Terms and Conditions of Sale
General Terms and Conditions of Sale
1. PAYMENT; TERMS. Customer agrees to make payment in full for the Product purchased from Seller. Customer agrees to pay the total amount due on each Product order, invoice, or customer statement, as applicable, in accordance with the payment terms thereon, unless otherwise agreed in writing. If not paid when due, Customer agrees to pay Seller a service charge equal to the lesser of 18% per annum (1.5% per month) or the highest rate allowed by law. Customer agrees to pay all costs of collection, with or without suit, including actual out-of-pocket expenses incurred by Seller and its agents, including attorney’s fees for litigation or bankruptcy and collection agency fees.
2. APPLICATION OF CREDIT. Seller may, in its sole discretion, apply Customer payments or credits (each a “Credit”) to Customer’s account as follows (or in any other order that Seller determines in its sole discretion): first to outstanding finance charges, expenses and other fees and then to any outstanding principal balance on Customer’s account. Any Credits not used within 60 days of being issued may, in Seller’s sole discretion, be applied to Customer’s account in accordance with the preceding sentence. If by November 30th of a given year a Customer has an account with no amounts outstanding and a Credit that has been on such account for at least 120 days, the amount of such Credit may, in Seller’s sole discretion, be sent to Customer by Seller.
3. NO RETURNS. Unless otherwise set forth on an applicable label provided by Seller, invoice(s), or shipping document(s) or other written agreement(s) provided by Seller, the Product is not eligible for return.
4. ASSUMPTION OF RISK. Customer assumes any and all liability for loss, damage or injury to persons or property, resulting from the use or subsequent sale of the Product, either alone or in combination with other goods and/or services.
5. DELIVERY. Unless otherwise set forth on an applicable label provided by Seller, or invoice(s), shipping document(s) or other written agreement(s) provided by Seller, all transportation and shipping charges shall be invoiced to and paid by Customer. Risk of loss or damage shall pass to Customer upon delivery of the Product to Customer, Customer’s agent, or the common carrier for shipment, as specified in the written order, invoice, or statement, as applicable, agreed between the parties. Unless otherwise specifically agreed between the parties in writing, Seller’s sampling and analysis shall be final and on all deliveries involving shipments by rail, Transcontinental Freight Bureau weight certificates shall govern. Seller will use commercially reasonable efforts to deliver Product to Customer according to the delivery dates submitted with orders accepted by Seller. In the event Seller cannot meet the expected delivery dates, Seller will work with Customer to develop a delivery schedule. Customer will have no claim for damages resulting from any such delay in delivery.
6. FAILURE TO TAKE. If Customer fails to give shipping instructions for or to accept delivery of all or any part of this order within the time limit specified, Seller may at its option without prejudice to its other legal rights, either cancel such undelivered portion or hold the Product for Customer’s account, in which latter event Customer agrees to pay a carrying charge at Seller’s then-current rates.
7. SECURITY INTEREST. Seller retains and Customer hereby grants to Seller a security interest in the Product until the full purchase price has been paid. Customer agrees to allow Seller to register or otherwise perfect such security interest, as permitted by the law in any relevant jurisdiction, and to do all things, provide all assistance and information, and execute all relevant documents, on request, as may be required to ensure Seller obtains and maintains a perfected, first ranking security interest in such Product. Customer’s failure to pay any amount when due shall give Seller the right to possession and removal of the Product at any time upon giving at least ten (10) days prior notice. Seller’s taking of possession shall be without prejudice to any other remedies Seller may have.
8. FORCE MAJEURE. Seller shall not be liable or responsible to Customer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond Seller’s control, including, without limitation, the following force majeure events: (a) acts of God; (b) flood, fire, earthquake, pandemics, epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate supplies, power or transportation facilities; and (i) other similar events beyond the control of Seller.
9. LIMITED WARRANTY; DISCLAIMER. EXCEPT FOR THE WRITTEN LIMITED WARRANTY, IF ANY, WHICH ACCOMPANIES THE PRODUCT PROVIDED TO CUSTOMER BY SELLER, CUSTOMER ACKNOWLEDGES AND AGREES THAT SELLER MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTY OR GUARANTEE OF ANY KIND WITH RESPECT TO THE PRODUCT, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ACCURACY OR COMPLETENESS OR ANY WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
10. LIMITATION OF LIABILITY. IN NO EVENT SHALL SELLER BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS ORDER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCT SOLD HEREUNDER.
11. CUSTOMER OBLIGATIONS. CUSTOMER CONFIRMS THAT IT HAS READ AND WILL COMPLY WITH ALL LABELS AND ALL LAWS AND REGULATIONS RELATED TO THE PRODUCT. CUSTOMER, ON BEHALF OF ITSELF AND ITS CUSTOMERS, EMPLOYEES, AGENTS, AND CONTRACTORS, HEREBY: (A) ASSUMES ALL RISK AND LIABILITY ARISING OUT OF THE USE OF THE PRODUCT AND (B) RELEASES AND DISCHARGES, AND SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS, SELLER AND ITS AFFILIATES, EMPLOYEES, AGENTS, AND CONTRACTORS FROM, FOR, AND AGAINST ANY AND ALL LOSSES, CLAIMS, DAMAGES, AND EXPENSES (INCLUDING ATTORNEYS’ FEES) ARISING FROM THE USE OF THE PRODUCT IN VIOLATION OF ANY APPLICABLE LABELS OR ANY APPLICABLE LAWS OR REGULATIONS.
12. GOVERNING LAW; PERSONAL JURISDICTION; VENUE. This order shall be interpreted and governed by the laws of the State of Colorado, without giving effect to its principles of conflicts of law. EACH PARTY IRREVOCABLY SUBMITS AND AGREES TO THE JURISDICTION OF THE STATE AND FEDERAL COURTS OF THE STATE OF COLORADO SITTING IN DENVER COUNTY IN ANY ACTION, SUIT OR PROCEEDING RELATED TO, OR ARISING FROM THIS ORDER, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, WAIVES AND AGREES NOT TO ASSERT AS A DEFENSE IN ANY SUCH ACTION, SUIT OR PROCEEDING ANY CLAIMS THAT (A) SUCH PARTY IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF THOSE COURTS; (B) THAT THE VENUE IS IMPROPER; (C) THAT THE FORUM IS INCONVENIENT; OR (D) THAT THE SUBJECT MATTER MAY NOT BE ENFORCED IN OR BY THE STATE OR FEDERAL COURTS OF THE STATE OF COLORADO.
13. BANKRUPTCY. In the event that: Customer goes into liquidation, bankruptcy or dissolution (voluntary or involuntary), becomes insolvent, fails to pays its debts to Seller as they come due or makes an assignment for the benefit of creditors; a receiver, trustee or administrator is appointed for all of Customer’s assets; or any liquidation, bankruptcy, composition or insolvency proceedings are filed against Customer, Seller may, at its sole discretion and without notice, immediately cancel all or any part of any unfilled portion of this order, subject to applicable law.
14. NO ASSIGNMENT. Customer shall not assign this order without obtaining the prior written consent of Seller.
15. MISCELLANEOUS. In the event of a conflict between the terms set forth in these General Terms and Conditions of Sale (“Terms”) and the terms set forth in a separate written agreement executed between the parties related to the subject matter hereof (“Agreement”), the conflicting terms in the Agreement shall prevail. All rights of Seller hereunder are separate and cumulative and not one of them, whether or not exercised shall be deemed to be an exclusion of any of the other rights and shall not limit or prejudice any other legal or equitable right which Seller may have. No waiver by Seller of any default shall be deemed a waiver of any subsequent default. No amendment to the order or the Terms shall be effective unless in writing and signed by both of the parties hereto.
