1. GENERAL. These Terms and Conditions of Sale, together with the Personalized Price Agreement (the “PPA”) between Poseidon Advanced Materials, LLC (“PAM”) and BUYER (collectively “this “Agreement”) shall constitute the entire agreement between PAM and BUYER with respect to the sale of any PAM goods or product (“Product”) to BUYER. All purchases from PAM by BUYER are expressly limited to and conditioned upon the terms and conditions of this Agreement. Any additional or conflicting terms and conditions contained in, attached to or referenced by any purchase order or document other than the PPA, or any prior or later communication between BUYER and PAM, are expressly rejected by PAM and shall have no application to the purchase of any Product unless such provisions are expressly agreed to by PAM in writing and executed in accordance with Paragraph 18 of this Agreement. BUYER’s submission of a purchase order or any other order shall in all cases constitute BUYER’s unqualified and unconditional acceptance of this Agreement. Any order received by PAM shall be a legally binding purchase obligation of BUYER and subject to the terms of this Agreement. BUYER’S EXCLUSIVE REMEDIES ARE SET FORTH IN PARAGRAPHS 9 AND 10 OF THIS AGREEMENT.
2. TITLE AND RISK LOSS. All deliveries shall be FOB at the point specified in the PPA. Title to and risk of loss on Product passes to BUYER when Product is delivered to a common carrier at the delivery point. After passage of title of Product to BUYER, BUYER assumes all risk and liability, and PAM shall not be liable to BUYER for any loss or damage to persons, property, or the environment arising out of or related to Product.
3. TAXES AND DUTIES. All taxes, duties, tariffs, consular fees, levies, penalties, and other charges now or hereafter imposed by any governmental authority with respect to this Agreement or with respect to the sale, delivery, transportation, importation, exportation or proceeds relating to a Product soled hereunder or on remittance of funds in payment for Product shall be paid by BUYER. BUYER agrees to reimburse PAM for any such amounts paid by PAM. Such reimbursement shall be paid within ten (10) days of receipt of written notice from PAM.
4. INDEMNIFICATION. To the fullest extent permitted by and under law, BUYER, its affiliates, agents, principals, successors and assigns shall defend, indemnify and hold PAM, its affiliates and their respective employees, agents, officers, directors, and stockholders, successors, and assigns (collectively “Indemnitees”) harmless from and against any and all claims, demands, lawsuits, causes of action, strict liability claims, penalties, fines, administrative law actions and orders, expenses (including attorneys’ fees and expenses) and costs and liabilities of every kind and character (“Claims”) which may arise for any reason whatsoever, including, without limitation, personal injuries, death, damage to property or the environment, regardless of whether based on negligence, strict liability, contract, or breach of warranty, arising out of or related to a breach of its obligation under this Agreement or the sale or use of a Product or material made in whole or in part from a Product sold hereunder. BUYER’s duty and obligations under this Section shall survive the termination, cancellation or expiration of the order contemplated by the Agreement or the sale or use of Product or material made in whole or in part from a Product sold hereunder. BUYER’s duty and obligations under this Section shall survive the termination, cancellation, or expiration of the order contemplated by the Agreement and the cessation of any business transactions between BUYER and PAM.
5. DELIVERIES. (a)If the PPA does not designate a method of shipment, PAM may select any reasonable method of shipment without liability by reason of its selection. Delivery dates are approximate. PAM shall not be liable to BUYER for damages or charges resulting from a delay in the delivery of a Product. PAM reserves the right to assess additional charges for non-standard shipments, short lead time on orders, order changes, and order cancellations. All shipment, insurance and similar charges shall be borne by BUYER.
(b) If and to the extent that the delivery point for Product sold hereunder is any PAM facility, PAM shall have the right to require the execution of an access and/or confidentiality agreement prior to granting BUYER, its carriers, contractors, or agents, access to such facility. BUYER shall comply, and shall ensure that its carriers, contractors and agents shall comply, with all of PAM’s safety rules and regulations when they are at any of PAM’s facilities.
(c) For all deliveries, BUYER is solely responsible for offloading and unloading all Product. To the extent BUYER fails to offload or unload the entire quantity of Product from the transport or container utilized for shipment, then the following shall apply: (i) any residual or remaining Product shall be deemed to have been abandoned by BUYER for the beneficial use or re-use by PAM; (ii) BUYER will not receive credit, payment or other consideration for any residual or remaining Product; and (iii) BUYER is solely responsible for the transportation of such residual and remaining Product until received and accepted by PAM.
6. COMPLIANCE WITH LAW. (a) The parties shall comply with all laws, treaties, conventions, directives, statutes, ordinances, rules, regulations, orders, writs, judgments, injunctions, or decrees of any governmental authority having jurisdiction (“Laws”) pertaining to the fulfillment of the Agreement.
(b) BUYER will be responsible for compliance with all Laws applicable to the Product once the Product has been delivered by PAM in accordance with this Agreement, including, without limitation, those related to operations, safety, maintenance, equipment, size and capacity and pollution prevention.
(c) If any license or consent of any government or other authority is required for the acquisition, carriage or use of Product by BUYER, BUYER will obtain the same at its expense, and if necessary, provide evidence of the same to PAM on request. Any expenses or charges incurred by PAM resulting from such failure will be paid for by BUYER within ten (10) days of receipt of PAM’s written request.
7. CLAIMS/DEFECTS (a) BUYER shall, at its sole cost and expense, inspect Product delivered hereunder within a reasonable period of time after receipt.
(b) An “Apparent Defect” of a Product is defined as a visible damage identifiable on receipt of the Product, or on opening of the packaging, including any shortages. Any claim for an Apparent Defect must be made the BUYER to PAM no later than five (5) working days (“Inspection Period”) from receipt of the Product, and must be accompanied by the documents required in subsection (e) of this Paragraph 7.
(c) BUYER’s failure to give written notice to PAM of an Apparent Defect or shortage within such five (5) day period shall constitute a waiver by BUYER of any claims based on an Apparent Defect.
(d) Any claim other than Apparent Defects of the Product must be made by BUYER, in writing, no later than three (3) months following delivery of the Product and must be accompanied by the documents identified in subsection
(e) of this Paragraph 7.(e) For all claims, the following information and documents must be supplied: the invoice number; a photocopy of the delivery label; an exact description of the anomaly or defect alleged, and, if possible, photos of the alleged defect.
(f) PAM, at its sole discretion, may reject any claim unless all documents are accompanied with the claim.
(g) In the event of a claim, the Product delivered must be made freely accessible to PAM for inspection a date and time mutually agreeable to the parties. BUYER’s failure to make the Product accessible for an inspection within fourteen days of such request shall result in an unqualified acceptance of the Product.
(h) Returns of Product will be permitted if a claim has been made in accordance with this Section 7 and PAM expressly authorizes the return.
8. PAYMENT TERMS/CREDIT. (a) BUYER shall pay all invoices, without deduction, in US currency. If the PPA does not state payment terms, payment shall be received by PAM no later than thirty (30) days from the date of PAM’s invoice. BUYER shall pay PAM interest on the outstanding amount of any unpaid invoice at a rate of one percent (1.0%) per month compounded monthly, from the due date until paid.(b) PAM makes no assurance or guarantee regarding any amount of credit to be extended to BUYER or the continuation of such credit. If PAM, in its sole discretion, provides BUYER with a line of credit to facilitate purchases of Product from PAM, such credit line may be amended, decreased or terminated at any time at PAM’s sole discretion.
9. LIMITED WARRANTY. THIS IS A LIMITATION OF WARRANTIES, PLEASE READ CAREFULLY. PAM warrants only, at the time of delivery, that (a) Product shall conform to PAM’s then current specifications provided by BUYER for the specific Product sold hereunder; and
(b) PAM will deliver good title to Product free of liens or encumbrances. As set forth in Paragraph 7, BUYER waives and releases PAM for any claims for an Apparent Defect if they are not made within the Inspection Period and accompanied by the required documentation. BUYER acknowledges, represents, and warrants that is has all necessary expertise and knowledge in the intended use of Product sold hereunder and any use of another product or material made therefrom; and BUYER assumes all risk and liability for results obtained by the use of Product, whether used singly or in combination with other substances or in any process.
EXCEPT AS SET FORTH IN THIS SECTION, PAM SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR MERCHANTABILITY OR FITNESS OF THE PRODUCT FOR A PARTICULAR PURPOSE, CONDITION OR QUALITY OF THE PRODUCT, ANY TRADE USAGE OR DEALING. ANY DETERMINATION OF THE SUITABILITY OF PRODUCT FOR THE USE CONTEMPLATED BY BUYER IS BUYER’S SOLE RESPONSIBILITY. 10. LIMITATION OF LIABILTY AND LIMITED REMEDIES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT WILL PAM BE LIABLE TO BUYER FOR ANY LOST OR PROSPECTIVE PROFITS, INDIRECT, INCIDENTAL, CONSEQUENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST EARNINGS, LOST PROFITS OR BUSINESS INTERRUPTION, WHETHER OR NOT BASED UPON PAM’S NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY, IN TORT OR ANY OTHER CAUSE OF ACTION.