Terms of Sale
TERMS AND CONDITIONS OF SALE
THE SALE OF PRODUCTS AND SERVICES (“PRODUCTS”) BY LORAD CHEMICAL CORPORATION (“SELLER”) ARE SUBJECT TO THESE TERMS AND CONDITIONS OF SALE (“AGREEMENT”) REGARDLESS OF ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS SET FORTH IN ANY PURCHASE ORDER OR OTHER DOCUMENT OR COMMUNICATION (“ORDER”)” SUBMITTED BY A PURCHASING CUSTOMER (“BUYER”).
1. Contrary Terms. SELLER's AGREEMENT shall supersede any contrary terms in the ORDER including such terms that say ORDER supersedes any terms in AGREEMENT. Moreover, the SELLER's failure to object to any conflicting or additional BUYER terms will not change or alter the terms of this AGREEMENT absent the expressed written consent of SELLER. The information contained in this AGREEMENT supplements information contained in the SELLER's catalog, website, and any specific invoice notes or instructions.
2. Orders. All ORDERS (including blanket orders) are subject to acceptance by SELLER and SELLER reserves the right to reject any ORDER for any reason including terminating any prior blanket order in place with BUYER. Any request by BUYER to cancel, change, or reschedule an ORDER must be submitted in writing and approved by SELELR in writing. Any approved cancellation, change or reschedule of an ORDER will be subject to a change / cancellation fee (up to 30% of the ORDER price) as liquidated damages to compensate SELLER for its time and costs to mitigate the damages incurred as a result of BUYER's change or cancellation of an order.
3. Payment in Full. Payment of the total invoice amount, without offset or deduction, is due thirty (30) days from the invoice date unless otherwise stated in the invoice. On any past due invoice, SELLER may charge interest from the payment due date to the date of payment at a rate of 1.0% per month prorated daily to the date of payment. SELLER may also collect reasonable attorney fees and collection costs based on BUYER's failure to pay on the due date. SELLER may apply payments to any of BUYER's accounts.
4. Buyer's Credit. SELLER may change the terms of BUYER's credit at any time. Continued failure to adhere to the invoice due date will result in a revocation of any credit terms.
5. Delivery, Title, Delays Unless specified in the quotation issued by SELLER, BUYER is responsible for all shipping and handling costs, insurance and other applicable surcharges. Title and risk of lost passes to BUYER upon delivery of the PRODUCTS to the carrier at SELLER's shipping point. The SELLER's standard shipping terms are FOB Origin, Freight Collect, unless alternative terms are specified by the SELLER. The SELLER reserves the right to make partial shipments and BUYER will accept delivery and pay for the PRODUCTS delivered. SELLER's delivery dates are estimates only and SELLER is not liable for failure to fulfill its obligations for any accepted ORDER or for delays in the delivery due to causes beyond SELLER's reasonable control, including but not limited to, acts of God, man-made or natural disasters, epidemic or medical crises, materials shortages, labor strikes, acts of terrorism or war, delays in transportation.
6. Returns. BUYER shall promptly inspect the delivered PRODUCTS and after the five (5) business days from the date of delivery, the BUYER is deemed to have irrevocably accepted the PRODUCTS as conforming to BUYER's specifications. If BUYER finds a nonconformance, BUYER must notify SELLER within the five (5) business days from the date of delivery, in writing of any damage, shortage, defect, or other nonconformance with the delivered PRODUCTS (the "NONCONFORMANCE NOTICE"). BUYER must return any nonconforming PRODUCTS, freight prepaid and pay any restocking charges. At SELLER's discretion, SELLER may accept returns of PRODUCTS not otherwise eligible for return. At SELLER's discretion, SELLER may return all PRODUCTS not eligible for return to BUYER, FOB Origin, Freight Collect, or hold the PRODUCTS for BUYER's account at BUYER's expense.
7. Seller's Limited Warranty, Remedies. SELLER warrants that the PRODUCTS, at the time of delivery to BUYER, shall conform to the specifications for such PRODUCTS as set forth in SELLER's catalog, website, or any other written materials furnished by SELLER to BUYER. This limited warranty is exclusive and SELLER makes no other express or implied warranties or representations concerning the PRODUCTS (whether implied by statute or otherwise). SELLER specifically makes no warranty of merchantability or fitness for any particular purpose. If PRODUCTS do not meet BUYER's specifications, SELLER at its option, may (a) within a reasonable time, rework the PRODUCTS and ship the PRODUCTS back to BUYER at no cost to BUYER, (b) replace the PRODUCTS at no cost to the BUYER, or (C) refund BUYER the purchase price. SELLER's warranty made in connection with a sale of PRODUCTS shall not be effective if SELLER has determined, in its reasonable discretion, that BUYER has misused the PRODUCTS in any manner, has failed to use the PRODUCTS in accordance with industry standards and practices or has failed to use the PRODUCTS in accordance with instructions, if any, furnished by SELLER. Unless, due to the negligence of SELLER, SELLER is not liable for PRODUCTS damaged in shipment, improper care or storage of PRODUCTS or any expenses incurred by BUYER in testing allegedly non-conforming PRODUCTS.
8. Limitations of Liability. SELLER's shall not in any event be liable for incidental, consequential, special, or punitive damages of any kind resulting from any use or failure of the PRODUCTS, even if SELLER has been advised of the possibility of such damage including, without limitation, liability for loss of use, loss of work in progress, down time, loss of revenue or profits, failure to realize anticipated savings, loss of BUYER property or any liability of BUYER to a third party, or for any labor or any other expense, damage or loss occasioned by such PRODUCT including personal injury or property damage; provided, however, in no event shall the aggregate liability of SELLER to BUYER arising out of or relating to any transaction between them exceed the purchase price by BUYER for the PRODUCTS at issue.
9. Limitations on Use, Indemnity BUYER represents and warrants to SELLER that it will use all PRODUCTS in accordance with applicable laws, rules, and regulations. BUYER further represents and warrants that it will not violate any patent or other proprietary right of any third party using PRODUCTS. All of the PRODUCTS offered by SELLER are chemicals and should only be handled by technically qualified and trained individuals who are familiar with the potential hazards of the PRODUCTS. The BUYER assumes all responsibility for knowledge of the risks associated with the PRODUCTS it purchases and for instructing its employees, agents, customers, or other individuals who may handle the PRODUCTS in the safe handling of the PRODUCTS and potential risks of the PRODUCTS to persons or property. The BUYER further assumes the responsibility and costs for the safe transport, storage, and disposal of all PRODUCTS in compliance with all applicable laws. Any suggested applications or technical advise in relation to the use of the PRODUCTS is disclaimed by SELLER and SELLER makes no guarantees of any results related to PRODUCTS. SELLER further disclaims any liability for injuries, damages, or penalties resulting from PRODUCTS use by BUYER. BUYER agrees to indemnify and hold harmless SELLER for and against any and all suits, claims, demands, liabilities, losses, damages and/or expenses, including costs of legal counsel and all other costs of defending any action that SELLER may incur as a result of BUYER's breach of this AGREEMENT. BUYER shall notify SELLER in writing within fifteen (15) business days of BUYER's receipt of knowledge of any accident, or incident involving PRODUCTS which result in personal injury or damage to property and BUYER shall fully cooperate with SELLER in the investigation and determination of the cause of such accident.
10. Governing Law. SELLER and BUYER agree that this AGREEMENT is governed by the laws of Florida, without regard to its conflict of law principles. The exclusive venue for any action arising out of this AGREEMENT shall be the state courts of St. Petersburg, Florida and the United States District Court for the Middle District of Florida.
11. Severability. SELLER and BUYER agree that should any provision of this AGREEMENT be declared or determined by any court of competent jurisdiction to be illegal, invalid, or unenforceable, the remainder of this AGREEMENT shall nonetheless remain binding and enforceable and the illegal, invalid, or unenforceable provision(s) shall be modified only so much as necessary to comply with applicable law.
12. No Assignment. BUYER may not assign or delegate any rights or obligations under this AGREEMENT without first obtaining the written consent of SELLER, provided however, that BUYER may assign this AGREEMENT to any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the BUYER.
13. Successors. This AGREEMENT is binding upon and inures to the benefit of the BUYER and SELLER hereto and their respective agents, successors and assigns.
14. No Waiver. No failure or delay to exercise any right, power, or privilege under this AGREEMENT shall constitute a waiver thereof nor will any single or partial exercise preclude any other or further exercise of any right, power, or privilege under this AGREEMENT. SELLER's failure to object to any document, communication, or act by BUYER will not be deemed a waiver of any of the terms and conditions in this AGREEMENT.
15. No Amendments No amendment or modification of this AGREEMENT will be effective unless made in writing and signed by BUYER and SELLER.