These Purchase Order Terms and Conditions (the "Terms and Conditions") are part of each purchase order that Alamanda Polymers, Inc. accepts. In these Terms and Conditions, "Vendor" means Alamanda Polymers, Inc., "Buyer" means the buyer named in the Order, "Goods" and "Services" means the goods or services that Buyer is to purchase from Vendor, as described in the purchase order, "Chemically Modified Goods" means goods to which there is an alteration to the structure of a molecule where said alteration is produced via chemical means such as covalent attachment, "Agreement" means the purchase order together with these Terms and Conditions, "Order" means the purchase order in the form attached, and "Affiliate" of Buyer or of Vendor means at any time any corporation, limited liability company, partnership or other entity or individual that then controls, is controlled by, or is under common control with, Buyer or Alamanda Polymers, Inc., as applicable:
The Order, together with these Terms and Conditions, contains all of the terms of the Agreement between Vendor and Buyer with regard to its subject matter and supersedes all prior oral or written representations, Agreements and other communications between Vendor and Buyer, and may only be amended by a writing signed by duly authorized officers of Buyer and Vendor. Buyer hereby acknowledges and agrees that the Order is in law an offer by Buyer to Vendor. The order shall not bind Vendor until Vendor has accepted the Order in writing. On Vendor's acceptance of the Order, the terms applicable to the Order shall be these Terms and Conditions together with any conditions that may be contained in the Order in the form of Exhibit A. Buyer's acceptance of these Terms and Conditions shall be conclusively presumed by Buyer's submission of the Order in the form attached. Vendor shall accept the Order in writing within 15 days following receipt or the Order will be deemed rejected. The Order is revocable by Buyer until accepted by Vendor in writing.
The initial product price list and minimum purchase requirements are set by Vendor. Vendor may increase the price or minimum requirement per shipment at any time by written notice to buyer no less than 30 days prior to the effective date thereof.
3. TAXES AND PAYMENT TERMS
(a) Vendor shall not be required to pay any sales, use or other taxes (whether federal, state or local), assessments, fees or duties arising because of Buyer's purchase from Vendor or Vendor's manufacture, performance or sale of the goods or services (including, without limitation, any tax, assessment, fee or duty measured or imposed upon Vendor's income, payroll or property and any franchise tax) ("Taxes"), and Buyer shall be responsible and liable for paying, and shall pay, all Taxes, provided, however, if such Taxes were not in effect at the time that Buyer and Vendor entered into their Agreement for Vendor's production of goods for Buyer, any such Taxes shall be paid by the party upon which the legal incidence of the Tax is imposed.
(b) Vendor shall invoice Buyer upon shipment of goods and payment shall be due within thirty days of invoicing Buyer, unless otherwise prepaid or agreed to in writing by Vendor. Invoice shall include product price, costs of shipping, handling, insurance and Taxes incurred by Vendor. Buyer agrees to pay late charges of 1 ½ percent per month on any overdue amounts and to reimburse Vendor for all costs and expenses incurred in collecting any overdue amounts. Vendor may alter payment terms, defer shipments, or terminate this Agreement if Buyer fails to pay the invoice in accordance with the terms of these Terms and Conditions, unless otherwise agreed to in writing by the parties. Vendor may require cash payments, satisfactory security for future deliveries, or other adequate assurance of performance if Buyer's financial responsibility becomes unsatisfactory to Vendor.
(c) All payments to Vendor hereunder are to be made in United States Dollars, by way of wire transfer or such other modes as may be agreed in writing by Vendor from time to time (such Agreement not to be unreasonably delayed or withheld), to such account as Vendor may notify to Buyer in writing from time to time.
4. PACKING AND CARTAGE
The following specific delivery terms shall be applicable any delivery made by Vendor to Buyer under the accepted Order:
(a) Vendor shall not be responsible for packing or cartage expenses. Such expenses shall be paid by Buyer, including any shipping insurance. In such instances where Vendor chooses or is required to pay packing, cartage or insurance costs prior to receipt of shipment, Buyer shall reimburse Vendor for all such expenses.
(b) Vendor shall include with each shipment a document listing each item and quantity separately, as indicated on the Order.
(c) If any governmental registration or approval is required for the goods, such registration or approval shall be obtained by Buyer at Buyer's expense.
Delivery of all goods sold hereunder shall be to Buyer's facility as identified in the Order. Buyer may, at its option, take delivery of all or any part of the goods at Vendor's facility, in which case risk of loss for such goods shall pass to Buyer when Buyer or its shipping agent departs Vendor's facility after taking delivery of the goods. Risk of loss and damage in all goods sold hereunder shall pass to Buyer on Vendor's delivery to carrier at the shipping point. Buyer shall be responsible for all shipping and transportation costs. Performance dates represent Vendor's best estimates and Vendor shall not be liable for failing to meet such dates. If Vendor is more than 30 days late in meeting a performance date, Buyer's exclusive remedy is to cancel the applicable Order. Buyer is deemed to have accepted the goods where Buyer fails to notify Vendor in writing, within 5 days of delivery of the goods to Buyer, of its rejection. Orders may not be cancelled once accepted by Vendor. When Buyer fails to accept delivery of any Order, Buyer shall reimburse Vendor for reasonable storage and insurance costs for the order until the Order has been delivered to Vendor. Vendor's invoice for storage and insurance costs shall be paid according to the payment provision of these Terms and Conditions. Buyer may not reschedule a shipping date or other time for performance without Vendor's written permission.
6. CHANGES; CANCELLATION
Buyer may cancel, modify or suspend any Order if such cancellation, modification or suspension occurs prior to Vendor's written acceptance.
Buyer reserves the right to inspect, test and approve goods described in any Order, as well as the right to reject any goods not conforming to the terms of any Order within five days of receipt of shipment. To the extent Buyer rejects goods as non-conforming, the quantities under that Order will automatically be reduced unless Buyer otherwise notifies Vendor. Vendor reserves the right to replace quantities so reduced without a new Order from Buyer.
8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS ABOUT VENDOR
Vendor represents and warrants to Buyer that as of the date of shipment by Vendor the goods shall conform to Vendor's standard specifications as may have been expressly agreed to in the accepted Order and the goods shall be delivered free from any lawful security interest, Lien or other encumbrance. VENDOR DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANDIABILITY AND FITENESS FOR A PARTICULAR USE.
9. REPRESENTATIONS, WARRANTIES, AND AGREEMENTS ABOUT BUYER
Buyer represents and warrants to Vendor, and agrees that (a) the Agreement is the valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms; and (b) Buyer is and, at the time of each delivery of the goods will be, solvent.
Vendor may immediately cancel the Agreement or any Order without liability to Buyer in the event of the happening of any of the following or any other comparable event: (a) insolvency of the Buyer; (b) filing of a voluntary petition in bankruptcy by Buyer; (c) filing of an involuntary petition in bankruptcy against Buyer; (d) appointment of a receiver or trustee for Buyer, or (e) execution of an assignment for the benefit of creditors by Buyer, provided that such petition, appointment or assignment is not withdrawn, vacated or nullified within fifteen (15) days of such event.
11. INTELLECTUAL PROPERTY AND OTHER PROPRIETARY RIGHTS
All proprietary rights in the products shall remain the sole property of Vendor. Buyer shall not use Vendor's name or any trademark, trade name, service mark or trade dress that Vendor owns or that is licensed to Vendor or to any Affiliate of Vendor, without Vendor's express, written consent.
12. CONFIDENTIALITY OF FURNISHED INFORMATION
Any technical information disclosed by Vendor to Buyer and any information concerning Vendor's business, operations or activities, including, without limitation, information concerning Vendor's present or proposed products, product developments, plans, strategies, finances, know-how, sales, customers, marketing or sales techniques, or the existence of the Order or the Agreement ("Confidential Information") is confidential and Buyer agrees not to use or disclose any such Confidential Information without prior written consent of Vendor, provided, however, that Confidential Information shall not include (i) information that is or becomes generally known in the industries in which Buyer or Vendor operate other than as a result of disclosure by Buyer, (ii) information that is disclosed to Buyer by a party that, to Buyer's actual knowledge, is not under a legal or fiduciary duty to Vendor not to disclose the information, and (iii) any information that Vendor acknowledges in writing is not confidential. If Buyer breaches or threatens to breach this Section of these Terms and Conditions, then Vendor's remedies at law will be inadequate. Therefore, Vendor shall have the right of specific performance or injunctive relief, or both, in addition to any and all other remedies and rights at law or in equity, and Vendor's rights and remedies shall be cumulative.
13. GOVERNMENT CONTRACTS
If Buyer will use the goods or services in connection with a contract with the United States or other government, then all terms and conditions that the government contract or any law or regulation requires to be included in any contract formed pursuant to the order ("Government Terms") are incorporated in the order by reference. If any provision of the order is inconsistent with any Government Terms, then the Government Terms shall control.
14. LIMIT ON LIABILITY
IN NO EVENT SHALL VENDOR BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES. VENDOR'S LIABILITY AND BUYER'S EXCLUSIVE REMEDY FOR ANY CAUSE OF ACTION ARRISING IN CONNECTION WITH THIS CONTRACT OR THE SALE OR USE OF THE GOODS, WHETHER BASED ON NEGLIGENCE, STRICT LIABILITY, BREACH OF WARRANTY, BREACH OF CONTRACT, OR EQUITABLE PRINCIPLES, IS EXPRESSLY LIMITED TO, AT VENDOR'S OPTION, REPLACEMENT OF, OR REPAYMENT OF THE PURCHASE PRICE FOR THAT PORTION OF THE GOODS WITH RESPECT TO WHICH DAMAGES ARE CLAIMED. ALL CLAIMS OF ANY KIND ARRISING IN CONNECTION WITH THIS CONTRACT OR THE SALE OR USE OF THE GOODS SHALL BE DEEMED WAIVED UNLESS MADE IN WRITING WITHIN SIXTY DAYS FROM THE DATE OF VENDOR'S DELIVERY, OR THE DATE FIXED FOR DELIVERY IN THE EVENT OF NONDELIVERY.
15. FORCE MAJEURE
In the event of breakage of equipment, terrorism, accident, war, fire, flood, strike, labor trouble, riot, act of governmental authority, act of God, commercial impractability, or contingencies beyond the reasonable control of Vendor or in the event of inability to obtain, on terms deemed by the Vendor to be practicable, any raw material (including energy source) used in connection with the goods ordered hereunder, quantities so affected shall be eliminated from the Agreement without liability, but the Agreement shall otherwise remain unaffected.
16. NO WAIVER
Vendor's failure to exercise on any one occasion any rights under this Agreement or applicable law shall not waive Vendor's right to exercise the same right on another occasion.
17. BUYER'S RECEIPT OF VENDOR'S INFORMATION
Buyer acknowledges that it will receive or has received and is familiar with Vendor's literature and material safety data sheets, where such literature and data sheets exist, regarding the goods and agrees to forward such information to those of its employees who handle, process, sell or use the goods that are the subject of this information.
18. UNSAFE OR UNFIT GOODS
If a governmental agency declares that any of the goods or any ingredient of, or any material included in, any of the goods or any packaging or supplies used in connection with the goods, or if Buyer at any time believes in good faith that any of the goods or any such ingredient, material, packaging or supplies, (a) is or may be adulterated or misbranded within the meaning of the Federal Food, Drug, and Cosmetic Act, as amended, or any other applicable federal, state, local or foreign law, rule or regulation, (b) fails or may fail to conform to an applicable standard or regulation issued under the Flammable Fabrics Act, as amended, (c) is or may be a misbranded hazardous substance or a banned hazardous substance within the meaning of the Federal Hazardous Substances Act, as amended, (d) does not or may not conform with an applicable consumer product safety standard, or has been declared a banned hazardous product, under the Consumer Product Safety Act, as amended, or (e) is or may be otherwise unsafe or unfit for the intended use of the goods, then, without limiting other rights and remedies that are available to Buyer under these Terms of Purchase or applicable law, (i) Buyer or Vendor, as the case may be, shall give the other party written notice of any such declaration and shall furnish to such party copies of the declaration and of all relevant notices, documents and correspondence, (ii) Vendor shall stop including the ingredient or material in the goods.
19. EXPORT AND IMPORT REQUIREMENTS; DRAWBACK AND REFUND RIGHTS
Buyer shall prepare, maintain and, to the extent that that applicable law, regulation or customs authority requires it to do so, submit to the applicable customs authorities, all information and documentation that is necessary to comply with the applicable customs and export and import requirements of each country from which the goods will be exported and each country into which they will be imported, and Buyer shall comply with all other applicable customs requirements. Whenever Vendor requests it to do so, Buyer shall promptly furnish to Vendor copies of that information and documentation. Vendor is solely responsible for complying with all technical compliance and country of origin requirements of each country into which the goods are to be imported. Buyer assigns and transfers to Vendor all transferable customs duty and tax drawback or refund rights relating to the goods, including rights developed by substitution and rights that Buyer acquires from its suppliers. Buyer shall promptly inform Vendor of each such right and, upon Vendor's request, shall promptly provide to Vendor all documents and information that are required for Vendor to obtain each such drawback and refund.
20. RELATIONSHIP OF PARTIES
The relationship between Vendor and Buyer is and will be that of Vendor and buyer and not a joint venture, partnership, principal-agent, broker, sales representative or franchise relationship, unless expressly provided in another Agreement between the parties.
If any provision of these Terms and Conditions, the Agreement or any Order is invalid or unenforceable, all other provisions of this Agreement shall remain in full force and effect.
Any notice or other communication that is required or permitted under the Agreement shall be in writing and shall be effective (a) when personally delivered or sent by telecopier or via electronic mail, (b) the next business day after delivery to a nationally- recognized overnight delivery service designated for next business day delivery with all charges prepaid, or (c) three (3) days after mailing if sent by certified mail, return receipt requested, postage prepaid, addressed to Buyer or Vendor, as applicable, at its address specified in the order or to another address that a party shall specify to the other by written notice, except that a notice or other communication may be given orally, including by telephone, if it is confirmed by written notice given the same day.
Vendor may terminate the contract evidenced by any Order at any time as to all or any part of the undelivered goods, for any reason. Expiration or termination of this Agreement shall be without prejudice to the rights of either party under this Agreement or pursuant to any default or breach under this Agreement that occurred prior to the date of termination. The expiration or termination of this Agreement shall not affect any of the provisions of this Agreement that by their nature are intended to continue after termination.
24. REMEDIES; NO IMPLIED WAIVER
The remedies in this Agreement and any Order shall be cumulative and in addition to any other remedies allowed to Buyer under applicable law. The failure of either party at any time to require performance by the other party of any provision of this Agreement or any Order shall in no way affect the right to require such performance at any time thereafter, nor shall the waiver of either party of a breach of any provision of this Agreement or any Order constitute a waiver of any succeeding breach of the same or any other provision.
Vendor may assign this contract to any of its subsidiaries or affiliates; otherwise the rights and duties of this contract are not assignable or transferable by either party without the other's written consent.
The terms of the contract evidenced by this Agreement or any Order shall inure to the benefit of and be binding on the successors and assigns of the parties.
27. GOVERNING LAW
This contract shall be governed by and construed in accordance with the uniform commercial code in effect in the State of Alabama except as the provisions of such code is modified by this contract.
28. JURISDICTION AND VENUE
Vendor and Buyer agree that any action arising out of the sale of goods in accordance with this Agreement or any Order will be brought, heard and decided exclusively in the state or federal courts in Madison County, Alabama. Vendor submits to personal jurisdiction in Alabama and acknowledges that venue for such action in Madison County, Alabama is proper and appropriate.
29. TECHNICAL ASSISTANCE
At Buyer's written request, and for appropriate compensation, Vendor may furnish technical assistance and information regarding goods. Vendor shall have no liability arising from such technical assistance and information or from the results of Buyer's use or nonuse thereof. Buyer assumes all responsibility for its use or nonuse of such technical assistance and information.
30. USE OF MANUFACTURER'S NAME
For non-chemically modified goods for resale, buyer must maintain all references to intellectual or industrial property rights appearing on the goods and not add its own references without prior consent from Vendor. Intellectual or industrial property includes but is not limited to: product information and packaging, commercial materials (brochures, etc.), formulas, technical drawings, etc.