyer shall fully comply with all applicable U.S. and foreign anti-corruption laws concerning the import, export, and resale of the goods.
- Limitations. Buyer must commence litigation for an alleged breach of this Agreement within one (1) year after any alleged claim arises or Buyer’s rights will be permanently barred.
- Miscellaneous. No third party beneficial rights are created by this Agreement. Seller shall not waive its rights under this Agreement if it does not always require strict performance by Buyer. The parties are independent contractors and are not related or affiliated legal entities. No rule of strict construction shall be applied against a party or the primary drafter of this Agreement. Any notice required under this Agreement shall be given to that party’s email address shown on Seller’s order confirmation. If any part of this Agreement is unenforceable or unlawful, that part will be severed and the rest shall remain in effect. If this Agreement is translated into other languages, it is understood by Buyer that the English version shall always control.
GreenChem Industries LLC
Document Version Date: October 25, 2018