GENERAL TERMS AND CONDITIONS (Updated June 1, 2022)
Price adjustments
Seller may change any price and/or term of payment of this Contract by providing written notice to Buyer, which written notice becomes part of this Contract. Buyer shall have the right to cancel as to any product to which any increase in price and/or term of payment applies by giving written notice to Seller fifteen (15) days after the date of notice of such change. If Seller should be prevented from maintaining the existing price or from making changes in price and/or terms of payment hereunder by act of government authority, Seller may terminate this contract by giving Buyer thirty (30) days prior written notice.
Buyer authorizes and releases all banks, persons, and companies requested by Seller to furnish information and authorizes Seller to perform a credit check on Buyer. Buyer agrees to pay the cost to Seller of collecting delinquent accounts, including but not limited to attorney’s fees, collection agency fees and court costs.
Taxes
All sales tax, excise tax, or other form of tax based against any transaction covered by these terms and conditions shall be paid by Buyer over and above all other sums Buyer is or may become obligated to pay hereunder. Buyer shall promptly provide Seller with properly completed exemption certificates for any tax from which Buyer claims exemption. Seller may immediately terminate this Contract if prevented from passing through to Buyer any tax or charge.
Credit; Payment
Payment terms are as agreed as set out on applicable Sales Order for all products referenced therein. Invoices are issued upon shipment of the product unless Seller has agreed to a specific arrangement with Buyer. If the financial responsibility of Buyer becomes impaired or unsatisfactory to Seller, advance cash payment or satisfactory security shall be given by Buyer upon demand by Seller and shipments may be withheld until such payment or security is received. Seller has the right to assess a late payment charge of the lesser of 1.5% per month or the maximum amount allowed by law to be prorated daily.
If Seller sets a maximum quantity for Buyer, Seller shall advise Buyer of its maximum quantity for Buyer in writing which shall become part of this Contract and which shall apply to all subsequent shipments to Buyer.
Shipments
Shipments shall be made in approximately equal monthly quantities and in accordance with such maximum quantity policy as Seller may set for Buyer, but Seller shall not be obligated to deliver in any one (1) month more than one-tenth (1/10) of the maximum quantity nor in any one quarter more than one-fourth (1/4) of the maximum quantity set forth herein. Seller reserves the right to modify the maximum quantity policy for Buyer on thirty days’ written notice. Seller will ship either FOB or DAP, as agreed by Buyer and Seller for a given purchase order. In FOB (Free On Board) shipments, title to the product and risk of loss shall pass to Buyer upon loading into Tank truck, tank car or other carrier of the Buyer, or arranged by Seller on behalf of the Buyer. In DAP (Delivered At Place) shipments, Seller is responsible for delivery of the goods, ready for unloading, at the named place of destination. Unloading is at Buyer’s risk and cost.
Cars, Trucks, and Vessels
Buyer agrees to unload railroad cars, trucks, and vessels furnished by Seller within the free time specified by Tariffs on file with applicable regulatory bodies. Buyer agrees to pay directly to the common carrier upon receipt of invoice therefore, for any charges resulting from its failure in this regard. Seller’s current charges for tank cars assigned to Buyer’s use are thirty ($30.00) dollars per day for tank cars held longer than seven (7) days from constructive placement and seventy-five ($75.00) dollars per day for tank cars held longer than fourteen (14) days from constructive placement. Aside from and in addition to invoices that Buyer pays directly to the common carrier, Buyer shall reimburse Seller for all demurrage or detention charges incurred in respect of unloading railcars or trucks at any of Buyer’s facilities even though failure to timely unload has arisen from causes beyond Buyer’s control. These charges are subject to change pursuant to the provisions of the above clause entitled “Price Adjustments”. Buyer assumes full responsibility for use and condition of cars, trucks, and vessels while in Buyer’s possession and agrees to (a) compensate Seller for loss or damage to Seller’s property, and (b) indemnify and save Seller harmless from any loss or damage to property other than Seller’s and from any injuries to persons relating in any way to the use of such car(s), truck(s), and vessel(s) while such are in Buyer’s possession. Buyer further agrees to report to Seller promptly any damage which may be sustained by the car(s), truck(s), or vessel(s) in Buyer’s possession.
Cancellation Charges
Buyer agrees to pay cancellation charges on any order Buyer cancels less than two (2) working days prior to the date the order is scheduled for shipment to Buyer. The cancellation charges shall consist of all fees charged to Seller by the carrier and any other costs incurred by Seller in preparing the order for shipment.
Limited Warranty
THE PRODUCTS SOLD HEREUNDER SHALL BE OF MERCHANTABLE QUALITY AND SHALL CONFORM TO SELLER’S CURRENT STANDARD SPECIFICATIONS OR SUCH OTHER SPECIFICATIONS AS SHALL HAVE BEEN MADE EXPRESSLY A PART OF THIS CONTRACT. SELLER MAKES NO OTHER WARRANTIES OF ANY KIND.
Limitation of Liability
Defective or nonconforming products shall be replaced by Seller without additional charges, or at Seller’s option, Seller may refund the purchase price upon return of the products at Seller’s expense.
NOTWITHSTANDING THE ABOVE, AND REGARDLESS OF THE CIRCUMSTANCES, SELLER’S TOTAL LIABILITY TO BUYER FOR ANY AND ALL CLAIMS, LOSSES OR DAMAGES ARISING OUT OF ANY CAUSE WHATSOEVER WHETHER BASED IN CONTRACT, NEGLIGENCE OR OTHER TORT, STRICT LIABILITY, BREACH OF CONTRACT OR OTHERWISE SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCTS IN RESPECT TO WHICH SUCH CAUSE AROSE. IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES.
Any cause of action that Buyer may claim against Seller which allegedly arises under this Contract must be commenced within two (2) years after the cause of action has accrued.
Safety and Health Indemnity
Seller shall furnish Material Safety Data Sheets to Buyer, including warnings and safety and health information concerning the products and/or the containers for such products sold hereunder. Buyer agrees to communicate such information to all persons Buyer can reasonably foresee may be exposed to or may handle such materials or containers, including but not limited to Buyer’s employees, agents, contractors or customers. If Buyer fails to communicate such warnings and information, Buyer agrees to defend and indemnify Seller against any and all liability arising out of or in any way connected with such failure, provided however, that if Seller has contributed to such liability, Buyer’s indemnity to Seller shall be reduced by the proportion in which Seller contributed. Seller will provide Buyer with reasonable notice and opportunity to defend in the event any claim or demand is made on Seller as to which such indemnity relates.
Specification Changes; Product Discontinuance
Seller may at its discretion (a) change or alter the quality or specifications of any of the products hereunder, or (b) discontinue the manufacture of any such products or (c) discontinue the manufacture of any products at a particular manufacturing or blending facility. If specifications for any products covered hereunder are specifically agreed to by Seller, Seller shall give Buyer thirty (30) days written notice of any proposed change. If such proposed change would in the opinion of Buyer materially affect the performance of such products, Buyer may terminate this Contract as to such products.
Failure in Performance
No liability shall result to either Seller or Buyer from delay in performance or non-performance in whole or in part caused by circumstances reasonably beyond the control of the party affected, including, but not limited to acts of God, fire, flood, war, explosion, breakdown or labor trouble, embargoes or other import or export restrictions, shortages or inability to obtain energy, equipment, transportation, product deliverable hereunder, crude petroleum or other feedstock from which said product is derived; or good faith compliance with any regulation, direction or request (whether valid or invalid) made by any government authority or person proposing to act therefore.
Compliance with Laws and Regulations
Buyer agrees to indemnify and hold Seller harmless against all losses, claims, causes of action, penalties and liability arising out of Buyer’s failure, in whole or in part, to comply with all applicable Federal, State and Local laws, ordinances, regulations, rules and orders.
Miscellaneous
This Contract shall not be assigned in whole or in part by Buyer or Seller without the written consent of the other party except that Seller may, upon written notice to Buyer, assign its obligation hereunder to any corporation subsidiary of or affiliated with Seller. No waiver by either party of any breach of any of the terms and conditions herein contained shall be construed as a waiver of any succeeding breach of the same or any other terms or conditions. The entire Contract is contained herein with incorporated Sales Orders and there are no oral understandings, representations or warranties affecting it. No modifications of this Contract shall be of any force or effect unless such modification is in writing and signed by the party to be bound thereby. Buyer specifically acknowledges that no language in any purchase order or other document of Buyer is effective to negate, alter or object to any term in this Contract and the specific additional writings contemplated by the Contact which supplement its terms. This Contract cancels and supersedes any prior written contract between the parties covering the sale and purchase of the above listed material. This Contract shall be construed and enforced under the laws of the State of California.