Terms & Conditions
1. Unless otherwise specified and agreed to by Chemline in writing, all domestic shipments will be delivered FOB Chemline's facility St. Louis City, MO ("Chemline Facility"), and all international shipments will be delivered EXW (Ex Works lncoterm) Chemline Facility. Title, risk of loss and responsibility for the shipment shall pass to the Buyer when the products are placed in custody of the common carrier. Claims against Chemline for shortages must be made in writing within 10 calendar days after delivery, and any failure by Buyer to provide Chemline with written notice of a claim within 1 O days shall constitute a waiver by Buyer of any shortage claim. Prices are subject to change from time to time in Chemline's sole discretion.
2. Payment for product shall be due upon the earlier of the following dates ("Payment Due Date"): (a) date of invoice or (b) date of delivery of product. Payment in full must be received by Chemline on or before 30 days following the Payment Due Date; provided, however, that Chemline reserves the right, in its sole discretion and without prior notice, to, either generally or with respect to a particular purchase order, require cash payments in advance or security satisfactory to Chemline at the time of delivery. For any amount which is not paid within 30 days of the Payment Due Date, client shall pay to Chemline simple interest at the rate of 1.5% (or the highest rate permitted by law, if less) for every month or portion thereof paid late. Client shall submit to Chemline such statements, documents and evidence of creditworthiness as requested by Chemline. Upon client's failure to timely pay any amount when due, Chemline expressly reserves the right to thereafter require cash on delivery and/or require further assurances. On demand, client shall pay or reimburse Chemline for all expenses and costs incurred by Chemline in collecting any amount owed to Chemline including, without limitation, attorney's fees and court costs. Chemline's prices do not include any federal, state or local sales, use, excise or similar taxes, and the amount of any present or future sales, use, excise, or other similar tax applicable to sale of product, or to the use of such product, shall be paid by Buyer, or in lieu thereof Buyer shall provide Chemline with a tax exemption certificate acceptable to the tax authorities and to Chemline.
3. Except where contrary to express provisions of this document, the parties intend that this document and their relationship be supplemented by Article 2 of Missouri's Uniform Commercial Code ("Article 2"). Where any provision of this document, however, is inconsistent with Article 2, the provisions of this document shall control. Further, the parties' course of performance, course of dealing or usages of trade shall not be deemed to modify or add to the express provisions of this document or the relationship of the parties in any way. Also, no term or condition on any invoice, shipping document or other similar document exchanged between the parties shall modify or add to the express provisions of this document unless such modifications or additions are expressly agreed to by both parties in a writing making reference to this document. This document and the relationship of the parties shall not be governed by, and the parties hereby disclaim the effect of, the United Nations Convention of Contracts for the International Sale of Goods, as amended, the United Nations Convention on the Limitation Period in the International Sale of Goods, as amended, and the Uniform Computer Information Transactions Act.
4. Any dispute, controversy or claim arising out of or related in any way to these Terms and/or any sale and purchase of product hereunder or any transaction contemplated hereby which cannot be amicably resolved by the parties shall be solely and finally settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place before a panel of 3 arbitrators sitting in St. Louis City, Missouri. The language of the arbitration shall be English. The arbitrators will be bound to adjudicate all disputes in accordance with the laws of the State of Missouri. The decision of the arbitrators shall be in writing with written findings of fact and shall be final and binding on the parties. The arbitrator shall be empowered to award money damages, but shall not be empowered to award incidental damages, consequential damages, indirect damages, statutory damages, special damages, exemplary damages, punitive damages or specific performance. Each party shall bear its own costs relating to the arbitration proceedings irrespective of its outcome. This section provides the sole recourse for the settlement of any disputes arising out of, in connection with, or related to these Terms, any purchase orders or any product.
5. OTHER THAN AS EXPRESSLY PROVIDED IN THESE TERMS: (A) CHEMLINE MAKES NO, AND HEREBY DISCLAIMS, ALL WARRANTIES, WHETHER EXPRESSED OR IMPLIED, OR REPRESENTATIONS OF ANY SORT. WITH RESPECT TO ANY PRODUCT, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. AND (B) ALL PRODUCTS ARE SOLD AS IS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS OR ANY DOCUMENT, CHEMLINE SHALL HAVE NO LIABILITY NOR OBLIGATION FOR ANY SPECIAL, CONSEQUENTIAL (INCLUDING WITHOUT LIMITATION, LOST PROFITS), INDIRECT OR PUNITIVE DAMAGES UNDER ANY CONTRACT THEORY, TORT THEORY OR UNDER ANY OTHER LEGAL THEORY. IN ALL EVENTS, CHEMLINE'S TOTAL LIABILITY AND RESPONSIBILITY UNDER ANY LEGAL THEORY WILL BE LIMITED TO A REFUND OF THE PURCHASE PRICE OR A REPLACEMENT OF PRODUCT, IN CHEMLINE'S DISCRETION. CLIENT ACKNOWLEDGES THAT NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE WITH RESPECT TO PRODUCT OTHER THAN THOSE CONTAINED EXPRESSLY HEREIN. CHEMLINE WARRANTS TO THE BUYER THAT THE CHEMICAL MAKEUP AND AMOUNT OF PRODUCT AS OF THE DATE OF DELIVERY WILL MATERIALLY CONFORM TO THE WRITTEN PRODUCT LABELING FOR SUCH PRODUCT; PROVIDED, HOWEVER, THAT BUYER MUST PROVIDE CHEMLINE WITH PROMPT WRITTEN NOTICE OF ANY CLAIM UNDER SUCH WARRANTY. THE FOREGOING WARRANTY SHALL EXPIRE ON THE 1ST ANNIVERSARY OF DELIVERY OF SUCH PRODUCT. BUYER ASSUMES ALL RISK WHATSOEVER AS TO THE RESULT OF THE USE OF PRODUCT, WHETHER USED ALONE OR IN COMBINATION WITH OTHER PRODUCTS OR SUBSTANCES.
6. BUYER SHALL COMPLY WITH ALL APPLICABLE INTERNATIONAL, NATIONAL, STATE, REGIONAL AND LOCAL LAWS AND REGULATIONS, INCLUDING BUT NOT LIMITED TO ALL APPLICABLE EXPORT LAWS AND REGULATIONS WITH RESPECT TO ALL PRODUCT. UNLESS OTHERWISE EXPRESSLY AGREED IN WRITING, BUYER SHALL BE RESPONSIBLE FOR OBTAINING ANY LICENSES OR AUTHORIZATIONS FROM THE COMMERCE DEPARTMENT'S BUREAU OF INDUSTRY AND SECURITY (BIS), AND THE TREASURY DEPARTMENT'S OFFICE OF FOREIGN ASSETS CONTROL(OFAC), WHICH MAY BE REQUIRED PRIOR TO EXPORT OF PRODUCT FROM THE UNITED STATES, OR RE-EXPORT TO A THIRD COUNTRY. BUYER AGREES TO COMPLY WITH APPLICABLE U.S. EXPORT CONTROL LAWS AND REGULATIONS, INCLUDING THE REQUIREMENTS OF THE ARMS EXPORT CONTROL ACT,22U.S.C. 2751-2794; THE INTERNATIONAL TRAFFIC IN ARMS REGULATION (ITAR), 22 C.F.R. 120 ET SEQ.; AND THE EXPORT ADMINISTRATION ACT, 50 U.S.C. APP 2401-2420,INCLUDING THE EXPORT ADMINISTRATION REGULATIONS, 15 C.F.R. 730-774. BUYER SHALL IMMEDIATELY NOTIFY CHEMLINE IF BUYER IS LISTED ON THE BIS DENIED PARTIES LIST OR IF BUYER'S EXPORT PRIVILEGES ARE OTHERWISE DENIED, SUSPENDED OR REVOKED IN WHOLE OR IN PART BY THE U.S. OR.FOREIGN-GOVERNMENT ENTITY OR AGENCY. FAILURE OF THE US GOVERNMENT OR ANY OTHER GOVERNMENT TO ISSUE ANY REQUIRED EXPORT OR IMPORT LICENSE, OR WITHDRAWAL/TERMINATION OF A REQUIRED EXPORT OR IMPORT LICENSE BY THE US GOVERNMENT OR ANY OTHER GOVERNMENT, SHALL NOT RELIEVE BUYER OF ITS OBLIGATIONS HEREUNDER.
7. Buyer shall have no right of set-off or withholding, and no deduction of any amounts due from Buyer to Chemline shall be made without Chemline's prior, express written approval. Chemline shall not be liable nor responsible for any failure to perform or delay in performance resulting from any cause beyond its reasonable control, including, without limitation, acts of God, fires, flood, wars, riots, unavailability of raw materials on national or international markets, labor strikes or other labor issues, or due to compliance with regulations, orders, or act of any federal, provincial, state or municipal government, or any department or agency thereof. These Terms are the sole and exclusive statement of the parties' understanding and agreement with respect to transactions contemplated by these Terms. These Terms can only be modified or changed in writing and signed by an authorized representative of Chemline. No waiver by Chemline of any of provisions of these Terms or any breach hereof shall constitute or be deemed to be a waiver of any such term or any such breach in any other case.