General Terms & Conditions of Sales
1) TAXES: In addition to the sales price, Buyer shall pay to Seller (i) any applicable sales, use, gross receipts, or value-added tax that is imposed as a result of, or measured by, the sale; and (ii) the amount of any and all other governmental taxes, duties and/or changes of every kind, excluding any income tax imposed upon the Seller, that is hereafter imposed or increased, and which Seller may be required to pay with respect to the production, sale or transportation of any goods delivered hereunder or with respect to the production, sale or transportation of any goods delivered hereunder or with respect to any material used in the manufacture thereof.
2) BUYER’S WARRANTIES AND ASSUMPTION OF DUTIES REGARDING SAFETY, HEALTH, UNLOADING, USE HANDLING, AND DISPOSAL OF THE GOODS:
a) Seller’s Safety Data Sheet (SDS) sets forth information concerning the Products and describes certain precautions to be taken in the storage, handling, and use of the same. The following duties and obligations are assumed exclusively by the Buyer:
i) Buyer shall familiarize itself with all information and precautions disclosed in safety and health information related to the Products, including, but not limited to, any SDS transmitted to Buyer by Seller before or during the term of this Agreement, or any such information supplied to Buyer by Seller or otherwise available to Buyer from Seller at any other time,
ii) Buyer shall adopt and follow safe handling, storage, transportation, use, treatment, and disposal practices with respect to the Products, including such special care and practices as Buyer’s use of the Products requires, including, but not limited to, all such practices required by federal, state and local government statutes, rules, regulations, or ordinances,
iii) Buyer shall instruct its employees, independent contractors, agents, and customers of the precautions and safe use practices required in connection with the unloading, handling, storage, use transportation, and disposal of the Products, including, but not limited to, information contained in Seller’s most current SDS, and
iv) Buyershall comply with applicable safety and environmental laws and act as necessary to avoid spills or other dangers to persons, property, or the environment.
b) Buyer warrants that it has used its own independent skill and expertise in connection with the selection and use of the Products and that it possesses skill and expertise in the handling, storage, transportation, treatment, use, and disposal of the Products.
3) SELLER’S LIMITED WARRANTY: Subject to the limitations of paragraphs 5, 6, and 7, Seller warrants that at the time of tender the Products shall: (a) conform to the specifications herein, (b) be free from any defects in materials and workmanship, and (c) that Seller shall convey good title thereto, and that such Products shall be delivered free from any lawful security interest, lien, or encumbrance.
4) EXCLUSION AND DISCLAIMER OF ALL OTHER WARRANTIES: THE LIMITED WARRANTIES CONTAINED IN PARAGRAPH 3 ABOVE ARE SELLER’S SOLE WARRANTIES WITH RESPECT TO THE GOODS AND ARE MADE EXPRESSLY IN LIEU OF AND EXCLUDE ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES.
5) LIMITATION OF REMEDIES AND LIABILITY:
a) Buyer’s exclusive remedy and Seller’ total liability to Buyer for claims (as defined in 5.b below) is expressly limited as follows: Buyer has the option of replacement of, or repayment of the purchase price paid for, the products supplied hereunder for which damages are claimed. Buyer waves all other claims by Buyer against Seller, and Seller shall not be liable to buyer for any incidental, consequential, special, exemplary, or punitive damages.
b) As used in paragraphs 5, 6, and 7 “Claims” means all assertions of any legal, equitable and / or admiralty causes of action, whether for losses, damages, liabilities, deficiencies, penalties, or expenses of any kind under any theory (including but not limited to negligence, strict liability, contract, tort, express or implied, warranty, indemnity, contribution, or subrogation) related to or arising out of the performance or non-performance of this Agreement. As used in this Agreement, As used in this Agreement, “Losses” means all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including attorney and professional fees and costs, and cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
c) All limitations on Buyer’s remedies and Seller’s liability shall survive the expiration, termination, or cancellation of this Agreement.
6) NOTICE OF CLAIMS: All claims by Buyer shall be deemed waived unless made by Buyer in writing and received by Seller within thirty (30) days of the receipt of the products. In case of breakage or loss during transit, Buyer shall also note the breakage or loss on the carrier’s proof of delivery document signed by the carrier’s representative.
a) Seller shall indemnify, defend, and hold harmless Buyer against all Claims and Losses arising out of the performance or non-performance of this Agreement except to the extent such losses are caused by the negligence, willful misconduct, breach of contract or violations of law by Buyer, its agents, contractors, or assigns.
b) Buyer shall indemnify, defend, and hold harmless Seller against all Claims and Losses arising out of the performance of this Agreement to the extent such Losses are caused by the negligence, willful misconduct, breach of contract or violations of law by Buyer, its agents, contractors, or assigns.
c) Notwithstanding anything to the contrary in this Agreement, an indemnifying party is not obligated to indemnify, defend, or hold harmless the indemnified party against any Claim or Loss (whether direct or indirect) if such Claim or Loss arises out of or results from, the indemnified party’s negligence, willful misconduct or a more culpable act or omission.
8) INSURANCE: Seller and Buyer shall maintain general liability, property damage, worker’s compensation and employer’s liability insurance in reasonable amounts and kinds sufficient to protect and compensate the other party in accordance with the Parties’ obligations hereunder. Seller and Buyer will provide the other party with proper certificates of such insurance upon request.
a) If Seller provides the transportation equipment or absorbs any portion of the freight charges, Seller shall have the right to determine carriers and routings. Where the terms herein provide for Buyer to absorb any portion of the freight charges, the freight charges shall be those legally due and payable for the shipment.
b) Buyer shall make all reasonable efforts to unload and return Sellers’s transportation equipment to carrier within the tariff or contracted period free of demurrage and/or detention charges. All demurrage and/or detention charges on such equipment shall be paid by Buyer.
c) If any transportation equipment provided by Seller arrives at destination in damaged condition, Buyer shall immediately notify the carrier’s agent at the destination of such damage and shall also make immediate telephonic report thereof to Seller. During periods when transportation equipment provided by Seller is in the possession or under the jurisdiction of Buyer, Buyer is exclusively responsible for same and shall be liable to Seller for all damages to or destructions thereof which are attributable to Buyer. All repairs to transportation equipment provided by Seller shall be made under the supervision or the direction of Seller.
d) Unless otherwise provided in this Agreement or by applicable law, until such time as delivery is made to Buyer, risk of loss shall remain with the Seller.
10) FORCE MAJEURE:
a) For the purposes of this Agreement, Force Majeure means acts of God, war, terrorism, civil commotion, fire, earthquake, storm, or other natural disasters, labor disturbances or strikes, and other similar causes beyond the reasonable control of a Party that could not have been avoided by the due diligence of the affected Party.
b) No Party will be liable for a failure to comply with an obligation under the Agreement to the extent its noncompliance is due to a Force Majeure, provided that (a) the noncomplying Party gives the other Party prompt written notice of the Force Majeure and its anticipated effect on performance, including its expected duration, (b) uses all reasonable efforts to mitigate the impact of the Force Majeure and resumes performance as soon as practicable.
c) To the extent a Force Majeure prevents Seller from delivering Product under this Agreement, Buyer may procure replacement quantities of Product, and such replacement quantities (a) shall not be considered as part of any purchase requirement of Buyer, if any, and (b) shall be deducted from any minimum quantities Buyer is obligated to purchase.
d) In case of a shortage due to a Force Majeure, Seller shall allocate Product among its own needs and those of Buyer and Seller’s other contract customers in proportion to the quantities of Product taken by each during the preceding twelve (12) months. e) If performance under this Force Majeure section is prevented for thirty (30) consecutive days or sixty (60) days in any calendar year period by virtue of a Force Majeure, the Party not experiencing the Force Majeure may, upon five (5) business days written notice to the other Party, terminate this Agreement.
11) CREDIT APPROVAL AND ASSURANCE OF PAYMENT: Seller shall have the continuing right to review Buyer’s credit and ability to perform its payment obligations under the Agreement. If Buyer fails to pay an invoice in accordance with the terms of this Agreement, in addition to any other legal or equitable remedy or right it may have, Seller may defer shipments, alter payment terms, or cancel this Agreement. If Buyer’s financial responsibility becomes unsatisfactory to Seller and Seller deems itself insecure, Seller may accelerate the due date and demand immediate payment on any outstanding invoice for goods delivered under this agreement or may require cash payments or satisfactory security for future deliveries or may terminate Seller’s future obligations under this Agreement. Buyer agrees to pay all costs and expenses, including reasonable attorney’s fees, incurred by Seller in the collection of any sum payable by Buyer to Seller, or in the exercise of any remedy, in addition to interest and late charges at the maximum rate allowable by law.
12) TERMINATION: Either Party may terminate this Agreement for any of the following reasons by giving a written notice to that effect to the other party at any time after the Effective Date:
(a) Any proceedings, whether voluntary or involuntary, in bankruptcy or insolvency are initiated by or against the other party, the other party is unable to meet its debts as they become due, or a trustee or a receiver is appointed regarding the other Party; or
(b) If either party breaches any material term of this Agreement and the breach continues without remedy for thirty (30) days after written notice of default from the non-defaulting party, the non-defaulting party may terminate the Agreement. Any such termination will be without penalty, without prejudice to any claims or amounts owed as of the date of termination and will be in addition to all rights and remedies otherwise provided under this Agreement, by law or in equity.
13) CONSTRUCTION AND RESOLUTION OF DISPUTES: This Agreement shall be governed by and construed in accordance with Mississippi Law, United States of America, without references to conflict of law’s principles, and the jurisdiction and venue of any action related to this Agreement shall be vested exclusively in the Courts of Clay County, Mississippi. The parties agree that any and all disputes arising under this Agreement shall be resolved by a single arbitrator under the Commercial Arbitration Rules of the American Arbitration Association then in effect and said arbitration shall be conducted in West Point, MS.
14) GENERAL PROVISIONS:
a) Unless specifically provided, failure of either party to exercise any of its rights under this Agreement upon one occasion shall not waive its right to exercise the same on another occasion.
b) The Parties agree that if any part, term, or provision of this Agreement shall be found illegal or in conflict with any valid controlling law, the validity of the remaining provisions shall not be affected thereby. In the event the legality of any provision of this Agreement is brought into question because of a decision by a court of competent jurisdiction of any country in which this Agreement applies, the Parties may revise the provision in question or may delete it entirely to comply with the decision of said court.
c) Neither party may transfer or assign any of its rights or obligations under this agreement without the prior written consent of the other party, which consent shall not be unreasonably held.
d) This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns.
e) Nothing in this Agreement shall be construed as creating any direct or beneficial right in or on behalf of any third party.
f) This Agreement, together with any documents referenced and attached herein, shall constitute the final, complete and exclusive written expression of the Agreement between the parties regarding the subject matter, and any prior discussions, promises, or representations are supplanted by this Agreement. Thereafter, the Agreement may be modified only by an amendment in writing expressly stated as such, signed by an authorized representative of each party.
All written notices required to be given shall be delivered to the addresses set forth below:
If to SELLER:
Southern Ionics Incorporated
579 Commerce Street West Point, MS 39773
If to BUYER: [complete]