Terms and Conditions of Sale – Specialty Chemicals
1. Terms of Sale. These Terms and Conditions of Sale and all terms and conditions set forth on any purchase order issued by Customer and accepted by Nelson Brothers, Inc., or any of its affiliated companies (any such company referred to herein as “NB”), related to Customer’s purchase of Specialty Chemicals (a “Purchase Order”) represent the entire agreement between Customer and NB for the purchase of Products. In the event of any inconsistency between the terms of this Contract and the terms of any Purchase Order, the terms of this Contract shall control. Any additional or different terms proposed by Customer on any invoice or other document proposed by Customer are specifically rejected, unless expressly agreed to in a writing signed by NB. No amendment, addition, or modification of any provision of this Contract is binding unless it is in writing, signed by the party to be bound and is specifically described as an amendment or modification of this Contract.
2. Prices. After the expiration of any quoted price to Customer, NB reserves the right to change the prices for Products.
3. Payment Terms. Payments are due no later than thirty (30) days from Customer’s receipt of NB’s invoice. Payments not received when due shall incur service charges at the rate of 1.5% of the unpaid amount per month (18% per annum) until paid. NB reserves the right, among other remedies, to limit or cancel the credit of Customer, suspend further deliveries or performance, or terminate this Contract if Customer fails to pay for any Products when due.
4. Limited Warranty. NB warrants title and that the Products of manufacture shall conform to its published or agreed specifications in effect on the effective date of the Purchase Order; provided that any deviation from the specifications caused by the actions of Customer or any third party are expressly excluded from this warranty. NB MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY , FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER MATTER WITH RESPECT TO THE PRODUCTS , WHETHER USED ALONE OR IN COMBINATION WITH ANY OTHER GOODS OR MATERIALS . NB warrants that any services provided to Customer shall satisfy the standard of care normally provided by a professional in the performance of similar work under similar circumstances.
5. Inspection; Acceptance. Customer shall promptly examine the Products following receipt at the delivery point specified in the Purchase Order (the “Delivery Point”) for any damage, defect or shortage. Customer shall provide to NB all claims for breach of warranty, damage, defect, or shortage in writing within 30 days after receipt of the Products. Customer’s exclusive remedy under Sections 4 and 5 shall be, at NB’s option, replacement of the Products, or payment of an amount not to exceed the price of the Products in question.
6. Product Returns. No special-order items or nonstandard stock items may be returned. Other returns of Product shall not be accepted unless Customer obtains prior written approval and transportation instructions from NB. All Products returned to NB must be in full containers, boxes, or cases, unopened and in the same condition as when delivered. Products may be returned for exchange or credit to Customer’s account only. NB shall give no cash refunds with respect to any Products returned. Returned Products accepted for exchange or credit are subject to a restocking charge of 30% of the prices of such Products. Customer shall also pay all transportation charges to return the Products.
7. Delivery. Delivery dates are estimates only. No Purchase Order should request a delivery date that is less than 10 days from the date of the Purchase Order. Title to and risk of loss of the Products shall pass to Customer upon delivery at the Products’ designated Delivery Point. NB’s weights and volumes at Delivery Points shall govern. Demurrage and detention charges shall be for Customer’s account.
8. Force Majeure; Allocation. Notwithstanding anything to the contrary in this Contract, NB’s performance under this Contract may be suspended or delayed by: acts of God; acts of civil or military authorities; war; riot; fire; explosion; flood; sabotage or acts of terrorism; lack of adequate fuel, power, raw materials, labor, containers or transportation facilities; changes in applicable governmental laws, regulations, or orders; breakage or failure of machinery or apparatus; strikes; labor disputes; acts or omissions of Customer, its employees, officers or agents; the declaration of a force majeure by a key supplier or subcontractor of NB; or any other event, whether or not of the class or kind enumerated herein, beyond the reasonable control of NB which makes impractical the manufacture, transportation, or shipment of the Products or of a material or other resource upon which the manufacture or transportation of the Products depends (a “Force Majeure Event”).
9. Limitation of Liability. (A) N OTWITHSTANDING ANY WARRANTY OR OTHER PROVISION OF THIS C ONTRACT , IN NO EVENT SHALL NB BE LIABLE FOR INCIDENTAL, INDIRECT , CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST PROFITS , REVENUES OR OPPORTUNITIES , DEPRECIATION OR DELAY . (B) IN ADDITION, UNDER NO CIRCUMSTANCES SHALL NB’S LIABILITY EXCEED THE LESSER OF (I ) THE AGGREGATE GROSS SALES MADE PURSUANT TO THIS C ONTRACT FOR THE 12 MONTHS IMMEDIATELY PRIOR TO THE INCIDENT GIVING RISE TO SUCH LIABILITY , OR (II ) $500,000. (C) NB DISCLAIMS ALL OTHER LIABILITY TO C USTOMER OR TO ANY OTHER PERSON OR ENTITY WHETHER BASED UPON CONTRACT, TORT , NEGLIGENCE , STRICT LIABILITY OR OTHER LEGAL THEORY . (D) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, ANY ACTION AGAINST NB MUST BE BROUGHT WITHIN 12 MONTHS AFTER THE DATE SUCH CAUSE OF ACTION ACCRUED. (E) EACH PROVISION IN THE C ONTRACT THAT PROVIDES FOR A LIMITATION OF LIABILITY , DISCLAIMER OF WARRANTY OR EXCLUSION OF DAMAGES IS SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND IS TO BE ENFORCED AS SUCH.
10. Confidentiality. NB and Customer shall hold in strict confidence and shall not use or disclose or permit the use or disclosure of the existence or terms of this Contract (including, without limitation, the pricing terms), any information regarding the operation of the Products or any information that may come to its knowledge in the course of carrying out this Contract as to the operations, business dealings or financial affairs of the other party, without the express prior written consent of the other party. The restriction imposed in this section shall not apply to any information that at the time of the disclosure was in the public domain other than by breach of this Contract, or that is required by applicable law or order to be communicated to a person who is authorized by law to receive that information.
11. Intellectual Property. Customer acknowledges and agrees that NB’s shareholder is the sole and exclusive owner of the IP associated with or attached to the Products or manufacturing processes related thereto. Customer agrees that nothing in this Contract grants Customer any right, title or interest in any IP associated with the Products and agrees not to claim any right, title or interest to the IP in the Products or means of manufacturing or processing the Products by virtue of any rights granted to Customer by this Contract. As used herein, “IP” means any intellectual or industrial property right anywhere in the world including any patent, patent application, copyright (including copyright in manuals, databases, promotional materials, and other materials), trademark, registered design and other design rights, and any other rights that may exist anywhere in the world in inventions, manufacturing processes, technical or other information of NB.
12. Assignment. Neither party may assign its rights or obligations under this Contract without the prior written consent of the other party and any attempted assignment or delegation without such consent shall be void; provided, however, that NB may assign its rights, powers, duties or obligations under this Contract to: (i) its parent company or any present or future subsidiary (whether direct or indirect) of NB or such parent company, or (ii) a third party in connection with a sale of all or a significant portion of NB’s stock or assets.
13. Notices. All notices required or permitted to be given hereunder shall be in writing and shall be deemed given (i) the second day after mailing, if sent by registered or certified mail, return receipt requested, (ii) upon delivery, if delivered by hand or by courier, (iii) when received, if sent electronically, to the parties at the addresses listed above or at such other address as may be designated by notice given pursuant to this provision.
14. Governing Law. The validity, interpretation and performance of this Contract and any dispute connected herewith shall be governed by and construed in accordance with the laws of the State of Alabama without regard to its conflicts of law provisions. The venue of any dispute will be any court with personal jurisdiction over the parties operating in the State of Alabama. The United Nations Convention on Contracts for the International Sale of Goods of 1980 shall not apply. If either party brings any action or proceeding against the other party relating to this Contract, the prevailing party shall be entitled to its costs and expenses of suit, including reasonable legal costs.
15. Entire Agreement. This Contract constitutes the exclusive and complete understanding of the parties and is an agreed upon allocation of risks between them. No amendment, addition or modification of any provision of this Contract, including the acceptance of purchase orders or shipping instructions containing different or additional terms or conditions, is binding unless it is in writing, signed by the party to be bound and is specifically described as an amendment or modification of this Contract.
16. Miscellaneous. There are no third-party beneficiaries to the terms of this Contract. The terms of the Contract that by their nature are reasonably intended to survive the Contract shall survive the termination of this Contract. The headings used herein are for convenience only and do not affect interpretation. No waiver by NB of any one or more breach by Customer of this Contract will operate or be construed as a waiver of any future breach of this Contract whether of a like or different character. If any provision of the Contract is held by a court of competent jurisdiction to be unenforceable, the remaining provisions of the Contract shall remain in full force and effect. Nothing in this Contract shall be interpreted against a party because that such party drafted or prepared any part of this Contract. Electronic signatures to this Contract shall be accepted as originals.
17. Export Controls and Related Regulations. Customer represents and warrants that it is not designated on, or associated with, any party designated on any of the U.S. government restricted parties lists, including without limitation, the U.S. Commerce Department Bureau of Industry and Security (“BIS”) Denied Persons List; Entity List or Unverified List; the U.S. Treasury Department Office of Foreign Assets Control (“OFAC”) Specially Designated Nationals and Blocked Persons List; or the U.S. State Department Directorate of Defense Trade Controls (“DDTC”) Debarred Parties List. Customer shall comply with all applicable U.S. economic sanctions and export control laws and regulations, including without limitation, the regulations administered by OFAC; the Export Administration Regulations administered by BIS; and the International Traffic in Arms Regulations administered by DDTC. NB may terminate this Contract and discontinue any ongoing supply to or business with Customer immediately, without notice and without liability, upon NB becoming aware that Customer is named on any restricted party list.
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