Terms and Conditions of Sale
Jarchem Innovative Ingredients LLC
Terms and Conditions of Sale.
- Prices and Terms. Price, terms and availability of products, together with containers (collectively, “Products”) are subject to change without notice. Jarchem Innovative Ingredients LLC (“Jarchem”) may increase the prices for Products under this contract by providing you, as the buyer herein (the “Buyer”) with at least five (5) days prior written notice. Such increased prices shall be deemed to be accepted by the Buyer unless, before the effective date of such increase, the Buyer notifies Jarchem in writing to the contrary, whereupon Jarchem shall have the right to terminate this contract with respect to such Products or to continue shipments without such increase. Unless otherwise provided on any sales orders or sales order acknowledgements provided by Jarchem or as otherwise directed by Jarchem in writing, payment hereunder shall be due net thirty (30) days from the invoice date. All amounts past due shall bear interest at the rate equal to the lower of (a) 1.5% per month or (b) the maximum rate allowable by applicable law. Buyer shall reimburse Jarchem for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Jarchem’s obligation to produce and/or deliver Products hereunder is conditioned upon the continued good credit of Buyer and upon Buyer’s prompt payment when due of any sum owing by Buyer to Jarchem under this contract and any other agreement between the parties. In addition to all other remedies available under this contract or at law or in equity, Jarchem may suspend the delivery of any Products if Buyer fails to pay any amounts when due hereunder and such failure continues for ten (10) days following written notice thereof. Based on Jarchem’s reasonable judgment, if Buyer’s financial condition at the time the Products are ready for shipment does not justify the terms specified, Jarchem reserves the right to change these terms, to require full or partial payment in advance, or to ship the Products C.O.D. Buyer shall not withhold payment of any amounts due and payable by reason of any setoff of any claim or dispute with Jarchem.
- Taxes. Any taxes or other government levy or charge (or any increase in same) which Jarchem may be required to pay or collect, under any existing or future law or regulation, upon or with respect to the sale, purchase, delivery, storage, processing, use or consumption of any of the Products covered hereby, including without limitation, taxes upon or measured by the receipts from the sale thereof, shall be the responsibility of Buyer, and may, at Jarchem’s option, be added to the price of Products shipped hereunder.
- Shipments. Shipment dates are based upon Jarchem’s best judgment and are subject to, among other factors, factory schedules and production limitations, and hence are not guaranteed. Except as otherwise agreed to by the parties in writing, Jarchem shall not be liable for (a) any delays, loss or damage to Products in transit and (b) any loss, cost, or damages to the extent caused directly or indirectly by any delay in the delivery of any Products.
- Delivery In Installments. Jarchem reserves the right, without liability or penalty, to make delivery in installments, unless otherwise agreed to by the parties in writing. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept remaining deliveries.
- Delay; Force Majeure. Jarchem shall not be liable or responsible, nor be deemed to have breached this contract, for any failure or delays in performance hereunder caused by force majeure, act of God, fire or other casualty, accident, strike, boycotts, catastrophe (such as epidemics or pandemics), shortage of labor or materials, governmental action, unusually severe weather, national or regional emergency, shortage of adequate power or transportation facilities or other cause beyond Jarchem’s reasonable control; and the time for Jarchem’s performance shall be extended by the period of any such delay. Jarchem reserves the right to apportion its production of Products among its customers as it may determine.
- Limited Warranty. Jarchem warrants that at the time of shipment of the Products, such Products will substantially meet the specifications set forth on any applicable sales orders or sales order acknowledgements provided by Jarchem and otherwise published in writing by Jarchem (the “Specifications”). EXCEPT AS SPECIFICALLY SET FORTH HEREIN, JARCHEM, TO THE FULLEST EXTENT PERMITTED BY LAW, MAKES NO, AND DISCLAIMS ANY AND ALL, REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE PRODUCTS OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR TITLE OR WARRANTIES AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. No agent, employee, or representative of Jarchem has any authority to bind Jarchem to any affirmation, representation or warranty concerning the Products sold pursuant to the terms hereof, and unless an affirmation, representation or warranty made by an agent, employee or representative is specifically included herein, it is not deemed part of the basis of this bargain and shall not in any way be enforceable.
- Limitation of Liability/Damages. Except to the extent that such is solely and directly caused by Jarchem’s breach of its obligations hereunder, Buyer assumes all liability arising out of compliance with any laws, rules or regulations relating to any Product. In no event shall Jarchem be liable to Buyer or any third party for any loss of use, sales, revenue or profit or for any incidental, consequential, indirect, special, exemplary or punitive damages or other damages arising out of breach of contract, tort (including without limitation, alleged negligence), breach of warranty, strict liability or any other theory (including without limitation, arising from the use or handling of the Products or otherwise), regardless of whether such damages were foreseeable and whether or not Jarchem has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose. In no event shall Jarchem’s aggregate liability arising out of or related to this contract, whether arising out of or related to breach of contract, tort (including without limitation, negligence) or otherwise, exceed the total of the amounts paid to Jarchem for the Products sold hereunder during the twelve (12) month period preceding the claim. Buyer’s sole and exclusive remedy and the sole liability, if any, of Jarchem for any claims arising out of, or in connection with, the manufacture, use or sale of any Products shall be for the return of the Buyer’s purchase price.
In accepting the Products described herein, Buyer (a) acknowledges (i) that it has been adequately warned by Jarchem of the risks associated with, and shall be deemed to have declared itself familiar with, the nature, hazards, unloading, discharge, storage, handing, possession, use, sale and disposal of the Products (including, without limitation, those set forth in Jarchem’s safety data sheets (“SDS”) for Products) and (ii) its separate and independent knowledge of such risks, which are known in Buyer’s industry, and (b) assumes all risk, responsibility and liability resulting from or in any way connected with the unloading, discharge, storage, handling, possession, use, sale and disposal of any Product (except to the extent that such liability results from Jarchem’s gross negligence or willful misconduct), including, without limitation, (i) the use and/or sale of such Product alone or in combination with other substances and (ii) the results obtained by use of the Products in manufacturing processes or otherwise, and for the results obtained by use of the Products in combination with other substances, irrespective of the fact and/or extent such use or any handling of is in accordance with any description, advice, or suggestion of Jarchem, if any.
- Indemnification. Buyer shall defend, indemnify and hold Jarchem, its subsidiaries, affiliates, successors and assigns and their shareholders, equity holders, officers, directors, employees and agents harmless from and against any and all claims, actions, liability, expenses, costs, damages and losses, including without limitation, reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder incurred, arising from or related to (i) Buyer’s use of the Products; (ii) Buyer’s combination of the Products with third-party products; (iii) use of any Products by a customer or an end-user; (iv) any other acts or omissions of Buyer (or its personnel, representatives or agents); (v) any bodily injury or death or damage to real or tangible property caused by Buyer (or its personnel, representatives or agents); and (vi) any breach by Buyer of its obligations hereunder. This Section shall survive termination, expiration and cancellation of this contract.
- Inspection; Claims. Buyer shall (and Buyer shall cause all Buyer’s customers and end-users of the Products to) examine and test Products to determine whether or not the Products substantially meet the Specifications upon receipt of the Products and shall notify Jarchem, in writing, of any non-conforming Products within ten (10) business days of receipt thereof at destination (which notice shall include reasonable written evidence or other documentation supporting such alleged non-conformance). Failure to timely give such notice shall constitute an irrevocable acceptance of the Products. No claims, of any kind, by Buyer shall be valid without written notice, as specified. If Buyer timely notifies Jarchem of any non-conforming Products, Buyer shall afford Jarchem a reasonable opportunity to inspect and test the Products and material and repair or replace any Products or materials determined and confirmed by Jarchem to be non-conforming. No Products shall be returned without Jarchem’s prior written consent. Without limiting the foregoing, Jarchem’s determinations as reflected on Jarchem’s bill of lading and certificate of analysis, unless proven to be erroneous through timely notice and testing given and confirmed as set forth in this Section 9, shall be accepted as conclusive evidence of the quality and quantity of Products delivered hereunder for purposes of determining Jarchem’s satisfaction of its obligations hereunder; provided that, Buyer shall not be entitled to rely on such certificate of analysis and hereby agrees that it shall test all Products prior to use and/or distribution.
- Remedy for Non-Conforming Goods. If Buyer timely notifies Jarchem of any non-conforming Products and the Products furnished to Buyer shall fail to conform to the Specifications (and such failure is not the result of circumstances occurring after the transfer of title), and Jarchem determines and agrees that the Products do not conform to the Specifications, Jarchem, at its discretion, shall, within thirty (30) days of written notice of said non-conformity either (i) issue credit for or (ii) replace such non-conforming Products at the original point of delivery and, in each case, furnish instructions to Buyer for the disposition of the non-conforming Products. Any transportation charges involved in such disposition shall be for Jarchem’s account. Buyer’s exclusive and sole remedy on account of and in respect to the furnishing of Products that do not conform to the Specifications shall be to receive credit or replacement thereof as aforesaid in this Section.
- Governing Law; Jurisdiction; Jury Trial Waiver. This contract and any disputes relating hereto shall be governed by and construed under the laws of the State of New Jersey, without regard to the conflicts of law principles. Any legal suit, action or proceeding arising out of or relating to this contract shall be instituted in the federal courts of the United States of America or the courts of the State of New Jersey, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. THE PARTIES HEREBY WAIVE THEIR RIGHT TO TRIAL BY JURY IN ANY JUDICIAL PROCEEDING ARISING OUT OF RELATED TO THIS CONTRACT.
- Non-Waiver. Waiver by Jarchem of the breach of any of the terms and conditions of this contract shall not be construed as a waiver of any other breach.
Title; Risk of Loss All shipments will be EXW departure origin. Title to the Products and risk of loss of or damage to the Products passes to Buyer upon EXW departure origin. As collateral security for the payment of the Products, Buyer hereby grants to Jarchem a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the New Jersey Uniform Commercial Code.
- Responsible Care. Buyer agrees to (a) handle, store, transport, and dispose of the Products in a reasonable manner with appropriate regard for the safety of their employees and the general public, (b) comply with all applicable environmental, transportation, health and safety regulations, and (c) make the SDS available to all of Buyer’s customers purchasing the Products and all Buyer’s employees and agents handling the Products. Jarchem has the right to suspend Products transfer upon thirty (30) days prior written notice if Buyer does not comply with the foregoing criteria in this Section. This contract may be terminated ninety (90) days after such suspension if the area of non-compliance has not been remedied.
- Termination. Without prejudice to any other remedies that may be provided under this contract, Jarchem may terminate this contract and any other agreement with Buyer should Buyer breach this contract or such other agreement or fail to perform any obligation hereunder or thereunder and such breach or failure is not cured within thirty (30) days after Buyer received written notice from Jarchem of such breach or failure.
- Assignment. This contract shall inure to the benefit of and be binding upon the parties and their respective successors and assigns. This contract and any of Buyer’s rights and obligations hereunder are not assignable by Buyer without the Jarchem’s prior written consent (including, without limitation, (i) to any person or entity acquiring, directly or indirectly, all or substantially all of Buyer’s assets or equity interests or (ii) in connection with a change of control of Buyer). Any purported assignment in violation of this Section is void. This contract and any of Jarchem’s rights and obligations hereunder may be assigned by Jarchem without Buyer’s consent.
- Acceptance Of These Terms. The Specifications, together with any sales orders or sales order acknowledgements provided by Jarchem, and any distribution or other written agreement entered into between the parties and the terms and conditions contained herein, constitute the entire agreement between Jarchem and Buyer (and all references to the contract shall refer to the foregoing), and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Neither Jarchem’s correspondence nor fulfillment or shipment of any Products is an expression of acceptance or a written confirmation of Buyer’s purchase order or terms and conditions of purchase or serve to modify or amend this contract. The terms and provisions of this contract prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. FOR THE AVOIDANCE OF DOUBT, BY PLACING AN ORDER FOR PRODUCTS, BUYER ACCEPTS AND IS BOUND BY THESE TERMS AND CONDITIONS REGARDLESS OF WHETHER BUYER EXECUTES THE APPLICABLE SALES ORDER OR SALES ORDER ACKNOWLEDGEMENT TO WHICH THESE TERMS AND CONDITIONS ARE APPENDED. If Buyer does not agree to these terms and conditions, Buyer should reject the Products upon delivery and Jarchem will provide shipping instructions, the costs of which shall be borne by Jarchem.
- Confidentiality. Buyer acknowledges that any non-public information conveyed to or obtained by Buyer regarding Jarchem, its operations, customers, prospects, strategies, the Products and any materials or information marked confidential, restricted or proprietary (including without limitation, patents, trademarks, trade secrets, designs, works of authorship or other intellectual property rights) or which a reasonable person would understand to be confidential given the circumstances (the “Confidential Information”) is confidential and proprietary to Jarchem, provided, however, that the failure of Jarchem to mark any such information as confidential shall not relieve Buyer of the obligation to maintain the confidentiality of such information. Buyer shall not use or disclose any Confidential Information for any purpose whatsoever other than for the purpose of performing its obligations under this contract. Buyer shall only make available the Confidential Information to its employees on a need to know basis and shall advise such employees of the restrictions set forth with respect to the use of such Confidential Information. Buyer shall be responsible for the unauthorized disclosure of any Confidential Information by its employees or agents. Upon termination of this contract or upon the earlier written request of Jarchem, Buyer shall return or destroy (as directed by Jarchem) all Confidential Information (including all copies thereof) to Jarchem. The provisions of this Section shall survive the termination of this contract.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this contract shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- Severability. If any term or provision of this contract is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this contract or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the court making such determination may modify this contract to effect the original intent of the parties as closely as possible.
- Notices. Any notices required by this contract shall be transmitted by registered or certified mail, return receipt requested, overnight mail, telecopy or personal delivery and sent to the addresses of the parties as set forth on the applicable sales order or sales order acknowledgement provided by Jarchem, or to such other address as a party may hereafter specify by written notice given in accordance with this Section, with notices to Jarchem sent to the attention of Arthur J. Hein. With respect to registered or certified mail, notice shall be deemed given when mailed postage prepaid. Notice by overnight delivery, telecopy or personal delivery shall be deemed given when received by the addressee.
- Amendment and Modification. This contract may only be amended or modified in a writing which specifically states that it amends this contract and is signed by an authorized representative of each party.