1) SHIPMENTS. Buyer shall furnish Seller definite shipping instructions for the quantity of material required, shipping date, special requirements such as; extra hose, fittings, special truck routing, delivery times, holidays, etc. Seller reserves the privilege of not shipping the full quantity ordered. Overshipments shall not exceed reasonable amounts based on quantity ordered. Sellers weights shall govern any weight disputes unless buyer is equipped with a certified truck scale to determine weights. Title to all materials sold hereunder shall pass to Buyer upon Seller’s delivery at the F. O. B. point indicated, or if there is no indication, or it is a delivered price, at Seller’s plant, unless otherwise indicated on the invoice. Upon delivery of the material to the carrier, all risk of loss, damage, injury, theft, or destruction shall be assumed by Buyer.
2) BUYERS CREDIT. Seller reserves the right among other remedies, either to terminate this agreement or to suspend further deliveries in the event Buyer fails to pay for any one shipment when same becomes due. Should Buyer’s financial responsibility become unsatisfactory to Seller, cash payments or satisfactory security may be required by Seller for future deliveries and for goods theretofore delivered. Seller reserves right to apply finance charges at a rate of 1.5% per month to open balances that are not paid within the terms stated on our invoice. Seller reserves right to apply additional charges to past due amounts.
3) LIMITED WARRANTY. Subject to the limitation of Section 4, Seller warrants title and that all materials hereunder shall conform to Seller’s standard specifications. All materials delivered hereunder shall be produced in Compliance with the Fair Labor Standards Act of 1938, as amended. SELLER MAKES NO OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR ANY OTHER MATTER WHATSOEVER, whether used alone or in combination with other substances. Any suggestions made by Seller concerning uses or applications of said materials reflect Seller’s opinion only and Seller makes no warranty of results to be obtained.
4) LIMITATION OF LIABILITY. Within five days after receipt of each shipment of material sold hereunder, Buyer shall examine such material for any damage, defects or shortage. All Claims, known or unknown, including claims for alleged damaged or defective goods, shortage or nondeliverance of goods, negligence or any other cause whatsoever, shall be deemed waived unless made in writing and received by Seller within 15 days after Buyer’s receipt of the material. Failure of Buyer to give notice of any such claim within such time period shall be deemed an absolute and unconditional waiver of such claim, regardless of whether processing, use or resale of the material shall have taken place. BUYER’S EXCLUSIVE REMEDY SHALL BE FOR DAMAGES AND SELLER’S LIABILITY FOR ANY AND ALL LOSSES OR DAMAGES RESULTING FROM ANY CAUSE WHATSOEVER, INCLUDING ALLEGED NEGLIGENCE, SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE MATERIAL IN RESPECT TO WHICH THE CLAIM IS MADE, OR AT THE ELECTION OF SELLER, THE REPAIR OR REPLACEMENT OF SUCH MATERIAL. Seller shall not be liable for, and Buyer assumes responsibility for all personal injury and property damage resulting from the handling, possession, use or resale of the material. In no event shall Seller be liable for special, incidental, or consequential damages, whether Buyer’s claim is in contract, negligence, strict liability or otherwise. Transportation charges for the return of material shall not be paid unless authorized in advance by Seller.
5) ADJUSTMENT TO PRICE AND TERMS. At any time during the term of this agreement, Seller may, upon written notice to Buyer, change the price, transportation or payment terms specified on Seller’s invoice effective on the date set forth in such notice. Seller’s prices and terms of delivery as in effect on date of shipment shall govern. Buyer’s failure to make written objection of any such change within fifteen days of such notice shall be deemed acceptance thereof. If Buyer does make timely objection, Seller shall notify Buyer within fifteen days of such objection of Seller’s election to either terminate the agreement or to supply Buyer under the agreement as in effect immediately prior to the announced change. Seller reserves the right to terminate this agreement on thirty days written notice if any governmental authority in any way restricts or limits the right of Seller to increase its prices or to continue any price already in effect.
6) UNLOADING AND DEMURRAGE. Seller’s delivery equipment, if furnished hereunder, is with the understanding that Buyer will use all reasonable effort to unload and return the same to delivering carrier within the tariff or contracted period free of demurrage or extra detention charges. Demurrage or extra detention charges on such equipment is for Buyer’s account.
7) FREIGHT AND TAXES. When the price on an invoice is a delivered price, this means that the price of the material includes freight to the Buyer’s site and is not intended to be a delivery term. Any increase in freight rates paid by Seller on shipments covered by this agreement and any tax or governmental charge or increase in same hereafter becoming effective increasing the cost to Seller of selling or delivering the goods or of procuring materials used therein, and any tax now in effect or increase in same payable by Seller because of the importation, sales, or delivery of the materials, other than income or franchise taxes, may at the Seller’s option, be added to the purchase price.
8) EXCUSE OF PERFORMANCE. Neither party shall be subject to any liability for delay in performance, or nonperformance, as a result of fire, flood, natural catastrophe, strike, labor trouble, accident, riot, act of governmental authority, or compliance with government request, act of God, or other contingencies and circumstances beyond its reasonable control interfering with the production, supply, transportation, or consumption of the materials covered by this agreement or with the supply of any raw materials (including energy sources) used in connection therewith or the inability of Seller to purchase raw materials at a commercially reasonable price, or in the event Seller or any of the Seller’s sources of supply ceases or suspends the operation of any facility where it is producing any quantity of material deliverable hereunder and such termination or suspension is made by Seller because said facility, the operation thereof, and/or the product therefrom violates or fails to comply with any applicable governmental law, regulation, ordinance, standard, order or decree relating to pollution, ecology, occupational safety and health, or environmental matters. Quantities so affected may be eliminated from the agreement without liability, but the agreement shall otherwise remain unaffected. Seller may, during any period of shortage due to any cause, prorate and allocate its supply of such materials among its accepted orders, its contract customers and its regular customers not then under contract in such manners as may be deemed fair and reasonable by Seller. In no event shall Seller be obligated to purchase any materials in the marketplace to satisfy its obligations hereunder.
9) MATERIAL SAFETY DATA SHEETS. Seller will make available to Buyer upon request a material safety data sheet which sets forth information concerning the material and describes certain precautions to be taken in the storage and handling of the same. Buyer shall be solely responsible for knowing all information and precautions disclosed in said material saftey data sheet and conveying the same to persons who may be exposed to the material.
10) DEPOSIT ITEMS. Buyer assumes all liability for deposit items upon receipt of same. Buyer shall forfeit all deposits paid on any unreturned deposit items one year from date of delivery of same. Deposit items include, but are not limited to, drums, pallets, refillable containers, and bulk bags.
11) MISCELLANEOUS. This agreement contains all the terms and conditions of sale and purchase of materials from Chemical Solutions, Inc., doing business as Solutions, and constitutes the complete understanding of the parties with respect thereto. No modification, extension or release from any provision hereof shall be effected by mutual agreement, acknowledgement, acceptance of purchase order or shipping instruction forms, or otherwise, unless the same shall be in writing, signed by the party to be bound, and specifically described as an amendment or extension or this agreement. No waiver by either Seller or Buyer with respect to any breach or default or any right or remedy, and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing signed by the party to be bound. This agreement and performance hereunder shall be construed and governed by the laws of the Commonwealth of Massachusetts. Neither this agreement nor any interest therein shall be transferred or assigned by the parties except upon the prior written consent of the other party
CHEMICAL SOLUTIONS, INC. d/b/a SOLUTIONS
500 Franklin Village Drive, Suite 210, Post Office Box 675
Franklin, MA 02038-0675
Telephone: 508/520-3900 or 800/637-4504 [Facsimile: 508/520-7861]