GENERAL TERMS AND CONDITIONS for the Sale of Chemicals (US Only)
- The Sales Terms and Conditions outlined herein including the terms and conditions herein and any attachments hereto (hereinafter collectively the “Terms and Conditions”), contains the complete and final agreement between FQE Chemicals (“SELLER”) and the purchaser (hereinafter the “BUYER”) with respect to the purchase and sale of the SELLER’s Products and services (hereinafter the “Products”) referred to herein. Orders for Products to be provided by SELLER to BUYER shall be governed by the following general terms and conditions and any additional terms and conditions agreed to in writing by an authorized representative of SELLER. Any new, different, or conflicting terms and conditions, provided before or after these General Terms and Conditions and on either party’s standard forms or otherwise, are expressly rejected and shall not apply to the provision of products provided by SELLER unless such new, different or conflicting terms and conditions are in writing and expressly agreed to and signed by both parties.
- THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO ITS CONFLICT OF LAWS RULE.
- When placing an order (“Order”) for the purchase of the SELLER’s Products, it is understood and agreed to by the BUYER that the BUYER has complete knowledge of the SELLER’s Terms and Conditions and accepts them in their entirety and without any implicit or explicit amendments. The SELLER and BUYER hereby agree that in the event of any conflict or inconsistency between these Terms and Conditions and any purchase order or other document issued by the BUYER to the SELLER, these Terms and Conditionals shall supersede and prevail.
- In any instance of interpretation of translation, the English version of the Terms and Conditions shall prevail.
- Clerical errors and omissions are subject to correction.
- The rights of SELLER herein may not be waived in the event that it accepts a late or partial payment or delays enforcement of any of its rights on any occasion. No waiver by the SELLER hereto of a default hereunder by BUYER shall operate against the SELLER as a waiver of such default unless made in writing and signed by an authorized officer of the SELLER.
- Any provision of these Terms and Conditions contrary to or prohibited by applicable laws shall be ineffective to the extent of such prohibition without invalidating the remaining provisions of these Terms and Conditions.
- These Terms and Conditions shall bind the BUYER and the SELLER and their respective heirs, executors, administrators, successors and assigns but none of BUYER’s rights or obligations hereunder including, without limitation, its Order for Products shall be assigned without SELLER’s prior written consent. The SELLER may assign the Order and these Terms and Conditions.
- Where SELLER is requested to provide assistance in relation to the application of Products sold under these terms and conditions, any and all technical advice or recommendations made by COMPANY are based purely on specifics provided to SELLER by BUYER. Further SELLER provides such technical advice and recommendations on the theory that the information provided by BUYER is a true representation of the physical project contents, i.e. tank contents, unit contaminations, scale, etc. Accordingly, SELLER does not warrant or guarantee the precision, correctness, conclusion or actual outcome of any directions, consultations, or advice provided in relation to the application of the Product sold under these terms and conditions. SELLER disclaims all warranties express or implied relating to the provision of any advisory information provided under this Agreement. Further BUYER shall indemnify, defend and hold SELLER harmless from any loss, claim, expense or damage related thereto.
PRICING AND PAYMENT TERMS:
- The SELLER’s prices and subject to change without notice, unless there are special arrangements which have been agreed to in writing by the SELLER. The BUYER acknowledges and agrees that the prices for any Products will be those in effect on the date of shipment.
- BUYER shall pay and reimburse SELLER for all taxes, duties, levies, excise or other charges which SELLER may be required to pay to any government or governmental authority which are hereafter levied directly upon the production, sale, transportation, storage or use of any Products including, without limitation, any Goods and Services Tax, Retail Sales Tax, etc.
- BUYER shall pay SELLER in full net cash in advance in United States Dollars, unless otherwise agreed in writing
TITLE OF GOODS:
- The BUYER acknowledges that all Products sold remain the property of the SELLER until the SELLER has received full payment from the BUYER. The title, ownership and right of property in the Products purchased shall not pass to the BUYER until all monies payable by the BUYER under this Order are fully paid. In addition to the SELLER’s other legal rights, the BUYER hereby grants, assigns and conveys to SELLER and acknowledges that SELLER shall have and retain a security interest in the Products sold to the BUYER and the proceeds thereof in accordance with applicable personal property security laws. The BUYER shall not transfer or encumber the Products until fully paid for. The security interest granted herein shall attach on the date of delivery. SELLER is entitled to immediate possession and return of the said Products upon default of payment and in such case, in addition to any other remedy it may have, it shall be entitled to terminate this Order and retain any deposits as liquidated damages and not as a penalty.
- Returnable containers or pallets shall remain the property of the SELLER and shall not be used by the BUYER for purposes other than the storage of the Products, BUYER undertakes to return such containers to the SELLER promptly when empty but, in any event, upon demand by the SELLER. All non-returnable containers or pallets shall be properly disposed of by the BUYER and the BUYER agrees to indemnify and hold harmless the SELLER with respect to any and all claims which may be made against the SELLER arising from the BUYER’s failure to properly dispose of such containers of pallets.
DELIVERY AND FORCE MAJEURE:
- When ordering Products the BUYER shall state definitively in writing the method of shipment preferred. In the absence of written instructions from the BUYER, the SELLER will use its judgment as to the method of shipment and the BUYER agrees to accept such form of shipment and shall pay for the costs of such shipment FOB. Delivery dates are estimates only (and are not time of the essence) and may change at any time without notice based upon changes, circumstances or conditions. The BUYER agrees that the SELLER shall not be responsible for any damages, loss, costs, expenses or other liability the BUYER or any other person may suffer or incur as a result of the SELLER’s failure to deliver Products to the BUYER by any estimated delivery date.
- Force majeure (INCOTERMS 2000 or latest version). In no event or circumstance shall the SELLER be liable to the BUYER, or any other person, for any losses, claims or liabilities incurred as a result of failure or delay in the performance of the SELLER’s obligations due to circumstances beyond the SELLER’s control including, without limitation, as a result of acts of God, fire, flood, accidents, labour disputes, war, terrorism, strikes, government order, regulation or restriction, interruption of transportation facilities, shortages of raw material or finished goods or any cause beyond the reasonable control of the SELLER or SELLER’s suppliers. In any such circumstances the SELLER shall have the right to cancel entirely or partially any Order, or to suspend its performance without notice. In addition, in such circumstances, the BUYER shall have no right to any indemnity from (and the BUYER hereby waives any rights which it may have against) the SELLER for any claims, damages, liabilities, costs or expenses incurred by the BUYER arising from any failure or delay by the SELLER in its performance of its obligations hereunder.
- The BUYER agrees that its actual receipt of the Product shall constitute a waiver by the BUYER of any and all claims which it may have against SELLER arising from any delay in shipment of the Products.
- BUYER agrees to take delivery of the Products in a timely manner and to accept responsibility and pay the SELLER for any additional costs for demurrage or overtime resulting from BUYER’s delays in taking delivery of the Products. Rush Orders may be subject to additional charges and the BUYER agrees to pay the SELLER for all such additional charges. BUYER assumes full responsibility for any liability arising out of unloading, discharge, storage, handling, use and disposal of any Products or container in connection therewith, including, without limitation, the use of such Products or container alone or in combination with other substances, compliance or non-compliance with any laws, ordinances, rules and regulations.
LIABILITY AND INDEMNIFICATION
- The BUYER acknowledges and agrees that the Products covered by this Order are sold and accepted by BUYER without representation or warranty (express or implied) of any kind whatsoever including, without limitation, any representation or warranty with respect to MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- BUYER acknowledges and agrees that SELLER’s express liability to replace Products in accordance with these Terms and Conditions shall be SELLER’s only liability to BUYER for defective, damaged or contaminated Products. In no event shall the SELLER be liable to the BUYER or any other person for any type of special, consequential, indirect, incidental or penal damages, whether such damages arise out of or are a result of breach of contract, warranty, tort (including negligence), strict liability or otherwise. Such damages shall include but not be limited to indirect or consequential losses, loss of profits or revenues, loss of contract, loss of use of the Products, other merchandise, and cost of substitute product, merchandise, materials and facilities, down time costs, increase costs or claims of the BUYER or BUYER’s customers or contractors or any other person for any such damages.
- The SELLER shall not be liable for any loss, claim, expense or damage cause by, contributed to or arising out of the acts or omissions of BUYER or third parties, whether negligent or otherwise. In no event shall SELLER’s liability for any cause of action whatsoever exceed the cost of the Products purchased, whether based in contract, warranty, indemnity, or tort (including negligence). BUYER shall be required to submit notice to SELLER of any suit arising hereunder within one (1) year from date in which the products were delivered.
- To the fullest extent permitted by law, the BUYER agrees to pay, defend, hold harmless and indemnify (notwithstanding any possible disclaimers or liability, which disclaimers BUYER agrees do not apply to any Order) the SELLER and its officers, directors, affiliates, subsidiaries, related companies, representatives, agents and employees and their heirs, executors, administrators, successors and assigns (collectively the “Seller Group”), from and against any and all charges, claims, actions, causes of action, losses, damages, liabilities, expenses and costs (including, without limitation, any legal costs), of any kind or nature whatsoever, which may be made by any party or person against SELLER or the Seller Group including, without limitation, as a result of illness, death or injury to any person or damage to property or otherwise, resulting from, arising out of or in connection with the Products including, without limitation, arising out of the purchase, sale, transportation, resale of use of the Products, unless caused by the SELLER’s gross negligence or willful misconduct.
- SELLER shall be under no responsibility to BUYER in connection with any formula or use thereof after delivery of the Products. The SELLER does not guarantee that the Products do not infringe any patents, trademarks, copyrights or other intellectual property rights of any other person. BUYER hereby waives any rights or claims which BUYER may have against SELLER in the event that the Products infringe upon any patents, trademarks, copyrights or other intellectual property rights of any other person.
- BUYER expressly represents knowledge of the characteristics of all invoiced Products and agrees to indemnify and hold harmless the SELLER against all claims of any nature arising out of the use, storage, handling or resell thereof by the BUYER. In the event SELLER agrees to respond to an emergency involving Products sold by SELLER to BUYER where BUYER has a legal responsibility to respond to the emergency, BUYER agrees to accept the actions of the SELLER, its subsidiaries, associated companies, directors, officers, employees and agents and agrees to indemnify and save all of them harmless from and against all losses, damages, injuries, liabilities, costs, expenses, actions and claims or proceedings resulting from the SELLER’s actions or omission in respect of such emergency, excepting such claims arising by their willful misconduct.
- SELLER will not be responsible if Products subject to this Order do no retain all of their original properties by reason of the BUYER not storing or using properly the said goods under normal conditions and with all proper care. The SELLER shall not be responsible for the quality or contamination of the Product while such Products are under the possession or control of the BUYER.
- It shall be the responsibility of the BUYER to comply with and ensure that its employees and customers comply with the health and safety requirements for each of the Products supplied. SELLER accepts no responsibility for BUYER’s failure to comply with all applicable laws including, without limitation, all applicable health and safety laws and regulations.
- Insurance – BUYER and SELLER represent and warrant, each to the other, that the indemnities provided in this Agreement are fully covered by appropriate insurance or voluntarily self-insured and upon the request of a party, the other will provide a copy of its insurance policy in that regard.
- Products cannot be returned without the express prior written consent of the SELLER. In any event, no Products returned to SELLER will be accepted unless first inspected or tested by SELLER and the SELLER shall be satisfied, in its sole discretion, with its inspection and/or testing of the Products. The BUYER shall pay to the SELLER, within ten (10) days of demand by SELLER, all of SELLER’s costs, charges or expenses (including, without limitation, any of SELLER’s applicable restocking charges) incurred by the SELLER in respect of any Products which the SELLER agrees may be returned by the BUYER. Cancellation of Orders for Products while in transit to the BUYER will, if such cancellation has been approved by the SELLER, be subject to the SELLER’s then applicable cancellation and re-stocking fees and the BUYER agrees to pay same immediately to the SELLER.
- Claims for damages, defects, contamination or shortages of Products delivered to the BUYER must be made within five (5) business days of the delivery of such Products to the BUYER, after which time BUYER shall not have any right to make any claim against the SELLER for damages, defects, contamination or shortages of Products.
- SELLER will issue credits to the BUYER to address adjustments for any Products returned by BUYER which have been first approved by SELLER.
- BUYER acknowledges that the design, construction, application and operation of SELLER’S products, rendered pursuant to this agreement embody proprietary and confidential information, and BUYER agrees to treat all such information and data as confidential and not to disclose such information to any third party without the prior written consent of SELLER. BUYER further agrees that all confidential information and data will not be disclosed. BUYER agrees that it shall not “re-brand”, copy, alter, modify, disassemble, reverse engineer, or de-compile any products supplied by SELLER, including chemical samples. Buyer recognizes and agrees that breach of the obligations herein would cause irreparable harm to Seller for which there is no adequate remedy at law, and that an actual or contemplated breach of this Agreement shall entitle Seller to both temporary and permanent injunctive relief in addition to, and cumulative of, any other available legal or equitable remedies.
May 6, 2021