Terms & Conditions for Purchasing Deicers
- PARTIES: “Seller” is Swinter Group, Inc. and “Customer” is the individual or entity purchasing materials, goods or services.
- OFFER: No terms in Customer’s bid, purchase order or other form shall be binding upon Seller. Seller rejects additional/different terms in such Customer’s documents. SELLER’S OFFER IS EXPRESSLY LIMITED TO AND CONDITIONED UPON CUSTOMER’S ACCEPTANCE OF THIS AGREEMENT.
- PRICES: TAXES. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, PRICES ARE SUBJECT TO CHANGE WITHOUT NOTICE. ORDERS WILL BE INVOICED, UNLESS OTHERWISE SPECIFIED IN THIS AGREEMENT, AT SELLER’S PRICE IN EFFECT ON THE DATE OF SHIPMENT OR PICKUP BY CUSTOMER. Prices on the invoicing document are net of all applicable discounts and promotional allowances. References to “tons” means short tons (2,000 lbs.), or cubic yards unless otherwise specified. Any tax or other governmental charges now or hereafter levied upon production, severance, manufacture, delivery, storage, consumption, sale, use or shipment of Products ordered or sold are not included in Seller’s price and will be charged to and paid by Customer.
- CANCELLATION: Orders may be canceled by Customer only upon (1) written notice to Seller and accepted in writing by Seller and (2) payment to Seller of reasonable cancellation charges to be solely determined by Seller. Except as otherwise agreed in writing, until the products identified in Customer’s purchase order as accepted by Seller (“Products”) are shipped, Seller has no obligation under any order submitted by Customer (and may cancel the order at any time prior to shipment).
- PAYMENT; CREDIT; PAST DUE ACCOUNTS: Customer will make payment to Seller at the time and in the currency specified on Seller’s invoicing document. Seller may, in its sole judgement, require such other payment terms as Seller deems appropriate, including full or partial payment in advance of shipment or by letter of credit. Credit payment terms must have the prior approval of Seller’s Credit Department and must be specified in writing on Seller’s invoicing document. Whenever reasonable grounds for insecurity arise with respect to due payment from Customer or with respect to Customer’s financial condition generally, Seller reserves the right to stop shipment on notification to Customer and to demand payment in advance or at the time of delivery for future deliveries or require reasonable assurance of payment, and in the absence thereof, to cancel, without liability, the unfilled portion of Customer’s order. A finance charge of the highest rate permitted by law will be assessed on all past due accounts. Interest charged on a past due invoice will be assessed from the date of the invoice. Amounts owed by Customer where there is no dispute will be paid without set-off for any accounts. Interest charged on a past due invoice will be assessed from the date of the invoice. Amounts owed by Customer with where there is no dispute will be paid without set-off for any amounts that Customer may claim are owed by Seller. Buyer agrees to reimburse Seller for all attorney or collection fees and court costs in connection with default of these payment terms by Customer.
- DELAYS: All orders are subject to Seller’s ability to make delivery at the time and in the quantities specified, and Seller shall not be liable for damages for failure to make partial or complete shipment or for any delay in making shipments. Seller shall not be liable for delays or defaults in delivery caused by forces not reasonably within Seller’s control (including but not limited to delays or defaults by carriers, extreme cold weather, partial or total failure of Seller’s intended production, transportation or delivery facilities, etc., floods, fires, storms, or other acts of God, war or act of public enemy (or civil disturbance), strikes, lock-outs, shortages of labor or raw materials and supplies (including fuel) , acts or omissions of Customer, action of any governmental authority, or other force majeure event).
- SHIPMENT COSTS/TRANSPORTATION MATTERS: Unless otherwise specified on Seller’s invoicing document, all transportation charges, including, but not limited to, Seller’s and carrier’s charges for notification prior to delivery, demurrage, switching, detention, delay in unloading, diversion, or re-consignment shall be the sole responsibility of the Customer. Customer will assume the title and risk of loss concurrently in accordance with Seller’s invoicing document. On passage of title, Customer is then responsible for proper protection of the Products and compliance with all regulations and ordinances and will indemnify Seller against all claims for personal injuries or property damage arising from the storage, use or handling of such Products. Claims for damage or shortage in transit must be made by Customer against the carrier. Customer has the responsibility to inspect shipments before or during unloading to identify any such damage or shortage and see that appropriate notation is made on the delivery tickets or an inspection report furnished by the local agent of the carrier in order to support a claim.
- WARRANTY/TIME FOR MAKING CLAIMS: Seller warrants only that it will convey good title to the Products and that, at the time of shipment, the products will conform to the published specifications of Seller. Seller’s specifications are subject to change at any time without notice to Customer. NO OTHER WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, IS MADE BY SELLER AND SELLER HEREBY DISCLAIMS ALL SUCH OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. In the event of an alleged breach hereof by Seller, the sole remedy available to Customer on account of any defect in the Products shall be limited to the replacement of such defective Products by Seller. In the event the remedy provided herein shall be deemed to have failed its essential purpose, then the Customer shall be entitled only to a refund of the amounts paid to Seller for such defective Products. Subject to the notification of claim provision above, no action for breach of the contract for the sale or otherwise with respect to Products will be commenced more than one (1) year after the accrual of the cause of action thereto.
- LIMITATION OF LIABILITY: SELLER’S LIABILITY FOR ANY CLAIM ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE NET PURHASE PRICE ACTUALLY PAID TO SELLER FOR THE PRODUCTS INVOLVED. IN NO EVENT SHALL SELLER BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES FOR ANY CLAIM, WHETHER BASED ON WARRANTY, CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. Customer assumes all risks and liability for any damage to persons or property resulting from the use of the Products delivered hereunder in manufacturing processes of Customer or in combination with other substances or otherwise.
- INDEMNIFICATION: CUSTOMER SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND SELLER AND ITS AFFILIATES AND THEIR RESPECTIVE PRESENT OR FUTURE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, INSURERS, AGENTS AND REPRESENTATIVES (COLLECTIVELY, “INDEMNIFIED PARTIES”), FROM ALL CLAIMS, LIABILITIES, DAMAGES, SUITS, PROCEEDINGS, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS FEES) (COLLECTIVELY, “LOSSES”), FOR ANY DAMAGE, INJURY, DEATH, LOSS OR DESTRUCTION OF ANY KIND RELATING TO OR ARISING OUT OF THE PERFORMANCE OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OR DAMAGE TO ANY PROPERTY OR INJURY TO OR DEATH OF ANY PERSON (INCLUDING WITHOUT LIMITATION, CUSTOMER OR ITS EMPLOYEES), WHETHER ARISING AS A WORKERS’ COMPENSATION CLAIM OR UNDER THEORIES OF NEGLIGENCE, TORT, STRICT LIABILITY, INTENTIONAL MISCONDUCT, OR FAULT OF ANY KIND, AND EVEN IF THE RESULT OF ALLEGED RESULT OF THE CONDUCT, NEGLIGENCE, ERROR, OMISSION, OR BREACH OF THIS AGREEMENT OR NON-COMPLIANCE WITH APPLICABLE LAWS BY AND INDEMNIFIED PARTIES. THIS PROVISION SHALL SURVIVE EXPIRATION OR TERMINATION OF THIS AGREEMENT.
- SECURITY INTEREST: Customer grants to Seller, and Seller retains, a security interest in all Products furnished by Seller and the proceeds thereof, until the purchase price therefor is fully paid. Seller may file any financing statements and give notice of such security interest to third parties as Seller may determine to be necessary to protect such security interest.
- LEGAL COMPLIANCE: Customer and its employees/agents (1) will comply with all applicable U.S. federal, state, local and foreign laws and regulations, including the U.S. Export Administration Regulations, the U.S. Foreign Corrupt Practices Act, and the U.S. Patriot Act, as amended from time to time (collectively, “Laws”); (2) will not subject Seller to any claim, penalty or loss of benefits under the Laws; and (3) will cooperate with Seller in any audit/inspection relating to the Laws. Upon Seller’s request, Customer will deliver a certificate to Seller in a form provided by the Seller, certifying such matters as requested by Seller, as required by the Laws, or pertaining to Customer’s intended use of the Products as represented to Seller.
- MISCELLANEOUS: Matters arising out of or in connection with a sale hereunder will be governed by Missouri laws without regard to conflicts of law rules, and Customer and Seller consent to the jurisdiction of St. Louis County, Missouri courts. Customer shall not assign this Agreement without Seller’s prior written consent. This Agreement constitutes the entire agreement regarding the subject matter hereof; no modification may be made, unless in writing and signed by both the parties; and no acknowledgement/acceptance of purchase order forms containing different/additional terms shall have force or effect. Seller’s failure to enforce any provision will not be a waiver of its right to enforce such provision or any other provision then or thereafter. Any unenforceable provision shall be enforced to the extent it is enforceable. Any provision intended to survive shall survive this Agreement’s termination/expiration and the consummation of the transactions completed hereunder.