DuBois Chemicals Website

P.O. Terms and Conditions
Invoice Terms and Conditions (U.S.)
Invoice Terms and Conditions (Canada)

EFFECTIVE MAY 1, 2023

DUBOIS CHEMICALS, INC.
P.O. TERMS AND CONDITIONS

  1. TERMS.  These Terms constitute Buyer's offer and may be accepted by Seller only in accordance with the terms hereof. Seller's acceptance of these Terms and any order hereunder shall occur either through commencement of performance or acknowledgment of the order. By accepting an order hereunder, Seller waives all terms and conditions contained in its quotation, acknowledgment, invoice or other documents which are different from or additional to those contained herein and all such different or additional terms and conditions shall be null and void. No addition to, waiver or modification of, any of the provisions herein contained shall be of any force or effect unless made in writing and executed by an officer of buyer.
  1. PRICE.  The prices agreed upon shall include all applicable taxes and other duties, levies, surcharges or other charges of similar import. No charge will be allowed for packing, crating, drayage or storage unless stated herein. Articles, pesticides, material, work, food and food grade products, drugs and cosmetics covered by this Purchase Order (the "Material(s)") are purchased on a delivered basis and all freight charges are to be paid by Seller. Buyer assumes no obligation for articles, materials, and work shipped or performed in excess of quantity specified in this Purchase Order.
  1. In connection with any discount offered for prompt payment, time for earning the discount will be computed from the latest date of: (i) delivery of the Material(s) to the carrier (when acceptance is at shipping point); (ii) delivery at Buyer's destination or port of embarkation (when delivery and acceptance are at either of these points); or (iii) receipt by Buyer of the correct invoice or voucher (in strict accordance with this Order) in the office specified by Buyer. For the purpose of earning any such discount, payment will be deemed to be made on the date of mailing of Buyer's check or Buyer's initiation of electronic payment. In case of errors on an invoice, the payment discount period will date from the receipt of corrected invoices.
  1. SHIPPING; DELIVERY/TITLE.  Unless otherwise agreed to in writing, delivery shall be FOB point of destination and title and risk of loss shall pass to Buyer upon delivery to Buyer's location.
  1. COMPLIANCE WITH LAWS.  Seller in performance of this Purchase Order agrees to comply with and warrants that all applicable laws, regulations and orders of governmental bodies relating to the manufacture, packaging, labeling, sale, transportation, delivery or export of the Material(s), the dissemination of information in connection therewith and those relating to wages, hours, employee safety and working conditions. Without limitation, Seller agrees to be bound by the provisions of Section 202, Executive Order 11246 and with other provisions of said Executive Order, as amended, unless exempted by law. Unless exempt by law, Seller further agrees to comply with the following employment practices: Vietnam Era Veterans Readjustment Assistance Act of 1974 (30 U.S.C. 2012); Rehabilitation Act of 1973; Utilization of Minority Business Enterprises (Executive Order 11458); and Labor Surplus Area Concerns Regulations, in each case as amended, Environmental Protection Agency requirements, and the Consumer Product Safety Improvement Act, the Fair Labor Standards Act of 1938, as amended, Walsh-Healy Act, Robinson-Patman Act, The Trafficking Victims Protection Act of 2000 (Public Law 106-386) as amended, applicable state Workers' Compensation laws, state and federal Occupational Safety and Health Acts, the Lacey Act (16 U.S.C. § 3371 et seq., as amended) for goods containing wood fiber, all applicable United States Toxics in Packaging legislation, including EU REACH and RoHS legislation, the Dodd-Frank Act, and all rules and regulations passed pursuant to any of the foregoing, which are incorporated herein by this reference, and, if applicable, hereby guarantees that no article is adulterated or misbranded within the meaning of the Federal Food, Drug, and Cosmetic Act, or is an article which may not, under the provisions of section 404, 505, or 512 of the act, be introduced into interstate commerce, and with state and local legislation of similar import to the extent the foregoing are applicable to the Material(s). In order to comply with all Federal, State and Local regulations, a current Material Safety Data Sheet must be provided for all chemical substances.
  1. WARRANTIES.  In addition to any other warranties contained herein or implied by law, Seller expressly warrants that: (i) the Material(s), when shipped, shall conform to specifications, drawings, samples or other descriptions furnished by Seller or specified by Buyer, and shall be of merchantable quality, fit and safe and free from defects in material, design and workmanship; (ii) the Material(s) do not infringe on any trademark or patent right; (iii) it possesses all licenses and permits required by any state, federal or municipal agency that may be required to sell the Material(s); (iv) the Material(s) comply with and are manufactured and labeled in compliance with all applicable federal, state and local laws, rules and regulations, including, but not limited to, Environmental Protection Agency requirements, the Consumer Product Safety Improvement Act, the Federal Food, Drug and Cosmetics Act, the Fair Labor Standards Act of 1938 (as amended), the Lacey Act (16 U.S.C. Sec. 3371 et seq., as amended) for products containing wood fiber, all United States Toxics in Packaging legislation, EU REACH and RoHS legislate, and any other laws, rules, regulations or ordinances governing the environment, health, safety, weights, measures and sizes; (v) the Material(s) are fit for the particular purpose intended; (vi) Buyer shall have good title to all Material(s) sold to Buyer free and clear of all liens, claims and encumbrances; (vii) Seller is in full compliance with the provisions of The Foreign Corrupt Practices Act of 1977 (as amended) and any rules or regulations promulgated thereunder; and (viii) the goods do not and will not contain any "conflict minerals" (columbite-tantalite (coltan), cassiterite, gold or wolframite, or their derivatives, tantalum, tin and tungsten) as defined in the 2010 Wall Street Reform and Consumer Protection Act, also known as the Dodd-Frank Act, and that no conflict minerals are necessary to the functionality or production of any of the goods. Seller warrants and represent that the sale of the Materials shall in no way violate any law, statute, ordinance, regulation or similar regulatory edict, including, but not limited to, anti-dumping regulations. Buyer's approval of specifications, drawings, samples and/or other descriptions furnished by Seller shall not relieve Seller of its obligations under these Terms. Without limiting its remedies under law or equity, Buyer at its option may require Seller either to replace defective goods at no increase in price (Seller must pay all repacking, transportation and handling charges both ways) or to refund the purchase price and any charges in connection therewith. In addition to the foregoing, Seller hereby warrants that all Material(s) covered by the Federal Food, Drug and Cosmetic Act, as amended (the "FFDC Act") hereafter sold by Seller to Buyer do and shall at the time of the delivery thereof by or on behalf of Seller, in all respects comply with the FFDC Act, the Federal Fair Packaging and Labeling Act and with all applicable laws of each state into which any such products may be shipped by or on behalf of Seller, whether now in force or hereafter enacted, do not contain a misbranded hazardous substance or banned hazardous substance, and do not require a notice or warning concerning carcinogenicity, reproductive toxicity or safety on Buyer's products or for Buyer's products as a result of being utilized or incorporated in Buyer's products. All products defined as "pesticides" under the Federal Insecticide, Fungicide and Rodenticide Act (or any state law of similar import) are properly registered with the appropriate government agency(ies), are produced in facilities licensed thereunder, and are properly packaged and labeled. Seller further warrants that (i) all food grade material ordered hereunder shall have been manufactured, packaged, stored and shipped using the best sanitary standards available in the food industry, (ii) such material will be delivered in sanitary and undamaged condition, (iii) packaging components shall not employ rubber, clear plastic, or metal ties, staples, bands, or similar separable closure devices.
  1. INDEMNITY.  Seller agrees to indemnify, defend and hold harmless the Buyer, its directors, officers, agents, employees, affiliates, successors, assigns, customers and users of its products from and against any and all expenses, claims, demands, losses, damages, actions, or liability of any kind, including without limitation reasonable attorney's fees incurred for any and all damage or injury of any kind or nature whatever (including death) to all persons, (including those employed by Seller) or property which is caused by, arises out of, on account of, or as a result of: (i) use of the Material(s) or services provided hereunder; (ii) breach by Seller of any of its representations, warranties, covenants and/or any agreements contained herein; (iii) any act or omission of Seller, its agents, employees, representatives or subcontractors or failure to comply with the terms hereof; or (iv) any alleged infringement of any trademark, patent, copyright or other proprietary right, by reason of the sale or use of the Material(s) and/or services furnished under these Terms and/or relating in any way to any Material or design, composition or processing of Seller's origin or practice supplied by Seller under the Purchase Order. If any of the Material(s) or services provided pursuant to these Terms or any part thereof is held to constitute infringement and its use is enjoined, Seller shall at its own expense either procure for Buyer, its successors, assigns, and customers the right to continue using such Material(s) or services or part thereof or replace them with a substantially equivalent non-infringing Material(s) or service. Upon demand, Seller agrees to assume on behalf of the Buyer the defense of any action, at law or in equity, which may be brought against the Buyer upon any such claim and to pay on behalf of the Buyer the amount of any judgment that may be entered against the Buyer in any such action. Seller hereby expressly waives any immunity from suit by Buyer, which may be conferred by the workers' compensation laws, or any other law of any state that would preclude enforcement of the indemnification clause of these Terms by Buyer. Seller further agrees to pay any reasonable attorney's fees incurred by the Buyer in securing compliance with the provisions of this section. In addition, Seller shall carry worker's compensation and liability insurance coverage with respect to any indemnifiable matter hereunder in amounts required by Buyer in Buyer's sole discretion. Seller also agrees to supply appropriate certificates of such insurance, naming Buyer as an additional insured upon request. Seller agrees that its obligations to indemnify under this section are distinct from, independent of, and not intended to be coextensive with its duty to procure insurance required herein.
  1. INSURANCE.  Sellers agrees at its sole cost and expense to maintain the following minimum amounts of insurance coverage and related requirements. Workers' Compensation Insurance as required by law. Commercial General Liability Insurance with a minimum limit of $1,000,000 per occurrence and $2,000,000 aggregate and include products and completed operations coverage, contractual liability. Automobile Liability Insurance covering all owned, hired and non-owned vehicles with a minimum limit of $1,000,000. By policy endorsement on commercial general liability, automobile liability, and any umbrella or excess liability insurance policies name Buyer and its subsidiaries and affiliates, and their respective agents, employees, officers and directors ("Parties") as additional insured, and the additional insured status shall apply to the full policy limits purchased by Seller even if those limits are in excess of those required herein, and such policies shall state that Seller's insurance is primary and non-contributory as to any other insurance or self-insurance maintained by Parties. Seller hereby waives for itself and its affiliates, and where allowed by law, shall cause its insurers on all insurance policies required herein, to waive all rights of recovery against Parties. The obligation of Seller to provide the required insurance shall not limit in any way the liability or obligations assumed by Seller.
  1. DEFECTIVE MATERIAL.  Material(s) supplied by Seller shall be received subject to Buyer's inspection and approval within a reasonable time after delivery, notwithstanding prior payment. Payment for Material and acknowledgment of receipt thereof shall not constitute an acceptance thereof. Rather, all Material shall be received subject to Buyer's inspection and rejection. Defective Material or Material not in accordance with the Specifications, as determined in Buyer's sole discretion will be returned at Seller's risk and expense and Buyer shall have no obligation to pay for such Material. Seller may not alter the formulation, manufacturing process or specification of any Material without Buyer's prior written consent. . If specifications or warranties are not met, goods may be returned at Seller's expense. No goods returned to Seller as defective shall be replaced except upon Buyer's written authorization. Buyer may return to Seller any non-defective, excess goods within ninety (90) days of receiving them
  1. MODIFYING SPECIFICATIONS.  Buyer shall have right at any time to make changes in an order by written notice and/or changes in Specifications as to any Material. If such changes cause a material increase or decrease in Seller's costs or time of performance, Seller shall notify Buyer immediately and negotiate an adjustment in an equitable fashion which shall be determined and approved by Buyer, and the Purchase Order shall be modified in writing accordingly. Pending price adjustment, Seller shall proceed with performance of this Purchase Order as changed. SELLER MAY NOT CHANGE MATERIAL OF MANUFACTURE, SOURCES OF SUPPLY, MANUFACTURING PROCESS OR LOCATION WITHOUT THE PRIOR WRITTEN CONSENT OF BUYER.
  1. OWNERSHIP OF DESIGNS.  Buyer retains all rights in designs, drawings, and other materials furnished by or on behalf of Buyer to Seller in connection with this Purchase Order and Seller shall keep the same confidential. Seller hereby assigns any rights in designs, drawings, and other materials it may develop or accrue in connection with supplying the Materials to Buyer pursuant hereto. No such designs, drawings, or other materials, whether or not furnished by or on behalf of Buyer, shall, without Buyer's written permission, be incorporated in, or used in connection with, goods furnished to others.
  1. TIME OF THE ESSENCE.  Time is of the essence for this Purchase Order. The time for delivery shall not be extended beyond the date for delivery specified by Buyer, unless Buyer shall have agreed to an extension in writing. Delays in shipment shall be reported immediately by Seller to Buyer. In addition to any other rights and remedies Buyer may have under this Purchase Order or provided by law, if deliveries are not made at the time agreed upon, Buyer may cancel the contract in whole or in part and purchase comparable goods elsewhere, and hold Seller accountable for any additional costs arising from such cancellation and purchase and other damages incurred by Buyer as a result of Seller's default. Title to and risk of loss of any Materials supplied by Seller under this Purchase Order shall remain with Seller until delivery of said Materials has been effected at the point of delivery stated in this Purchase Order.
  1. LIENS.  If the use of Seller's employees, subcontractors or others under Seller's control at the plant where the Material is to be used or installed shall be involved, Seller will keep the Material and the premises on which the work is to be done free and clear of all liens for materials and labor incident to the performance of work hereunder or on behalf of Seller.
  1. INVOICES; SHIPMENTS.  All Invoices and bills of lading, showing full routing, car numbers, lot numbers, size of each lot, ingredient code number and ingredient name (as applicable) etc. should be dated and mailed to Buyer at the location indicated on the face of an order and shall state Buyer's purchase order number clearly on the invoice at the time of shipment. All carrier's equipment shall be clean and in good repair. When applicable, Seller's carrier must contact Buyer's Receiving Department at Buyer's location of destination at least 48 hours in advance of arrival for an unloading appointment.
  1. SELLER'S DOCUMENTATION.  Seller shall have on file, at each plant producing ingredients and/or packaging material for Buyer, a copy of the applicable ingredient or Packaging Specifications and applicable Analytical Test Procedures, Microbiological Testing Methods and any other testing requirements necessary or advisable to assure compliance with applicable law as well as the criteria stated in the Specifications.
  1. TERMINATION..  (a) Buyer may terminate this Purchase Order, including without limitation canceling shipments of Material(s), in whole or in part at any time, upon notice to Seller which shall state the extent and effective date thereof. Upon receipt thereof, Seller will, as and to the extent so directed, stop work and/or shipment under this Purchase Order or any subcontracts hereunder and the placement of further subcontracts hereunder, and take any necessary action to protect property in Seller's possession in which Buyer has or may acquire an interest. (b) If the parties cannot, by negotiation, agree within a reasonable time upon the amount of fair pro rata compensation to Seller upon such termination, Buyer will pay to Seller the following amounts without duplication: (1) The contract price for all Material(s) delivered in accordance herewith prior to the effective date of termination, and not previously paid for; and (2) The actual costs indicated by Seller which are properly allocable or apportionable under recognized commercial accounting practices to, and incurred solely in respect of, the terminated portion of this Purchase Order and which are not salvageable by Seller. Payment made under this subparagraph (b) shall in no event exceed the aggregate purchase price for the Material(s) less payment otherwise made or to be made. (c) With the consent of Buyer, Seller shall retain at an agreed price, or sell at an approved price, any Material(s) completed or in process the cost of which is allocable or apportionable to this Purchase Order under subparagraph (b)(2) above and shall credit or pay the amount so agreed or received as Buyer shall direct. If, and as directed by Buyer, Seller shall transfer title to and make delivery of any such Material(s) not so retained or sold. Proper pro-rata adjustments will be made for delivery costs or savings therein. (d) The provisions of this paragraph 15 shall not limit or affect the right of the Buyer to terminate this Purchase Order for the default of Seller in which case no further payments shall be due to seller following such termination. In the event any order is terminated as a result of Seller's default, the Seller shall be liable for all damages allowed in law or equity, including the excess cost of procuring similar items
  1. While on Buyer's premises, Seller, its subcontractors, agents and/or vendors shall comply with Buyer's site specific regulations and shall ensure that all of its employees, subcontractors, agents, and/or vendors have a safe work environment. Seller is solely responsible for the safety of the employees of Seller, its subcontractors, agents and/or vendors and the means and methods utilized same in performing the services contemplated herein, and Seller agrees that Buyer shall have no such responsibility. In the event an employee of Seller, one of its subcontractors, agents or vendors are injured while on Buyer's premises, Seller shall immediately notify Buyer of the time, nature, and severity of the injury and cooperate with Buyer and provide Buyer with information applicable to any investigation of such injury.
  1. All specifications, data and other information furnished by Buyer, or its agents, to Seller in connection with these Terms or any order hereunder remain the exclusive intellectual property of Buyer and shall be treated by the Seller as proprietary and shall not be disclosed or used without prior written approval of Buyer. In addition, the purchase of the Seller's goods does not authorize the Seller to use the name of or make reference to Buyer for any purpose in any releases for public or private dissemination, nor shall the Seller divulge or use in any advertisement or publication any specifications, data, or other information pertaining to or relating to this usage without prior written approval of Buyer.
  1. REMEDIES.  The remedies herein shall be cumulative and additional to all other remedies provided in law or equity. Buyer hereby notifies Seller that Buyer objects to and specifically rejects any attempt by Seller to limit or condition its liability for breach of damages arising out of its performance or non-performance of this Purchase Order. No waiver of a breach hereunder shall constitute a waiver of any other or further breach.
  1. GOVERNING LAW.  These Terms, this Purchase Order, and the contract resulting herefrom, as well as any order hereunder, and the rights and obligations of the parties hereto, shall be (i) governed and construed in accordance with the laws of the State of Ohio without regard for its principles of conflicts of laws and (ii) shall not be assignable by Seller. Any action or proceeding against either party relating to this Purchase Order must be brought and enforced in the courts of the State of Ohio, and each party irrevocably submits to the exclusive jurisdiction of such courts in respect of any such action or proceeding and waives any claim of forum non conveniens.
  1. MISCELLANEOUS.  If this Purchase Order involves sale or delivery of articles, material or equipment, then Seller agrees to comply with Buyer's General Condition-Sale and Delivery. If this Purchase Order involves construction, then Seller agrees to comply with Buyer's General Condition-Contract Work. If this Purchase Order involves installation or service, then Seller agrees to comply with the Buyer's General Condition-Installation & Service Personnel. If this Purchase Order involves performance of work on Buyer's premises, then Seller agrees to comply with Buyer's Safety Standard No. 9 and any additional safety standards designated by Buyer. Each of the documents referred to in this paragraph is available from Buyer upon written request. No waiver or amendment of any provision of this Purchase Order shall be effective unless in writing and signed by an authorized representative of Buyer. Buyer may transfer or assign the benefits of these Terms or any order hereunder, in whole or in part, including without limitation the Seller's warranty, without the approval of Seller. The sections of these Terms that by their nature are intended to survive termination or expiration of these Terms will so survive, including without limitation, warranties, indemnities and confidentiality

EFFECTIVE MAY 1, 2023

DUBOIS CHEMICALS, INC.
INVOICE TERMS AND CONDITIONS (U.S.)

  1. ACCEPTANCE AND CONTRACT.  SELLER'S ACCEPTANCE OF THIS ORDER IS EXPERSSLY CONDITIONED UPON BUYER'S ACCEPTANCE OF ALL TERMS AND CONDITIONS CONTAINED HEREIN. THE TERMS AND CONDITIONS CONTAINED HEREIN SHALL CONSITUTE THE BINDING CONTRACT BETWEEN SELLER AND BUYER CONCERNING THE GOODS OR SERVICES SOLD HEREUNDER. NEITHER PARTY SHALL CLAIM ANY AMENDMENT, MODIFICATION, WAIVER OR RELEASE FROM ANY PROVISION HEREOF. THE SUBSEQUENT EXECUTION OR SIGNATURE BY SELLER OF A PURCHASE ORDER OR OTHER SIMILAR PURCHASE AUTHORIZATION DOCUMENT FROM BUYER SHALL BE CONSTRUED AND INTERPRETED AS EVIDENCE OF ACKNOWLEDGEMENT OF RECEIPT OF SUCH PURCHASE ORDER OR SIMILAR DOCUMENT BY SELLER ONLY, AND, NOTWITHSTANDING ANY OTHER LANGUAGE, TERMS, OR CONDITIONS CONTAINED IN SUCH PURCHASE ORDER OR SIMILAR DOCUMENT, SHALL IN NO WAY BE CONSTRUED, INTERPRETED OR BECOME EFFECTIVE AS AN AMENDMENT OR MODIFICATION OF ANY OF THE TERMS AND CONDITIONS OF THIS CONTRACT. ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY BUYER ARE REJECTED UNLESS EXPRESSLY AGREED TO IN A WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SELLER.
  2. ORDER CANCELLATION.  Product Returns. Buyer cannot cancel any orders or return any goods once the bill of lading has been issued in respect to the relevant goods and/or services unless such cancellation or return is first approved by Seller in writing. All claims relating to quality of goods or services must be made within ten (10) days of delivery of goods or provision of services to Buyer or the same are waived. The use of the goods or services shall be deemed to mean that the Seller has satisfactorily performed.
  3. CLAIMS FOR SHORTAGES AND ALLOWANCES.  Claims for shortages must be supported with signed documentation and must be noted at the time of delivery on all carrier documents. Claims for allowances must be submitted within thirty (30) days of shipment or the same are waived. Buyer agrees to reimburse Seller promptly for any allowance received without required performance.
  4. PRICES: CHARGEBACKS.  All prices/discounts/rebates are subject to change without notice. All general or special taxes, imposts, duties, or penalties or other governmental charges fixed or imposed by any lawful authority upon the production, sale, shipment or delivery of the services or goods or upon the material from which they are produced and thereafter becoming effective within the life of this contract, shall be added to the price and paid by Buyer. Seller reserves the right to charge back to Buyer any detention charges incurred at the destination. There will be no penalties for late deliveries without Seller's prior written approval.
  5. PAYMENT   Payment terms are cash on delivery, unless credit terms are established in Seller's sole discretion. Buyer agrees to pay Seller cost of collection of overdue invoices, including reasonable attorneys' fees and costs. Past due balances are subject to 1.5% finance charge.
  6. TRANSPORTATION.  Seller shall select the mode of transportation, routing and carrier for delivered orders and Seller reserves the right to substitute alternate modes of transportation for that selected by Buyer. Any exercise of these rights by Seller shall in no way affect Seller's liability, if any, as set out in these Terms and Conditions. All less than truckload orders may be subject to pooling shipment scheduled at Seller's sole discretion. Seller reserves the right to pass on to Buyer incremental costs incurred on order placements as a result of such orders not meeting Seller's order minimum order or other specifications for the applicable products.
  7. SHIPPING.  Risk of Loss. All goods and/or services sold hereunder are F.O.B. Seller's facility unless otherwise stated herein, but Seller retains a security interest in any goods sold hereunder until payment is received from Buyer. Risk of loss for, damage to and title to, the product, shall pass to Buyer when product is delivered to carrier for shipment, notwithstanding price is quoted "delivered". Seller shall have no obligation to declare a value for any shipment with the carrier, whether on the bill of lading or otherwise, and liability for any failure to declare a value is expressly excluded. All claims for shipping loss or damage are Buyer's responsibility. Delivery dates are not guaranteed and Seller has no liability for damages that may be incurred due to any delay in shipment of goods hereunder. Taxes are excluded unless otherwise stated.
  8. REPACKING; LABELING.  Individual Product containers shall not be removed from their original shipping containers for re-shipment. Seller shall furnish labels identifying the Products in reasonable quantities (i) to identify secondary storage containers for Products purchased in bulk or (ii) to replace original Product labels damaged or destroyed or (iii) to be affixed to secondary containers supplied by Seller to hold diluted Products. Said labels are not to be affixed to Product containers shipped outside Buyer's facility. Seller makes no representation or warranty with respect to said labels. Buyer shall indemnify and hold Seller harmless for any use of labels not in accordance with the foregoing.
  9. DISCLAIMERS.  EXECPT IF, AND TO THE MINIMUM EXTENT, OTHERWISE REQUIRED BY APPLICABLE LAW, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES, AND GUARANTEES WITH RESPECT TO THE PRODUCTS OR SERVICES FURNISHED BY SELLER HEREUNDER, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR, SIMULTANEOUS OR SUBSEQUENT ORAL OR WRITTEN STATEMENTS BY SELLER OR ITS REPRESENTATIVES OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, SATISFACTION OR FITNESS FOR A PARTICULAR PURPOSE) ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SELLER SPECIFICALLY DISCLAIMS ALL WARRANTIES REGARDING THE PROFITABILITY, SUCCESS OR VALUE OF ANY PRODUCT OR SERVICE PROVIDED HEREUNDER AS WELL.AS ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.

    TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SELLER'S LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED TO SUPPLYING THE GOODS OR SERVICES BUYER HAS AGREED TO PURCHASE AGAIN OR PAYING THE COST OF SUPPLYING THE GOODS OR SERVICES AGAIN.
  10. LIMITATION OF LIABILITY.  TO THE MAXMIUM EXTENT PERMITTED BY LAW, AND NOTWITHSTANDING THE FORM (CONTRACT, TORT, OR OTHERWISE) IN WHICH ANY LEGAL OR EQUITABLE ACTION OR CLAIM MAY BE BROUGHT AGAINST SELLER, AND WHATEVER THE CAUSE AND WHETHER IN RESPECT OF NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH OF CONTRACT OR OTHER CAUSE OF ACTION. SELLER SHALL IN NO EVENT HAVE ANY LIABILITY TO PURCHASER OR ANY OTHER PERSON FOR LOST PROFITS OR GOODWILL, OR FOR SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OR ECONOMIC LOSS OF ANY KIND, WHETHER FORESEEABLE OR UNFORESEEABLE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES AND NOTWITHSTANDING ANY DISCLOSURE OF THE NATURE OR VALUE OF THE GOODS OR SERVICES PROVIDED BY SELLER HEREUNDER OR ANY PARTICULAR USE WHICH MAY BE MADE BY PURCHASER OF SUCH GOODS AND/OR SERVICES. BUYER'S EXCLUSIVE REMEDY IN THE EVENT OF LOSS OF OR DAMAGE TO THE GOODS OR SERVICES TO BE PROVIDED IN ACCORDANCE WITH THIS INVOICE SHALL BE THE REPLACEMENT OF SUCH GOODS OR SERVICES OR, AT SELLER'S OPTION, DAMAGES, PROVIDED, HOWEVER, IN NO EVENT SHALL SELLER BE LIABLE HEREUNDER FOR DAMAGES WHICH EXCEED, IN THE AGGREGATE, THE PRICE ACTUALLY PAID BY BUYER TO SELLER FOR THE GOOD(S) OR SERVICE(S) WHICH GAVE RISE TO SUCH DAMAGES. SELLER NETIHER ASSUMES NOR AUTHORIZES ANY PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OR USE OF THE GOODS SOLD OR SERVICES TO BE PERFORMED HEREUNDER. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE LIMITATIONS HEREIN MAY NOT APPLY. Seller shall not be responsible or liable for any loss, damage or inconvenience suffered by Buyer, or by any third person, to the extent that such loss, damage or inconvenience is caused by the failure of the Buyer to comply with its obligations under this Agreement. Each party acknowledges that the fees set forth in this Agreement reflect the allocation of risk between the parties and that the other party would not enter into this Agreement without these limitations on its liability.
  11. INDEMNITY.  Buyer agrees to indemnify, defend and hold harmless the Seller, its directors, officers, agents, employees, affiliates, successors, assigns, customers and users of its products from and against any and all expenses, claims, demands, losses, damages, actions, or liability of any kind, including without limitation reasonable attorney's fees incurred for any and all damage or injury of any kind or nature whatever (including death) to all persons, (including those employed by Buyer) or property which is caused by, arises out of, on account of, or as a result of: (i) use of the goods or services provided hereunder; (ii) breach by Buyer of any of its representations, warranties, covenants and/or any agreements contained herein; (iii) any act or omission of Buyer, its agents, employees, representatives or subcontractors or failure to comply with the terms hereof; or (iv) any alleged infringement of any trademark, patent, copyright or other proprietary right, by reason of the sale or use of the goods and/or services furnished under these Terms and/or relating in any way to any goods or design, composition or processing of Buyer's origin or practice supplied by Buyer under these terms. Upon demand, Buyer agrees to assume on behalf of the Seller the defense of any action, at law or in equity, which may be brought against the Seller upon any such claim and to pay on behalf of the Seller the amount of any judgment that may be entered against the Seller in any such action. Buyer hereby expressly waives any immunity from suit by Seller, which may be conferred by the workers' compensation laws, or any other law of any state that would preclude enforcement of the indemnification clause of these Terms by Seller. Buyer further agrees to pay any reasonable attorney's fees incurred by the Seller in securing compliance with the provisions of this section. In addition, Buyer shall carry worker's compensation and liability insurance coverage with respect to any indemnifiable matter hereunder in amounts required by Seller in Seller's sole discretion. Buyer also agrees to supply appropriate certificates of such insurance, naming Seller as an additional insured upon request. Buyer agrees that its obligations to indemnify under this section are distinct from, independent of, and not intended to be coextensive with its duty to procure insurance required herein. The foregoing indemnity obligations of Buyer shall not apply to expenses, claims, demands, losses, damages, actions, or liability which are the result of Seller's negligence and/or willful misconduct.
  12. INSURANCE.  Buyer shall, at its sole cost and expense, maintain commercial general liability insurance that includes products and completed operations coverage with a minimum limit of $1,000,000 per occurrence. The policy shall name Seller and its subsidiaries and affiliates as additional insured and state that Buyer's insurance is primary and non-contributory as to any other insurance or self-insurance maintained by Seller. Buyer hereby waive for itself and its affiliates and cause its insurers on all insurance policies to waive all rights of recovery against Seller.
  13. FORCE MAJEURE.  In the event of war, fire, flood, strike, labor trouble, breakage of equipment, accident, riot, acts of governmental authority, acts of God, or other contingencies beyond the reasonable control of the Seller, interfering with the production, supply, transportation or consumption practice of the Seller at the time respecting the goods or services provided hereunder, or in the event of inability to obtain on terms deemed by Seller to be practicable any raw material (including energy source) used in connection therewith quantities so affected shall be eliminated from Seller's obligations without liability, but the contract shall otherwise remain unaffected. Seller may, during any period of shortage due to any of said causes, allocate its supply of such raw materials among its various uses therefore (e.g. manufacturing and sales) in such manner as Seller deems practicable and allocate its supply of such goods or services among such various users thereof in any manner which Seller deems fair and reasonable.
  14. REMEDIES.  The remedies herein shall be cumulative and additional to all other remedies provided in law or equity. Seller hereby notifies Buyer that Seller objects to and specifically rejects any attempt by Buyer to limit or condition its liability for breach of damages arising out of its performance or non-performance under these Terms. No waiver of a breach hereunder shall constitute a waiver of any other or further breach.
  15. GOVERNING LAW; CHOICE OF FORUM.  This contract and any disputes arising under or related thereto (whether for breach of contract, tortious conduct or otherwise) shall be governed by the laws of the State of Ohio, without reference to its conflicts of law principles. Any action or proceeding against either party relating to these Terms must be brought and enforced in the courts of the State of Ohio, and each party irrevocably submits to the exclusive jurisdiction of such courts in respect of any such action or proceeding and waives any claim of forum non conveniens. Any action brought by Buyer against Seller must be commenced with one (1) year after delivery of goods or provision of services, notwithstanding any statutory period of limitation to the contrary. This contract is not assignable by Buyer.

PRIOR TO MAY 1, 2023

P.O. Terms and Conditions
Invoice Terms and Conditions (U.S.)
Invoice Terms and Conditions (Canada)

DUBOIS CHEMICALS, INC.
P.O. TERMS AND CONDITIONS

  1. TERMS.  THIS PURCHASE ORDER IS EXPRESSLY CONDITIONAL ON ACCEPTANCE OF ALL TERMS SET FORTH HEREIN, REGARDLESS OF ANY PRIOR OFFER BETWEEN BUYER AND SELLER. THE TERMS OF THE CONTRACT SHALL BE AS HEREIN SET FORTH UNLESS SELLER WITHIN THREE DAYS OF RECEIPT SHALL OBJECT TO A PROVISION OR PROVISIONS HEREIN IN A WRITING WHICH EXPRESSLY REFERS TO THE PROVISION OR PROVISIONS OBJECTED TO. ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY SELLER ARE REJECTED UNLESS EXPRESSLY AGREED TO IN A WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE BUYER.
  2. PRICE.  The prices agreed upon shall include all applicable taxes and other duties, levies, surcharges or other charges of similar import. No charge will be allowed for packing, crating, drayage or storage unless stated herein. Buyer assumes no obligation for articles, materials, and work shipped or performed in excess of quantity specified in this Purchase Order.
  3. COMPLIANCE WITH LAWS.  Seller in performance of this Purchase Order agrees to comply with all applicable laws, regulations and orders of governmental bodies relating to the manufacture, packaging, labeling, sale, transportation, delivery or export of articles, pesticides, material, work, food and food grade products, drugs and cosmetics covered by this Purchase Order (the "Material"), the dissemination of information in connection therewith and those relating to wages, hours, employee safety and working conditions. Without limitation, Seller agrees to be bound by the provisions of Section 202, Executive Order 11246 and with other provisions of said Executive Order, as amended, unless exempted by law. Unless exempt by law, Seller further agrees to comply with the following employment practices: Vietnam Era Veterans Readjustment Assistance Act of 1974 (30 U.S.C. 2012); Rehabilitation Act of 1973; Utilization of Minority Business Enterprises (Executive Order 11458); and Labor Surplus Area Concerns Regulations, in each case as amended, and with state and local legislation of similar import. In order to comply with all Federal, State and Local regulations, a current Material Safety Data Sheet must be provided for all chemical substances.
  4. WARRANTIES.  Seller expressly warrants that all Material will conform to, and will be delivered in accordance with the specifications, drawings, samples or other descriptions furnished to or adopted by Buyer (the "Specifications"), and will be fit and sufficient for the purpose intended, merchantable, of the highest quality and workmanship, free from defect and are owned solely by Seller and will be delivered by the date specified in this Purchase Order. In addition to the foregoing, Seller hereby warrants that all products covered by the Federal Food, Drug and Cosmetic Act, as amended (the "FFDC Act") hereafter sold by Seller to Buyer do and shall at the time of the delivery thereof by or on behalf of Seller, in all respects comply with the FFDC Act, the Federal Fair Packaging and Labeling Act and with all applicable laws of each state into which any such products may be shipped by or on behalf of Seller, whether now in force or hereafter enacted, do not contain a misbranded hazardous substance or banned hazardous substance, and do not require a notice or warning concerning carcinogenicity, reproductive toxicity or safety on Buyer's products or for Buyer's products as a result of being utilized or incorporated in Buyer's products. All products defined as "pesticides" under the Federal Insecticide, Fungicide and Rodenticide Act (or any state aw of similar import) are properly registered with the appropriate government agency(ies), are produced in facilities licensed thereunder, and are properly packaged and labeled. Seller further warrants that (i) all food grade material ordered hereunder shall have been manufactured, packaged, stored and shipped using the best sanitary standards available in the food industry, (ii) such material will be delivered in sanitary and undamaged condition, (iii) packaging components shall not employ rubber, clear plastic, or metal ties, staples, bands, or similar separable closure devices.
  5. INDEMNITY   Seller agrees to protect, indemnify, defend and hold harmless Buyer, its directors, officers, agents, employees, affiliates, successors, assigns, customers and users of its products, against all liability, loss, damage or expenses whatsoever (including, without limitation, attorneys' fees): (i) which may result from any claim, demand or suit based on (x) a condition in any such Material as would constitute a failure of such material to be as so warranted or (y) any infringement of any intellectual property (except patents owned or controlled by the Buyer) relating in any way to any Material or design, composition or processing of Seller's origin or practice supplied by Seller under the Purchase Order or (ii) to all persons or property arising out of the performance of this Purchase Order or otherwise caused by or resulting from, arising out of or occurring in connection with negligence of Seller, its agents or employees or defective product supplied by Seller or its third party suppliers. In addition, Seller shall carry worker's compensation and liability insurance coverage with respect to any indemnifiable matter hereunder in amounts required by Buyer in Buyer's sole discretion. Seller also agrees to supply appropriate certificates of such insurance, naming Buyer as an additional insured upon request.
  6. DEFECTIVE MATERIAL.  Payment for Material and acknowledgment of receipt thereof shall not constitute an acceptance thereof. Rather, all Material shall be received subject to Buyer's inspection and rejection. Defective Material or Material not in accordance with the Specifications, as determined in Buyer's sole discretion will be returned at Seller's risk and expense and Buyer shall have no obligation to pay for such Material. Seller may not alter the formulation, manufacturing process or specification of any Material without Buyer's prior written consent.
  7. MODIFYING SPECIFICATIONS.  Buyer reserves the right at any time to make changes in Specifications as to any Material. Any difference in contract price resulting from such changes shall be equitably determined and approved by Buyer, and the Purchase Order shall be modified in writing accordingly. Pending price adjustment, Seller shall proceed with performance of this Purchase Order as changed.
  8. OWNERSHIP OF DESIGNS.  Buyer retains all rights in designs, drawings, and other materials furnished by or on behalf of Buyer to Seller in connection with this Purchase Order and Seller shall keep the same confidential. Seller hereby assigns any rights in designs, drawings, and other materials it may develop or accrue in connection with supplying the Materials to Buyer pursuant hereto. No such designs, drawings, or other materials, whether or not furnished by or on behalf of Buyer, shall, without Buyer's written permission, be incorporated in, or used in connection with, goods furnished to others.
  9. TIME OF THE ESSENCE.  Time is of the essence for this Purchase Order. The time for delivery shall not be extended beyond the date for delivery specified by Buyer, unless Buyer shall have agreed to an extension in writing. In addition to any other rights and remedies Buyer may have under this Purchase Order or provided by law, if deliveries are not made at the time agreed upon, Buyer may cancel the contract in whole or in part and purchase comparable goods elsewhere, and hold Seller accountable for any additional costs arising from such cancellation and purchase and other damages incurred by Buyer as a result of Seller's default. Title to and risk of loss of any Materials supplied by Seller under this Purchase Order shall remain with Seller until delivery of said Materials has been effected at the point of delivery stated in this Purchase Order.
  10. LIENS.  If the use of Seller's employees, subcontractors or others under Seller's control at the plant where the Material is to be used or installed shall be involved, Seller will keep the Material and the premises on which the work is to be done free and clear of all liens for materials and labor incident to the performance of work hereunder or on behalf of Seller.
  11. INVOICES; SHIPMENTS.  Invoices and bills of lading, showing full routing, car numbers, lot numbers, size of each lot, ingredient code number and ingredient name (as applicable) etc. should be dated and mailed at the time of shipment. A separate invoice must be made for each destination showing point of shipment and how shipped; provided all shipments shall be made the cheapest way to meet required delivery, transportation charges prepaid. Invoices bearing transportation charges must be supported with attached original receipted transportation bills. When the invoice is subject to a cash discount, the discount period shall be calculated from the date of the invoice or the date the Material is received by the Buyer, whichever is later. All carrier's equipment shall be clean and in good repair. When applicable, Seller's carrier must contact Buyer's Receiving Department at Buyer's location of destination at least 48 hours in advance of arrival for an unloading appointment.
  12. SELLER'S DOCUMENTATION.  Seller shall have on file, at each plant producing ingredients and/or packaging material for Buyer, a copy of the applicable ingredient or Packaging Specifications and applicable Analytical Test Procedures, Microbiological Testing Methods and any other testing requirements necessary or advisable to assure compliance with applicable law as well as the criteria stated in the Specifications.
  13. TERMINATION.  (a) Buyer may terminate work under this Purchase Order, including without limitation canceling shipments of Material, in whole or in part at any time, upon notice to Seller which shall state the extent and effective date thereof. Upon receipt thereof, Seller will, as and to the extent so directed, stop work and/or shipment under this Purchase Order or any subcontracts hereunder and the placement of further subcontracts hereunder, and take any necessary action to protect property in Seller's possession in which Buyer has or may acquire an interest. (b) If the parties cannot, by negotiation, agree within a reasonable time upon the amount of fair pro rata compensation to Seller upon such termination, Buyer will pay to Seller the following amounts without duplication: (1) The contract price for all Material delivered in accordance herewith prior to the effective date of termination, and not previously paid for; and (2) The actual costs indicated by Seller which are properly allocable or apportionable under recognized commercial accounting practices to, and incurred solely in respect of, the terminated portion of this Purchase Order and which are not salvageable by Seller. Payment made under this subparagraph (b) shall in no event exceed the aggregate purchase price for the Material less payment otherwise made or to be made. (c) With the consent of Buyer, Seller shall retain at an agreed price, or sell at an approved price, any Material completed or in process the cost of which is allocable or apportionable to this Purchase Order under sub-paragraph (b)(2) above and shall credit or pay the amount so agreed or received as Buyer shall direct. If, and as directed by Buyer, Seller shall transfer title to and make delivery of any such Material not so retained or sold. Proper pro-rata adjustments will be made for delivery costs or savings therein. (d) The provisions of this paragraph 13 shall not limit or affect the right of the Buyer to terminate this Purchase Order for the default of Seller in which case no further payments shall be due to seller following such termination.
  14. REMEDIES.  The remedies herein shall be cumulative and additional to all other remedies provided in law or equity. Buyer hereby notifies Seller that Buyer objects to and specifically rejects any attempt by Seller to limit or condition its liability for breach of damages arising out of its performance or non-performance of this Purchase Order. No waiver of a breach hereunder shall constitute a waiver of any other or further breach.
  15. GOVERNING LAW.  This Purchase Order and the contract resulting herefrom (i) shall be construed in accordance with the laws of the State of Ohio without regard for its principles of conflicts of laws and (ii) shall not be assignable by Seller. Any action or proceeding against either party relating to this Purchase Order must be brought and enforced in the courts of the State of Ohio, and each party irrevocably submits to the jurisdiction of such courts in respect of any such action or proceeding and waives any claim of forum non conveniens.
  16. MISCELLANEOUS.  If this Purchase Order involves sale or delivery of articles, material or equipment, then Seller agrees to comply with Buyer's General Condition-Sale and Delivery. If this Purchase Order involves construction, then Seller agrees to comply with Buyer's General Condition-Contract Work. If this Purchase Order involves installation or service, then Seller agrees to comply with the Buyer's General Condition-Installation & Service Personnel. If this Purchase Order involves performance of work on Buyer's premises, then Seller agrees to comply with Buyer's Safety Standard No. 9 and any additional safety standards designated by Buyer. Each of the documents referred to in this paragraph is available from Buyer upon written request. No waiver or amendment of any provision of this Purchase Order shall be effective unless in writing and signed by an authorized representative of Buyer.

INVOICE TERMS AND CONDITIONS (U.S.)

  1. Terms.  THIS INVOICE IS EXPRESSLY CONDITIONAL ON ACCEPTANCE OF ALL TERMS SET FORTH HEREIN. THE TERMS OF THE CONTRACT SHALL BE AS HEREIN SET FORTH. THE SUBSEQUENT EXECUTION OR SIGNATURE BY SELLER OF A PURCHASE ORDER OR OTHER SIMILAR PURCHASE AUTHORIZATION DOCUMENT FROM PURCHASER SHALL BE CONSTRUED AND INTERPRETED AS EVIDENCE OF ACKNOWLEDGEMENT OF RECEIPT OF SUCH PURCHASE ORDER OR SIMILAR DOCUMENT BY SELLER ONLY, AND, NOTWITHSTANDING ANY OTHER LANGUAGE, TERMS, OR CONDITIONS CONTAINED IN SUCH PURCHASE ORDER OR SIMILAR DOCUMENT, SHALL IN NO WAY BE CONSTRUED, INTERPRETED OR BECOME EFFECTIVE AS AN AMENDMENT OR MODIFICATION OF ANY OF THE TERMS AND CONDITIONS OF THIS CONTRACT. ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY PURCHASER ARE REJECTED UNLESS EXPRESSLY AGREED TO IN A WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SELLER
  2. Order Cancellation; Product Returns.  Order cancellations/product returns are not accepted once the bill of lading has been issued in respect of the relevant goods unless first approved by Seller in writing. In addition; Purchaser's failure to notify Seller of a damage or defect in writing within ten (10) days of receipt of the relevant bill of lading, in respect of goods transported thereunder, or within ten (10) days after any services are made available to Purchaser, shall constitute a waiver of all claims with respect to such goods or services, and in any event, the use of the goods or services shall be deemed to mean that the Seller has satisfactorily performed.
  3. Claims for Shortages and Allowances.  Claims for shortages must be supported with signed documentation and must be noted at the time of delivery on all carrier documents. Claims for allowances must be submitted within thirty (30) days of shipment. Purchaser agrees to reimburse Seller promptly for any allowance received without required performance.
  4. Prices: Chargebacks.  All prices/discounts/rebates are subject to change without notice. All general or special taxes, imposts, duties, or penalties or other governmental charges fixed or imposed by any lawful authority upon the production, sale, shipment or delivery of the services or goods or upon the material from which they are produced and thereafter becoming effective within the life of this contract, shall be added to the price and paid by Purchaser. Seller reserves the right to charge back to Purchaser any detention charges incurred at the destination. There will be no penalties for late deliveries without Seller's prior written approval.
  5. Payment   Past due balances subject to 1.5% finance charge.
  6. Transportation.  Seller shall select the mode of transportation, routing and carrier for delivered orders and Seller reserves the right to substitute alternate modes of transportation for that selected by Buyer. Any exercise of these rights by Seller shall in no way affect Seller's liability, if any, as set out in these Terms and Conditions. All less than truckload orders may be subject to pooling shipment scheduled at Seller's sole discretion. Seller reserves the right to pass on to Purchaser incremental costs incurred on order placements as a result of such orders not meeting Seller's order minimum order or other specifications for the applicable products.
  7. Shipping; Risk of Loss.  Unless otherwise stated on the reverse side hereof, the products shall be shipped F.O.B. Seller's facility. Risk of loss for, damage to and title to, the product, shall pass to Purchaser when product is delivered to carrier for shipment, notwithstanding price is quoted "delivered". Seller shall have no obligation to declare a value for any shipment with the carrier, whether on the bill of lading or otherwise, and liability for any failure to declare a value is expressly excluded. Seller shall retain a security interest in the product until Seller has received payment in full for the product.
  8. Repacking; Labeling.  Individual Product containers shall not be removed from their original shipping containers for re-shipment. Seller shall furnish labels identifying the Products in reasonable quantities (i) to identify secondary storage containers for Products purchased in bulk or (ii) to replace original Product labels damaged or destroyed or (iii) to be affixed to secondary containers supplied by Seller to hold diluted Products. Said labels are not to be affixed to Product containers shipped outside Purchaser's facility. Seller makes no representation or warranty with respect to said labels. Purchaser shall indemnify and hold Seller harmless for any use of labels not in accordance with the foregoing.
  9. Disclaimers.  EXECPT IF, AND TO THE MINIMUM EXTENT, OTHERWISE REQUIRED BY APPLICABLE LAW, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES, AND GUARANTEES WITH RESPECT TO THE PRODUCTS OR SERVICES FURNISHED BY SELLER HEREUNDER, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR, SIMULTANEOUS OR SUBSEQUENT ORAL OR WRITTEN STATEMENTS BY SELLER OR ITS REPRESENTATIVES OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, SATISFACTION OR FITNESS FOR A PARTICULAR PURPOSE) ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SELLER SPECIFICALLY DISCLAIMS ALL WARRANTIES REGARDING THE PROFITABILITY, SUCCESS OR VALUE OF ANY PRODUCT OR SERVICE PROVIDED HEREUNDER.
  10. Limitation of Liability.  NOTWITHSTANDING THE FORM (CONTRACT, TORT, OR OTHERWISE) IN WHICH ANY LEGAL OR EQUITABLE ACTION OR CLAIM MAY BE BROUGHT AGAINST SELLER, AND WHATEVER THE CAUSE AND WHETHER IN RESPECT OF NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH OF CONTRACT OR OTHER CAUSE OF ACTION. SELLER SHALL IN NO EVENT HAVE ANY LIABILITY TO PURCHASER OR ANY OTHER PERSON FOR LOST PROFITS OR GOODWILL, OR FOR SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OR ECONOMIC LOSS OF ANY KIND, WHETHER FORESEEABLE OR UNFORESEEABLE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES AND NOTWITHSTANDING ANY DISCLOSURE OF THE NATURE OR VALUE OF THE GOODS OR SERVICES PROVIDED BY SELLER HEREUNDER OR ANY PARTICULAR USE WHICH MAY BE MADE BY PURCHASER OF SUCH GOODS AND/OR SERVICES. PURCHASER'S EXCLUSIVE REMEDY IN THE EVENT OF LOSS OF OR DAMAGE TO THE GOODS OR SERVICES TO BE PROVIDED IN ACCORDANCE WITH THIS INVOICE SHALL BE THE REPLACEMENT OF SUCH GOODS OR SERVICES OR, AT SELLER'S OPTION, DAMAGES, PROVIDED, HOWEVER, IN NO EVENT SHALL SELLER BE LIABLE HEREUNDER FOR DAMAGES WHICH EXCEED, IN THE AGGREGATE, THE PRICE ACTUALLY PAID BY PURCHASER TO SELLER FOR THE GOOD(S) OR SERVICE(S) WHICH GAVE RISE TO SUCH DAMAGES. SELLER NETIHER ASSUMES NOR AUTHORIZES ANY PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OR USE OF THE GOODS SOLD OR SERVICES TO BE PERFORMED HEREUNDER.
  11. Force Majeure.  In the event of war, fire, flood, strike, labor trouble, breakage of equipment, accident, riot, acts of governmental authority, acts of God, or other contingencies beyond the reasonable control of the Seller, interfering with the production, supply, transportation or consumption practice of the Seller at the time respecting the goods or services provided hereunder, or in the event of inability to obtain on terms deemed by Seller to be practicable any raw material (including energy source) used in connection therewith quantities so affected shall be eliminated from Seller's obligations without liability, but the contract shall otherwise remain unaffected. Seller may, during any period of shortage due to any of said causes, allocate its supply of such raw materials among its various uses therefore (e.g. manufacturing and sales) in such manner as Seller deems practicable and allocate its supply of such goods or services among such various users thereof in any manner which Seller deems fair and reasonable.
  12. Governing Law; Choice of Forum.  This contract and any disputes arising under or related thereto (whether for breach of contract, tortious conduct or otherwise) shall be governed by the laws of the State of Ohio, without reference to its conflicts of law principles. Any legal actions, suits or proceedings arising out of this Agreement (whether for breach of contract, tortious conduct or otherwise) shall be brought exclusively in the state courts of Ohio of the United States District Court, and the parties to this Agreement hereby accept and submit to the personal jurisdiction of these Ohio courts with respect to any legal actions, suits, or proceedings arising out of this Agreement. Any action brought by Purchaser must be commenced with one (1) year after delivery of goods or completion of services, notwithstanding any statutory period of limitation to the contrary. This contract is not assignable by Purchaser.

INVOICE TERMS AND CONDITIONS (Canada)

  1. Terms.  THIS INVOICE IS EXPRESSLY CONDITIONAL ON ACCEPTANCE OF ALL TERMS SET FORTH HEREIN.  THE TERMS OF THE CONTRACT SHALL BE AS HEREIN SET FORTH.  THE SUBSEQUENT EXECUTION OR SIGNATURE BY SELLER OF A PURCHASE ORDER OR OTHER SIMILAR PURCHASE AUTHORIZATION DOCUMENT FROM PURCHASER SHALL BE CONSTRUED AND INTERPRETED AS EVIDENCE OF ACKNOWLEDGEMENT OF RECEIPT OF SUCH PURCHASE ORDER OR SIMILAR DOCUMENT BY SELLER ONLY, AND, NOTWITHSTANDING ANY OTHER LANGUAGE, TERMS, OR CONDITIONS CONTAINED IN SUCH PURCHASE ORDER OF SIMILAR DOCUMENT, SHALL IN NO WAY BE CONSTRUED, INTERPRETED OR BECOME EFFECTIVE AS AN AMENDMENT OR MODIFICATION OF ANY OF THE TERMS AND CONDITIONS OF THIS CONTRACT.  ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY PURCHASER ARE REJECTED UNLESS EXPRESSLY AGREED TO IN A WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SELLER.

  2. Order Cancellation; Product Returns.  Order cancellations/product returns are not accepted once the bill of lading has been issued in respect of the relevant goods unless first approved by Seller in writing.  In addition; Purchaser’s failure to notify Seller of a damage or defect in writing within ten (10) days of receipt of the relevant bill of lading, in respect of goods transported thereunder, or within ten (10) days after any services are made available to Purchaser, shall constitute a waiver of all claims with respect to such goods or services, and in any event, the use of the goods or services shall be deemed to mean that the Seller has satisfactorily performed.

  3. Claims for Shortages and Allowances.  Claims for shortages must be supported with signed documentation and must be noted at the time of delivery on all carrier documents.  Claims for allowances must be submitted within thirty (30) days of shipment.  Purchaser agrees to reimburse Seller promptly for any allowance received without required performance.

  4. Prices: Chargebacks.  All prices/discounts/rebates are subject to change without notice.  All general or special taxes, imposts, duties, or penalties or other governmental charges fixed or imposed by any lawful authority upon the production, sale, shipment or delivery of the services or goods or upon the material from which they are produced and thereafter becoming effective within the life of this contract, shall be added to the price and paid by Purchaser.  Seller reserves the right to charge back to Purchaser any detention charges incurred at the destination.  There will be no penalties for late deliveries without Seller’s prior written approval.

  5. Payment.  Past due balances subject to 1.5% finance charge.

  6. Transportation.  Seller shall select the mode of transportation, routing and carrier for delivered orders and Seller reserves the right to substitute alternate modes of transportation for that selected by Buyer.  Any exercise of these rights by Seller shall in no way affect Seller’s liability, if any, as set out in these Terms and Conditions.  All less than truckload orders may be subject to pooling shipment scheduled at Seller’s sole discretion.  Seller reserves the right to pass on to Purchaser incremental costs incurred on order placements as a result of such orders not meeting Seller’s order minimum order or other specifications for the applicable products.

  7. Shipping; Risk of Loss.  Unless otherwise stated on the reverse side hereof, the products shall be shipped F.O.B. Seller’s facility.  Risk of loss for, damage to and title to, the product, shall pass to Purchaser when product is delivered to carrier for shipment, notwithstanding price is quoted “delivered”.  Seller shall have no obligation to declare a value for any shipment with the carrier, whether on the bill of lading or otherwise, and liability for any failure to declare a value is expressly excluded.   Seller shall retain a security interest in the product until Seller has received payment in full for the product.

  8. Repacking; Labeling.  Individual Product containers shall not be removed from their original shipping containers for re-shipment.  Seller shall furnish labels identifying the Products in reasonable quantities (i) to identify secondary storage containers for Products purchased in bulk or (ii) to replace original Product labels damaged or destroyed or (iii) to be affixed to secondary containers supplied by Seller to hold diluted Products.  Said labels are not to be affixed to Product containers shipped outside Purchaser’s facility.  Seller makes no representation or warranty with respect to said labels.  Purchaser shall indemnify and hold Seller harmless for any use of labels not in accordance with the foregoing.

  9. Disclaimers.  EXCEPT IF, AND TO THE MINIMUM EXTENT, OTHERWISE REQUIRED BY APPLICABLE LAW, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES, AND GUARANTEES WITH RESPECT TO THE PRODUCTS OR SERVICES FURNISHED BY SELLER HEREUNDER, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR, SIMULTANEOUS OR SUBSEQUENT ORAL OR WRITTEN STATEMENTS BY SELLER OR ITS REPRESENTATIVES OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, SATISFACTION OR FITNESS FOR A PARTICULAR PURPOSE) ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SELLER SPECIFICALLY DISCLAIMS ALL WARRANTIES REGARDING THE PROFITABILITY, SUCCESS OR VALUE OF ANY PRODUCT OR SERVICE PROVIDED HEREUNDER.

  10. Limitation of Liability.  NOTWITHSTANDING THE FORM (CONTRACT, TORT, OR OTHERWISE) IN WHICH ANY LEGAL OR EQUITABLE ACTION OR CLAIM MAY BE BROUGHT AGAINST SELLER, AND WHATEVER THE CAUSE AND WHETHER IN RESPECT OF NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH OF CONTRACT OR OTHER CAUSE OF ACTION.  SELLER SHALL IN NO EVENT HAVE ANY LIABILITY TO PURCHASER OR ANY OTHER PERSON FOR LOST PROFITS OR GOODWILL, OR FOR SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OR ECONOMIC LOSS OF ANY KIND, WHETHER FORESEEABLE OR UNFORESEEABLE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES AND NOTWITHSTANDING ANY DISCLOSURE OF THE NATURE OR VALUE OF THE GOODS OR SERVICES PROVIDED BY SELLER HEREUNDER OR ANY PARTICULAR USE WHICH MAY BE MADE BY PURCHASER OF SUCH GOODS AND/OR SERVICES.  PURCHASER’S EXCLUSIVE REMEDY IN THE EVENT OF LOSS OF OR DAMAGE TO THE GOODS OR SERVICES TO BE PROVIDED IN ACCORDANCE WITH THIS INVOICE SHALL BE THE REPLACEMENT OF SUCH GOODS OR SERVICES OR, AT SELLER’S OPTION, DAMAGES, PROVIDED, HOWEVER, IN NO EVENT SHALL SELLER BE LIABLE HEREUNDER FOR DAMAGES WHICH EXCEED, IN THE AGGREGATE, THE PRICE ACTUALLY PAID BY PURCHASER TO SELLER FOR THE GOOD(S) OR SERVICE(S) WHICH GAVE RISE TO SUCH DAMAGES.  SELLER NETIHER ASSUMES NOR AUTHORIZES ANY PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OR USE OF THE GOODS SOLD OR SERVICES TO BE PERFORMED HEREUNDER.

  11. Force Majeure.  In the event of war, fire, flood, strike, labor trouble, breakage of equipment, accident, riot, acts of governmental authority, acts of God, or other contingencies beyond the reasonable control of the Seller, interfering with the production, supply, transportation or consumption practice of the Seller at the time respecting the goods or services provided hereunder, or in the event of inability to obtain on terms deemed by Seller to be practicable any raw material (including energy source) used in connection therewith quantities so affected shall be eliminated from Seller’s obligations without liability, but the contract shall otherwise remain unaffected.  Seller may, during any period of shortage due to any of said causes, allocate its supply of such raw materials among its various uses therefore (e.g. manufacturing and sales) in such manner as Seller deems practicable and allocate its supply of such goods or services among such various users thereof in any manner which Seller deems fair and reasonable.

  12. Governing Law; Choice of Forum.  This contract and any disputes arising under or related thereto (whether for breach of contract, tortious conduct or otherwise) shall be governed by the laws of the Province of Ontario, without reference to its conflicts of law principles.  Any legal actions, suits or proceedings arising out of this Agreement (whether for breach of contract, tortious conduct or otherwise) shall be brought exclusively in the courts of the Province of Ontario, and the parties to this Agreement hereby accept and submit to the personal jurisdiction of these Ontario courts with respect to any legal actions, suits, or proceedings arising out of this Agreement.  Any action brought by Purchaser must be commenced within one (1) year after delivery of goods or completion of services, notwithstanding any statutory period of limitation to the contrary.  This contract is not assignable by Purchaser.

MODALITÉS

  1. Conditions. la présente facture est expressément conditionnelle à l’acceptation de l’ensemble des conditions figurant aux présentes. les conditions du contrat correspondront à ce qui est présenté aux présentes. la signature subséquente par le vendeur d’un bon de commande ou d’un autre document d’autorisation d’achat similaire de l’acheteur constituera une preuve de réception par le vendeur du bon de commande ou du document similaire et, sans égard à un autre texte ou à d’autres modalités figurant dans le bon de commande ou le document similaire en question, elle ne devra être interprétée d’aucune façon comme une modification des modalités du présent contrat ni ne devra lui donner effet. toute condition additionnelle ou différente que propose l’acheteur sera rejetée, à moins qu’un représentant autorisé du vendeur ne l’accepte expressément par écrit.

  2. Annulation de commande; retours de produits. Les annulations de commande ou les retours de produits ne sont pas acceptés à compter du moment où le vendeur délivre le connaissement, à moins qu’ils n’aient d’abord été approuvés par écrit par le vendeur. Une omission de l’acheteur d’aviser le vendeur par écrit d’un dommage ou d’une défectuosité dans les dix (10) jours suivant la réception des produits constituera une renonciation à toute réclamation visant les produits ou les services et, dans tous les cas, l’utilisation des produits ou des services sera réputée constituer une exécution adéquate des obligations du vendeur.

  3. Réclamations pour pénuries et indemnités. Les réclamations pour pénuries doivent être accompagnées de preuves signées et être inscrites à la livraison sur tous les documents du transporteur. Les réclamations pour indemnités doivent être présentées dans les trente (30) jours suivant la livraison. L’acheteur accepte de rembourser le vendeur dans les plus brefs délais des indemnités reçues sans que les obligations requises aient été exécutées.
     
  4. Prix; imputations. Tous les prix, les escomptes et les rabais peuvent faire l’objet de modifications sans préavis. La totalité des taxes, des impôts, des perceptions, des droits, des pénalités ou des autres charges gouvernementales, généraux ou spéciaux, qui sont imposés par une autorité légalement autorisée à le faire au moment de la production, de la vente, de l’envoi ou de la livraison des services ou des produits ou à l’égard du matériel utilisé dans leur fabrication et qui entrent en vigueur par la suite pendant la durée du présent contrat, s’ajouteront au prix que l’acheteur devra payer. Le vendeur se réserve le droit d’imputer à l’acheteur les frais de détention engagés à destination. Aucune pénalité pour livraison tardive ne pourra être imposée sans l’approbation écrite préalable du vendeur.

  5. Paiement. Toutes les factures en souffrance sont soumis à une charge financière de 1.5%.

  6. Transport. Le vendeur choisira le moyen de transport, l’itinéraire et le transporteur pour la livraison des commandes. L’envoi des commandes en quantité insuffisante pour remplir un camion pourrait être regroupé avec celui d’autres commandes, au gré du vendeur. Le vendeur se réserve le droit d’imputer à l’acheteur les coûts marginaux découlant de commandes qui ne respectent pas la règle du vendeur en matière de commande minimale ou d’autres règles concernant les produits visés.

  7. Livraison; risque de perte. À moins d’indication contraire figurant au recto des présentes, les produits seront livrés F.A.B. aux installations du vendeur. L’acheteur devra assumer le risque de perte du produit et en acquerra le titre de propriété dès que le produit est remis entre les mains du transporteur aux fins de livraison, malgré le fait que le prix indiqué comprend la « livraison ». Le vendeur conservera un droit dans le produit tant qu’il n’aura pas reçu le paiement complet du produit.

  8. Réemballage; étiquetage. Les produits individuels ne doivent pas être retirés de leur emballage original à la livraison pour être livré de nouveau. Le vendeur fournira des étiquettes d’identification des produits en quantité suffisante pour i) identifier les emballages secondaires de produits achetés en vrac, ii) remplacer les étiquettes de produit originaux qui ont été endommagées ou détruites ou iii) les apposer sur les emballages secondaires fournis par le vendeur qui contiendront des produits dilués. Les étiquettes en question ne doivent pas être apposées sur les emballages de produits envoyés à l’extérieur des installations de l’acheteur. Le vendeur ne fait aucune déclaration à l’égard des étiquettes en question. L’acheteur devra garantir le vendeur contre toute utilisation d’étiquettes non conforme à ce qui précède.

  9. Avertissement. sauf si la loi applicable en prévoit autrement et selon la moindre mesure prévue par celle‑ci, la totalité des garanties, des conditions, des déclarations et des indemnités à l’égard des produits ou des services offerts par le vendeur aux termes des présentes, expressément ou implicitement, prévus par la loi ou provenant de coutumes ou de déclarations verbales ou écrites antérieures, simultanées ou subséquentes du vendeur, de ses représentants ou autrement (notamment toute garantie relative à la qualité marchande, à la satisfaction ou à la convenance à un usage particulier) sont, par les présentes, annulées, exclues et rejetées. sans que soit limitée la portée de ce qui précède, le vendeur rejette expressément toutes les garanties visant la rentabilité, la réussite ou la valeur d’un produit ou d’un service fourni aux termes des présentes.

  10. Limite de responsabilité. sans égard à la forme (contractuelle, civile ou autre) que peut prendre une poursuite intentée ou une réclamation faite contre le vendeur, celui‑ci ne sera en aucun cas responsable de quelque façon que ce soit envers l’acheteur ou quiconque en raison d’une perte de profits ou d’achalandage ou de dommages‑intérêts spéciaux, indirects ou exemplaires, prévisibles ou non, même si le vendeur a été avisé que de tels dommages‑intérêts puissent survenir. le seul recours de l’acheteur se résume au remplacement des produits et des services ou, au gré du vendeur, à des dommages‑intérêts; toutefois, il est prévu que le vendeur ne sera en aucun cas responsable, aux termes des présentes, des dommages‑intérêts qui dépassent, au total, le prix que l’acheteur a réellement payé au vendeur pour le produit ou le service qui a donné lieu aux dommages‑intérêts en question, sauf si la loi applicable en prévoit expressément autrement et selon la moindre mesure prévue par celle‑ci. le vendeur n’assume aucune autre responsabilité liée à la vente ou à l’utilisation des produits vendus ou des services rendus aux termes des présentes et n’autorise personne à les assumer pour lui.

  11. Force majeure. En cas de guerre, d’incendie, d’inondation, de grève, de conflit de travail, de bris d’équipement, d’accident, d’émeute, de mesures prises par une autorité gouvernementale, de force majeure ou d’un autre imprévu indépendant de la volonté du vendeur qui nuit à la production, à l’approvisionnement, au transport ou à la pratique en matière de consommation du vendeur à ce moment‑là concernant les produits ou les services fournis aux termes des présentes, ou en cas d’une incapacité d’obtenir, à des conditions jugées satisfaisantes par le vendeur, des matières premières (dont des sources d’énergie) utilisées dans la fabrication des produits ou la prestation des services en question, les quantités ainsi touchées devront être retirées des obligations du vendeur sans aucune responsabilité de sa part, mais le contrat en demeurera autrement inchangé. Le vendeur peut, pendant une pénurie découlant des cas dont il est question ci‑dessus, répartir ses réserves de matières premières entre ses différentes utilisations (p. ex. la fabrication et la vente) d’une façon que le vendeur juge appropriée et répartir ses réserves de produits et de services entre leurs différents utilisateurs d’une façon que le vendeur juge équitable et raisonnable.

  12. Loi applicable; tribunal compétent. Le présent contrat et les conflits découlant de celui‑ci (en raison de sa violation, d’un délit civil ou autre) seront régis par les lois de la province de Ontario, sans renvoi à ses règles en matière de conflits des lois. Toute poursuite résultant du `présent contrat (en raison de sa violation, d’un délit civil ou autre) devra être intentée exclusivement devant les tribunaux de la province de Ontario, et les parties au présent contrat acceptent la compétence de ces tribunaux de la province de Ontario à l’égard des poursuites résultant du présent contrat et s’y soumettent. Si l’acheteur souhaite intenter une poursuite, il doit le faire dans l’année qui suit la livraison des produits ou la prestation des services, sans égard au délai de prescription prévu par la loi à l’effet contraire. L’acheteur ne peut céder le présent contrat.