1. Offer, Governing Provisions and Cancellation. This writing constitutes an offer or counter‑offer by Chemplex Industries, Inc. (“Seller”) to sell the products and/or services described herein in accordance with these terms and conditions, is not an acceptance of any offer made by buyer and is expressly conditioned upon assent to these terms and conditions. Buyer will be deemed to have assented to these terms and conditions when placing a purchase order unless Seller receives written notice of any objection at the time when the purchase order is paced. Seller objects to any additional or different terms contained in any purchase order or other communication previously or hereafter provided by buyer to Seller. No additional or different terms or conditions will be binding upon Seller unless specifically agreed to in writing.
2. Prices and Payment. Unless Seller otherwise agrees, all prices are EXW (Incoterms 2010) Seller’s facility designated by Seller and are quoted and payable in U.S. Dollars. The prices to buyer for products shall be those listed on Seller’s website, www.chemplex.com, that are in effect on the date Seller accepts an order from a buyer. All of Seller’s prices are subject to change without advance notice. While Seller makes every effort to provide the most accurate up-to-date information, occasionally, products on the website may be priced incorrectly. In the event a product is listed at an incorrect price due to a typographical, photographic, technical or inadvertent error, Seller shall have the right to refuse or cancel any orders placed for products listed at the incorrect prices. If an item's correct price is lower than Seller’s stated price, Seller will charge the lower price and ship the item. If an item's correct price is higher than Seller’s stated price, Seller will notify buyer of the price difference and buyer will have the opportunity to place the order with the adjusted price or cancel the order.
If buyer has not established a payment history to the satisfaction of Seller, buyer is required to prepay for all products by wire transfer, certified check or credit card prior to shipment of any products. After buyer has established a good payment history to the satisfaction of Seller, Seller may, in its sole discretion, sell products to buyer with payment due within 30 calendar days of the invoice date or on such other payment terms agreeable to Seller.
If an invoice is not paid by the due date, buyer’s account may be placed on hold. If a buyer has not made full payment within 10 calendar days after the due date, Seller may, in its sole discretion, revoke buyer’s payment terms, discounts and/or suspend shipment of products until full payment is made.
In the event that Seller is required to bring action to enforce any of the provisions of these terms and conditions against buyer, buyer agrees to pay all costs and expenses of collection including, without limitation, reasonable attorneys’ fees and fees of Seller’s collection agent. Seller’s prices for the products and/or services are Seller’s prices for such goods and/or services with (a) the exclusive warranty of repair or replacement, as found in Section 6 below, and (b) the exclusion of consequential damages and disclaimer of other liabilities, as found in Section 9 below, enforceable against buyer.
Buyer is responsible for all packaging cost. Many types of products sold by Seller require special packaging to comply with government rules and regulations and to ensure receipt of undamaged products. Any extra packing charges are included in the handling charge listed in the invoice.
3. Taxes and Other Charges. Any manufacturer’s tax, occupation tax, use tax, sales tax, excise tax, value-added tax, business tax, duty, custom inspection or testing fees, cost of certification and insurance or any other tax, fee, interest or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between Seller and buyer (collectively, “taxes and other charges”) shall be paid by buyer in addition to the prices quoted or invoiced. In the event Seller is required to pay any such taxes and other charges, buyer shall promptly reimburse Seller therefor.
4. Delivery, Claims and Force Majeure. Unless otherwise agreed to in writing between Seller and buyer, delivery of product shall be EXW (Incoterms 2010) Seller’s facility designated by Seller. Delivery of products to a carrier at Seller’s plant or other loading point shall constitute delivery to buyer; and regardless of shipping terms or freight payment, buyer shall bear all risk of loss or damage in transit. When buyer places an order, it may purchase transit insurance from the carrier at buyer’s cost. Seller reserves the right to make delivery in installments, unless otherwise expressly stipulated herein; all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve buyer of its obligations to accept remaining deliveries. Method and route of shipment shall be at the discretion of Seller unless buyer shall specify otherwise; any additional expense of the method or route of shipment specified by buyer shall be borne entirely by buyer. Buyer shall bear all costs of boxes, pallets or other containers used to ship products sold hereunder.
Claims for shortages or other errors in delivery must be made in writing to Seller within ten (10) calendar days after receipt of shipment. Failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by buyer. Claims for loss or damage to goods in transit should be made to the carrier and not to Seller.
All delivery dates are approximate. Seller shall not be liable for any damage as a result of any delay or failure to deliver due to any cause beyond Seller’s reasonable control, including, without limitation, any act of God, act of buyer, embargo or other governmental act, regulation or request, fire, accident, strike, slowdown, war, riot, delay in transportation, or inability to obtain necessary labor, materials or manufacturing facilities. In the event of any such delay the date of delivery shall be extended for a period equal to the time lost because of the delay.
5. Changes. Seller may at any time change the design, engineering and construction of products, delete products, add products and make such other changes to products as Seller deems appropriate, without notice to buyer. Seller may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority or non-availability of materials from suppliers. Seller reserves the right to correct typographical, photographic, technical or inadvertent errors relating to products set forth on Seller’s website or other information provided by Seller to a buyer.
6. Warranties. Subject to the limitations and exclusions set forth in this Section 6, Seller warrants that consumable items and equipment manufactured by it and supplied hereunder are free from defects in materials and workmanship for the following periods:
The foregoing warranty does not apply to damage through alteration, mishandling, misuse, neglect, failure to properly maintain, failure to use in accordance with a product’s intended operation, accident, or normal wear and tear. Further, certain products such as titanium carbide, tungsten carbide, agate, and zirconia are not warranted against chipping or breakage as indicated in their respective product descriptions. If within the warranty period any product shall be proved to Seller’s satisfaction to be defective, such product shall be repaired or replaced at Seller’s option. Such repair or replacement shall be Seller’s sole obligation and buyer’s exclusive remedy hereunder and shall be conditioned upon Seller’s receiving written notice of any alleged defect within ten (10) calendar days after its discovery and, at Seller’s option, return of such products to Seller, at Seller’s factory, with all costs, expenses and risk of loss associated with such return payable by buyer. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED; AND SELLER EXPRESSLY DISCLAIMS AND EXCLUDES ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PURPOSE.
Any description of the products, whether in writing or made orally by Seller or Seller’s agents, specifications, samples, models, bulletins, drawings, diagrams, engineering sheets or similar materials used in connection with buyer’s order are for the sole purpose of identifying the products and shall not be construed as an express warranty. Any suggestions by Seller or Seller’s agents regarding use, application or suitability of the products shall not be construed as an express warranty unless confirmed to be such in writing by Seller.
Products and/or constituent components not manufactured by Seller are warranted only by the respective manufacturer(s) and in accordance with their terms and conditions.
7. Returns. Products may not be exchanged or returned to Seller unless buyer has obtained Seller’s prior written permission and Seller’s issuance of a Return Authorization Number (RAN). No items can be exchanged or returned beyond 30 calendar days from the date of invoice. Only products that are unused, undamaged and in a re-sellable conditions to the satisfaction of Seller may be returned. Packing and all transportation expenses are assumed by buyer. Except for the return or exchange of products covered by Seller’s standard warranty set forth in Section 6 above, all other returned products must be securely packaged to reach Seller without damage; and any cost Seller incurs to put products in marketable condition plus a twenty-five percent (25%) restocking charge will be charged to buyer. In order to return or exchange a product, the following information must be provided to Seller with returned/exchanged products: invoice or packing list number, date of order, customer account number, purchase order number and the reason for the return. Once all information has been verified and the returned product has been verified that it is in a re-sellable condition, a credit memo will be issued to buyer. The credit memos expire 6 months after the date of issue.
8. Cancellations. Cancellations of orders are accepted only on unshipped stock items and upon appropriate notification and confirmed by Seller in writing. Custom manufactured products are not subject to cancellation.
9. Limitation of Liability; Indemnity. Except as otherwise agreed in writing, Seller’s liability with respect to the products and/or services sold hereunder shall be limited to the warranty provided in Section 6 hereof, and, with respect to other performance of this contract, shall be limited to the contract price. SELLER SHALL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHER THEORIES OF LAW, WITH RESPECT TO PRODUCTS SOLD OR SERVICES RENDERED BY SELLER, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO. Without limiting the generality of the foregoing, Seller specifically disclaims any liability for property or personal injury damages, penalties, special or punitive damages, damages for lost profits or revenues, loss of use of products or any associated equipment, cost of capital, cost of substitute products, facilities or services, down‑time, shut‑down or slow‑down costs, or for any other types of economic loss, or for claims of buyer’s customers or any third party for any such damages. SELLER SHALL NOT BE LIABLE FOR AND DISCLAIMS ALL CONSEQUENTIAL, INCIDENTAL AND CONTINGENT DAMAGES WHATSOEVER.
Buyer shall indemnify Seller against any and all losses, liabilities, damages and expenses (including, without limitation, attorneys’ fees and other costs of defending any action) which Seller may incur as a result of any claim by buyer or others arising out of or in connection with the products and/or services sold hereunder and based on product or service defects not proven to have been caused solely by Seller’s negligence.
10. Buyer’s Certain Responsibilities. Final independent testing and decision to determine product suitability and manner of product use is the sole responsibility of the buyer and other end-use customers. Seller further assumes no liability whatsoever for the accuracy or completeness of information contained on Seller’s catalog, or any written communications or correspondence, including but not limited to product data sheets, web sites, advertising materials, and exhibition materials.
11. Buyer’s Representation. By placing an order to purchase the products manufactured by Seller, buyer represents and warrants that (1) it understands that the products manufactured by Seller are not intended for use in any Food and Drug Administration-regulated application (e.g. foods, drugs, cosmetics) or for personal or household purposes, (2) the products will be judiciously handled and stored, and (3) the products will be used by qualified, safety-conscious and trained professional experienced with the techniques in which Seller’s products are insinuated for use.
12. Technical Information. Any sketches, models or samples submitted by Seller shall remain the property of Seller and shall be treated as confidential information unless Seller has in writing indicated a contrary intent. No use or disclosure of such sketches, models and samples, or any design or production techniques revealed thereby, shall be made without the express written consent of Seller.
13. Buyer’s Property. Any property of buyer placed in Seller’s custody in connection with the purchase of Seller’s products is not covered by insurance, and no risk is assumed by Seller in the event of loss or damage to such property by fire, water, burglary, theft, civil disorder or any accident beyond the reasonable control of Seller.
14. Manuals, Brochures, Instructions. Any and all operating manuals, data sheets, instructions, brochures, warnings or the like concerning the products supplied hereunder shall be written in the English language as commonly used in the United States and are supplied as an aid to buyer and are not represented to be accurate, complete or sufficient. Buyer warrants that buyer will, at buyer’s sole cost and expense, accurately transcribe such manuals, data sheets, instructions, brochures or warnings to appropriate languages and dialects and train all buyer’s employees and/or third-party users of the products purchased by buyer so that such employees and third parties will be properly informed of the contents of all written materials supplied by Seller and will use the products properly and safely. Buyer will indemnify and hold harmless Seller against all liabilities and expenses (including attorneys’ fees) arising out of the use of the products by buyer or a third party in any case where buyer fails to make available adequate warnings and instructions concerning the proper and normal use of the products.
15. Severability. If any provision of these terms and conditions of sale shall be deemed illegal or unenforceable, such illegality or unenforceability shall not affect the validity and enforceability of any legal and enforceable provision hereof, which shall be construed as if such illegal and unenforceable provision or provisions had not been inserted herein.
16. Governing Provisions. THESE TERMS AND CONDITIONS SHALL BE CONSTRUED ACCORDING TO THE INTERNAL LAWS OF THE STATE OF FLORIDA (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS). THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL NOT BE GOVERNED BY THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.
® Chemplex is a registered trademark of Chemplex Industries, Inc / Revision 820723