Terms and Conditions of Sale
These terms and conditions govern the purchase and sale of goods to you (referred to herein as “Buyer”) by Kenrich Petrochemicals, Inc. (referred to herein as “Seller”). Seller’s sale of goods is conditioned upon Buyer’s acceptance of all terms and conditions contained herein. BUYER IS HEREBY NOTIFIED OF SELLER’S OBJECTION TO AND REJECTION OF ANY ADDITIONAL OR DIFFERENT TERMS IN BUYER’S PURCHASE ORDER OR BUYER’S OTHER FORMS OR DOCUMENTS.
- FORCE MAJEURE. Deliveries may be suspended by a party in case of Act of God, war, pandemic, riots, fire, explosion, flood, strike, lockout, injunction, inability to obtain fuel, power, raw materials, labor, containers or transportation facilities, accident, breakage of machinery or apparatus, national defense requirements, or any cause beyond the reasonable control of such party (a “Force Majeure Event”), preventing the manufacture, shipment, acceptance, or consumption of a shipment of the goods or of a material upon which the manufacture of the goods is dependent, whether or not foreseeable. When Seller is impacted by a Force Majeure Event, Seller may increase the purchase price by the amount of Seller’s increased costs, may allocate its available supply of goods in an equitable manner, and may terminate a transaction without liability as to any unallocated portion of the order.
- BUYER’S CREDIT. In the event Buyer fails to pay for any one shipment when same becomes due, Seller reserves the right, among other remedies, either to terminate the contract or to suspend further deliveries under it. Should Buyer’s financial responsibility become unsatisfactory to Seller, cash payments or satisfactory security may be required by Seller for future deliveries and for goods theretofore delivered.
- WEIGHTS AND CONTAINERS. In the case of bulk carload, tank car, or tank truck shipments, shipper’s weights shall govern. Where shipment requires use by Seller of carboys, drums, barrels, or other returnable containers, title to such containers shall remain in Seller and a deposit in the amount required by Seller must be made at the time the goods are paid for. Such container must be kept in good condition and may not be used for any material other than that shipped therein and must be returned within sixty (60) days from date of shipment. On such containers being so returned in good condition, a refund of the deposit will be made.
- SHIPMENTS. The quantity shipped in any contract month may be limited by Seller to either: (a) the average of the monthly quantities ordered by Buyer hereunder for the preceding contract months, or (b) the maximum quantity covered by the contract divided by the number of months in the contract period. Seller shall not be bound to tender delivery of any quantities for which Buyer has not given shipping instructions. Shipping dates are approximate and conditioned upon availability of goods. Seller does not guaranty delivery on a specific date or time. Title and risk of loss or damage to the goods shall pass to Buyer at Seller’s shipping point.
- WARRANTY. Unless otherwise provided herein, Seller warrants title and that all goods sold hereunder shall conform to Seller’s standard specifications. Subject to the preceding sentence and except as otherwise expressly stated herein, SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR ANY OTHER MATTER WITH RESPECT TO THE GOODS, whether used alone or in combination with other substances. Seller shall not be liable for, and Buyer assumes responsibility for, all personal injury and property damage resulting from the handling, possession, or use of the goods by Buyer. THE FOREGOING IS AN EXCLUSIVE STATEMENT OF ALL WARRANTIES APPLICABLE TO SELLER’S GOODS.
- LIMIT OF LIABILITY. All claims for alleged defective goods, shortage, or other cause shall be deemed waived unless made in writing and received by Seller within fifteen (15) days after Buyer learns of the alleged defect, but in no event later than thirty (30) days after Buyer’s receipt of the goods. Buyer’s exclusive remedy shall be for damages, subject, however, to Buyer’s agreement that for any and all losses or damages resulting from any cause whatsoever including alleged defective or damaged goods, Seller’s liability shall in no event exceed the purchase price thereof, or at the election of Seller, the repair or replacement of such defective or damaged goods. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, LOSSES, OR EXPENSES OF ANY KIND OF BUYER OR OF ANY OF BUYER’S CUSTOMERS, INCLUDING, WITHOUT LIMITATION, PRODUCTION COSTS, LOST PROFITS, INJURY TO CREDIT, REPUTATION, OR GOOD WILL. This disclaimer shall be enforceable whether or not any limitation of remedies described herein is deemed to have failed in its essential purpose. Transportation charges for the return of goods shall not be paid unless authorized in advance by Seller.
- PATENTS. Seller warrants that any goods sold pursuant to this contract, except as are made specifically for Buyer according to Buyer’s specifications, do not infringe any valid U.S. patent. This warranty is given upon condition that Buyer promptly notify Seller of any claim or suit involving Buyer in which such infringement is alleged, and if Seller is affected, that Buyer permit Seller to control completely the defense or compromise of any such allegation of infringement. Seller does not warrant that the use of any goods sold hereunder, or articles made therefrom, either alone or in conjunction with other materials, will not infringe a patent.
- FREIGHT – TAXES. Seller’s quoted price does not include shipping costs or taxes, excises, duties, or other charges imposed by any federal, state, local, or foreign authority, all of which (other than Seller’s income taxes) are payable by Buyer. In addition, any increase in freight rates paid by Seller on shipments covered by this contract and any tax or governmental charge or increase in same hereafter becoming effective increasing the cost to Seller of producing, selling, or delivering the goods or of procuring materials used therein, and any tax now in effect or increase in same payable by the Seller because of the sale of the goods, such as Sales Tax, Use Tax, Retailer’s Occupational Tax, Gross Receipts Tax, may, at Seller’s option, be added to the price herein specified.
- REGULATIONS. Buyer shall comply with all applicable laws and regulations governing the purchase and use of the goods, including, but not limited to, laws and regulations governing the export of the goods, trade restrictions, embargoes, and the United States Foreign Corrupt Practices Act.
- LOSS IN TRANSIT. In case of breakage or loss in transit, Buyer shall have notation of same made on expense bill before paying freight.
- PLASTIC MATERIALS. Because of the conditions involved in the manufacture of plastic materials, where an order calls for a product to be made up specially for Buyer:
- A delivery of not less than 90% of the order will be considered a complete fulfillment of the order.
- In case of an over-run, Seller may deliver and Buyer will accept any such excess up to 10% of the order, but not more than 1,000 pounds.
- MISCELLANEOUS. Seller’s waiver, whether express or implied, of any breach of these terms and conditions shall not be deemed to be a continuing waiver of any subsequent or continuing breach, whether of like or different nature, nor shall such waiver limit or waive, by reason of any course of performance, dealing, usage of trade or otherwise, Seller’s rights to enforce and compel strict compliance with every term and condition herein. This contract is to be construed according to the laws of the State of New Jersey, United States of America. All claims, including tort claims, arising directly or indirectly out of these terms and conditions and Seller’s sale of goods will be filed exclusively in the state or federal courts located in Hudson County, New Jersey. The parties expressly waive all objections to this venue and assent to personal jurisdiction therein. THE PARTIES KNOWINGLY AND IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF THESE TERMS AND CONDITIONS AND SELLER’S SALE OF GOODS. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this contract. These terms and conditions together with Seller’s invoice for Buyer’s order constitute the full understanding of the parties, and no terms, conditions, understanding,or agreement purporting to modify or vary the terms herein or therein shall be binding unless hereafter made in writing and signed by Buyer and Seller