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Standard Terms and Conditions of Sale 2017 NuGenTec

 

1.         APPLICABILITY OF “NUGENTEC STANDARD TERMS AND CONDITIONS OF SALE” (“Agreement”) – Buyer agrees that every sale by NuGenTec (Seller) of a product(s) to Buyer is subject to and governed by the following terms and conditions as contained in this Agreement and cannot be modified except by the written agreement of Seller specifically agreeing to a modification and only then to the extent of such specific modification.

2.         PAYMENT OF FUNDS.  Payment to be made to Seller as indicated on invoice in lawful money of the United States.  Acceptance by Seller of bank drafts, check, or other media of payment will be subject to immediate collection of full-face amount thereof. Payment of net due from Buyer upon delivery or as contracted and listed on Quote, Sales Order, and Invoice(s).  If payment is not received by within terms of invoice, Seller shall be entitled to recoup compounded interest at rate of 12% per annum on any unpaid balances.

3.         DELIVERY.  Each delivery, at the option of the Seller, shall constitute a separate sale with the same effect as though made under a separate agreement covering the amount thereof.  If Buyer is in default with respect to any of the terms or conditions of this or any agreement with the Seller, Seller may, at its option, defer further shipments hereunder until such defaults are remedied or without prejudice to any other legal remedy, may decline further performance.

4.         FINANCIAL CONDITION OF BUYER. If at any time the financial responsibility of Buyer or the credit risk involved shall become unsatisfactory to the Seller, at Seller’s sole discretion, Seller may require cash or satisfactory security upon subsequent shipments or deliveries. The election of the Seller’s to require cash or security shall not impair the obligation of Buyer to take and pay for the contracted material.

5.         DELAY IN PERFORMANCE.  The Seller shall not be liable for any delay in performance hereunder due to any cause beyond its reasonable control, including, but not limited to, acts of God, acts of requests of any government, wars, acts of terrorism, floods, fires, storms, strikes, lockouts, interruptions of transportation, freight embargoes or failures, unavailability of materials or equipment, or any trade restrictions or sanctions imposed by a governmental entity which, in the opinion of Seller, make the performance of Seller’s obligations hereunder burdensome of uneconomical.  The Seller will use its best efforts to remedy the situation, except that nothing contained herein shall require such party to make settlement of any labor dispute on terms unacceptable to it and Seller shall not be liable to the other for any losses or costs by reason of its liability to remedy the situation.

6.         BUYER PAYMENT OF EXPENSES.  In addition to the Purchase Price(s), Buyer shall pay Seller any and all government taxes and/or charges of every kind that Seller may be required to pay with respect to the production, processing, transportation, packaging, storage, delivery, sale of product and any other additional expenses incurred by Seller delivered hereunder and with respect to material(s) used in manufacturing.  Buyer shall provide Seller on request, with properly completed exemption certificates for any tax or other obligation from which the Buyer claims an exception.

7.         BUYER’S INSPECTION.  Buyer shall inspect product(s) supplied hereunder immediately after delivery.  Buyer’s failure to give notice to Seller of any claim within (10) days after the date of delivery shall constitute unqualified acceptance of such product(s) and a waiver by the Buyer of all claims.

8.         BUYER’S LIABILITY.  Buyer assumes full liability and responsibility for compliance with Federal, State, Municipal, local laws, ordinances and regulations governing unloading, discharge, storage, and handling of products(s) supplied by Seller under this Agreement and agrees to hold Seller harmless against any claim, demand or cause of action for personal injury or property damage arising from or attributable to such unloading, discharge, storage and handling.  Seller assumes no liability for failure of discharge or unloading implements or materials used by Buyer whether or not supplied by Seller.  Buyer agrees to pay for the defense of the Seller including but not limited to the payment of reasonable attorney’s fees.

9.         LIMITED SELLER WARRANTY.  SELLER MAKES NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED AS TO THOSE OF MERCHANTABILITY OR FITNESS OF THE PRODUCT FOR ANY PURPOSE OTHER THAN SELLER’S OBLIGATION TO DELIVER

PRODUCT(S) COMPLYING WITH SELLER’S PUBLISHED SPECIFICATIONS DELIVERED TO BUYER OR WRITTEN MUTUALLY AGREED UPON SPECIFICATIONS BETWEEN BUYER AND SELLER.

10.       SELLER’S LIABILITY.  SELLER SHALL NOT BE LIABLE FOR ANY INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES.  SELLER’S LIABILITY AND BUYER’S EXCLUSIVE REMEDY FOR ANY CAUSE OF ACTION ARISING OUT OF THIS AGREEMENT IS EXPRESSLY LIMITED TO REPLACEMENT OF NONCONFORMING PRODUCT(S) OR PAYMENT IN AN AMOUNT NOT TO EXCEED THE PURCHASE PRICE OF THE SPECIFIC PRODUCT(S) FOR WHICH DAMAGES ARE CLAIMED, AT SELLER’S OPTION.

11.       PRODUCT DATA – Buyer acknowledges and agrees that all information, test results, and opinions contained in product technical data and Safety Data Sheets or otherwise conveyed to Buyer are provided to Buyer as a guide to the physical characteristics and use of this Product, but that it is the sole responsibility of the Buyer  to establish the suitability of the Product for their particular application and to establish the conditions for safe use of the product and compliance with all applicable laws and regulations and that the Seller shall have no liability for any damages arising or as a consequence from any inaccuracy, error, omission or other defect in such data or opinions provided by Seller to Buyer.

12.       SELLER’S CONTROL.  Buyer acknowledges that the Seller has no control over Buyer’s (or others) use, disposition, subsequent processing, admixture or reaction of the product(s) sold hereunder with other products, chemicals or materials and as such, the Buyer assumes the entire responsibility therefore and agrees to hold Seller harmless from any claim, demand, or cause of action (by Buyer and/or others) arising therefrom, including but not limited to, damages for infringement of any patents on processes practiced by Buyer or patents on products made by Buyer and to indemnify the Seller, and its Affiliates, licensees, officers, directors and shareholders against any all claims, actions, proceedings, losses, liabilities and expenses including reasonable costs of investigation and attorney’s fees arising directly or indirectly out of the use, processing or modification of any of Seller’s products.

13.       UNAUTHORIZED USE.  Buyer agrees to indemnify and hold Seller, its officers, directors, employees and shareholders harmless from any losses, claims, expenses and liabilities (including reasonable attorney’s fees and costs of investigation) arising out of Buyer’s or its customers unauthorized use of any products supplies hereunder.

14.       ADEQUACY OF REMEDY.  Buyer agrees that Seller shall be entitled to injunctive relief and specific performance in addition to any other remedy for any breach or violation of Buyer’s obligations hereunder.

15.       ASSIGNMENT.  The Buyer shall not assign or transfer it right and obligations under this Agreement without the prior written consent of the Seller.

16.       GOVERNING LAW AND VENUE.  This Agreement shall take effect and be governed by and interpreted according to the laws of the State of California without reference to the state’s conflict of laws provision and shall be litigated in the County of Alameda in the State of California to the exclusion of other courts of any other state, territory or country.  Buyer hereby waives any jurisdiction or venue objections that it may have this matter.

17.       AMENDMENTS TO AGREEMENT.  No alteration or amendment to this Agreement can be made unless it is in writing and signed by both Seller and Buyer.

18.       WAIVER.  No claim or right arising out of a breach of this Agreement can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration, is in writing and is signed by both the Seller and the Buyer.

 

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