TERMS AND CONDITIONS OF SALE OF CONTINENTAL CHEMICAL USA

terms and conditions of sale of continental chemical usa 1. payments. unless otherwise agreed to by continental chemical usa

TERMS AND CONDITIONS OF SALE OF CONTINENTAL CHEMICAL USA
1.
PAYMENTS. Unless otherwise agreed to by Continental Chemical USA
in writing, all amounts payable hereunder shall be due to
Continental Chemical USA within thirty (30) days of invoice date,
time being of the essence. Late payments shall bear interest at
the rate of 18% per annum or the highest rate permitted by law;
whichever is less. All prices shown are net, and, in addition to
the price of goods. Customer shall pay all expenses including
taxes, insurance, freight, carriage, and warehousing.
2.
TAXES AND PRICING. All prices quoted are subject to change without
notice and are exclusive of taxes. Customer shall pay all taxes
resulting from transactions, including without limitation
occupation, property, excise, sales, or use tax, but excluding any
taxes based on the income of Continental Chemical USA. The
purchase price, including applicable taxes, shall be subject to
increase based on Continental Chemical USA’s established price at
the date of actual shipment, if shipment is delayed thirty (30)
days, or more, beyond the scheduled shipment date, and such delay
is caused in whole or in part by circumstances beyond the
reasonable control of Continental Chemical USA as provided in
paragraph 10.
3.
SHIPMENT. (a) Scheduled shipment date is an estimate only. On or
after the scheduled shipment date, customer shall accept shipment
upon notification by Continental Chemical USA; or if customer
refuses shipment. Then Continental Chemical USA is authorized to
(1) have the goods transported and warehoused, at the customer’s
expense and risk, which act shall constitute shipment to Customer,
in which event, Continental Chemical USA may declare as
immediately due all amounts due upon shipment, or, if any amounts
are financed by Continental Chemical USA, may declare as
immediately due all amounts due upon shipment, or, if, any amounts
are financed by Continental Chemical USA, may declare the monthly
installment payments to commence thirty (30) days from the date of
such shipment to the warehouse, or (2) at Continental Chemical
USA‘s option, defer shipment. (b) Continental Chemical USA may
make partial shipments hereunder and may invoice for each such
partial shipment separately. Each partial shipment will be deemed
to be a separate sale; however, delay in delivery of any partial
shipment will not relieve Customer of its obligation to accept
delivery of remaining shipments. (c) Continental Chemical USA’s
shipping weights will govern for each shipment or partial
shipment. Should Customer dispute the shipping weight of any
shipment or partial shipment, Customer will promptly notify
Continental Chemical USA in writing of the reasons for such
dispute and provide to Continental Chemical USA all necessary
documentation to substantiate the difference.
4.
SHIPPING TOLERANCES. The goods sold are subject to Continental
Chemical USA’s published shipping tolerances in effect on the date
of order or any then-applicable industry shipping tolerances for
the goods if Continental Chemical USA has no tolerances. (Current
standard +/- 10%)
5.
TITLE/RISK OF LOSS/INSURANCE. Title to and risk of loss of the
goods shall pass from Continental Chemical USA to the Customer
when the goods or component parts whether manufactured by
Continental Chemical USA or other supplier are placed in the
possession of the carrier for shipment to Customer. Customer shall
provide insurance to be for no less than the total amount owing to
Continental Chemical USA with loss first payable to Continental
Chemical USA.
6.
ACCEPTANCE OF GOODS. Customer shall inspect or test all goods upon
receipt. Customer shall be deemed to have affected final
acceptance of the good within fifteen (15) days from the date of
initial shipment, unless written notice is received by Continental
Chemical USA within such period. In any case, the goods will be
deemed accepted on the date when used or otherwise placed in
commercial operation.
7.
WARRANTY. (a) Continental Chemical USA warrants that title to the
goods sold shall be free from any encumbrance, and will conform to
the description contained on Continental Chemical USA invoice. (b)
Continental Chemical USA DISCLAIMS ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. THERE ARE NO
REPRESENTATIONS OR WARRANTIES EXCEPT AS PROVIDED IN WRITING SIGNED
BY AN AUTHOURIZED OFFICER OF Continental Chemical USA. (c)
Customer is responsible for the designation and selection of
product sold by Continental Chemical USA. Customer shall hold
Continental Chemical USA harmless and indemnify and defend
Continental Chemical USA (including its affiliates, assigns,
directors, officers, employers, agents, and representatives) for
any claims arising out of or relating to the design,
specification, or use of product(s) sold by Continental Chemical
USA to Customer.
8.
REMEDY. Continental Chemical USA sole responsibility and liability
and Customer’s exclusive remedy under this agreement shall be
limited to the repair or replacement of goods (f.o.b. Continental
Chemical USA’s shipping point) not conforming to the warranty, or,
at Continental Chemical USA ‘s option, to the return of the goods
and refund of moneys paid thereon, without interest, provided
Customer is not in default hereunder. IN NO EVENT SHALL
Continental Chemical USA BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL
OR EXEMPLARY DAMAGES OR ATTORNEYS’ FEES. Continental Chemical
USA’s obligation hereunder is subject to receipt of written notice
of reject from Customer within thirty (30) days after such alleged
defect shall be reasonably apparent to Customer.
9.
RETURNS. Returned goods will be accepted only if Continental
Chemical USA has given prior written consent. Handling,
inspection, restocking, and invoicing charge also may be assessed
against Customer. All returns allowed must be shipped at
Customer’s expense and must be in excellent resale condition.
Material cut or changed to Customer’s specifications is not
returnable.
10.
DELAY OR NONPERFORMANCE. Continental Chemical USA shall not be
liable for failure or delay in performance hereunder due in whole
or in part to strikes, work stoppages, fires, acts of terrorism,
accidents, wars, rebellions, civil commotion, public strife, acts
of any government, whether legal or otherwise, acts of public
enemies, forces majeure, or qualified labor, or any other causes
beyond Continental Chemical USA’s reasonable control; this
specifically includes delays or inability to obtain product
because of the actions of Continental Chemical USA‘s suppliers.
11.
DEFAULT. In the event of Customer’s refusal to accept shipment or
other default, Continental Chemical USA, at its discretion and
option, shall be entitled to retain all money paid by Customer on
account as liquidated damages. If Customer fails to make any
payments when due, or if there is a breach of any covenant or
agreement by Customer, or if Continental Chemical USA deems itself
insecure, then Customer shall be deemed in default and Continental
Chemical USA shall have, at its option, the right to take
immediate possession of the goods, and/or declare all unpaid
amounts immediately due and payable and/or suspend shipments to
Customer. Continental Chemical USA shall be entitled to set off
any amount owed by Customer or any of Customer’s related entitles
against any amount payable to Continental Chemical USA in
connection with any unpaid moneys due to Continental Chemical USA.
Continental Chemical USA shall have all the rights and remedies of
a secured party under the Uniform Commercial Code in addition to
all other rights as established herein, which rights and remedies
shall be cumulative. Waiver by Continental Chemical USA of any
breach or default shall not constitute a waiver of any subsequent
breach or default.
12.
EQUIPMENT. (a) Any equipment including jigs, dies, and tools,
(which Continental Chemical USA acquires for use exclusively in
the production of goods for Customer) will be and remain
Continental Chemical USA’s possession and control; and any changes
by Continental Chemical USA are permissible.
(b) Any material or equipment owned or furnished by Customer to
Continental Chemical USA will be carefully handled and stored by
Continental Chemical USA while in Continental Chemical USA’s
possession. When for eighteen (18) consecutive months no orders
acceptable to Continental Chemical USA are received from Customer for
goods to be make from any such equipment or materials, Continental
Chemical USA may, with written notice to Customer, request Customer to
make disposition thereof at Customer’s expense. If Customer fails to
comply with such notice, Continental Chemical USA may make such use or
disposition of said material or equipment as it desires, without
liability or obligation to Customer.
13.
CANCELLATION. Upon receipt of written notice from Customer,
Continental Chemical USA shall cancel any orders as instructed,
subject to Continental Chemical USA ‘s (or its subcontractors)
right to continue processing raw or finished material to the point
at which processing can be halted with the least disruption and
cost to Continental Chemical USA. Customer shall be responsible
for all costs associated with the cancellation and completion of
processing of material.
14.
ACCEPTANCE. These Terms and Conditions shall be deemed binding on
Customer by its purchase of products from Continental Chemical
USA. These Terms and Conditions may only be modified if in writing
and signed by an authorized office of Continental Chemical USA;
each of these terms and conditions shall remain in effect unless
the provision(s) are explicitly contradicted by the aforesaid
writing. If customer submits a form with contrary terms or
conditions, such order shall be considered as confirmation only
and in no way amend, prevail over, supplement, or supersede any
provision herein. These TERMS AND CONDITIONS may be superseded or
revised by Continental Chemical USA ANNUAL TERMS AND CONDITIONS.
15.
GENERAL. Continental Chemical USA may assign its rights and
obligations under these Terms and Conditions. If Customer changes
its corporate status, both Customer and its successors continue to
be bound by these Terms and Conditions of Sale, but Continental
Chemical USA reserves its rights under paragraph 11. No prior
representation, affirmation, or agreement shall be enforceable
unless set forth herein.
16.
NUCLEAR USE. The products covered by these Terms and Conditions
and sold by Continental Chemical USA are not intended for
application in connection with the use or handling of nuclear
material or the construction or operation of a nuclear
installation. Customer shall not use these products for such
purposes, or permit others to use these products for such purposes
unless an authorized officer of Continental Chemical USA agrees to
such use in writing. If any such use occurs without Continental
Chemical USA’s written agreement, Continental Chemical USA
disclaims all liability for any nuclear or other damages, in jury
or contamination, and Customer shall protect, defend, and
indemnify Continental Chemical USA, Continental Chemical USA ‘s
affiliates and directors, officers, employees, agents, and
representatives of Continental Chemical USA and its affiliates
from and against any and all claims, losses, damages, costs,
actions, judgments, expenses and liability of every kind and
nature whatsoever (including, without limitation, attorney’s fees
and costs and expenses of defense) which, either directly or
indirectly, are in any way connected with, arise out of or result
from such us.
17.
DISPUTE RESOLUTION/GOVERNING LAW. Any and all disputes between
Continental Chemical USA and Customer shall be determined subject
to Florida’s law, and its state or federal courts shall have
exclusive jurisdiction. The parties hereby agree to the personal
jurisdiction of the Florida courts, and that attorney’s fees and
costs shall be awarded to the prevailing party in any litigation.
Customer must institute any action against Continental Chemical
USA within one year after Customer’s claim arises, or such claim
shall be barred notwithstanding any statutory limitations to the
contrary.