TERMS AND CONDITIONS OF SALE

Terms and Conditions of Sale

 

  1. Definitions. The following capitalized terms used in these Terms and Conditions of Sale shall have the meanings ascribed to them in this Section 1 as follows:

        1. “Buyer” means the party purchasing Products from the Seller.
        2. “Force Majeure” shall have the meaning ascribed to such term in Section 8 below.
        3. “Paratronix™ Equipment” means the Paratronix™ H1092 Parylene Conformal Coating System, the Paratronix™ V494 Parylene Conformal Coating System, all component parts of the foregoing systems and all other equipment and component parts developed and manufactured by the Seller under the Paratronix™ brand.
        4. “Products” means the goods being purchased from the Seller, including the Paratronix™ Equipment, if applicable.
        5. “Purchase Order” shall have the meaning ascribed to such term in Section 3 below.
        6. “Seller” means Kayaku Advanced Materials, Inc., a Massachusetts company.
        7. “Seller Indemnified Parties” shall have the meaning ascribed to such term in Section 20 below.

  2. Effect of Terms and Conditions. The Seller agrees to sell the Products to the Buyer on the express conditions that: (a) the Buyer accepts these Terms and Conditions of Sale, without modification, which shall be evidenced by the Buyer’s submission of a Purchase Order and/or acceptance of the Products, (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 that is accepted by the Buyer or a written agreement signed by the Buyer and the Seller, and (c) the Seller is not bound by any provisions, printed or otherwise, varying from, or supplementing or purporting to modify, these Terms and Conditions of Sale that may appear in any Purchase Order or other document of the Buyer.  In the event that the Buyer submits a Purchase Order that varies, supplements or purports to modify these Terms and Conditions of Sale, the Seller may accept such Purchase Order and, in such case, unless the Seller has expressly accepted such varied, supplementary or modified terms in writing by indicating that the Seller agrees to vary these Terms and Conditions of Sale, such varied terms shall be deemed omitted from the Buyer’s Purchase Order and rejected by Seller in connection with the Seller’s acceptance of the Buyer’s Purchase Order.

  3. Purchase Orders; Buyer’s Assent. The Buyer shall provide the Seller with a written purchase order for each order for Product(s) for the Buyer’s account in a form acceptable to the Seller setting forth the Buyer’s name, address and contact information, the name and contact information of the individual responsible for the Purchase Order, a description of the Product(s) ordered, a reference to the applicable Seller’s quote and the pricing set forth therein, desired ship date and any other special instructions necessary to fill the order, which in all cases shall be consistent with these Terms and Conditions of Sale (each a “Purchase Order”).  The Buyer represents and warrants that the Buyer has confirmed that the specifications for the Products as published by the Seller and as may be modified at the Buyer’s request comply with all applicable local laws, ordinances, codes and regulations applicable to the Buyer such as, but not limited to, environmental health and safety laws and practices and electrical codes.  Buyer is responsible for any costs related to modifications required to be made to any Products to comply such laws.  The Seller undertakes to confirm and accept the Purchase Order and to deliver the Product(s) in accordance with such Purchase Order provided that such Purchase Order conforms to the requirements set forth in these Terms and Conditions of Sale and that the pricing set forth in the Purchase Order is as specified in the Seller’s quote.  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 therein, 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. Cancellation or Modification of Purchase Orders; Returns.

        1. Cancellations, Modifications and Returns Covering Products Excluding the Paratronix™ Equipment – The Buyer may not cancel or modify a Purchase Order for any Products (excluding the Paratronix™ Equipment) or return any Products (excluding the Paratronix™ Equipment) without the Seller’s written consent, which may be withheld in the Seller’s sold discretion. Any such cancellation, modification or return accepted by Seller may be subject to a restocking fee as determined by Seller in the Seller’s sole discretion. 
        2. Cancellations, Modifications and Returns Covering the Paratronix™ Equipment –The Buyer may cancel a Purchase Order for Paratronix™ Equipment prior to shipment, which shall be subject to a restocking fee of 18% of the purchase price. The Buyer may also request modifications to a Purchase Order for Paratronix™ Equipment prior to shipment, which may be accepted or rejected by the Seller in the Seller’s sole discretion.  In the event that the Seller accepts a change order, such acceptance shall be subject to such changes in pricing and delivery timeframes as specified by the Seller.  In the event that the Seller rejects a change order, the Buyer may accept delivery of the unmodified Paratronix™ Equipment under the original Purchase Order or cancel the Purchase Order for the Paratronix™ Equipment prior to shipment subject to the above mentioned 18% restocking fee.  Any cancellation shall be in writing and must be received by the Seller prior to shipment in order to be effective and binding on the Seller.  The Paratronix™ Equipment may not be returned for a refund.

  5. Modification of Terms and Conditions of Sale. 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.

  6. Payment Terms; Final Credit Approval. The payment terms for Products shall be as set forth in the Seller’s quote upon which the Buyer submits a Purchase Order.  In the event that the Seller extends credit terms based on approved credit and payments are not made as agreed, late charges at the rate of 1-1/2% per month may be charged by the Seller in the Seller’s sole discretion on such past due accounts.  The Seller reserves the right to withhold shipment of new Products on all past due accounts. Any sale to the Buyer shall either require payment prior to shipment, be shipped C.O.D. or require final credit approval by the Seller.  In the event that the Seller determines that the Buyer does not meet the Seller’s credit requirements, in the Seller’s sole discretion, the Buyer shall be required to pay any balance owed in full upon, and as a condition to, delivery of the Products.  In the event that the Seller shall bring any action to collect any amounts due from the Buyer, the Seller shall be entitled to recover its costs and expenses, including reasonable attorneys’ fees in addition to any and all other remedies available to it.

  7. Delivery. 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 the Products within a requested time, but will use commercially reasonable efforts to make delivery within such time. Unless the Buyer otherwise timely specifies and arranges its preferred method and/or carrier for shipment, shipment may be made by the method or carrier deemed most desirable by the Seller.

  8. Force Majeure. The Buyer assumes all risks of failure of, or delays or suspension in, performance as a result of action or inaction (including failure to grant an export license) by government authorities or public enemies, strikes, accidents, acts or omissions of carriers, fire, flood, severe weather conditions, acts of God, pandemics, epidemics, declared national or state emergencies and/or disasters or other causes beyond the Seller’s control (collectively or individually, as the case requires, a “Force Majeure”).  The Seller’s performance, including the time to deliver any Products, shall be suspended, deferred or excused to the extent affected by the Force Majeure upon the occurrence and during the continuance of a Force Majeure, however, in no event shall the Buyer’s obligation to timely pay for delivered Products be suspended, deferred or excused as a result of the occurrence or continuance of a Force Majeure.  In the event that a Force Majeure prevents the Seller from performing under a Purchase Order for a period of longer than 120-days, the Seller may, at its option and without any liability, cancel the applicable Purchase Order.

  9. 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 the Seller and twenty (20) days from the date of delivery for Products manufactured by other companies that are distributed by the Seller.  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.

  10. 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 others, 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.

  11. Warranties, Limitation of Remedies.

        1. Express Limited Warranty Covering Products Excluding the Paratronix™ Equipment – The Seller warrants that the Products (excluding the Paratronix™ Equipment) shipped to the Buyer are, subject to customary trade tolerances, of uniform quality and conform to the Seller’s specifications thereof when stored in accordance with the Seller’s specifications, but only insofar as defects constituting a failure to meet such standard are discovered by the Buyer and the Buyer makes a warranty claim in accordance with this Section 11 within twenty (20) days after receipt of shipment.
        2. Express Limited Warranty Covering the Paratronix™ Equipment – All new Paratronix™ Equipment manufactured by the Seller is warranted against material defects in materials and workmanship for a period of twelve (12) months from the date of shipment under normal use and service. All Paratronix™ Equipment manufactured by the Seller that is modified by the Seller at the Buyer’s request is warranted against material defects in materials and workmanship for a period of six (6) months from the date of shipment under normal use and service. The cost of labor provided by the Seller to repair or replace any Paratronix™ Equipment covered by this warranty shall be paid by the Seller for a period for six (6) months from the date of shipment with respect to any new Paratronix™ Equipment manufactured by the Seller or for fifteen (15) days from the date of shipment with respect to Paratronix™ Equipment manufactured by the Seller that is modified by the Seller at the Buyer’s request.
        3. Obligation to Repair or Replace – The Seller’s obligation under any of the express limited warranties described in Section 11(a) or 11(b) above (each an “Express Limited Warranty”) shall be exclusively limited to repairing or replacing any Product that the Seller finds to be materially defective in its sole judgment and discretion after a good faith investigation into a warranty claim made in accordance with this Section 11. If the Product should become materially defective during the warranty period specified in the applicable Express Limited Warranty, the Seller will, at its option, repair or replace it with a substantially similar Product. The Seller’s liability is limited only to repairing or replacing a materially defective Product, which shall be the customer’s exclusive remedy and the Seller’s sole liability for a warranty claim under the applicable Express Limited Warranty. This exclusive remedy shall not have failed of its essential purpose (as that term is used in the Uniform Commercial Code) as long as the Seller remains willing to repair or replace the defective Product within a commercially reasonable time after being notified of the Buyer’s warranty claim. The Seller may, at its option, replace a materially defective Product that has been discontinued with a substantially similar product. In the Seller’s sole and absolute discretion, the Seller may elect to refund the purchase price for the warranted Product(s) covered by the Express Limited Warranty in lieu of repairing or replacing such Products.
        4. Exclusions – The Express Limited Warranties do not cover normal wear and tear, damage during shipping, damage caused by fire or water or any other Force Majeure event, accidental damage, damage caused by the negligence of any person other than the Seller or any Product that has been improperly installed, operated, maintained or stored, abused, misused, worn out, altered or modified by any person other than the Seller, tampered with, used for a purpose other than that for which it was intended, or in a manner inconsistent with any instructions regarding use of such product, nor does it cover corrosion related damage. The Seller is not responsible for the cost of replacement of assembled parts, the cost of labor which may be required for the replacement of said Products (except as expressly set forth in Section 11(b) above), the cost of shipping a defective product to or from the Seller’s distribution center or such other location where the Seller directs the Buyer to ship Products in connection with a warranty claim or any interruptions in business occasioned by an inability to use any of the Product(s) for any reason whatsoever.  Any oral or written description of the Product(s) is for the sole purpose of identifying the Product(s) and shall not be construed as an express warranty.
        5. Procedure for Making Warranty Claim – In order to make a warranty claim under an Express Limited Warranty, the Buyer shall notify the Seller in writing of any material defect warranted hereunder within seven (7) days of discovery thereof and obtain a warranty claim approval from the Seller. Upon obtaining a warranty claim approval and unless otherwise directed by the Seller, the Buyer shall ship the defective Product to the Seller’s distribution center at 200 Flanders Road, Westborough, MA 01581 or to such other location directed by the Seller which shall be at the sole cost and expense of the Buyer. Within a commercially reasonable time of receiving such Products, the Seller shall inspect such Products and determine whether such Products are eligible to be repaired or replaced under the Express Limited Warranty. If such Products are eligible for repair or replacement under the Express Limited Warranty, the Seller shall proceed to repair or replace such warranted Product(s) within a commercially reasonable time and ship such repaired or replaced Product(s) to the Buyer, at the Buyer’s sole cost and expense, in accordance with the Buyer’s shipping instructions. Any Products that the Seller determines are not eligible to be repaired or replaced under the Express Limited Warranty shall be promptly returned to the Buyer or disposed of, at the Buyer’s option, in either case at the Buyer’s sole cost and expense. The Express Limited Warranty is expressly limited to the original Buyer who purchased the Products directly from the Seller and may not be assigned or transferred.  

  12. DISCLAIMER OF ALL OTHER WARRANTIES. THE EXPRESS LIMITED WARRANTIES SET FORTH ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES MADE BY THE SELLER CONCERING THE PRODUCTS. THERE ARE NO OTHER WARRANTIES, ORAL OR WRITTEN, express, implied or statutory, 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. No agent, employee or representative of the Seller has any authority to bind the Seller to any affirmation, representation, or warranty concerning the Seller’s Products, except as stated herein.

  13. 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.

  14. Assumption of Risk. The Buyer acknowledges that the toxicological and other properties of the Products 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 to the Buyer as between the Buyer and the Seller. This allocation is recognized by the parties and is reflected in the price of the Products.

  15. 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 the Buyer’s Purchase 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, the 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 therefrom.

  16. Pricing. Product prices shall be as specified by the Seller from time to time and shall be set forth in the Seller’s quote.  All prices are subject to change without notice.  Prices are quoted in U.S. Dollars and all sales shall be completed in only U.S. Dollars.

  17. 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.

  18. Indemnification.

        1. Hazardous Materials – 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 and Seller’s agents, employees, officers, directors, suppliers, manufacturers and affiliates (collectively or each individually as the case requires, the “Seller Indemnified Parties”) 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 known to Seller on its material safety data sheets when provided to Buyer, Buyer’s indemnity to Seller Indemnified Parties shall be reduced by the proportion in which Seller contributed to such liability. Seller will provide Buyer with reasonable notice in the event any claims or demands are made on Seller Indemnified Parties as to which such indemnity relates.
        2. Injuries – Buyer agrees to defend, indemnify and hold harmless the Seller Indemnified Parties against any and all loss or liability arising out of or in any way connected with the Buyer’s purchase, use and operation of the Products, including but not limited to, liability for injury, sickness, death, and property damage, provided, that the Buyer shall not be liable to any Seller Indemnified Party if such loss or liability is the direct result of the Seller’s gross negligence or recklessness.

  19. Installation, Training and Other Services.  Upon the Buyer’s request and at the discretion of the Seller, the Seller will provide installation services with respect to the Equipment and furnish such technical advice, training and/or other assistance concerning the Products as is available in reference to the installation and use of the Seller’s Products by the Buyer.  Any such services are provided at a fee in addition to the purchase price for the Products as specified by the Seller from time to time.  Pricing for services is subject to change without notice.  The Seller assumes no obligation for liability for the advice or assistance given or results obtained or to update or modify any Products for the Buyer’s purposes or to conform to the Buyer’s desired specifications. 

  20. Intellectual Property Ownership. The Seller owns or licenses from other third-parties all right, title and interest in and to the Intellectual Property associated with the Product(s) as well as any improvements, enhancements, modifications or derivations thereof.  Nothing herein shall be construed as giving to the Buyer any ownership interest in such Intellectual Property on account of the fact that the Buyer has purchased the Products; provided, that the Buyer is hereby granted a non-exclusive license to use the Intellectual Property in connection with using the Products for their intended purpose, which license shall be transferrable together with the applicable Products.  The Buyer shall not, for itself or in conjunction with others, directly or indirectly test, manipulate, research, reverse engineer or replicate any Products or any Intellectual Property covering such Products.

  21. No Assignment. No Purchase Order nor these Terms and Conditions of Sale may be transferred or assigned by the Buyer.  The Seller shall be permitted to assign or transfer any Purchase Order and the Seller’s rights under these Terms and Conditions of Sale in connection with a sale of the Seller’s assets, merger or other corporate transaction and/or to any agent or collection agency to assist with the collection of any amounts due from the Buyer.

  22. Disputed Matters and Claims. Communications concerning disputed matters and claims, including an instrument tendered as full satisfaction of debt, must be sent to the attention of the Credit Manager, Kayaku Advanced Materials, Inc., 200 Flanders Road, Westborough, MA 01581. Any and all actions brought by the Buyer for a breach of, or otherwise in connection with, these Terms and Conditions of Sale must be commenced within one (1) year after the cause of action has occurred.

  23. Binding Arbitration. Any controversy between the Buyer and the Seller arising out of or related to these Terms and Conditions of Sale, any Purchase Order and/or the Buyer’s purchase of any Products shall be settled by arbitration in Boston, Massachusetts, in accordance with the rules of The American Arbitration Association, and judgment entered upon the award rendered may be enforced by appropriate judicial action.  The arbitration panel shall consist of one member, which shall be the mediator if mediation has occurred or shall be a person agreed to by each party to the dispute within 30 days following notice by one party that it desires that a matter be arbitrated.  If there was no mediation and the parties are unable within such 30 day period to agree upon an arbitrator, then the panel shall be one arbitrator selected by the Boston, Massachusetts office of The American Arbitration Association, which arbitrator shall be experienced in the area of the Seller’s business and who shall be knowledgeable with respect to the subject matter area of the dispute.  The losing party shall bear any fees and expenses of the arbitrator, other tribunal fees and expenses, reasonable attorneys’ fees of both parties, any costs of producing witnesses and any other reasonable costs or expenses incurred by the losing party or the prevailing party or such costs shall be allocated by the arbitrator if the arbitrator determines that the costs should be allocated in a different manner as part of the arbitration award.  The arbitration panel shall render a decision within 30 days following the close of presentation by the parties of their cases and any rebuttal.  The parties shall agree within 30 days following selection of the arbitrator to any prehearing procedures or further procedures necessary for the arbitration to proceed, including interrogatories or other discovery.

  24. Governing Law. These Terms and Conditions of Sale and each Purchase Order for the purchase of the Seller’s Products shall be governed by the laws of the Commonwealth of Massachusetts without giving effect to the choice of law provisions thereof.

  25. Venue. Any action arising out of or related to these Terms and Conditions of Sale, any Purchase Order and/or the Buyer’s purchase of any Products that may be brought before a court shall be brought only in a court of competent jurisdiction located in Boston, Massachusetts.  Each party knowingly, affirmatively and irrevocably waives, to the fullest extent permitted by law, any objection it may now or hereafter have to a Massachusetts venue as being an inconvenient forum.

  26. Notices and Communications. Notices and other communications made with respect to any Purchase Order or these Terms and Conditions of Sale shall be given in the English language in writing, addressed to the recipient at (a) with respect to notices or communications to the Buyer,  the address of the Buyer specified in the Buyer’s Purchase Order related to such communication or (b) with respect to notices or communications to the Seller, to the attention of the Credit Manager, Kayaku Advanced Materials, Inc., 200 Flanders Road, Westborough, MA 01581 or (c) to the address of the recipient that is specified by the recipient in a notice delivered in accordance with this Section 26.  All notices required to be given hereunder will be effective five (5) days after mailing when mailed postage prepaid by certified or registered mail, or one (1) business day after mailing when sent by recognized express overnight courier service.