GENERAL TERMS AND CONDITIONS OF SALE Applied Chemistries, Inc. (“Seller”)
ENTIRE AGREEMENT (“Agreement”).
These General Terms and Conditions of Sale (“Terms and Conditions”) shall apply to all contracts and agreements for the purchase and sale of goods or services delivered by Seller which are the subject of this Sales Order or Acknowledgement, notwithstanding any differing or additional provisions contained in any Purchase Order or other document issued by any Buyer, which are with this rejected. Seller’s acceptance of any such Purchase Order is expressly conditional upon Buyer’s assent to Seller’s Terms and Conditions as contained herein. Seller expressly rejects any pre-printed or other standard terms contained in any purchase order or other document issued by Buyer. Seller expressly rejects any written or unwritten attempt by Buyer to incorporate or flow down any requirement, obligation, text, provision, or clause from any other source, including, but not limited to, a requirement, obligation, or clause or provision imposed upon the Buyer by third parties such as any upstream purchaser or the Federal Government through Federal contracts, laws, or regulations. Any Sales Acknowledgement issued by Seller shall not constitute acceptance of any Buyer’s terms and conditions, nor shall any delivery of goods pursuant to Seller’s Sales Acknowledgement constitute such acceptance. Buyer’s acceptance of goods or services delivered by Seller shall constitute acceptance of Seller’s Terms and Conditions. Seller’s Terms and Conditions shall supersede any prior written or oral agreements or understandings and shall not be supplemented by any course of dealing, course of performance, or usage of trade, and shall constitute the entire Agreement of the parties, which may not be amended or modified except in writing executed by both parties.
Seller reserves the right to modify these Terms and Conditions at any time, and, as of the date of modification, all new transactions entered into between Seller and Buyer shall be governed by the modified document. The paragraph titles in this Agreement are for convenience only and shall not be used to vary the meaning of the text of this Agreement or interpreted as a complete list of topic referrals. If any provision of this Agreement is found to be invalid, such provision shall be ineffective only to the extent of such invalidity, and all other provisions shall remain in effect.
PRICES. Prices are based on shipping terms of EXW Origin unless and to the extent expressly stated otherwise. Prices do not include taxes, duties, license fees, charges for transportation, engineering documentation, special testing, marking, or packaging. Buyer agrees to remit to Seller any tax or other government charge, domestic or foreign, upon the production, sales, shipment, or use of the product which Seller is required to pay or collect from Buyer unless Buyer furnishes a tax exemption certificate to Seller. List prices are in U.S. dollars and are subject to change without notice.
QUANTITY DISCOUNTS. When quantity price discounts are quoted, they are computed separately for each type of product and are based on the quantity of each type and each size ordered at any one time for immediate delivery. If any Order is reduced or canceled, prices will be adjusted upward to the higher prices, if applicable, for the remaining quantity.
QUANTITY VARIATIONS. The normal variation between an ordered and the actual manufactured quantity is, for larger production runs, plus two percent (2%) minus five percent (5%) per product. Buyer agrees to accept and pay for overages up to two percent (2%) of product order quantities. Orders with shipments of ninety-five percent (95%) or more of the order quantity shall be considered complete, and the Buyer shall be invoiced for the actual quantity shipped. Claims against Seller for shortages must be made within ten (10) days after arrival of shipment.
QUALITY LEVELS. Prices are based on quality levels commensurate with Seller’s standard specifications and regular processing. If a different quality level is required, the Buyer shall specify the requirements in writing and pay any additional costs that may apply.
ORDER SCHEDULE & PRICES. Orders shall be scheduled for delivery within twelve (12) months from the date of the order. Products containing precious or volatile price materials are priced for shipment within three (3) months after the Order date and, after that, are subject to price adjustment in accordance with the then prevailing prices for such materials. Quoted prices are based on known requirements at the time of offer and assume that supplies of shipping capacity components and materials will continue to be available at not less than present levels and current prices and that Seller and its subcontractors, suppliers, and transporters will continue to have unimpeded use of their facilities and equipment. Any significant reduction in the availability or change affecting the price of any of the preceding as a result of any situation, whether resulting here or abroad, shall render the prices and delivery schedules of this Order subject to adjustment so as to reflect the impact thereof. All other prices are subject to change without notice. Any adjustments shall be made to Seller’s prices in effect at the time of Order placement.
PAYMENT TERMS. Payment terms are net thirty (30) days from the date of invoice unless otherwise stated on Seller’s Sales Order, subject to approval by Seller of amount and terms of credit. If, for any reason, Buyer’s credit is or becomes objectional to Seller, either before or after Order acceptance, Seller reserves the right to require payment in advance or to modify credit terms otherwise. Pending correction of any unsatisfactory credit situation, Seller may withhold shipments without incurring any liability to Buyer. When partial shipments are made, payment therefor shall become due in accordance with the designated terms of the invoice. If, at the request of Buyer, shipment is postponed for more than thirty (30) days, payment will become due thirty (30) days after notice to Buyer that products are ready for shipment.
Seller is allowed to implement a tariff surcharge on impacted products upon notice to Buyer. If applicable, this surcharge will appear on invoices issued by Seller and will remain in effect until further notice.
All accounts not paid when due are subject to a service charge of one and one-half percent (1- 1/2%) per month on any unpaid balance. Buyer agrees to pay all costs of collection, including reasonable attorney fees, in the event it becomes necessary to enforce payment.
DELIVERY. All deliveries will be EXW Origin (Incoterms 2020) unless otherwise agreed. In the absence of specific instructions, Seller will select the carrier. All risks, title, and right of possession to such goods pass to Buyer upon Seller’s delivery to the carrier at the point of shipment, subject to a security interest until payment is received. Products held for Buyer or stored for Buyer shall be at the risk and expense of Buyer.
DELIVERY DATES, FORCE MAJEURE. All acknowledged shipping dates are approximate and based on known conditions existing at the time of order placement. Seller will, in good faith, endeavor to ship by the estimated shipping date but shall not be responsible for any delay or any damage arising therefrom. If Buyer’s Order does not cite desired delivery dates or does not expressly prohibit delivery in advance of scheduled dates, Buyer agrees that immediate delivery is acceptable if conditions arise that prevent compliance with delivery schedules.
Seller shall not be liable for any damages, including general, incidental, consequential, or otherwise, arising from delays in delivery or for failure to give notice of delays, and, further, such delays shall not constitute grounds for cancellation. Without limiting the generality of the preceding, Seller shall under no circumstances be responsible for any failure to fill an Order when due to failure to obtain export licenses, export controls, pandemics, acts of war or insurrection, fires, floods, earthquakes, riots, strikes, freight embargoes, transportation delays, shortage of labor, inability to secure fuel, materials, supplies or parts from suppliers, power or other energy requirements, or on account of shortages thereof, acts of God or of the public enemy, or any existing or future laws or acts of Government (including specifically, but not exclusively, any orders, rules, or regulations issued by any official of any such government) affecting the conduct of Seller’s business which, in its judgment and discretion, Seller deems advisable to comply with either as a legal, or patriotic duty or to any other cause beyond Seller’s reasonable control.
INSPECTION AND ACCEPTANCE. Unless Buyer notifies Seller in writing within ten (10) days from the date of receipt of any products that said products are rejected, they will be deemed to have been accepted by Buyer, and such products shall conclusively be deemed to have met the PRODUCT WARRANTY. In order to be effective, the notice of rejection must specify in writing the reasons why the products are being rejected.
REVERSE ENGINEERING & PROPERTY RIGHTS. Seller shall hold all intellectual and industrial property rights in all chemical formulations, chemical blends, or related materials for products, including those developed or provided under this Agreement. Buyer shall not directly or indirectly cause Seller products to be analyzed for reverse engineering; it shall not reproduce, alter, adjust, or manufacture Seller products. Any specifications, drawings, plans, notes, instructions, engineering notes, or technical data of Seller furnished to Buyer are incorporated herein by reference in the same way as is if fully set forth. Seller shall at all times retain title to all such documents, and Buyer shall not disclose such to any party other than Seller or a party duly authorized by Seller. Upon Seller’s request, Buyer shall promptly return to Seller all such documents and copies thereof.
PRODUCT WARRANTY. Seller warrants that the products manufactured by Seller and sold hereunder will conform to specification at the time of shipment. Buyer shall notify Seller immediately if any defect within this warranty should appear.
Warranty Adjustment. If any defect within this warranty appears, Buyer shall notify Seller immediately. Seller agrees to furnish a replacement for any product which, within ten (10) days from the date of receipt by Buyer, shall, upon examination by Seller, prove defective within the above warranty. If so instructed by Seller, the product will be returned to Seller with shipping charges prepaid by Buyer. Repairs and replacements made under this warranty will be shipped prepaid by Seller.
Exclusions From Warranty. This warranty does not extend to any product manufactured by Seller that has been subjected to misuse, neglect, accident, improper storage or shipping, or use in violation of instructions furnished by Seller. This warranty does not extend to any product manufactured by Seller in any amended or altered form or any use other than an intended use.
THE PRECEDING WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER EXPRESSED OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR USE OR OTHERWISE.
PATENT INDEMNITY.
Patent indemnity by Seller to Buyer. To the extent a product is made per a Seller specification, Seller agrees to indemnify and hold Buyer harmless from and against all reasonable legal expenses Buyer incurs as well as from damages and costs (excepting all consequential and special damages and costs) which may be finally assessed against Buyer in any action for infringement of any United States Patent by the products delivered to Buyer hereunder. Seller shall indemnify Buyer for such infringement actions provided that (1) Buyer shall give Seller prompt written notice of any action, claim, or threat of patent infringement suit, either oral or written, or of the commencement of any patent infringement suit against Buyer relating to products sold by Seller to Buyer hereunder; and (2) Buyer shall give Seller the opportunity to elect to take over, settle or defend any such claim, action or suit through counsel of Seller’s own choice and under its sole direction, and at its sole expense; and (3) Buyer, in the event Seller elects to take over, defend or settle such, will make available to Seller all defenses known by or available to Buyer, and (4) Seller shall have the right to substitute for any such product or any part thereof claiming to in- fringe the patent rights of others, non-infringing products which will give equally good service. However, if the use of any such product or any part thereof should be enjoined, Seller shall have the right at its own expense to take any of the following courses of action: (a) Procure for Buyer the right to continue using such product; or to (b) Replace the said product with a non-infringing product; or to (c) Modify the product so that it be- comes non-infringing; or to (d) Remove said product and refund the purchase price and the transportation and installation costs thereof.
Limitations. The preceding provisions as to patent protection by Seller to Buyer shall not apply to any of the following: (1) To any products manufactured to the specifications furnished by Buyer. (2) To orders for special non-commercial products that Seller has not sold or offered for sale to the public on the open commercial market. (3) To any infringement occasioned by modification by Buyer for any product or any infringement arising from the use of any product with any adjunct or device added by Buyer.
Buyer’s Patent Indemnity to Seller. To the extent that products delivered hereunder are manufactured pursuant to formulas furnished by Buyer, Buyer agrees to indemnify Seller and hold Seller harmless from all legal expenses which may be incurred as well as all damages and costs which may finally be assessed against Seller in any action for infringement of any patent by such products delivered hereunder. Seller agrees promptly to inform Buyer of any claim for liability made against Seller with respect to such products, and Seller agrees to cooperate with Buyer in every way reasonably available to facilitate the defense against any such claim.
LIMITATION OF LIABILITY. SELLER WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR FOR LOSSES, DAMAGES, OR EXPENSES DIRECTLY OR INDIRECTLY ARISING FROM THE DESIGN, MANUFACTURE, SALE, USE, OR REPAIR OF THE PRODUCTS, OR ANY INABILITY TO USE THEM EITHER SEPARATELY OR IN COMBINATION WITH ANY OTHER EQUIPMENT OR MATERIAL, OR FROM ANY OTHER CAUSE. BUYER AND SELLER AGREE THAT IN NO EVENT WILL THE SELLER BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE CONTRACT PRICE OF THE PRODUCT THAT PROVES TO BE DEFECTIVE. THE REMEDIES PROVIDED FOR IN THIS AND THE PRECEDING PARAGRAPHS SHALL CONSTITUTE THE SOLE RECOURSE OF THE BUYER AGAINST THE SELLER FOR ANY ALLEGED BREACH OF THE SELLER’S OBLIGATIONS UNDER THE CONTRACT WITH THE BUYER, WHETHER SUCH CLAIM IS MADE IN TORT OR CONTRACT, INCLUDING CLAIMS BASED ON WARRANTY, NEGLIGENCE OR OTHERWISE.
TERMINATION. Buyer’s order may not be modified, terminated, or otherwise rescinded except in writing, signed by Seller and Buyer. If all or part of Buyer’s order is terminated by such modification or rescission, Buyer, absent a signed written agreement to the contrary, shall pay termination charges to Seller of costs, as determined by accepted accounting principles, plus a reasonable profit, except that any product scheduled for completion within sixty (60) days of Buyer’s re- quest for termination or rescheduling will be accepted and paid for in full by Buyer. Seller reserves the right to pre-purchase material and to begin production in time to meet Buyer’s delivery date based on conditions in Seller’s plant and lead time required by Seller’s suppliers. In the event of Buyer’s default, breach, or cancellation for any cause, including failure to obtain an export li- cense, Buyer shall be responsible for any losses resulting therefrom.
STATUTE OF LIMITATIONS. Buyer agrees that any action for an alleged breach of this Agreement must be commenced within one (1) year after the cause of action has accrued, without regard to the date the breach is discovered. Any action not brought within this one (1) year time period shall be barred, without regard to any other limitations period set forth by law or statute.
GOVERNING LAWS. The terms of this Agreement and all rights and obligations hereunder shall be governed in accordance with the laws of the Commonwealth of Massachusetts. Buyer consents and submits to the jurisdiction of the appropriate courts in Hampden County, Commonwealth of Massachusetts, for adjudication of any question of law or fact arising hereunder.
NEGOTIATION, MEDIATION, ARBITRATION. Any dispute arising out of or relating to this Agreement shall be resolved per the procedures specified in the Commercial Arbitration Rules of the American Arbitration Association (“CAR”) administered by the American Arbitration Association
Negotiation Between Executives. The parties shall first attempt to resolve any dispute arising out of this Agreement by prompt negotiation between executives who have the authority to settle the matter.
Mediation. If not resolved by negotiation, the parties agree to submit the dispute to mediation under CAR. The mediation shall be held in Hampden County, Massachusetts, and if one party fails to participate in the negotiation, the other party may initiate mediation immediately. The mediator will be selected using the CAR procedures.
Binding Arbitration. Any dispute arising from this Agreement not resolved within forty-five (45) days after initiation of mediation shall be finally settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules as an Expedited Proceeding. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. A single arbitrator shall hear claims. The place of arbitration shall be Hampden County, Commonwealth of Massachusetts. The Federal Arbitration Act and the laws of the Commonwealth of Massachusetts shall govern the arbitration. Each party will promptly provide the other with copies of all relevant documents upon written request. No other discovery shall be allowed. Unless otherwise ordered by the arbitrator for good cause shown, the arbitration will be based on the submission of documents, and there shall be no in-person or oral hearing. Time is of the essence for any arbitration under this Agreement. Arbitration hearings shall take place within 90 days of filing, and awards rendered within 120 days. The arbitrator shall agree to these limits prior to accepting the appointment, ensuring a timely resolution of disputes.
The arbitrator will have no authority to award punitive or other damages not measured by the prevailing party’s actual damages except as may be required by statute. Any award in an arbitration initiated under this clause shall be limited to monetary damages and shall include no injunction or direction to any party other than the direction to pay a monetary amount. The arbitrator may determine how the costs and expenses of the arbitration shall be allocated between the parties but shall not award attorneys’ fees. A reasoned opinion shall accompany the award of the arbitrator. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. The parties agree that failure or refusal of a party to pay its required share of the deposits for arbitrator compensation or administrative charges shall constitute a waiver by that party to present evidence or cross-examine the witnesses. In such event, the other party shall be required to present evidence and legal argument as the arbitrator may require for the making of an award. Such waiver shall not allow for a default judgment against the non-paying party in the absence of evidence presented as provided for above.
Interim Relief. Nothing herein shall affect either party’s right to apply to a court of appropriate jurisdiction for interim relief.
Service. The parties hereto irrevocably agree to accept service of process by registered mail, postage prepaid, or by personal service on an officer or registered agent of the party in any other manner permitted by law.
ASSIGNMENT OF AGREEMENT. Buyer shall not assign this Agreement or any of its rights, benefits, duties, or obligations under this Agreement to a third party without the written consent of Seller, which shall be at Seller’s discretion.
SUPPLEMENTAL CLAUSES FOR EXPORT ORDERS.
Proof of Export. If the Buyer intends to export products sold under this Agreement, the Buyer is responsible for obtaining, at its own risk and expense, any export license or other official authorization for the exportation of the goods and for complying with any legislation or regulations governing the export of goods.
Schedules. Delivery schedules for exported products are contingent upon securing all necessary export licenses and permits. Failure to obtain a required license or permit in sufficient time to permit delivery within the time set forth in the order, and without fault or negligence of Seller, shall occasion an equitable adjustment in the delivery and payment schedules.
Export Controls Destination Statement.
Buyer acknowledges that the products purchased, licensed, or sold hereunder, and the transaction contemplated by these general terms and conditions, are subject to the customs and export control laws and regulations of the United States and may also be subject to the customs regulations, and export laws of the receiving country. Buyer and Seller agree that all exchange of data and information pursuant to these general terms and conditions shall strictly comply with all laws, rules, and regulations of the United States regarding the exportation and re-exportation of the products sold under these general terms and conditions. Under U.S. law, certain products shipped under these general terms and conditions may not be sold, leased, or otherwise transferred to restricted countries or used by restricted end-users. Seller shall not be liable for any delays or refusals by the U.S. Government to approve the export of the requirements under this order, and Buyer agrees that it is Buyer’s sole risk and responsibility to know and comply with all such laws and regulations.
SUPPLEMENTAL CLAUSES FOR CUSTOM FORMULA DEVELOPMENT
If Seller agrees to create a custom formula for any product sold under this Agreement, the following terms and conditions shall also apply:
Seller shall not be responsible for the performance of any product made pursuant to a custom formula and shall only produce product pursuant to a custom formula after Buyer has approved samples of the formula.
Buyer shall not acquire any right or interest in any formula developed, whether that formula is used to produce products or not. All right, title, and interest to any formula, including, without limitation, all intellectual property rights worldwide, remain the property of Seller. Buyer agrees that the reverse engineering prohibition provisions of this Agreement apply to any product sold using any custom formula.
Buyer is not granted any form of license to any formula developed under this Agreement either to produce the product or to be used in any other way.
REV DATE 07/15/24