THE ACCEPTANCE OF ANY OFFER TO PURCHASE IS EXPRESSLY CONDITIONED ON BUYER’S ASSENT TO THE TERMS CONTAINED HEREIN, INCLUDING ANY ADDITIONAL OR DIFFERENT TERMS. THE SALE OF PRODUCTS SHALL BE GOVERNED EXCLUSIVELY BY THESE TERMS AND CONDITIONS AND THE TERMS AND CONDITIONS REFLECTED ON THE FACE HEREOF AND/OR ON ANY OTHER DOCUMENTS REFERENCED HEREIN. SELLER REJECTS AND OBJECTS TO ANY TERMS OR CONDITIONS PUT FORWARD BY BUYER THAT ADD TO OR VARY ANY SUCH TERMS AND CONDITIONS.
1. FORMATION OF CONTRACT. An order is deemed by Advanced Polymer Technology (“Seller”) to be an offer to purchase, which Seller may accept or reject in its sole discretion. Seller’s acceptance of an offer to purchase is binding on Seller only if may be written instrument or shipment of the products ordered. An acknowledgment of receipt of an offer to purchase is not an acceptance. Seller’s acceptance is expressly subject to Buyer’s assent to these terms and conditions of sale as stated herein.
2. DELIVERY, TAXES, AND RISK OF LOSS. Products are sold FCA Seller’s facility (INCOTERMS 2020), or such other location of terms as may be agreed upon between the parties in writing; provided, however, that Seller retains title to all products sold to Buyer until Seller receives payment in full. Risk of loss, including, but not limited to the risk of loss, theft, damages, or destruction, passes to BUYER upon tender to carrier. Seller reserves the right to make delivery in installments. Buyer acknowledges that any requested delivery date or quoted delivery date is an estimate, and Seller has no liability to Buyer for any damages caused by a delay in delivery. BUYER shall, in addition to the price, pay all costs of shipment and delivery of the products and all sales, use, excise or similar taxes, or other charges, which SELLER is required to pay, or to collect and remit, to any Government (national state or local) and which are imposed on, or measured by, the sale. Payment of such items shall be due on receipt of invoice.
3. PAYMENT. Buyer shall pay invoices in full as they become due. Buyer shall pay all costs of action, including attorney fees, incurred by Seller in any action by Seller to collect any amounts past due on invoices. If, in Seller’s judgment, Buyer’s credit shall become impaired at any time, Seller may decline to make shipments hereunder except upon receipt of cash payments in advance or security or other proof of responsibility satisfactory to Seller. If Buyer fails in any way to fulfill the terms and conditions hereof, Seller may defer further shipments until such default is corrected. Remedies provided herein shall be in addition to, and not in lieu of, other remedies that may be available to Seller. If Buyer has and exercises a right to terminate any order, Buyer shall pay the costs incurred by Seller up to the date of termination, including, but not limited to, the costs to manufacture the subject products or the costs to return or cancel any products ordered from a third party. If any order is cancelled by Seller for Buyer’s default, the agreed price remains due and payable to Seller.
4. PRODUCT INFORMATION AND WARRANTY. Purchaser acknowledges that the Products purchased hereunder may require special transportation and storing, may cause health, environmental or fire hazards, may be subject to decay when exposed to water, extreme temperatures or otherwise, and, in general that the handling of the Products may require profound professional experience with chemical products. Purchaser expressly covenants to carefully read all product information and safety sheets accompanying products and follow all procedures prescribed therein. Unless otherwise agreed, it is understood that the Products are for consumption or use in the United States of America only. Seller may provide product specific written warranties, as set out in Seller’s sales materials and/or as annexed hereto or referenced herein. In the absence of any such specific warranty for products sold hereunder, Seller warrants to Buyer that the products shall, when delivered, substantially comply with such specifications as set forth in the applicable product information and safety sheet. THE WARRANTIES SET FORTH HEREIN OR IN SELLER’S WARRANTY DOCUMENTS WITH RESPECT TO A PRODUCT ARE THE ONLY WARRANTIES MADE BY SELLER IN CONNECTION WITH THE PRODUCT AND THE TRANSACTIONS CONTEMPLATED AS A RESULT OF THIS SALE. SELLER HEREBY DISCLAIMS ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PRODUCTS SOLD HEREUNDER ARE SOLD ONLY TO THE SPECIFICATIONS SPECIFICALLY SET FORTH BY THE SELLER IN WRITING. SELLER’S SOLE OBLIGATION FOR A REMEDY TO BUYER SHALL BE REPAIR OR REPLACEMENT OF NON-CONFORMING PRODUCTS, OR AT THE OPTION OF SELLER, RETURN OF THE PRODUCT AND REFUND OF THE PURCHASE PRICE. BUYER ASSUMES ALL RISK WHATSOEVER AS TO THE RESULT OF THE USE OF THE PRODUCTS PURCHASED, WHETHER USED SINGLY OR IN COMBINATION WITH OTHER SUBSTANCES.
5. LIMITATION OF LIABILITY. No claim by Buyer of any kind, including claims for indemnification, whether as to quality or amount of products delivered or for non-delivery of products, shall be greater in amount than the purchase price of the products in respect of which damages are claimed. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, RELIANCE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR COVER, OR LOSS OF PROFIT, REVENUE OR USE, IN CONNECTION WITH, ARISING OUT OF, OR AS A RESULT OF, THE SALE, DELIVERY, SERVICING, USE OR LOSS OF USE OF THE PRODUCTS SOLD HEREUNDER, OR FOR ANY LIABILITY OF BUYER TO ANY THIRD PARTY WITH RESPECT THERETO. BUYER SHALL INSPECT FOR NONCONFORMITY PROMPTLY UPON RECEIPT. Failure by Buyer to give Seller written notice of claim within 30 days from date of delivery or, in the case of non-delivery from the date fixed for delivery, shall constitute a waiver by Buyer of all claims in respect of such products. Any action for breach of this contract (other than for nonpayment of the purchase price) must be commenced within one year after the occurrence of the breach.
6. EXCUSES FOR NONPERFORMANCE. If the manufacture, transportation, delivery, or receipt by either party of any products is prevented, restricted or interfered with by reason of any event or cause whatsoever beyond the reasonable control of the party so affected, such party shall be excused from making or taking deliveries hereunder to the extent of such prevention, restriction or interference, and neither party shall be liable to the other for default or delay in performing its obligations, except payment obligations. If by reason of any such event or cause, the quantities of the products covered hereby, or of any materials used in the production thereof, reasonably available to Seller shall be less than its total needs for its own use and for sale, Seller may allocate its available supply of any such products among its existing or prospective purchasers and/or its own departments, divisions and subsidiaries in such manner as Seller deems proper, without thereby incurring liability for failure to perform this contract.
7. CONTAINERS. 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 of the Product is paid for to ensure the return of the container to point of shipment. Shipment containers must be kept in good condition and may not be used for any materials other than that shipped therein and must be returned within sixty (60) days from date of shipment. Government regulations require that empty drums must have filling and vent holes properly closed and empty carboys must be thoroughly (completely) drained. On such containers being so returned in good condition, a refund of the deposit will be made.
8. NON-ASSIGNABILITY. This contract between Buyer and Seller is not assignable or transferable by either party, except to its successor or to the transferee of all or substantially all the party’s assets to which this contract relates.
9. MISCELLANEOUS.
a. Except as otherwise expressly provided in a written document signed by Seller and Purchaser, this document constitutes the entire agreement between Seller and Purchaser and all prior agreements and communications between Seller and Purchaser, whether oral or written, are hereby merged into this Agreement.
b. No modifications, limitations, waivers or discharge of the Agreement or of any of its terms shall bind Seller unless in writing and signed by a duly authorized employee of Seller. No waiver by Seller of any of term, condition or breach by Buyer shall constitute or be deemed to be a waiver of any other term, condition or breach of any other instance of noncompliance with the same term or condition or any other such breach, whether prior or subsequent thereto. No waiver shall be deemed to occur as a result of the failure of any party to enforce any contractual term or condition.
c. This Agreement shall be governed by, and construed, interpreted and enforced under the laws of Pennsylvania, and any dispute arising from or relating to this Agreement shall be brought exclusively in the state or federal courts having jurisdiction over Butler County, PA. Buyer irrevocably consents to personal jurisdiction in Butler County, PA.
d. Buyer shall have no right of setoff, and no deduction of amounts due from Buyer to Seller shall be made without Seller’s express written approval.
e. In case any conditions of this agreement should be or become unenforceable under applicable law, the remaining provisions, stipulations and conditions of this Agreement shall not be affected thereby.