1. Governing Provisions. Transchem (“Vendor”) is offering to provide the goods and/or services (the “Goods”) to you (“Purchaser”) identified in the applicable contract, invoice, purchase order or other agreement between Vendor and Purchaser incorporating and subject to the terms and conditions herein (“Purchase Order”). Purchaser may not modify, change, renounce or waive any term or condition hereof without Vendor’s express written consent. Vendor agrees to provide to Purchaser the Goods and Purchaser accepts the Goods only on the terms hereof. Vendor rejects any additional, different or varying terms proposed by Purchaser unless an authorized officer of Vendor expressly consents to such terms in writing. In the event of any inconsistency between the Term and Conditions and the Purchase Order, the Purchase Order shall prevail.
2. Acceptance. Purchaser shall be deemed to have made an unqualified acceptance hereof, and the terms and conditions herein, on the earliest to occur of the following (a) Vendor’s receipt of a copy hereof signed by Purchaser (with scanned or facsimile signatures treated as original signatures); (b) Purchaser’s payment of any amounts due under any Purchase Order; or (c) any other event constituting acceptance under applicable law. Written quotations from Vendor are void unless accepted within 10 days from the date of issue. Other Vendor publications are maintained as sources of general information and are not quotations or offers to sell.
3. Payments. Late payments will be accrued after the notice period, until receipt by Vendor of full payment at the lesser of (a) one and one-half percent per month compounded monthly, or (b) the maximum rate permitted by law. Purchaser shall pay or reimburse Vendor for any tax (including sales, use, service, value added, goods and service, or harmonized taxes), assessments, duty, custom, inspection or testing fee or any other fee or charge imposed on, in connection with a Purchaser Order in addition to the prices quoted or invoiced.
4. Cancellation or Modification. Purchaser may not cancel or modify its order except upon terms accepted by Vendor in writing. In the event of any cancellation or modification, Purchaser shall compensate Vendor for all costs and damages resulting from, but not limited to, out-of-pocket expenses and lost profits and the fees and other charges incurred by Vendor.
5. Returns. No Goods may be returned to Vendor without its prior, written authorization and Goods may be returned only on the terms or conditions specified in such authorization. Returned Goods must be of current manufacture, unused, in resalable condition, manufactured in the last 12 months and securely packed to reach Vendor without damage. Any cost incurred by Vendor to put Goods in first-class condition will be charged to Purchaser. All Goods returned to Vendor shall be subject to a 25% restocking charge.
6. Taxes. Purchaser is responsible and will reimburse Vendor for any tax (including sales, use, service, value-added, goods and service, or harmonized taxes), duty, custom, inspection or testing fee or any other fee or charge imposed on, in connection with the transaction between Vendor and Purchaser in addition to the prices quoted or invoiced.
7. Delivery. (a) Generally: Title to all Goods supplied hereunder shall pass to Purchaser when delivered to the carrier and thereafter, except as otherwise specifically provided herein, all risk of loss and/or damage to any Goods ordered hereunder shall be borne by Purchaser. Vendor expressly reserves the right to effect delivery of Goods ordered in any number of separate shipments. Subject to Purchaser’s instructions as to carrier, delivery shall be effected using such modes of transport and such carriers as Vendor shall deem appropriate. (b) Delivery Dates: All delivery dates are approximate. Delivery dates given by Vendor are based on prompt receipt of all necessary information regarding the order. Vendor will use reasonable efforts to meet such delivery dates but does not guarantee to meet such dates. Failure by Vendor to meet any delivery date does not constitute a cause for cancellation and/or for damages of any kind. Time for delivery shall not be of the essence. (c) Delivery Delays: Any delay in delivery due to causes beyond Vendor’s reasonable control, or due to any priorities or allocations necessitated by governmental orders or regulations, or due to any causes specified in the following sentence, shall extend the term of delivery by a period equal to the length of such delay.
8. Limited Warranties. Vendor warrants to the original Purchaser, the Goods will be delivered free from defects in workmanship and materials and conform to the specifications published by Vendor for 12 months following the delivery. Claims filed under this warranty must be asserted in writing to Transchem within ten days of discovery or before the end of the applicable warranty, whichever occurs first. This warranty does not cover damage from transit, negligence, abuse, abnormal usage, accidental or deliberate damage, vandalism, normal wear and tear, damage due to fire, flood, freezing, other natural disasters, improper use, third party repairs, poor water quality, electrical problems, failure to follow manufacturer’s instructions and maintenance protocol’s or improper installation. As Purchaser’s sole and exclusive remedy under this Section, if upon examination a Good is found by the Vendor to be in breach of this warranty, Vendor, at its option, will either repair or replace such Good. This warranty does not cover equipment rental, travel time, shipping of parts, or other service charges that may incur, with respects to the repair or replacement of a component or part which is found to be in breach of this warranty. This warranty shall not apply to any parts that are manufactured or produced by a third party and resold by another Vendor, in such instances the applicable warranty, if any, shall be that of the original manufacturer and Purchaser’s sole recourse shall be to the original manufacturer’s warranty. Vendor will provide Purchaser copies of applicable original manufacturer warranties upon request.
9. Unavailable Parts and Part Replacement. If a part is unavailable, we will attempt to obtain a replacement part or an equivalent substitute as quickly as possible, but limited availability of certain parts may result in delays from time to time. In particular, but without limitation, we may not be able to readily or locally obtain parts for certain makes and models. In the unusual event that we cannot provide a part replacement or an equivalent substitute, we will not be liable for such part replacement, equivalent substitute or for any resulting damages. Parts replacement or equivalent substitutes are solely at our discretion. Any part that is found to be defective and is replaced under warranty and becomes our sole property and may be disposed of at our discretion.
10. Disclaimer of Other Warranties. OTHER THAN AS SET OUT IN SECTION 8, THE GOODS ARE SOLD “AS IS” AND VENDOR DISCLAIMS ALL OTHER EXPRESS, IMPLIED OR COLLATERAL WARRANTIES. FOR COMMERCIAL PRODUCTS, ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED. FOR CONSUMER PRODUCTS, ALL WARRANTIES IMPLIED BY LAW, INCLUDING THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY LIMITED TO THE PERIOD OF THE WARRANTY STATED ABOVE FOR THE RELEVANT PRODUCT. Any oral or written description of the Goods is for the sole purpose of identifying the Goods and shall not be construed as an express warranty.
11. Limitation of Liabilities. OTHER THAN AS SET OUT IN SECTION 8, VENDOR SHALL NOT BE LIABLE TO PURCHASER, OR TO ANYONE CLAIMING UNDER PURCHASER, FOR ANY OBLIGATIONS OR LIABILITIES, INCLUDING, BUT NOT LIMITED TO, OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORT OR ANY THEORY OF STRICT LIABILITY, WITH RESPECT TO THE USE OF THE GOODS. YOU WILL INDEMNIFY VENDOR FROM ALL CLAIMS, LOST PROFITS OR SALES, OTHER INCIDENTALS, INABILITY TO USE THE GOODS, INCREASED OPERATING COSTS, INCLUDING LEGAL EXPENSES, CONSEQUENTIAL, INDIRECT INCLUDING ANY CLAIMS AGAINST INJURY OR DEATH TO INDIVIDUALS OR DAMAGE TO PROPERTY. VENDOR‘S AGGREGATE LIABILITY WITH RESPECT TO A DEFECTIVE PRODUCT SHALL BE LIMITED TO THE MONIES PAID TO VENDOR FOR THAT DEFECTIVE PRODUCT. COMPLIANCE WITH ANY LAWS OR REGULATIONS RELATING TO THE SALE, LOCATION, USE OR OPERATION OF THE EQUIPMENT, OR ITS USE IN CONJUNCTION WITH OTHER EQUIPMENT SHALL BE THE SOLE RESPONSIBILITY OF PURCHASER.
12. Other Terms. The costs of structural restoration required as a result of any repair or installation performed in connection with any Goods delivered is not covered, including wall-coverings, drywall, plaster, paint, floor coverings, tile, landscaping or repair of any structural or cosmetic defects.
13. Purchaser’s Obligations. Before using or permitting the use of the Goods, Purchaser shall determine the suitability of the Goods for the intended use and under Purchaser’s operating conditions, and Purchaser shall assume all risk and liability whatsoever in connection therewith. Purchaser is responsible to ensure all local export laws are fully complied with.
14. Notice of Changes. You agree to promptly inform us of any change of your mailing address at least 30 days in advance of such change. If you have chosen to make your payments by pre-authorized payment, you must inform us in writing of any changes in the bank account information you provided.
15. Governing Law. The laws of the Governing Jurisdiction shall govern the rights and obligations of Vendor and Purchaser hereunder and any disputes thereon. “Governing Jurisdiction” means the governing jurisdiction identified in the Purchaser Order or, if a governing jurisdiction is not identified: (i) the State of Delaware where the Vendor is Transchem; and the Province of Ontario in all other instances. Neither these Terms and Conditions nor sales hereunder shall be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods. Any cause of action, claim, suit or demand by Purchaser or Vendor allegedly arising from or related to the terms hereof or the relationship of the parties shall be brought in a Court situated in the Governing Jurisdiction. Both parties hereby irrevocably admit themselves to and consent to the exclusive jurisdiction of said Court.
16. Miscellaneous. Vendor reserves the right to correct clerical or similar errors relating to price or change or modify terms shown herein. The failure of Vendor to insist, in any one or more instances, upon performance of any of the terms, covenants, and conditions hereof shall not be construed as a waiver or relinquishment of any rights granted hereunder or the future performance of any such term, covenant or condition. The invalidity of any provision or clause hereof shall not affect the validity of any other provision or clause hereof.
17. Entire Agreement. These Terms and Conditions and the Purchase Order constitutes the entire agreement of the parties with respect to the subject matter hereof.