Terms and Conditions of Sale
ARRMAZ PRODUCTS INC. TERMS AND CONDITIONS OF SALE
1. Title/Delivery: Unless otherwise expressly agreed in writing between the parties, title to, and all risk of loss of, any product sold hereunder shall pass to Buyer upon Seller's delivery to the carrier at shipping point ("Delivery"), and each order from Buyer is confirmed and accepted by Seller only upon Delivery, irrespective of any inconsistent documents or communications from one party hereto to the other. Each Delivery shall stand as a separate contract, and the failure of any Delivery shall not be deemed a breach of contract as to others. Cancellation, modification, suspension or delay in shipment of Buyer’s order will not be accepted on terms that will not fully reimburse Seller against loss.
2. Taxes: Buyer shall pay, or reimburse Seller for, all taxes, duties, customs, and other governmental charges of whatsoever kind imposed upon Seller with respect hereto or upon any transaction, product, use of product, production of product, or Seller’s purchase or use of raw materials to make product sold hereunder. Buyer shall be responsible for tax, penalty, and interest levied against Seller (pursuant to an audit or any other method of levy) and will be billed for these charges by Seller. Paying the invoice does not absolve Buyer from tax liabilities levied in the future due to instances including, but not limited to, internal/external audit, tax law changes, etc. These charges may be recovered from Buyer in a court of law. Buyer agrees to work with Seller to mitigate any tax assessments levied against either party.
3. Price and Quantity: Price and quantity shall be separately designated by Seller for each type of product sold hereunder. Unless otherwise stated within the Supply Contract/quotation/invoice to which these Standard Terms of Sale apply (the Supply Contract/quotation/invoice and these Standard Terms of Sale are collectively herein the “contract”), all prices shall be FOB Seller’s point of manufacture or storage as selected by Seller. If any domestic or foreign governmental authority imposes new, increased and/or additional tariffs or fees on the products subject to this contract or on raw materials, intermediate products or any other materials used to produce such products (collectively “Tariffs”), any such Tariffs may, in Seller’s sole discretion, be added to the price of the product sold under this contract, notwithstanding any other provision of this contract. Seller's measurements shall govern, except in case of proven error.
4. Payment and Credit: Buyer shall make payment in full, in United States Dollars, 30 days from date of invoice by electronic funds transfer using the CTX format of the Automated Clearing House (ACH) system. Late payments will bear interest at the rate of 1.5% per month or the maximum rate permitted by applicable law, whichever is less. Seller’s duty to perform and Buyer’s right to purchase hereunder is, at all times, subject to approval, and continuing approval, by Seller of Buyer’s creditworthiness. Without limiting Seller’s rights and remedies on credit issues or any other causes(s) if Seller requires further assurance of Buyer’s creditworthiness, Seller may, at its sole discretion, cancel this contract, demand different payment terms, suspend or recall deliveries or shipments, impose different credit terms, or impose different requirements for collateral assurance of payment. If Buyer fails to timely pay for any one shipment, then (i) the payment terms hereunder shall be cash in advance notwithstanding any other term of this contract, and (ii) Seller may, among other remedies, cancel this contract without liability or suspend further deliveries hereunder.
5. Warranties and Limitations: Seller warrants only that Seller has valid and marketable title to product covered hereby at the time of delivery to Buyer; ALL OTHER WARRANTIES OF SELLER, EXPRESSED OR IMPLIED, AND ALL REPRESENTATIONS, ADVICE, GUARANTEES, INSTRUCTIONS, PROMISES, DESCRIPTIONS AND SAMPLES FROM SELLER OF, OR PERTAINING TO, PRODUCT QUALITY, COMPOSITION, CHARACTERISTICS, ENVIRONMENTAL OR HUMAN SAFETY OR HAZARD OR HEALTH AFFECTS, PERFORMANCE OR LIKE MATTERS ARE DISCLAIMED. WITHOUT LIMITATION ON THE FOREGOING SENTENCE, ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY, COURSE OF DEALING, AND ALL SELLER WARRANTIES OF FREEDOM FROM PATENT INFRINGEMENT ARE EXCLUDED. ANY INFORMATION OR ASSISTANCE THAT SELLER MAY FURNISH TO BUYER IS GRATUITOUS AND SHALL IN NO WAY BE DEEMED PART OF THE SALE OF PRODUCT HEREUNDER OR A WARRANTY OF THE RESULTS OBTAINED THROUGH USE OF SUCH PRODUCT.
6. Acceptance: To reduce the potential of Buyer re-selling or using nonconforming product, the following shall apply to each shipment or delivery as to the exclusive procedure of acceptance therefor: Buyer shall – (i) inspect or cause to be inspected the product within a reasonable time after delivery to Buyer and, in any event, prior to any sale, re-sale, other transfer or use thereof by or for Buyer; (ii) promptly report to Seller any actual or potential non-conformity that Buyer does or should discover; prior to sale, re-sale, other transfer or use thereof and hold such available for Seller’s prompt inspection; and (iii) not permit any sale, re-sale, other transfer or use of the product prior to Seller promptly inspecting the same and determining whether Seller will supply replacement product, or otherwise remedy the non-conformity, as required by Section 8 hereof. Further, Buyer shall be responsible for, and hereby assumes, all risk for all sales, re-sales, other transfers, uses or misuses of the product by Buyer, or by any third person or entity by, under, through or for Buyer and, further, for determining that the product are suitable for the eventual end-use thereof by Buyer or any third person or entity by, under, through or for Buyer, including but not limited to any governmental agency or unit. Buyer agrees without limitation to promptly and properly provide to its employees, customer and community representatives, as appropriate, any information provided by Seller relating to hazards, human health, or human or environmental safety on the product sold hereunder.
7. Excused Performance:
(a) Force Majeure – Seller shall have no liability for any delay or failure in performance hereunder, in whole or in part, if such delay or failure arises from (i) compliance in good faith with any regulation, order or request of any foreign or domestic governmental official or agent, whether or not later shown invalid, unauthorized or inapplicable; (ii) the occurrence of any contingency the nonoccurrence of which was a basic assumption at the time this contract was made, including without limitation acts of God, fire, flood, accident, riot, war, terrorism, sabotage, cyber-attack, quarantine, pandemic, public health emergency, strike, lock-out, slowdown, labor trouble or shortage, breakdown or failure of equipment, carrier delay, or embargo, any failure of mechanical or chemical function or equipment normally used by Seller or its manufacturer for receipt, manufacturing, handling, or delivering of product and shortages at or failure of any expected or normal source of supply of product or raw materials from which product is derived or manufactured; (iii) Seller's inability to obtain any required raw material or intermediate product, energy source, equipment, labor, or transportation at prices and on terms deemed by Seller to be acceptable; (iv) Seller's incurring increased costs for compliance with environmental protection, health or safety regulations; or (v) any event or occurrence not within the reasonable control of Seller, whether or not foreseeable, that makes performance impracticable. If any such circumstances affect only a part of Seller's capacity to perform, Seller may allocate production and deliveries among its customers and the requirements of Seller and its affiliates, as Seller may determine in its sole discretion. When Seller is a reseller of the product sold hereunder, the provisions of this paragraph shall apply to any delay or failure in performance of Seller or of the manufacturer of such product. Seller is not obligated to purchase product from other sources to satisfy its obligations under this contract. At the option of either party, quantities affected by this paragraph may be eliminated from the contract without liability, but the contract shall remain otherwise unaffected.
(b) Impracticability – Seller shall have the right to cancel this contract without liability if for any reason Seller or its manufacturer ceases selling the product line of which the product is a part or shuts down the units in, or the plant at, which the product is made or if a change in circumstances (whether foreseeable or unforeseeable) causes Seller to incur a loss on a full cost basis at any time on the sale of the product hereunder.
(c) Hardship – If, at any time during the term of this contract, there shall be substantial change in technical, financial (including without limitation exchange rates), commercial, regulatory, or market conditions that either party did not foresee and could not have reasonably foreseen at the time this contract was executed, as a result of which such party suffers and will continue to suffer substantial economic hardship in complying with this contract, the party suffering such hardship (the “affected party”) may notify the other party in writing of the precise nature of such hardship and the requested relief under this contract. The parties shall thereafter meet within 30 days of such notice and consider the requested relief or any other relief that may be appropriate and acceptable to both parties. If the parties are unable to reach agreement on the affected party’s request for relief within 60 days of its notice to the other party, the affected party may elect to terminate this contract as of the end of the then current contract year or the 90th day following the giving of written notice of termination, whichever occurs last, provided such hardship is reasonably expected to continue beyond such termination date. This paragraph does not apply to Tariffs.
8. Limited Remedies/Notice of Claims: Notwithstanding anything to the contrary set forth in this contract, Seller’s maximum liability and Buyer’s exclusive remedy with respect to any and all claims arising from or relating to or in connection with this contract and the product covered by it shall not exceed the purchase price of the portion of such product as to which such liability arises. Seller shall not be liable for any injury, loss or damage resulting from the handling or use of any product shipped hereunder, whether in the manufacturing process or otherwise. Seller shall not be liable, and Buyer waives all claims against Seller, for indirect, special, incidental, consequential, punitive or exemplary damages, business interruption, loss of profits or capital or business opportunity, product recalls, downtime costs, claims of customers or employees of Buyer, and court or litigation costs and expenses and attorneys’ fees, in all cases, even if known or foreseeable. Failure to give Seller notice of any claim within 45 days of Buyer’s receipt of the product concerned shall constitute a waiver of any such claim by Buyer. Notwithstanding any applicable statute of limitations to the contrary, any action by Buyer relating to a claim must be instituted no later than two years after the occurrence of the event upon which the claim is based. All of the limitations in this paragraph shall apply regardless of whether Buyer’s claim is based upon breach of contract, breach of warranty, negligence, strict liability, or any other legal theory, and this paragraph shall survive the expiration or termination of this contract. The limitations described in this paragraph will apply notwithstanding the failure of the essential purpose of any remedy in this contract. Any product credit received by Buyer hereunder, if not used, shall automatically expire one year from the date the credit was granted.
9. Indemnity: Buyer shall indemnify, defend and hold Seller harmless from and against all claims, liabilities, costs, and expenses (including without limitation reasonable attorneys' fees and other defense costs, judgments, settlements or damages) (collectively, "Claims") that Seller may incur or be required to pay to any third party (including without limitation any employee of Buyer, regardless of whether such employee is barred under applicable law from asserting claims against Buyer) which Claims are caused or contributed to by any act or omission of Buyer, including without limitation (a) that portion of Claims also caused or contributed to by the concurrent or joint negligence of Seller, (b) any Claims of infringement for products manufactured or sold by Seller in accordance with specifications or other instructions furnished by Buyer, and/or (c) environmental violations and employee or consumer health or safety.
10. Law and Jurisdiction: This contract shall be governed by and construed in accordance with the laws of the State of Florida, including any statute of limitation laws but without regard to any conflicts of laws provision or principle thereof that would result in the application of the laws of any other jurisdiction. The parties expressly disclaim the applicability to this contract of the United Nations Convention on Contracts for the International Sale of Goods. Any action brought by or on behalf of Buyer arising out of this contract or the transactions covered hereunder shall be instituted only in the appropriate federal or state court having jurisdiction in Polk County, Florida, and Buyer further submits itself to the jurisdiction of said courts in the event Seller elects to institute any action in said courts. EACH OF THE PARTIES IRREVOCABLY WAIVES A TRIAL BY JURY WITH RESPECT TO ANY PROCEEDING INVOLVING OR RELATING TO THIS CONTRACT OR THE RELATIONSHIP CREATED HEREBY.
11. Waivers: Any waiver by Seller of any right or breach hereunder must be in writing, and no such waiver shall be construed as a waiver of any other right or breach, similar or otherwise.
12. Assignment: The rights and duties under this contract are not assignable or transferable by Buyer, in whole or in part, by operation of law or otherwise, without the express written consent of Seller. Any assignment or attempted assignment in contravention of the foregoing shall be null and void, shall be considered a breach of this contract and shall permit Seller, in addition to any other rights which it may have, to terminate this contract. Notwithstanding any other provision herein, the rights and duties under this contract may be assigned or transferred by Seller, in whole or in part, at Seller’s sole discretion.
13. Claims: If claims or legal proceedings are asserted or instituted by Seller to enforce its rights or remedies hereunder or related hereto, Seller shall, in addition to any legal remedy awarded it, be entitled to recover from Buyer all court costs, reasonable attorney’s fees and expenses incurred by Seller incident to such.
14. Loading and Transporting Conditions:
(a) Right to Reject Transport Vehicles and Refuse to Load/Transfer Under Unsafe Conditions: (i) Seller reserves the sole right to reject any rail cars, trucks, transports, barges, vessels or containers presented for loading which Seller reasonably believes would present an unsafe or potentially unsafe situation or condition; and (ii) Seller reserves the right, in its sole discretion, to refuse to load product under any condition Seller deems unsafe, which is caused by, including but not limited to, drivers, personnel, equipment, procedures and/or weather conditions.
(b) Compliance with Seller designated policies and procedures: Buyer agrees that it, including its contractors, agents and employees will comply with all of Seller’s safety regulations and rules when such contractor’s agents or employees are on Seller’s premises in connection with the performance of this contract.
(c) Compliance with Hazmat Laws: If and to the extent, Buyer loads, unloads or ships hazardous materials (as listed in the Tables of 49 C.F.R. 172.101 and 172.102 as amended from time to time) pursuant to this contract, Buyer hereby warrants that all hazardous materials shall be prepared for shipment, loaded, shipped and unloaded in compliance with all applicable federal, state, and local laws, rules and regulations regarding the handling and transportation of hazardous materials and Buyer shall indemnify and defend Seller from all liability, of whatever nature, to which Seller may become subject as a result of Buyer’s failure to comply therewith.
(d) Accident reporting and emergency response: If a release occurs after the product have left Seller’s shipping point and as between Seller and Buyer, Buyer shall make all release notifications and reportings that are legally required and shall provide Seller with written notice of such release notifications and reportings within three (3) business days of making such notifications and reportings. Further, as between Seller and Buyer, Buyer shall be responsible for and shall clean up all releases that occur after the product has left Seller’s shipping point pursuant to applicable governmental standards and agency directives.
(e) Where Seller is responsible for shipping, Buyer shall give Seller reasonable notice and instruction covering shipments and deliveries.
15. Compliance:
(a) Buyer further agrees to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets control, and the International Traffic in Arms Regulation maintained by the Department of State. Specifically, Buyer covenants that it shall not, directly or indirectly, sell, export, transfer, divert, or otherwise dispose of any product or technology (including product derived from or based on such technology) received from Seller under this contract to any destination, entity, or person prohibited by laws or regulations of the United States, without obtaining prior authorization from the competent governmental authorities as required by those laws and regulations. Representative and/or Buyer agrees to indemnify, to the fullest extent permitted by law, Seller from and against any fines or penalties that may arise as a result of Representative’s and/or Buyer’s breach of this provision. Seller shall have no further obligations or liability under this contract if in its sole judgment, Seller’s continued performance under this contract would violate export controls, sanctions, or other restrictions on trade imposed by any domestic or foreign governmental authority (collectively “Trade Measures”), including Trade Measures imposed after the effective date of this contract. This export control clause shall survive termination or cancellation of this contract.
(b) Compliance with Antiboycott Law. Despite any other provision of this contract, no party shall be required to take or refrain from taking any action inconsistent with or penalized under the laws of the United States or any applicable foreign jurisdiction, including without limitation the antiboycott laws administered by the U.S. Commerce and Treasury Departments.
16. Confidentiality: All proprietary and confidential information, including technical, manufacturing or business information, supplied by Seller shall remain Seller’s property. Such information shall not be reproduced, used or disclosed to others by Buyer without Seller's prior written consent. Confidential information shall not include information Buyer can demonstrate: (i) is generally available to the public other than as the result of disclosure by Buyer in violation of this contract or any other confidentiality obligation; (ii) is legally in Buyer's possession at the time of receipt from Seller; or (iii) is obtained by buyer from a third party who is in lawful possession of the information and who has the right to make disclosure thereof, but only if the third party has authorized Buyer's use thereof. Immediately upon termination of this contract, all confidential information together with any copies thereof shall be returned to Seller.
17. Miscellaneous: This contract (including any executed riders hereto) constitutes the entire agreement between Seller and Buyer relating to the subject matter hereof and supersedes all prior proposals and discussions relating to such subject matter. All sales and purchases of products hereunder are limited to and conditioned on Buyer's acceptance of these terms and conditions. Seller objects to and rejects any terms and conditions that may be proposed by Buyer that are in addition to or different from the terms and conditions in this contract. No modification of this contract shall be effected by the acknowledgment or acceptance of purchase order forms or other documents or communications from Buyer containing terms or conditions that are in addition to or different from the terms and conditions in this contract. This contract may be amended only by a written instrument duly executed by the parties. If any provision of this contract is or becomes invalid, unlawful or unenforceable, Seller may in its sole discretion upon notice to Buyer (i) cancel such provision, without affecting the remainder of this contract, or (ii) terminate this contract in its entirety without liability.
18. Headings are provided for convenience, and are not part of the contract of the Parties. Seller’s rights and remedies hereunder are in addition to, and not in lieu of, Seller’s other rights and remedies.
These Standard Terms and Conditions can be located online at https://specialtysurfactants.arkema.com/en/general-terms-and-conditions-of-sale/. ArrMaz maintains its right to modify these terms at any time without notice to Buyer. Buyer acknowledges and accepts its responsibility to regularly review ArrMaz’s Standard Terms and Conditions at the above referenced web address.
These ArrMaz Standard Terms and Conditions are updated as of July 1, 2024.