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Terms and Conditions of Sale

GENERAL TERMS AND CONDITIONS OF SALE

The following terms and conditions apply to all purchases of Goods (as hereinafter defined) by a third party (“Buyer”) from ITOCHU Chemicals America Inc. (“Seller”), unless otherwise specified on the face of an order and agreed upon in writing by Seller. Any term or condition of Buyer’s order or other documents which is different from, in addition to, or inconsistent with anything in this contract is rejected and will not apply. Unless clearly stated otherwise, any quote from Seller is not a binding offer to sell.

  1. SHIPMENT: The date of the Bill of Lading shall be accepted as a conclusive date of shipment. Partial shipment is Seller is not responsible for any losses and/or additional costs incurred due to a delay in shipment caused for any reason.
  2. PAYMENT: Buyer shall pay all invoices in U.S. dollars, or other currency agreed to in the contract, and in good funds according to the payment terms agreed between the parties. Buyer shall perform its obligations under this contract without setoff, deduction, recoupment, or withholding of any kind for amounts owed (or to become due and owing) or payable to it by Seller, whether under this contract, applicable law, or otherwise, and whether relating to Seller's or its affiliates' breach, bankruptcy, or otherwise. Payments which fall due on a non-banking day (weekend or holiday) must be received by the preceding banking day or such outstanding amounts may bear interest at the monthly rate of 5% or the maximum rate allowed by law. Seller reserves the right, without liability, without prior notice, without prejudice to any other remedies under the contract or by operation of law or equity, to terminate this contract and/or suspend further deliveries under it in the event Seller fails to timely receive full payment in good funds for any one shipment when same becomes due and payable according to the terms set forth herein or therein. Buyer agrees to provide current financial statements upon request by Seller. If in Seller’s sole and absolute discretion Seller deems the financial condition of Buyer (and/or credit risks relating thereto) to be unsatisfactory, Seller may require cash in advance in good funds or other security that Seller deems satisfactory. Further, Seller may withhold product shipments until receipt of such advance payment or the aforedescribed satisfactory security. Seller may at any time, upon giving notice to Buyer, decline to make delivery except for cash in advance in good funds. Separately, in the event that Seller in its sole discretion determines that the applicable credit risk is unsatisfactory, Seller also reserves the right to offset or deduct any amount due to Buyer from Seller, accelerate the due date on all amounts owed to Seller, and/or reclaim delivered product. Any quantities suspended pursuant to Seller's exercise of these aforedescribed rights may, at Seller's sole option, be eliminated from the contract without liability. If amounts due hereunder are placed with an outside agency for collection, or if suit is brought for collection, or if collected through probate, bankruptcy or judicial proceedings, then Buyer shall pay all costs of collection, including but not limited to all attorney’s fees, in addition to other amounts due.
  3. LETTER OF CREDIT: Upon Seller’s request, Buyer shall cause to be opened an irrevocable letter of credit in favor of Seller for the payment of 100% of the contract price before the date specified in the contract. Such letter of credit shall be maintained until payment in full of the contract price. The letter of credit shall be opened by such a bank and upon such terms as are acceptable to Seller’s obligation to ship the goods as specified in this contract ("Goods") shall be conditioned upon the issuance of such letter of credit. Notwithstanding anything contained herein to the contrary, in the event a letter of credit in favor of Seller is issued, Seller retains title to the Goods until Seller receives payment in full for such Goods.
  4. TAXES: Buyer agrees that all payments to be made hereunder shall be made without setoff or counterclaim and free and clear of, and without deduction for, any taxes, levies, imposts, duties, charges, fees, deductions, withholdings or restrictions or conditions of any nature whatsoever now or hereafter imposed, levied, collected, withheld or assessed by any country or by any political subdivision or taxing authority thereof or
  5. DELIVERY: The delivery of Goods shall be made according to the trade terms described herein. The trade terms shall be interpreted according to INCOTERMS (International Rules for Interpretation of Trade Terms), as amended. Seller’s shipment of the Goods or dispatch of an invoice for the sale of Goods to Buyer or actions or commitments taken to facilitate execution and/or completion of the shipment of Goods or dispatch of an invoice, whichever occurs first, constitute acceptance of Buyer’s order, which order becomes non-cancellable upon such shipment or invoice, unless (i) Seller, at its sole discretion, shall consent or otherwise provide in writing and (ii) Buyer shall pay a minimum restocking charge of 25% of the price of the cancelled portion plus the full cost of any special order or non-standard Goods manufactured or purchased, or for which commitments have been made, specifically for that portion of the order which has been cancelled, plus any sales expense incurred by Seller, and plus all storage, transportation and carrier charges incurred incident to the If Seller is to effect insurance according to the trade terms, such insurance shall be effected by Seller for 10% over the invoice amount. Any unforeseen increase in freight, taxes, duties, and/or marine and war risk insurance premium, subsequent to the date of this contract, shall be borne by Buyer.
  6. PRICING: All prices of Goods sold to Buyer are quoted on the basis of current manufacturer prices at the time of the order. Seller reserves the right to increase the price per pound of Goods sold pursuant to an order in accordance with current prices in effect at the time of shipment to Buyer or to reflect adverse market changes occurring prior to shipment. Buyer shall have the right to cancel such order in the event that it does not accept said price increase quoted by Seller provided that it notifies Seller in writing within two (2) days from the time it receives said notice of price increase. Notwithstanding anything contained herein to the contrary, if Seller’s cost of performance is increased after the date of this contract by reason of increase of freight rates, taxes, other governmental charges, packing charges, insurance rates including without limitation tariff rates, war risk, or other cause which are beyond Seller’s reasonable control, then Buyer shall compensate Seller for such increased costs or damages or losses.
  7. TITLE AND RISK: Risk of loss or damage to Goods shall be transferred from Seller to Buyer at the same time as delivery of Goods to a carrier by Seller. Title to Goods shall pass from Seller to Buyer simultaneously with the transfer of risk of loss unless the face hereof contains the term “retention of title” or similar expression, in which event title to Goods shall be retained by Seller until full payment of the contract price is made by The date of the Bill of Lading shall be accepted as a conclusive date of shipment.
  8. INSPECTION: If the manufacturer of Goods or other designee of Seller conducts an inspection of Goods prior to shipment, such inspection shall be considered final. When it is agreed between the parties that Buyer will conduct an additional inspection, Buyer must inform Seller and must appoint a mutually acceptable third party inspector at the time of the formation of this contract. Any such inspection fees shall be borne by Buyer. Any deviation from the arrangements aforementioned will yield Seller a right of refusal, and in such event Seller reserves the right to terminate this contract and Buyer relieves the Seller of any liability.
  9. WARRANTY: Goods are made within manufacturer’s specifications, and only manufacturers’ quality standards and terms apply. Failure to give notice of any claim in accordance with this contract will constitute an unqualified acceptance of Except as set forth in this Section 9, there is NO WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING NO WARRANTY OF MERCHANTABILITY OR FITNESS OF THE GOODS FOR ANY USE CONTEMPLATED BY BUYER) concerning the Goods and none shall be implied by law. Final determination of the suitability of the Goods for the use contemplated by Buyer is the sole responsibility of Buyer, and Seller shall in no way be responsible for the suitability of the Goods for any particular end use. Seller does not endorse, recommend or claim suitability of the Goods for specific medical, pharmaceutical or any other applications. It is the sole responsibility of Buyer to determine whether the Goods are safe, lawful and technically suitable for its intended use. Seller is not responsible for any processing or compounding which may occur to produce finished Goods, articles, packaging materials or their components. The warranties set forth herein do not apply to any Goods that: (a) have been subjected to abuse, misuse, neglect, improper testing, improper installation, improper storage, improper handling, abnormal environmental conditions or use contrary to any instructions issued by Seller; (b) have been used with any third-party products that have not been previously approved in writing by Seller, or (c) have been used past the shelf-life of the applicable Goods by Buyer or any other party.
  10. CLAIMS: Any claim by Buyer regarding Goods shall be notified by Buyer to Seller within thirty (30) days after the arrival thereof at the destination specified in the relative Bill of Lading. If Buyer claims for alleged breach of warranties, Buyer shall, together with such notice, submit an independent surveyor’s report and full and final written statement specifying the particulars of all defects which Buyer has In the event Buyer fails to provide such notice (and the report and the written statement, if applicable) within such thirty (30) days period, Buyer shall be deemed to have waived any claim with respect to Goods and Seller shall not be liable therefor. With respect to a defect in Goods properly notified by Buyer, Seller shall either repair, replace or otherwise cure such defect or as applicable refer to manufacturer for coverage as Seller deems fit, which shall be exclusive of any other remedy provided by law.
  11. INTELLECTUAL PROPERTY: Seller shall not be responsible for any infringement of patent, utility model, trade mark or name, design, pattern, construction or copyright or other intellectual property rights with respect to Goods. Nothing contained herein shall be construed as transferring any patent, utility model, trade mark or name, design, pattern, construction or copyright or other intellectual property rights in Goods; all such rights are expressly reserved to the true and lawful owners
  12. FORCE MAJEURE: If the performance of this contract, including the shipment of Goods, is prevented or delayed in whole or in part, directly or indirectly, by reason of any circumstance whatsoever beyond Seller’s reasonable control that interferes with the production, supply (including but not limited to raw material supply), storage, handling, sale, use, disposal, transportation, or consumption of material or operations of the supply chain, then Seller shall not be liable for non-shipment or late shipment of Goods, and Buyer must accept any shipment made within a reasonable time after the termination of the aforesaid cause, or, at Seller’s option, must accept the termination of all or any part of this Circumstances beyond Seller’s reasonable control include but are not limited to prohibition of export, increased tariff rates, increased duty rates, increased tax rates, refusal to issue export license or other governmental restriction, embargo, sabotage, blockades, war or terrorism, revolution, riot, strike or other labor dispute, plant shutdown, criminal enterprise, fire, hurricane, tornado, storms, earthquake, lightning, flood, typhoon, landslides, peril or accident of the sea, or any other natural disaster, inability to obtain fuel, compliance with laws or orders, patent issues, power outages, mechanical malfunction or breakdown, releases of hazardous materials, explosions, contagion, pandemic, epidemic, cybersecurity or other data breach, telecommunications or data system failure, or any other cause beyond the reasonable control of Seller. The parties understand and agree that Seller has executed this agreement pursuant to certain supply chains and therefore shall not be required to substitute or otherwise supplement performance with other materials or vendors (including but not limited to facilities, etc.) in case of a force majeure event affecting its supply chain, and quantities of material so affected shall be eliminated from the agreement without penalty at Seller’s discretion. In case of such event, Seller will provide notice to Buyer via phone, email or other means, as reasonably feasible, within a reasonable time after learning of the occurrence of a Force Majeure event; such notice will state the nature and extent of the force majeure condition claimed, the expected duration of the Force Majeure event, and the quantity of material or other performance affected.
  13. EVENT OF DEFAULT: In the event (i) Buyer breaches any of the terms and conditions of this contract (including, without limitation, any delay of payment and any delay in opening the irrevocable letter of credit) or any other agreement(s) with Seller, (ii) Buyer becomes or threatens to become insolvent or unable to pay its debts when due, (iii) the whole or any substantial part of the business of Buyer is transferred to a third party by agreement, order of court or otherwise, (iv) a receiver, trustee or similar officer for it or for all or a substantial part of its property or assets is and/or shall be appointed for Buyer and/or any bankruptcy, insolvency, reorganization, arrangement, dissolution, liquidation or similar proceeding relating to it under the laws of any jurisdiction is instituted by or against Buyer and/or (v) any other event occurs which could in the reasonable opinion of Seller have a material adverse affect on the ability of Buyer to perform any of its obligations hereunder or under any other agreement(s) with Seller, then Seller shall have the right to (y)terminate all or any part of this contract or any other agreement(s) with Seller and/or (z) postpone or suspend shipment of or delivery of Goods, and all outstanding sums paid to Seller under this contract or any other agreement(s) with Seller shall, upon the occurrence of such event, be immediately due and payable to Seller. Buyer shall pay to Seller default interest on such sum(s) at one and one half percent (1.5%) per month (prorated) to the extent allowed by law during the period from and including the due date thereof but not including the date of the payment in full of said sum(s) (both before and after judgment). Buyer shall be obligated under this paragraph without any requirement that Seller send any notice of default in the payment and it shall be presumed any such required notice was delivered by way of the occurrence of such event.
  14. LIMITATION OF LIABILITY: In no event shall Seller be liable for any incidental, special, punitive, indirect, consequential or multiple damages of Buyer, including without limitation, loss of profits, loss of business, loss of revenue or other economic loss, that may arise under or in connection with this contract, regardless of (a) whether such damages were foreseeable, (b) whether or not Seller was advised of the possibility of such damages, (c) the legal or equitable theory (contract, tort or otherwise) upon which the claim is based, and (d) the failure of any agreed or other remedy of its essential purpose. In no event shall Seller’s aggregate liability arising out of or related to this contract, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed 100% of the contract
  15. COMPLIANCE WITH LAW: Buyer is in compliance with and shall comply with all applicable laws, regulations, and ordinances. Buyer has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this contract. Buyer is in compliance with the International Emergency Economic Powers Act (50 U.S.C. § 1701) and all other laws administered by the U.S. Office of Foreign Assets Control of the United States Treasury Department or any other governmental authority imposing economic sanctions and trade embargoes (“Economic Sanctions Laws”) against countries and persons designated in such laws (collectively, “Embargoed Targets”). Buyer is not an Embargoed Target or otherwise subject to any Economic Sanctions Buyer shall comply with all Economic Sanctions Laws. Without limiting the generality of the foregoing, Buyer shall not: (i) directly or indirectly export, re-export, transship, or otherwise deliver the Goods or any portion of the Goods to an Embargoed Target; or (ii) broker, finance, or otherwise facilitate any transaction in violation of any Economic Sanctions Law.
  16. GOVERNING LAW AND ARBITRATION: All disputes arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall, where possible, be resolved amicably through parties’ negotiations. In the event that parties are unable to resolve any dispute after thirty (30) days of amicable negotiation, Seller may submit such dispute to binding arbitration, to be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Commercial Arbitration Rules, then in force, which rules are deemed to be incorporated by reference in this clause. The arbitration shall be conducted in New York, New York. The language of the arbitration shall be This contract shall be governed by and construed in accordance with the law of the State of New York, without regard to conflict of law principles. The United Nations Convention on contracts for the International Sale of Goods shall not apply to this contract.
  17. MISCELLANEOUS: Confidential information of Seller disclosed to Buyer shall remain confidential and shall not be disclosed to any other party without the prior written consent of Seller. This contract shall not be assigned by Buyer without the prior written consent of Seller. Any attempted assignment shall be void. This contract constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous agreements, negotiations and commitments, oral or written between the parties in respect thereto. No modification of this contract shall be binding except by written agreement signed by both parties.
  18. FOR ORDERS CONTAINING BULK BOXES: The Seller does not consider the use of 1500 pound octagonal corrugated bulk boxes (hereinafter "Boxes") suitable for containerized marine shipments given safety, product containment, and product contamination concerns. Additionally, Boxes absorb moisture and become wet in intermodal transport and could arrive at the destination port in an unacceptable condition resulting in potential risk and injury to personnel. The Buyer hereby acknowledges the risks inherent in the use of Boxes in the handling, transportation, shipment, and/or delivery of the products and is relying on its own independent judgment, investigation and evaluation concerning said use. The Buyer hereby assumes all risk and liability, and agrees to release, waive, and forever discharge Seller from any and all claims, suits, actions, damages, or liability of any character, type, or description, arising out of Buyer's use of Boxes in the handling, transportation, shipment, and/or delivery of Goods purchased from Seller pursuant to this contract