Gaylord Chemical Company, LLC
General Conditions of Sale
1. GENERAL: These General Conditions of Sale shall be applicable to all sales contracts, offers, order acknowledgements, invoices and deliveries by Gaylord Chemical Company, L.L.C. (“Seller”) to the buyer named on the face hereof or named in the purchase order referenced hereby (“Buyer”), for the referenced products (the “Products”). No other agreements or general conditions shall be applicable or set aside these General Conditions of Sale unless expressly agreed to by the Seller in writing. References herein to “the Contract” relate to any sales contracts, purchase orders, offers, order acknowledgements, confirmations, invoices and deliveries (as applicable) to which these General Conditions of Sale apply.
2. PRODUCT QUANTITY: Seller will not be required to deliver a quantity of Product exceeding that specified in the Contract. If no monthly quantity is specified, Seller may limit the quantity to be supplied in any month to the lesser of the pro rata amount of the specified quantity or, after the initial ninety (90) days, the average of the monthly quantities shipped during the expired months of the Contract. Unless otherwise expressly agreed by Seller,
3. TITLE: Title to the Products sold hereunder and all risk of loss, delay or damage, pass to Buyer on Seller’s delivery to the common carrier at Seller’s plant or warehouse. The quantity of all bulk rail and truck shipments will be determined in accordance with Seller’s usual weighing practices, and Seller’s quantity determination will govern. Buyer will promptly unload each shipment at its own risk and expense, including any demurrage or detention charges.
4. PRICE AND PAYMENT TERMS. For each Product, the price is as specified for that Product in the Contract or otherwise quoted by Seller and such price is subject to change at any time by Seller giving notice to Buyer. Any tax (other than income), duty or other governmental charge now or hereafter imposed on the Product or on any raw material used in manufacturing the Product (or on Seller, or required to be paid or collected by Seller by reason of the manufacture, transportation, sale or use of such Product or raw material) will be paid by the Buyer in addition to the price. Funds are due in Seller's bank or financial institution in accordance with the terms of Seller’s invoice. Any invoice not paid within the foregoing terms shall be subject to a late fee of eighteen percent (18%) per annum from the date due until the date paid.
5. BUYER’S DEFAULT AND CREDIT. If, in Seller’s judgment, Buyer’s credit shall become impaired at any time, or Buyer’s credit is in default under any term or condition of any Contract with Seller, Seller shall have the right in addition to any and all other remedies, to decline to make deliveries hereunder except for cash until such time as such credit has been established or such default has been cured to Seller’s satisfaction.
6. FORCE MAJEURE. Neither party shall be liable in any respect for failure to perform hereunder (except for failure to pay amounts owing hereunder) if hindered or prevented, directly or indirectly for a reason outside its reasonable control including, without limitation, war, national emergency, terrorism, riot, inadequate transportation facilities, inability to secure materials, supplies, fuel or power, shortage or non-availability of raw materials, plant breakdown, fire, flood, windstorm, explosion, accident or other act of God, strike, lockout or other labor dispute, order or act of any government, whether foreign, national or local, whether valid or invalid, or any other cause of like or different kind (a “Force Majeure Event”). If either party is unable to perform its obligations hereunder due to a Force Majeure Event, or if either party considers it likely that it may become so unable, then that party shall as soon as reasonably practicably, notify the other of the estimated extent and duration of such inability. Any quantity of Product so affected shall be deducted from the total quantity purchased by Buyer. Seller, during any period of shortage due to a Force Majeure Event, may allocate its available supply of Product among its internal requirements and its customers on whatever basis Seller may deem fair and practical. Seller shall not be required to procure Product from third parties to satisfy its obligations to Buyer hereunder during any period of shortage due to a Force Majeure Event.
7. WARRANTY. Seller warrants only that each Product will meet specifications designated as such in the Contract but reserves the right to change the specifications or properties of any Product at any time on at least thirty (30) days' notice. SELLER MAKES NO OTHER WARRANTIES REGARDING THE PRODUCT, WHETHER OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR OTHERWISE, AND NONE WILL BE IMPLIED. FURTHER, SELLER MAKES NO REPRESEENTATIONS AND ASSUMES NO RESPONSIBILITY WHATSOEVER WITH RESPECT TO FREEDOM FROM INFRINGMENT OF ANY PATENT AND/OR COPYRIGHT RESULTING FROM BUYER’S USE OF PRODUCT OR SELLER’S INFORMATION.
8. CLAIMS. SELLER SHALL NOT BE LIABLE FOR LOSS OF PROFITS, LOSS OF PRODUCTION, INDIRECT, OR OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF NEGLIGENCE. SELLER'S LIABILITY AND BUYER'S EXCLUSIVE REMEDY FOR ANY CAUSE OF ACTION ARISING OUT OF THE SALE, USE, OR NON-DELIVERY OF THE PRODUCTS OR UNDER ANY WARRANTY, IS EXPRESSLY LIMITED AT BUYER'S OPTION TO REPLACEMENT OF NON-CONFORMING PRODUCT, F.O.B. SELLER'S SHIPPING POINT, OR PAYMENT NOT TO EXCEED THE PURCHASE PRICE OF THE PRODUCT FOR WHICH DAMAGES ARE CLAIMED (PLUS TRANSPORTATION COSTS, IF ANY, PAID BY BUYER WITH RESPECT THERETO). Buyer's failure to give notice of any claim within thirty (30) days from the date of delivery shall constitute a waiver by Buyer of all claims with respect thereto. Use or disposition of any portion of the Products by Buyer shall constitute a waiver of all claims with respect to such portion. Buyer shall not be entitled to deduct from the price invoiced to it the amount of any claim asserted against Seller without Seller's written consent.
9. GOVERNING LAW. This Contract shall be governed by, and construed in accordance with, the laws of the State of Louisiana, without regard to the conflicts of laws provisions thereof. THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS CONTRACT SHALL NOT BE GOVERNED BY OR CONSTRUED IN ACCORDANCE WITH THE PROVISIONS OF THE CONVENTION FOR THE INTERNATIONAL SALE OF GOODS.
10. SAFETY AND HEALTH COMMUNICATIONS. Buyer acknowledges that it has consulted Seller’s documents, including information set forth on Seller’s Material Safety Data Sheets regarding the Products (“MSDS”) and other technical bulletins and publications containing safety, health, handling and environmental hazard information concerning Products and their properties, that it has read and it understands such information, and that it agrees to incorporate such information into its personnel safety programs. Buyer shall fully and adequately inform its employees, contractors, agents and other third parties who may become exposed to Products after delivery to Buyer hereunder, of any hazards associated with Products, and of the proper storage, handling and use procedures for Products, whether disclosed in such documents or in additional documents which are transmitted to Buyer during the term of this Contract. Buyer acknowledges its independent obligation to fully and adequately incorporate available information, such as that supplied by Seller, into its product safety communications and to provide to all of its employees, contractors, agents and customers copies of such hazard communication documents. If Product is further processed, mixed or incorporated into another product, Buyer shall likewise disseminate appropriate health and safety information to all persons Buyer foresees may be exposed.
11. INDEMNITY: Buyer shall indemnify, defend and forever hold Seller and its directors, officers, employees, agents, suppliers, parents, affiliates, subsidiaries, successors and assigns harmless from any and all fines, penalties, suits, actions, claims, liabilities, judgments, costs, and expenses (including attorneys' fees and expenses) resulting or arising from: (a) Buyer's negligent actions or omissions hereunder, or breach of any of the terms of this Contract; (b) Buyer's use, sale, handling, storage, or disposal of the Products or any product or waste derived therefrom; (c) Buyer's discharge or release of the Products or any product or waste derived therefrom into water, onto land or into the air; (d) Buyer's exposing any person (including Buyer's employees) to the Products or any product or waste derived therefrom, including failure to warn of such exposure; or (e) the transportation of the Products to Buyer after tender of the Products by Seller to the carrier at Seller's shipping point. The foregoing indemnification shall apply, but shall not be limited to, injury to person (including death) or damage or harm to property or the environment. Buyer shall not be obligated to indemnify Seller for any fine, penalty, suit, action, claim, liability, judgment, cost, or expense to the extent attributable to the failure of the Product to meet specifications.
12. ASSIGNABILITY. This Contract shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto, but it shall not be transferred or assigned by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, that Seller shall have the right to assign this Contract without Buyer’s consent to an affiliate of Seller, or to a purchaser or other successor to Seller’s assets or undertaking involved in the manufacture of Products.
13. ACCEPTANCE, ENTIRETY AND RELEASE. Seller's acceptance of Buyer's order or proposal is expressly conditional on Buyer's assent to the terms of the Contract and Seller rejects any terms of Buyer's order or proposal which differ from or are in addition to them. Buyer's assent to the terms of the Contract will be conclusively presumed by Buyer's acceptance of Product delivery. This Contract, as of its beginning date, contains the complete and exclusive agreement of Seller and Buyer concerning the Product, merges and supersedes all prior understandings and representations (oral or written) between the Parties concerning the Product and, except for any indebtedness or indemnity obligation of Buyer to Seller, each releases the other from all claims arising in connection with any such prior contract.
14. U.S. EXPORT COMPLIANCE. Buyer warrants that it will comply with all U.S. laws, regulations, rules and orders regarding export control.
March 01, 2010