SALES TERMS
TERMS AND CONDITIONS APPLICABE TO SALES OF PRODUCT (“PRODUCT”) OF NITEO PRODUCTS, LLC AND ANY OF ITS AFFILIATES, EACH A "SELLER"
1. Controlling Terms and Conditions. Seller and the purchase of the Product (“Buyer”) agree and acknowledge that these terms and conditions together with the commercial terms set forth in the proposal, quotation, or order confirmation (the “Quote”) are the sole and exclusive terms and conditions governing the sale and purchase of Products, and that any additional or different terms and conditions proposed by Buyer, whether in an amendment to a Quote, a subsequent purchase order, in connection with a EDI payment, or otherwise, are hereby expressly rejected by the parties and shall be of no effect whatsoever. Notwithstanding the forgoing, the parties may amend these terms and conditions if both parties sign an amendment and the amendment makes specific reference to these terms and conditions.
2. Quotes. Quotes are only valid if in writing and then only for thirty (30) days. Quotes are subject to (i) approval of Buyer’s credit, and (ii) change or withdrawal without prior written notice prior to acceptance by Buyer.
3. Price. All prices are exclusive of any freight costs and any sales, use, value added, excise, gross receipts, business and occupation or similar present or future taxes imposed by any governmental body on the sale, delivery, use or other handling of the Products. Prices assume order quantities sufficient to meet Seller's standard minimum order requirements for applicable Products. Any variation in quantities shipped over or under the quantities ordered (not to exceed 10%) shall constitute compliance with Buyer's order and the stated price per item will apply. Seller reserves the right to adjust prices on undelivered Products to reflect changes in raw material costs. All orders are accepted subject to Seller's price in effect at time of shipment. All prices are F.O.B. Seller's shipping point. If at any time Buyer’s credit risk becomes unsatisfactory, Seller may require, and Buyer agrees to provide, additional security or pre-payment prior to shipment.
4. Terms of Payment. Unless otherwise set forth on a Quote, terms are net thirty (30) days from date of Seller's invoice. All amounts payable hereunder shall be paid by check or electronic transfer in United States dollars at the location indicated on the invoice. Buyer will pay interest on late payments at the rate of 18% per year, unless limited by law in which case the rate will be the maximum amount allowed by law. In the event Buyer fails to make any payment when due, Seller shall have the right, among other remedies, (i) to terminate the order, (ii) to suspend further performance, or (iii) to set off against such failed payments any amount Seller or its affiliates owes to Buyer or its affiliates. Buyer shall pay all reasonable costs and expenses (including but not limited to attorney's fees) incurred by Seller in connection with Seller's efforts to collect delinquent payment(s) or the associated interest. Seller retains, and Buyer grants, a security interest in the Product until Seller is paid in full.
5. Delivery. Title and risk of loss or damage to goods shall pass from Seller to Buyer upon delivery of goods to the carrier, F.O.B. Seller's shipping point. Any claims for shortages or damages suffered in transit shall be submitted by Buyer directly to the carrier within ten days of delivery. Buyer accepts Seller's point of shipment weights and measurements, unless proven incorrect. While Seller will use reasonable commercial efforts to satisfy delivery date(s), all shipping dates are approximate. Seller reserves the right to make partial shipments. Seller is not obligated to delivery Product for which Buyer has not provided shipping instructions. If shipment is postponed or delayed by Buyer for any reason, Buyer agrees to reimburse Seller for any storage costs and other additional expenses resulting therefrom, including spoilage or obsolescence. Estimated delivery times are set forth in the Quote but shall in any event be subject to Seller's customary lead times. Each delivery hereunder shall be deemed a separate sale, and failure of the Seller to make delivery hereunder shall not affect this contract with respect to any other delivery hereunder.
6. Warranties. Seller warrants that the Product (A) conforms to specifications communicated to Buyer, (B) except as is otherwise set forth in Section 4, is free and clear of any lien, security interest or encumbrance created by Seller, and (C) is free from substantial defects in material and workmanship. The Seller makes NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The Buyer assumes all risks incurred in the use of any material delivered hereunder.
7. Inspection / Non-Conforming Products. Buyer must notify Seller of any non-conforming Products within fifteen (15) days of delivery and must afford Seller a reasonable opportunity to inspect such Products and cure. Failure to provide notice within such fifteen-day period shall be deemed acceptance by Buyer. Returns must be made in accordance with the Seller's return policies. No claims will be recognized for Product disposed of or returned without Seller's consent, and no shipping costs will be paid unless previously authorized in writing.
8. Force Majeure. Seller shall not be liable for any delay in delivery resulting from events or circumstances beyond Seller's reasonable control, including strikes, natural disasters, fires, floods, wars, riots, unavailability of raw material or transportation facilities, disruption of utilities, carrier delays, embargoes, accidents, or restrictions imposed by any government or government authority. In case of such delay, Seller’s delivery time shall be extended for a period commensurate with the delay; provided, that if any delay lasts more than two (2) months, either party may cancel the Quote associated with the delay, without penalty, by written notice to the other party. Seller may, without liability, during any delay period, allocate its available supply of Product among its customers in such manner as Seller, in its sole judgment, deems reasonable, including by eliminating quantities of Product from any Buyer Quote.
9. Buyer's Responsibilities; Distribution; No Agency. Buyer has independently determined the suitability of the Product for Buyer's use (whether alone or in combination with other materials) or resale and assumes all responsibility therefor. Buyer shall comply with all laws, rules and regulations pertaining to the Product, and Buyer assumes all risks and liability arising out of Buyer's unloading, handling, storage, transportation, disposal, use and resale of the Product. Buyer acknowledges that it has received and is familiar with Seller's labeling and literature concerning the Product, including the Safety Data Sheets, and Buyer agrees to provide such information to its employees, independent contractors, agents, customers, resellers and others who unload, handle, store, transport, dispose, use or resell Product. If Buyer intends to resell or distribute the Product, Seller hereby appoints Buyer as a non-exclusive reseller and distributor (a “Distributor”), and Buyer agrees to use its best efforts in connection therewith. As a Distributor, Buyer has a limited and revokable license to use the Product trademark and marketing materials solely in connection with the resale or distribution of the Product. The relationship between the parties is strictly that of a buyer and seller, and nothing in this contract or the associated Quote shall be construed to create any other relationship, including a joint venture or partnership between the parties.
10. Limitation on Damages. SELLER SHALL NOT FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (including loss of anticipated profits, business interruption, loss of use or revenue, cost of capital or loss or damage to property or equipment) arising out of or resulting from this contract, including any associated Quote, or the Product. Seller's sole liability to Buyer shall be in all cases limited to the price paid by Buyer for Product relating to the claims for damages. Seller will not be liable to Buyer for any loss, damage, or injury to persons or property resulting from the handling, storage, transportation, resale, or use of Products or from the design of Products to the extent provided by Buyer. Buyer has no right of set off.
11. Intellectual Property; Confidential Information. All drawings, know how, inventions, devices, developments, processes, trade secrets, copyrights, trademarks, patents and applications therefor, including intellectual property developed by Seller as a part of its relationship with Buyer, and all rights therein, will remain the sole and exclusive property of Seller. Any information provided to Buyer by Seller, including Product prices, marketing materials, business or financial information and Product roadmaps, shall be kept confidential by Buyer, shall only be used in connection with selling or reselling Product, and shall be promptly returned upon Seller’s written. Buyer shall indemnify and hold Seller harmless against any and all claims, demands, suits and costs whatsoever arising out of or relating to any violation or infringement or any alleged violation or infringement of any trade secret, patent, trademark, or copyright in relation to any Product manufactured in accordance with Buyer’s design or specification.
12. Assignment. Buyer may not assign this contract, whether by operations of law or otherwise. In the event of any such attempted assignment, Seller may terminate on written notice; provided, notwithstanding any such termination, Buyer and Buyer’s successor-in-interest remain liable hereunder.
13. Entire Agreement. This contract, together with the associated Quote, contains the entire agreement between the parties with respect to the Product and supersedes any prior oral or written agreements or communications between the parties relating to the subject matter hereof.
14. Indemnity. Buyer agrees to defend, indemnify and hold Seller, its affiliates, successors and assigns, officers, partners, directors, shareholders, members, employees, independent contractors and agents harmless against claims by any third party (including Buyer's employees and customers) arising out of Buyer's (i) negligence, (ii) misrepresentation, (iii) unloading, handling, storage, transportation, disposal, use or resale of the Product, or (iv) breach of this contract.
15. Severability. If any provision of this contract is held to be unlawful or unenforceable, the remaining provisions shall remain in full force and effect.
16. Choice of Law. This contract, together with the associated Quote, shall be governed by and construed in accordance with the laws of the State of Texas without regard to conflicts of laws and excluding the application of the United Nations Convention on Contracts for the International Sale of Goods. Any controversy or claim arising out of or relating to this contract or the associated Quote shall be submitted to arbitration in Dallas, Texas in accordance with the Commercial Arbitration Rules of the American Arbitration Association.
17. Export Compliance; Anti-Corruption. If Buyer exports or re-exports the Product, Buyer shall (i) ensure compliance with all applicable U.S. export laws, including obtaining any required export license or other permission from the U.S. Government agency having export control authority over the Product, and (ii) be responsible for any product liability, labeling, marketing, regulatory or other claims relating to or arising out of sales of Products outside the U.S. Buyer shall conduct itself in compliance with all applicable anti-corruption laws, including the Foreign Corrupt Practices Act.
