General Terms and Conditions of Sale (“GTCS”)
Revision Date: September 1, 2024
1. Acceptance of Orders. If Buyer's order is made under an existing written contract between Buyer and Seller, Buyer's order is accepted subject to the terms of that written contract. If there is no such written contract, Seller hereby accepts Buyer's order, provided that Seller also hereby objects to those terms which are in conflict with or additional to those stated herein these GTCS. Unless otherwise expressed in writing, delivery by Buyer of any goods or services provided hereunder shall constitute acceptance by Buyer of the GTCS stated herein. If this document is construed as an offer to sell, then acceptance by Buyer is limited to the GTCS stated herein and Buyer is hereby notified of Seller's objection to any terms additional to or different from those stated herein. Any services by Seller are rendered only in connection with the sale of such goods. The term "Seller" means the entity identified as seller on the Seller’s order confirmation or invoice accompanying these terms and conditions or its duly authorized representative. The term "Buyer" means the person or entity purchasing goods thereunder. Seller may change the price and/or terms of delivery and shipment at any time until shipment. In addition, Seller may pass through increased freight, transportation, or fuel costs, and/or duties, tariffs, or taxes imposed on Seller in connection with the sale/shipment of the goods at anytime.
2. Prices. Unless otherwise specified on Seller’s quote or on Seller’s invoice, all prices are in U.S. Dollars and are firm. Seller reserves the right to make corrections to prices quoted or agreed upon due to incomplete or inaccurate information from Buyer. Seller's weights, count and/or measurements shall govern, unless proved to be in error. In the event that Seller determines that Seller’s performance is made substantially more expensive as a result of increases in the costs of raw materials, packaging, labor, or utilities, Seller may reduce or stop deliveries of goods and/or adjust pricing of the goods in its reasonable discretion at any time prior to delivery of the Goods.
3. Title, Shipping and Delivery. Title shall pass to Buyer upon delivery of the goods at Seller’s facility. Unless otherwise indicated on Seller’s quote or on the face hereof, all goods sold hereunder shall be sold and delivered Ex Works (EXW) Seller's facility (Incoterms 2020). Buyer shall be solely responsible to arrange and pay for transportation of the goods to Buyer from the delivery point. Any and all expenses and risk of loss for any damages incurred in the transportation of goods from Seller's facility shall be the responsibility of Buyer. If Seller’s order acknowledgment or Seller’s invoice on the face hereof pertains to goods to be shipped upon Buyer's release orders, unless other arrangements have been agreed to in writing, Buyer shall take delivery of such goods under a delivery schedule that is reasonable under the circumstances. If Buyer does not pick up the delivered goods in five (5) days, Seller may in its sole discretion impose liquidated damages of 1% of the price or the relevant goods up and until the day when the goods are picked up by the Buyer. Buyer shall pay such liquidated damages in accordance with the payment terms in Seller’s quote or its agreed “Terms of Payment” in a written contract between Buyer and Seller. Payment of such amount shall be deemed to be liquidated damages to the sole benefit of Seller for Buyer’s breach to pick up that specific order of goods after its delivery by Seller. If Seller determines that Buyer's credit has become unsatisfactory to it at any time, Seller shall have the right to decline to make further deliveries hereunder except for cash in advance until such time as said Buyer’s credit has become re-established to Seller's satisfaction, in Seller’s sole discretion.
4. Containers. If the goods sold hereunder are to be shipped to Buyer in tanks, drums, cylinders, or other containers (collectively the "containers"), all such containers are non-returnable. Buyer is responsible for proper and lawful disposal of all containers and shall not in any way re-use containers without Seller's prior written permission. Buyer shall indemnify Seller for all costs, damages and if liability arising out of Buyer's disposal or re-use of containers.
5. Payment. Unless specified on Seller’s quote or in a written contract between Buyer and Seller, payment is due from Buyer on the terms set forth on the face hereof. In addition to other remedies upon default in payment, Buyer shall pay (a) interest on past due amounts at the rate of 1.5% percent per month, and (b) all costs of collection, including court fees, out of pocket expenses, and reasonable attorneys' fees of Seller. Seller has the right to suspend shipments without penalty or liability if any payment is past due.
6. Allocation of Goods. Seller at its sole discretion may allocate its available supply of goods among itself and its customers on such a basis as Seller deems equitable, without obligation to purchase similar goods from other sources. Section 6 shall not operate to eliminate any other rights or remedies available to Seller under the GTCS, or under a written contract between Seller and Buyer, if any, in equity or by law.
7. Nonconforming Goods. Buyer’s exclusive remedies for non-conforming goods are set forth on Section 8, to the exclusion and waiver of any Buyer’s any and all other rights and remedies, whether in contract, tort, negligence, law, equity or otherwise.
8. Limited Warranty and Limitation of Remedy and Damages. Seller warrants that the goods delivered to Buyer hereunder shall conform to the specifications of these GTCS, if any; otherwise, they shall conform to Seller's standard specifications. Seller's entire liability and Buyer's exclusive remedy for any and all losses and damages for any cause of action arising out of the GTCS for any goods or delivery of such goods, whether based on contract, tort, negligence, law, equity or otherwise, shall be limited, at Seller's sole option, to replacement of the nonconforming or defective goods, or payment to Buyer in an amount to not exceed the purchase price of such goods. Buyer shall be responsible and bear the costs with disposition of the non-conforming or defective goods or any portion thereof. Any claim non-conforming or defective goods by Buyer shall be waived unless made in writing within thirty (30) days of Seller’s delivery of such goods. Buyer's failure to give such written notice within such timeframe shall constitute Buyer's waiver of any claims that may arise out of any defect or non-conformity. Any such claim shall identify each alleged nonconformity of the goods, and describe that portion of the goods being affected. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, CONTINGENT, SPECIAL OR INCIDENTAL DAMAGES OR EXPENSES WHATSOEVER WHICH MAY ARISE AS A RESULT OF THE GTCS OR OTHERWISE, OR ANY OTHER MATTER WITH RESPECT TO THE GOODS, WHETHER USED ALONE OR IN COMBINATION WITH OTHER GOODS. THIS WARRANTY IS EXPRESSLY MADE IN LIEU OF ANY AND ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE HEREBY DISCLAIMED. This warranty is afforded by Seller only to Buyer. If Buyer elects to afford any warranty to its customers, Seller shall have no liability whatsoever in connection therewith. Seller’s employees and sales representatives are not authorized to make warranties; oral or written statements by them do not constitute warranties and shall not be relied upon.
9. Indemnification by Buyer. Buyer shall defend, indemnify, and hold harmless Seller and its directors, officers, employees and agents from any claims, damages, or expenses, including reasonable attorneys' fees, arising or alleged to arise from (a) the infringement of any valid patent due to the use of any of the goods supplied hereunder, (b) the sale of any goods purchased hereunder which are produced according to Buyer's specifications, (c) the use, handling, treatment, storage, disposal, transportation, maintenance, or re-sale by Buyer of any goods purchased hereunder, (d) any asserted deficiencies or defects in the goods supplied hereunder caused by any alteration thereof made by Buyer with or without Seller's consent, (e) Buyer's failure to adequately mark the goods or containers for the goods with any warnings or other notices required by any federal, state, or local law or administrative rule or regulation, (f) Buyer's breach of any these GTCS, (g) the special marking of goods or containers in accordance with Buyer's instruction, or (h) any act or omission of Buyer; irrespective of whether such claim, damage or expense is caused, or alleged to be caused, in whole or in part by the joint, comparative, or several but not sole negligence or other breach of duty by Seller, or whether such claim, damage, or expense is asserted under a strict or other product liability theory or any other legal theory. The foregoing indemnification shall not be construed to eliminate or in any way reduce any other indemnification or right which Seller has by law.
10. Taxes and Duties. Stated prices do not include taxes or duties of any nature. Buyer shall pay any tax or duty or other governmental charge on or related to the goods sold hereunder, imposed by any governmental authority, except taxes on income to Seller, unless tax exemption certificates in a form satisfactory to Seller are supplied by Buyer to Seller. If Seller is required to pay any such taxes or charges (other than taxes on income to Seller), Buyer shall promptly reimburse Seller therefor.
11. Cancellation. An order placed with and accepted by Seller cannot be cancelled by Buyer unless with Seller's written consent and upon terms that indemnify Seller against all loss. Seller may cancel all or any part of Buyer’s order and discontinue its performance hereunder without liability to Buyer in the event (a) Buyer materially breaches the GTCS, becomes insolvent, files or is the subject of a bankruptcy, or is the subject of a receivership liquidation, dissolution or similar proceeding, or (b) a significant portion of Buyer's assets necessary for the conduct of its business becomes subject to attachment, embargo or expropriation or (c) Buyer or any of its affiliates, shareholders, directors or officers is subject to a trade sanction by any law or regulation that Seller is required to comply with.
12. Buyer’s Representations and Duty to Warn. Buyer represents, acknowledges and agrees that: (a) it understands the nature and characteristics of the goods, is aware that goods may now or in the future be designated as hazardous materials, and is familiar with any health, safety, or environmental hazards arising out of or resulting from use, storage, transportation, maintenance, handling treatment and disposal of such materials; (b) it is accustomed to handling materials similar to goods sold hereunder and to materials designated as hazardous and that it has the necessary expertise, equipment, personnel, and facilities to conduct safely and lawfully all of its activities involving goods and that it will so conduct its activities; (c) it has read and understands all information relating to goods which is contained in any safety data sheet (or other documents) provided with such goods; (d) all technical advice, recommendations and services of Seller are intended for use only by persons having skill and at their own risk, and Seller assumes no responsibility therefor and Buyer hereby waives all claims against Seller for results obtained and damages incurred from the use of Seller's advice, recommendations or service; (e) goods sold hereunder are for commercial use only and will not be resold, donated or otherwise made available to individuals for personal use; (f) Buyer shall provide all information supplied to it by Seller with respect to the goods to any subsequent purchasers of such goods, and if goods sold hereunder are to be relabeled by Buyer, such relabel must, at a minimum, include all health, safety, and environmental information in Seller's label and be labeled in accordance with all applicable laws; (g) it will comply with all applicable laws and regulations governing the use, possession, storage, transportation, maintenance, handling, treatment, disposal and sale of the goods, and will warn all persons (including but not limited to Buyer's employees, contractors and customers) who may become exposed to the goods of the hazards associated therewith and to take all action necessary to protect such persons from said hazards; (h) it will comply with all applicable export and sanction laws, including but not limited to U.S. antiboycott laws, embargos, and laws that prohibit resale, diversion or re-export of U.S. origin goods and technology to any destination that is subject to an OFAC sanctions program (as described at: https://ofac.treasury.gov/sanctions-programs-and-country-information) or to any party on any of the "Lists to Check" that are available at: https://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern and (i) it will comply with the Supplier Code of Conduct located at https://www.aurorium.com/supplier-code-of-conduct.
13. Compliance with Laws. Seller represents that all goods sold hereunder shall be produced in accordance with the applicable provisions of the chemical control laws affecting the jurisdiction of the manufacturing location for the goods. Unless specifically agreed otherwise, Buyer shall be responsible for compliance with all applicable laws and regulations regarding import, transport, storage and use of the goods. Unless specifically agreed otherwise in writing, Seller shall have no obligation related to compliance or the goods' conformance with any other applicable laws, rules, regulations, ordinances and executive orders of any governmental authority of any nation, including but not limited to the US Toxic Substance Control Act of 1976 and the EU Regulation (EC) No. 1907/2006 ("REACH"), as amended. It is understood that Buyer shall be responsible for compliance with any regarding import, transport, storage, handling and use of the goods.
14. Force Majeure. Buyer shall not be entitled to damages and shall not have the right to terminate any order accepted by Seller subject to the GTCS because of any delay or default in the performance of any obligation by Seller hereunder, if such delay or default is caused by conditions beyond Seller's control, including, but not limited to: acts of God; governmental action or inaction or restraint; weather, continuing domestic or international disturbances, such as war, pandemic or insurrections; strikes; fires; floods; work-stoppages; embargoes; unavailability of equipment; and/or lack of materials, and significant increases in costs, including the inability to purchase raw materials at a commercially reasonable price. Any suspension of performance by reason of this section shall be limited to the period during which such causes of failure exist.
14.1. Economic Hardship. : If Seller encounters changes in raw or other material costs or changes in cost associated with the manufacturing, handling and delivery of product (for example, but not limited to, regulations from government agencies relating to safety or environmental regulations, or other government regulations, mandatory packaging requirements, or changes to, or cessation of, publications necessary for price determination, etc.), which are beyond the reasonable control of Seller, and the increased costs exceed 5% for a period of 30 days, then Seller may implement a hardship increase reflective of the increased costs until the Seller’s costs decrease under 5% for 30 consecutive days. Seller will provide written notification to the Buyer of such changes and request in good faith a change to the Product price structure. During the negotiation period, Seller’s noticed price will apply. In the event that Buyer and Seller cannot agree on a revised pricing mechanism within thirty (30) days of notification by Seller, then either party may terminate the order accepted by Seller subject to the GTCS without cause and without incurring any damages, fines or penalties by providing thirty (30) days’ notice.
15. Severability. In the event any provision hereof is found to be invalid or unenforceable, Seller may elect to either (a) terminate the order subject to the GTCS if not fully performed by it, or (b) consider the order subject to the GTCS severable as to such provisions and such provisions shall thereafter be deemed deleted from the order subject to the GTCS without affecting or impairing any other part hereof. In such latter event, the remainder of the order subject to the GTCS shall be in full force and effect as if such severed provision were never a part of the same.
16. Governing Law; Venue; Jurisdictions.
16.1 Orders to be delivered in the United States of America. Subject to Section 3 of the GTCS, when an order acknowledged by Seller is to be delivered within the United States of America, then such order and any dispute or claim arising out of or in connection with it or its subject matter formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the United States and the State of Indiana, without regard to the conflict of laws principles of any jurisdiction to the contrary, and any and all actions arising under the GTCS shall be filed and maintained only in courts situated in Marion County, Indiana, and the parties hereby consent to the exclusive jurisdiction and venue of such courts and irrevocably waive all objections thereto; provided, however, that any judgment of such courts may be executed or enforced in any court of competent jurisdiction.
16.2 Orders to be delivered outside the United States of America. Subject to Section 3 of the GTCS, when an order acknowledged by Seller is to be delivered outside the United States of America, then such order and any dispute or claim arising out of or in connection with it or its subject matter formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales, without regard to the conflict of laws principles of any jurisdiction to the contrary, and shall be subject to the exclusive jurisdiction of English courts, and the parties hereby consent to the exclusive jurisdiction and venue of such courts and irrevocably waive all objections thereto; provided, however, that any judgment of such courts may be executed or enforced in any court of competent jurisdiction. The United Nations Convention on contracts for the International Sale of Goods shall not apply to any order accepted under the GTCS.
17. Complete Agreement; Amendments. These GTCS, together with the terms on the face hereof and in the written agreement, if any, constitute the entire agreement between the parties with respect to the subject matter hereof, and no amendments, modifications or revisions thereof shall have any force or effect, unless the same are in writing and executed by the parties hereto. No modification shall be effected by the acknowledgment or acceptance of documents containing different terms.
18. Assignment. Buyer may not assign, transfer or sell all or any of its rights or delegate all or any of its obligations hereunder without the prior written consent of Seller. Subject to these restrictions, an order accepted under the GTCS shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
19. Waiver. Failure of Seller to enforce at any time any of the provisions of the GTCS, irrespective of any previous action or proceeding taken by it, shall in no way be considered (a) a waiver of such provisions, (b) to affect the validity of the GTCS and its applicability to the Buyer’s order, or (c) to preclude or prejudice the Seller from exercising the same or any other rights it may have under the contract. Any action by or on behalf of Buyer or its successors or assigns for breach of this contract must be commenced within one (1) year after the cause of action has accrued.
20. Buyer’s Solvency. By placing an order with Seller or by accepting goods delivered by Seller, Buyer represents that it is not "insolvent" as that term is defined under applicable laws. In the event that Buyer becomes insolvent before delivery of the goods, Buyer shall immediately notify Seller in writing. A failure to so notify Seller shall be construed as a reaffirmation by Buyer of Buyer's solvency at the time of delivery.