All references in these Terms and Conditions to “Seller” shall mean AKTOPA, LLC and its subsidiaries and affiliates. All references to “Buyer” shall mean a buyer of Products sold by Seller. ACCEPTANCE OF CONTRACT: SELLER’S SHIPMENT OF A PRODUCT UNDER A SALES ORDER DELIVERED BY BUYER SHALL CONSTITUTE BUYER’S AGREEMENT TO SELLER’S TERMS AND CONDITIONS. THESE TERMS AND CONDITIONS SHALL APPLY TO THE APPLICABLE SALES ORDER, INVOICE AND DOCUMENTS RELATED THERETO, AND ALL FUTURE BUSINESS WITH BUYER EVEN IF NOT EXPRESSLY REFERRED TO AND/OR SENT WITH EACH COMMUNICATION. NO CONFLICTING TERMS AND CONDITIONS WILL APPLY TO THIS TRANSACTION, UNLESS SELLER AND BUYER HAVE ENTERED INTO A WRITTEN PRODUCT SALES AGREEMENT, THE TERMS OF WHICH TAKE PRECEDENCE OVER THESE TERMS AND CONDITIONS, OR SELLER SPECIFICALLY AGREES TO SUCH TERMS AND CONDITIONS IN WRITING. OTHERWISE, THESE TERMS AND CONDITIONS SHALL APPLY AS BETWEEN SELLER AND BUYER.
1. PAYMENT TERMS:
2. SHIPMENTS AND DELIVERY:
3. MEASUREMENTS: Seller’s determination, unless proven to be erroneous, shall be accepted as conclusive evidence of the quantity of Product delivered.
4. REJECTION CLAIMS ARISING FROM DEFECTIVE GOODS: Buyer has 5 days from receipt of the goods to reject the goods as nonconforming. Provided Buyer’s rejection is valid and reasonable, Seller shall be given reasonable time to cure (at its sole expense and in any manner it deems appropriate). If Buyer does not reject within 5 days of delivery, goods shall be deemed accepted and conforming.
5. DETENTION POLICY: Seller may, from time to time, specify free unloading time allowances and detention charges, which it has negotiated with its common carriers. Demurrage charges resulting from the use of common carrier equipment will be charged to the Buyer by the common carrier (or by Seller if Seller is billed by carrier) if demurrage charges were incurred through the fault of Buyer.
6. FORCE MAJEURE: Neither party shall be liable to the other for failure or delay in performance to the extent that such failure or delay is due to an act of God or other contingencies beyond the control of the affected party which interfere with the production or transportation of the Product or with the supply of any raw material or energy source used in connection therewith, or interfere with Buyer’s consumption of such Product, provided that in no event shall Buyer be relieved of the obligation to pay in full for Product delivered. Without limitation on the foregoing, neither party shall be required to remove any cause listed above or replace the affected source of supply or facility if it shall involve additional expense or departure from its normal practices. If any of the events specified in this paragraph shall have occurred, Seller shall have the right to first satisfy its internal requirement for Product (if any), then allocate in a fair and reasonable manner among its customers any supplies of Product Seller has available for delivery at the time or for the duration of the event.
7. HAZARD WARNING RESPONSIBILITY: Buyer acknowledges that it has been adequately warned by Seller of the risks associated with handling, using, transporting, storing, and disposing of the Product, including, without limitation, those set forth in Seller’s Material Safety Data Sheets for Product (“MSDS”), and that Buyer is familiar with the Product. Buyer further acknowledges its separate and independent knowledge of such risks, which are known in Buyer’s industry. Buyer shall maintain compliance with all safety and health related governmental requirements concerning Product and shall take all reasonable and practical steps to inform, warn, and familiarize its employees, agents, contractors, and customers with all hazards associated with the Product, including, handling, shipment, storage, use and disposal.
8. DISCLAIMER: SELLER WARRANTS THAT THE PRODUCT SOLD SHALL MEET SELLER’S STANDARD SPECIFICATIONS OR OTHER MUTALLY AGREED WRITTEN SPECIFICATIONS. OTHER THAN THE FOREGOING, SELLER MAKES NO GUARANTY OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY OR FITNESS FOR USE, OR FITNESS FOR ANY SPECIFIC PURPOSE, EVEN IF KNOWN TO SELLER.
9. LIMITATION OF LIABILITY: Buyer’s exclusive remedy for any and all losses or damages resulting from the sale of Product under this Sales Order, including, but not limited to, any breach of warranty, breach of contract, negligence or strict liability, shall be limited, at Seller’s option, to either: (a) the return of the sales price, or (b) the timely replacement in kind of the quantity of Product. Any liability of Seller for any claim of Buyer for loss or damage shall be offset by any insurance available to Buyer to pay any portion of the claim. Further, no insurance carrier of Buyer, nor any other person or entity, shall have rights of subrogation pursuant to these Terms and Conditions. In no event shall Seller be liable to Buyer or any third-party for any special, consequential, incidental, punitive, exemplary or indirect losses or damages, including, but not limited to, loss of anticipated profits or revenue or other economic loss attributable to the sale of Product under this Sales Order or to any other matter arising out of or in connection with this Sales Order. Furthermore, it is the intention of the parties that there are no third-party beneficiaries to these Terms and Conditions.
10. INDEMNIFICATION: BUYER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS SELLER AND ITS EMPLOYEES AND AGENTS (COLLECTIVELY “INDEMNIFIED PARTIES”) FROM ANY AND ALL LOSSES, COSTS, LIABILITIES OR DAMAGES (INCLUDING REASONABLE ATTORNEYS’ FEES) INCURRED BY THE INDEMNIFIED PARTIES, AND CLAIMS, LAWSUITS, PROCEEDINGS OR DEMANDS THAT MAY BE MADE BY ANY PERSON OR ENTITY, (INCLUDING BUYER AND ITS EMPLOYEES AND AGENTS, AND ANY THIRD PARTY) AGAINST INDEMNIFIED PARTIES, ARISING FROM ANY MATTER RELATING TO (A) ANY BREACH OR MISREPRESENTATION BY BUYER UNDER THIS SALES ORDER, (B) PRODUCTS THAT CONFORM TO THE SPECIFICATIONS ESTABLISHED HEREUNDER, OR (C) THE OPERATION OR CONDUCT OF THE BUYER’S BUSINESS; PROVIDED, HOWEVER, THAT BUYER’S OBLIGATIONS HEREUNDER SHALL BE PROPORTIONATELY REDUCED TO THE EXTENT CAUSED BY SELLER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. BUYER’S OBLIGATIONS HEREUNDER SHALL NOT BE LIMITED BY APPLICABLE WORKERS’ COMPENSATION LAWS, AND SHALL SURVIVE THE FULFILLMENT OF THIS SALES ORDER.
11. WAIVER OF BREACH: No waiver of Seller or Buyer of any breach of any of the Terms and Conditions shall be construed as a waiver of any subsequent breach of the same or any other term or condition.
12. GOVERNING LAW: This Sales Order (including these Terms and Conditions) and any document related hereto shall be governed by, and construed pursuant to, the laws of the State of Texas, United States of America, excluding any choice of law rules which may direct the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to this Sales Order, these Terms and Conditions or any document related hereto. In addition, the INCOTERMS 2010 shall apply to these Terms and Conditions, the applicable Sales Order and any and all related documentation between Seller and Buyer.
13. ALTERNATIVE DISPUTE RESOLUTION: Any dispute between Buyer and Seller which cannot be settled amicably within 30 days of a written notice by one party to the other of the existence of such dispute specifying the object thereof, shall be settled, to the exclusion of a court of law or equity proceeding, by arbitration. Arbitration proceedings shall be held in Houston, Texas, United States of America, pursuant to the rules of the American Arbitration Association. Counterclaims may be filed in the same arbitral proceeding. Judgment upon the arbitral award may be entered in and enforced by a court of competent jurisdiction.
14. ASSIGNMENT. This agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. This agreement, or any part thereof, shall not be assigned, delegated, or otherwise transferred by either party without the prior written consent of the other party; except that no such consent of Buyer shall be required when: (a) such transfer is in connection with the sale or other transfer of all or substantially all the assets of the business, or the ownership interests, of Seller, or with the sale or other transfer of the assets of Seller to which this agreement relates; or (b) the assignment of this agreement by Seller to any of its affiliates. In the event that Seller transfers or assigns its rights and obligations under this agreement and no consent is required, Seller shall notify Buyer of same.
15. VERSIONS: In the event these Terms and Conditions (and any document related hereto) is in two different languages, both in the English and Spanish language, both versions shall be valid; provided, however, if there is a discrepancies o conflict between the versions, the English version shall prevail.
16. ENTIRE AGREEMENT: This Sales Order (including these Terms and Conditions) sets forth the entire agreement between Seller and Buyer and, no terms, conditions, understanding, or agreement purporting to modify or vary the terms of these Terms and Conditions, this Sales Order or the related invoice, shall be binding unless hereafter made in writing and signed by Seller and Buyer.