Terms and Conditions of Sale
1. Definitions. The “Seller” is Kayaku Advanced Materials, Inc., a Massachusetts company, and the party purchasing products from the Seller and that parties’ affiliates, subsidiaries, officers, directors, employees and agents are collectively referred to as the “Buyer”. The “products” as used herein are the goods being purchased from the Seller.
2. Effect of Terms and Conditions. The Seller undertakes to sell or deliver the products to the Buyer on the express conditions that: (a) the Buyer assents to these Terms and Conditions of Sale, to which, where this document constitutes an offer, acceptance is expressly limited, (b) these Terms and Conditions of Sale together with the purchase order, constitute the complete and exclusive agreement between the Buyer and the Seller, superseding all prior agreements, oral or written, and all other communications between the parties relating to the subject matter hereof, unless modified in a writing signed by an officer of the Seller, and (c) the Seller is not bound by any provisions, printed or otherwise, varying from or supplementing these Terms and Conditions of Sale that may appear in any purchase order or other document of the Buyer.
3. Buyer’s Assent. The Buyer’s assent to these Terms and Conditions of Sale shall be conclusively evidenced by the Buyer’s delivery to the Seller of a purchase order for the products described on the face of this document, by the Buyer’s accepting delivery of the products, or by the Buyer’s payment for the products, or by any other evidence establishing acceptance.
4. Modifications. No modifications of these Terms and Conditions of Sale shall be of any force or effect unless signed by a duly authorized officer of the Seller. There is no oral understanding or agreement between the Buyer and the Seller.
5. Final Credit Approval. Any sale to the Buyer is subject to final credit approval by the Seller.
6. Delivery. Unless otherwise indicated, the price of products is F.O.B. the place of shipment, as the same is selected by the Seller. After delivery of products to the carrier, all risk of loss, damage, deterioration, or destruction of the products shall be borne by the Buyer. Seller will not be liable for any damages for failure to deliver within a requested time, but will use commercially reasonable efforts to make delivery within such time. The Buyer assumes all risks of failure or performance as a result of action or inaction (including failure to grant an export license) by government authority or public enemy, strikes, accidents, acts or omissions of carriers, fire, flood, severe weather conditions, acts of God, or other causes beyond the Seller’s control or within the Buyer’s control. Unless otherwise indicated hereon, shipment may be made by the method or carrier deemed most desirable by the Seller.
7. Inspection, Acceptance, Rejection. Delivery may be made in a unit or in lots as the Seller elects. The Buyer may reject an installment or claim breach as to it only because of a nonconformity that constitutes a substantial impairment of value and as to which, after written notice of nonconformity from the Buyer, there has been no cure or provision of assurance that cure will be made within thirty (30) days from the date of delivery for products manufactured by Kayaku Advanced Materials, Inc. and twenty (20) days from the date of delivery for products manufactured by other companies that are distributed by Kayaku Advanced Materials, Inc. The Buyer agrees to exercise, promptly following receipt, its right of inspection as to all products purchased hereunder, and in the event of any nonconformity of the products or tender of delivery, to exercise any right of rejection promptly and to state the particularly in connection with rejection the nonconformity upon the rejections is predicated. Failure to inspect or to give written notice of defects within five (5) days after discovery thereof shall constitute acceptance. In addition to such other duties as the Uniform Commercial Code may impose, the Buyer agrees that upon rejection it will comply with all reasonable instructions of the Seller.
8. Taxes. Any excise, sales, use, or similar taxes imposed by any governmental authority that the Seller may be required to pay, or to reimburse to other, by reason of the manufacture, ownership, use, or sale of any products delivered to the Buyer shall be the responsibility of the Buyer, and the Seller may invoice the Buyer therefore as the Seller determines.
9. Warranties, Limitation of Remedy. The Seller warrants that the products shipped to the Buyer are, subject to customary trade tolerances, or uniform quality and conform to the Seller’s specifications thereof when stored in accordance with Seller’s specifications, but only insofar as defects constituting a failure to meet such standard are discovered within twenty (20) days after receipt of shipment. The Seller’s liability for breach of the above warranty shall arise only after written notice to the Seller describing with particularity the claimed breach and upon return of the products claimed to be defective, and shall be limited to the furnishing of a like quantity of the same products free from such defects or, at the Seller’s option, to refund of the purchase price therefore. This remedy is the Buyer’s exclusive remedy for any claim, whether in contract, tort or otherwise, arising out of this transaction, or alleged to have resulted from an act or omission of the seller.
10. DISCLAIMER OF ALL OTHER WARRANTIES. THE FOREGOING ARE THE SOLE WARRANTIES MADE BY THE SELLER CONCERING THE PRODUCTS. THERE ARE NO OTHER WARRANTIES, ORAL OR WRITTEN, OF ANY NATURE OR KIND AND NONE ARE GIVEN OR MADE, AND, IN PARTICULAR, THERE IS NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
11. Consequential and Incidental Damages. In no case shall the Seller be liable for consequential, special, punitive or incidental damages based upon breach of warranty, breach of contract, negligence, strict liability, or any other legal theory. Such excluded damages embrace, without limitation, the Buyer’s loss of profits, loss of savings or revenue, loss of associated equipment, cost of capital, cost of any substitute product or equipment, facilities, or services, downtime, claims of third parties including customers, and injury to person or property.
12. Assumption of Risk. The Buyer acknowledges that the toxicological and other properties of the product are not fully known and due care must be exercised in their handling. The Buyer assumes all risk, including, without limitation, that of injury or death to person or damage to property, arising out of or related to the handling or use of the products. These Terms and Conditions of Sale thus allocate the risk of product use between the Buyer and the Seller. This allocation is recognized by the parties and is reflected in the price of the products.
13. Claims for Shortages. Claims for shortages must be made within five (5) days after receipt of shipment. Any claim for non-receipt of all or part of Buyer’s Order shall be limited to the purchase price of the products not delivered. Claims for non-receipt of shipment must be made within ten (10) days after receipt of the Seller’s invoice. In the event of inability for any reason to supply the total quantity of products ordered by the Buyer, Seller may allocate its available supply among any or all purchasers as well as among facilities and divisions of the Buyer on such basis as it may deem fair and practical without liability for any failure or performance that may result there from.
14. Pricing – Prices are subject to change without notice.
15. Blanket Orders – Blanket orders are encouraged and accepted for forecasting and planning purposes only and may be rejected, in whole or in part, by the Seller. Product availability and pricing are subject to change without notice.
16. Hazardous Materials Indemnity. Buyer acknowledges that the products may be or become considered hazardous materials under various laws and regulations. To the extent known and easily available, Seller will furnish to Buyer material safety data sheets, including warnings and safety and health information, concerning the products and the containers therefore upon written request. Buyer agrees to disseminate such information so as to give warning of possible hazards to persons whom Buyer can reasonably foresee may be exposed to such hazards, including, but not limited to, Buyer’s employees, agents, contractors, and customers. If Buyer fails to disseminate such warnings and information, Buyer agrees to defend, indemnify and hold harmless Seller against any and all liability arising out of or in any way connected with such failure, including but not limited to, liability for injury, sickness, death, and property damage, provided, however, that if such liability is based upon Seller’s failure to meet its written specifications or to provide accurate information on its material safety data sheets, Buyer’s indemnity to Seller shall be reduced by the proportion in which Seller contributed to such liability. Seller will provide Buyer with reasonable notice and opportunity to defend in the event any claims or demands are made on Seller as to which such indemnity relates.
17. Kayaku Advanced Materials, Inc. General Disclaimer. Unless Kayaku Advanced Materials, Inc. specifically and expressly contracts in writing with the customer for a particular intended use of our product, the choice of our product for any particular intended use is the sole and exclusive responsibility of the customer; and Kayaku Advanced Materials, Inc. shall in no event ever have any responsibility for, nor incur any liability for any particular use or application of its product by the customer absent such a specific and express written contractual agreement otherwise.
18. Services. Upon request and at its discretion, the Seller will furnish such technical advice or assistance as is available in reference to use of the Seller’s products by the Buyer. The Seller assumes no obligation for liability for the advice or assistance given or results obtained or to update the same.
19. No Assignment. This contract is not transferable or assignable by the Buyer.
20. Disputed Matters and Claims. Communications concerning disputed matters and claims, including an instrument tendered as full satisfaction of debt, must be sent to the Credit Manager, Kayaku Advanced Materials, Inc., 200 Flanders Road, Westborough, MA 01581.
21. Governing Law. This transaction shall be governed by the laws of the Commonwealth of Massachusetts without giving effect to the choice of law provisions thereof.