RADICAL POLYMERS, LLC
STANDARD TERMS AND CONDITIONS OF SALE
Revision Date: October 16, 2014
As used below, “Seller” means RADICAL POLYMERS, LLC, “Product” means any product sold by Seller, and “Buyer” means a party purchasing any Product from Seller.
SELLER MAKES NO WARRANTY OF, AND SHALL HAVE NO LIABILITY FOR, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE OTHERWISE, WHETHER EXPRESS OR IMPLIED, OTHER THAN THAT THE PRODUCT, UPON DELIVERY TO BUYER OR THE DELIVERY POINT AND NOT ALTERED OR MODIFIED BY BUYER OR ANY THIRD PARTY, SHALL MEET THE PRODUCT SPECIFICATIONS. NO OTHER WARRANTY OR LIABILITY WHATSOEVER, EXPRESS OR IMPLIED, AND WHETHER ARISING BY OPERATION OF LAW OR CUSTOM, SHALL APPLY. THIS LIMITED WARRANTY IS GIVEN ONLY TO THE ORIGINAL PURCHASER, IT MAY NOT BE TRANSFERRED OR ASSIGNED AND DOES NOT EXTEND TO ANY SUBSEQUENT PURCHASER OR TRANSFEREE OF PRODUCTS. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Buyer agrees to inspect the Product immediately upon delivery and to give notice in writing to Seller of any claim within thirty(30) days of such delivery. Failure to give notice in writing as aforesaid within the specified time constitutes an unqualified acceptance of the Product and a waiver of all claims with respect thereto.
Seller’s total liability shall be limited to the purchase price of the Product supplied (or to have been supplied) hereunder in respect of which damages are claimed. All technical or other advice, recommendation or assistance by Seller, whether or not at Buyer’s request, with respect to the Product, its processing, further manufacture, other use or resale or otherwise, is given gratis by Seller and Seller shall not be liable for, and Buyer assumes all risk of, same and the consequences thereof. OTHER THAN AS SET FORTH IN THIS PARAGRAPH, SELLER SHALL IN NO EVENT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES, AND REGARDLESS (i) WHETHER THE CLAIM IS BASED ON WARRANTY, CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, AND (ii) WHETHER SELLER WAS OR SHOULD HAVE BEEN AWARE OF SAME. Upon satisfactory proof of claim by Buyer, and as Buyer’s exclusive remedy, Seller will, within a reasonable time, supply Buyer with replacement product of the same or equivalent type, free of charge, freight prepaid or, at Seller’s option, refund the purchase price for the Product upon return of the Product or other delivered material, or the unused portion thereof. Buyer charges for replacements and returns for credit will not be allowed unless authorized by Seller in writing.
RADICAL POLYMERS is a Limited Liability Corporation (“LLC”) formed in the State of Tennessee and operates under the “Tennessee Limited Liability Company Act” Tenn. Code Ann. § 48-201-249. OFFICERS, MEMBERS, PARTNERS, AND EMPLOYEES ARE AFFORDED PROTECTION FROM PERSONAL LIABILITY UNDER SUCH LAWS.
IV. ADVICE AND DETERMINATION OF SUITABILITY OF USE
IT IS THE RESPONSIBILITY OF THE BUYER TO INDEPENDENTLY DETERMINE SUITABILITY OF THE SELLER’S PRODUCTS FOR BUYER’S USE. Buyer agrees that Seller will not have control over the design, testing or labeling of any product produced using Seller’s Products, and that Buyer is not relying on any representation or statement made by, or on behalf of, Seller with respect to the suitability of any Product for any purpose, or on any advice, recommendation or information obtained from Seller’s product literature or web sites, including any design aid or other service made available by Seller. Buyer has tested and investigated the Products enough to form an independent judgment concerning their suitability for the use, conversion or processing intended by Buyer and will not make, and herby waives, any claim against Seller based on Seller’s advice, statements, information, services or recommendations.
V. TITLE AND DELIVERY
ALL PRODUCTS ARE SOLD ON A FCA BASIS (INCOTERMS 2010) UNLESS OTHERWISE AGREED BY SELLER IN A SEPARATE CONTRACT. Delivery to Buyer of Product, and corresponding transfer of title and of all risk of loss, shall occur upon Seller’s loading of Product onto Buyer’s carrier at Seller’s shipping location.
VI. EVENTS BEYOND SELLER’S CONTROL
Seller shall not be liable for breach of any obligation directly or indirectly or damages arising thereof attributable to circumstances beyond Seller’s reasonable control. Such circumstances include, but are not limited to, acts of God, acts of Buyer, war, riots, accident, fires, explosions, floods, sabotage, terrorism, governmental laws, regulations, orders or action, national defense or security requirements, acts or failure to act of its suppliers or other third parties, natural disaster, weather conditions, or shortages of or inability to obtain (as and when required and upon Seller’s usual terms and from its usual sources of supply) suitable or sufficient energy, labor, machinery, facilities, raw materials, transportation, supplies or other resources or services. Labor difficulties, strike, lockout or injunction shall be conclusively presumed to be beyond Seller’s reasonable control, and accordingly within the meaning and intent of this Paragraph. All or some of the quantities of Product deliverable under this Contract, or other performance by Seller, that is affected by this Paragraph may, in the sole and absolute discretion of Seller, be eliminated and/or suspended from the operation of this Contract (with the elimination and/or suspension of Buyer’s corresponding obligations), but such Contract shall remain otherwise unaffected. In the event of inability for any reason to supply the quantity of Product stated in this Contract, Seller may in its sole discretion, without any liability, allocate its available supply among any or all purchasers, as well as itself and its affiliates, in a manner that is fair and reasonable.
Seller shall have the right, without any liability, to discontinue all or any of its performance obligations under this Contract if, in its sole and exclusive good faith opinion, the manufacture, export, import, sale and/or use of the Product, or of any related component or process, by it or any of its affiliates may infringe any patent or intellectual property right.
VII. PAYMENT AND PRICE
Product prices are determined by the applicable Sales Agreement, if any. In the absence of a Sales Agreement, prices are determined by Buyer’s confirmed order or, in the absence of a confirmed order, by Seller’s list prices in effect at the time of shipment. If Seller implements a general or industry specific price adjustment for any Product, all orders for such Product that are confirmed but not shipped as of the effective date of such adjustment shall be re-priced accordingly. All prices are FCA (INCOTERMS 2010) a facility specified by Seller, and do not include taxes of any kind. Payment will be due in full, in U.S. Dollars, within thirty (30) days of the invoice date. Buyer agrees to reimburse Seller for Seller’s costs of collection should Buyer fail to pay Seller in a timely manner, including interest at the rate of 1.5% per month, or the maximum interest rate permitted by applicable law, whichever is less, on any past-due amounts. Title and risk of loss or damage to Products will pass to Buyer at the time such Products are first delivered to a commercial transportation carrier for shipment. All delivery dates are estimates only. Buyer agrees that a variation of up to 10% in quantity delivered is acceptable to Buyer, and shall constitute fulfillment of an order. In addition to any other rights available to Seller, in the event that Buyer is in default of its obligations hereunder, files for bankruptcy, or is reasonably believed by Seller to be insolvent, then Seller may suspend shipments of Product to Buyer. Buyer shall be responsible for the payment of reasonable attorneys’ fees and related costs and expenses incurred by Seller in (a) any claim or action by Seller to enforce this Contract, and (b) successfully defending any claim or action by Buyer.
PRICES DO NOT INCLUDE SALES, USE, EXCISE, OR OTHER SIMILAR TAXES OR GOVERNMENTAL CHARGES, AND ALL SUCH PRESENT AND FUTURE TAXES AND CHARGES WILL BE PAID BY BUYER.
IX. REGULATIONS AND COMPLIANCE WITH APPLICABLE LAWS
BUYER WARRANTS AND AGREES TO TRANSPORT, STORE, HANDLE, USE, DISPOSE OF AND OTHERWISE DEAL WITH PRODUCT SAFELY AND IN STRICT COMPLIANCE WITH ALL LAWS AND REGULATIONS AND ALL APPLICABLE STANDARDS OF CARE. Seller does not warrant the safety of the Product or its use, whether alone or in combination with any other substance or in any process. Buyer assumes all responsibility for training and warning its employees, customers and independent contractors of any hazards associated with the Product, including incorporation of the Product into Buyer’s substances or processes.
X. INTELLECTUAL PROPERTY AND CONFIDENTIALITY
Any suggestions Seller makes about possible articles, designs or uses of Products do not give Buyer a license under any patent or other intellectual property right covering such articles, designs or uses, nor are they a recommendation that Buyer use any Product in a manner that may infringe any patent or other intellectual property right. All designs, formulas, data, or other technical information of Seller relating to this Contract will remain Seller’s or its affiliates’ confidential property, and Buyer shall not have any rights thereto, nor any rights to disclose such items or information to any third party. Nothing in this Contract shall be construed (by implication, estoppel or otherwise) as granting, or as an undertaking by Seller to subsequently grant, to Buyer any license, right, title or interest in or to any present or future patent, patent application, know-how, copyright, trademark, trade secret or other proprietary right.
XI. WAIVER – SEVERABILITY
The failure of Seller to insist upon strict performance of any of the provisions of this Contract will not constitute a waiver of those or any other provisions. No waiver by Seller shall be deemed to arise from any course of dealing or trade custom, and will only be effective if set forth in a separate writing, signed by Seller. Should any provision of this Contract be deemed wholly or partly invalid, this shall have no effect on the validity of the remaining provisions.
XII. APPLICABLE LAW
Contract shall be interpreted and enforced in accordance with the laws of the state of Tennessee, U.S.A., without regard to the United Nations Convention on the International Sale of Goods or other international treaty, rule or accord, and without regard to conflicts of law principles. Seller and Buyer hereby irrevocably submit to the exclusive jurisdiction of the federal and state courts located in the State of Tennessee for the resolution of any claim under this Contract, and Buyer agrees not to assert any defense to any suit, action or proceeding initiated by Seller based upon improper venue or inconvenient forum. BUYER AGREES THAT ANY SUIT, ACTION OR PROCEEDING, WHETHER CLAIM OR COUNTERCLAIM, BROUGHT BY IT RELATED TO THIS CONTRACT SHALL BE TRIED ONLY BY A COURT AND NOT BY A JURY. BUYER HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND INTELLIGENTLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR PROCEEDING.