1. A SERVICE CHARGE EQUAL TO 1-1/14% PER MONTH OR THE MAXIMUM RATE ALLOWED BY APPLICABLE LAW, WHICHEVER IS LESS, MAY BE CHARGED ON PAST DUE INVOICES.
2. Seller’s acceptance of Buyer’s order for the chemicals, articles, or equipment (hereinafter collectively called “products”) covered hereby and the making of any shipments pursuant thereto are subject to the terms and conditions of applicable contract between the Buyer and Seller, signed by the Seller, and to the extent not inconsistent therewith, or, if none, subject to and expressly conditioned upon Buyer’s assent to those terms and conditions on the front and back hereof which in such case constitute the contract covering such order and shipments and the entire understanding between the parties relating thereto, anything inconsistent or to the contrary in any purchase order notwithstanding. Buyer shall be deemed to have assented to the provisions hereof in all respects by its acceptance of any product shipped or by failure to give Seller notice of objection received by Seller prior to shipment or within (10) days after receipt of Seller’s acknowledgment of Buyer’s order, whichever is earlier. Buyer is subject to a 25% restocking charge on returned product. Buyer shall be responsible for all costs associated with the cancellation and completion of processing of product. Seller shall not be bound by any change in, addition to, or waiver of any of the provisions hereof unless approved in writing by an authorized representative of Seller at its principal office in Bellevue, Washington. Buyer shall be deemed to have affected final acceptance of the product within fifteen (15) days after the date of initial shipment, unless written notice is received by Seller within such period. In any case, the product will be deemed accepted on the date when used or otherwise placed in commercial operation by Buyer. If Buyer refuses shipment, Seller is authorized to (a) have the product transported and warehoused, at Buyer’s expense and risk, which act shall constitute shipment to Buyer, in which event, Seller may declare as immediately due all amounts due upon shipment, or, if any amounts are financed by Seller, may declare the monthly installment payments to commence thirty (30) days after the date of such shipment to the warehouse, or (b) at Seller’s option, defer shipment. Buyer shall pay all expenses, including taxes, insurance, freight, carriage, and warehousing.
3. Prices and terms of payment are subject to change without notice and as to any shipment will be those in effect on date of shipment. All prices quoted are exclusive of taxes. Shipping dates are conditional upon availability of product and shipping. Seller shall select the method of transportation and route, unless terms are f.o.b. point of shipment without freight allowed and Buyer specifies the method and route. Shipment will be f.o.b. Shipping Point unless agreed to otherwise by Seller in writing. Seller may make partial shipments. If shipment is delayed thirty (30) days or more beyond the scheduled shipment date and such delay is caused in whole or in part by circumstances beyond the reasonable control of Seller as provided in paragraph 7 below, then the purchase price and applicable taxes with respect to the product being shipped shall be subject to increase. All sums shall be payable to Seller at Bellevue, Washington in legal tender of the U.S.A., within thirty (30) days after the invoice date, time being of the essence. Acceptance by Seller of bank drafts, checks or other media of payment is subject to collection. Seller may recover for each delivery as a separate transaction, without reference to any other delivery. Seller may at any time, upon giving notice to Buyer, decline to make delivery except for cash. If Buyer is in default of any provisions of this contract, in any respect, if Buyer fails to make any payments when due, or if Seller deems itself insecure, then Buyer shall be deemed in default, and Seller shall have, at its option, the right to take immediate possession of the product and/or declare all unpaid amounts immediately due and payable, and/or Seller may defer further deliveries until the default is remedied (in which event, if Seller elects, the contract shall be deemed extended for a period of time equal to that during which deliveries are deferred) , and/or, without prejudice to any other remedy, Seller may terminate the contract. Buyer shall pay all costs and expenses of Seller, including, without limitation, reasonable attorneys’ fees, on past due accounts referred for collection. Seller shall be entitled to set off any amount owed by Buyer or any of Buyer’s related entities against any amount payable to Seller in connection with any unpaid moneys due to Seller. Seller shall have all the rights and remedies of a secured party under the Uniform Commercial Code in effect from time to time in the State of Connecticut in addition to all other rights as established herein, which rights and remedies shall be cumulative. Waiver by Seller of any breach or default shall not constitute a waiver of any subsequent breach or default. In the event of Buyer’s refusal to accept shipment or other default, Seller, at its discretion and option, shall be entitled to retain all money paid by Buyer on account as liquidated damages.
4. Seller agrees, at its option, to repair or to provide a replacement for any product or part thereof found to be defective in material or workmanship for a period of six (6) months after delivery of the product. Seller makes NO WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, of any kind, express or implied, except that such product complies with any test or specifications set forth herein or such test or specifications in effect as of the date of shipment and otherwise made available in writing by Seller. Seller’s recommendations or instructions as to use of any product, including its use alone or in combination with other products, or as to any apparatus or process or the use of any product in connection therewith, are based upon information believed to be reliable, but Seller assumes no liability with respect thereto. Such recommendations or instructions are not intended to suggest operations which would infringe any patents belonging to third parties under which Seller is not licensed with the right to grant sublicenses, and Seller assumes no liability or responsibility for infringement of any such patents. Seller may, without liability to Buyer of any kind, decline to continue deliveries of any product the manufacture, sale or use of which, in Seller’s option, would infringe any such patent now or hereafter issued. Buyer shall be deemed to have waived all claims as to any product except those claims of which it gives notice to Seller within thirty (30) days after Buyer’s receipt thereof. On any claim, whether as to product delivered or for non-delivery thereof or otherwise. , Seller’s liability shall not exceed the purchase price of the portion of the product in respect of which such claim is made plus any transportation charges thereon paid by Buyer. In no event shall Seller be liable for incidental, consequential, or exemplary damages or attorneys’ fees.
5. Buyer assumes full responsibility for and liability arising out of unloading, discharge, storage, handling, use and disposal of any product or container therefore, including the use of such product or container alone or in combination with other substances, compliance or non-compliance with any federal, state and local laws, ordinances, rules and regulations relating thereto and damage to or destruction of returnable containers from any cause whatsoever after delivery to Buyer and until their return to Seller in good condition. Buyer is responsible for the designation and selection of product sold by Seller. Buyer shall hold Seller harmless and indemnify and defend Seller (including its affiliates, assigns, directors, officers, employees, agents, and representatives) for any claims arising out of or relating to the design, specification, or use of product(s) sold by Seller to Buyer. Carboys and stainless steel drums are returnable and remain the property of Seller, with Seller reserving full recapture rights. A deposit charge is made for each such drum shipped and credit in such amount will be allowed for each such drum returned to Seller (f.o.b. Seller’s shipping point) and received at point of origin in good condition.
6. Buyer shall reimburse Seller for all taxes, excise or other charges which Seller may be required to pay to any government or governmental authority which are hereafter levied directly upon the production, sale, transportation, storage or use of any product.
7. Neither party shall be liable for any failure to make or accept any one or more deliveries (or portions thereof) arising out of compliance with any law, or governmental action, or arising out of acts of God, fire, flood, explosion, strikes or other labor troubles, shortage or failure of supply of materials or equipment, interruption of or delay in transportation, or any other circumstances of like or different nature beyond the reasonable control of the party so failing; and, at the option of either party, the total quantity to be delivered shall be reduced by the quantity not delivered on account of such cause. If any of such contingencies occur, Seller may, without liability to the Buyer of any kind, keep its available supply of any product for its own uses, or distribute it among its customers upon such basis and in such manner as Seller deems fair and practicable.
8. Seller’s weights shall govern, except in case of proven error.
9. Any notice shall be sufficiently given when duly mailed, addressed to Seller or to Buyer at their respective addresses appearing on Seller’s acknowledgment of Buyer’s order or such other address for either party as that party may be written notice designate.
10. This contract shall bind the respective successors and assigns of the parties hereto but none of Buyer’ rights or obligations hereunder shall be assigned without Seller’s prior written consent.
11. Seller represents that in the production of products covered hereby Seller has complied with the provisions of the Fair Labor Standards Act of 1938 as amended.
12. This contract shall be governed by, and any and all disputes between Seller and Buyer with respect to this contract shall be construed in accordance with, the laws of the State of Connecticut, without reference to its conflicts of laws provisions. All disputes shall be subject to arbitration conducted by a single arbitrator in Hartford, Connecticut, in accordance with the rules of the American Arbitration Association. Buyer must institute any action against Seller within one year after Buyer’s claim arises, or such claim shall be barred, notwithstanding any statutory limitations to the contrary.
13. In the event any term or provision hereof shall be held invalid or unenforceable, to any extent, the remainder of the terms hereof shall be valid and enforceable to the fullest extent permitted by law.
14. The provision of products is expressly dependent upon acceptance of these terms and conditions, which will supersede all other terms and conditions including those on the purchaser's purchase order or other documents, and the purchaser's order and/or acceptance of delivery of products will be acceptance of these terms and conditions.