Terms and Conditions of Sale
1. Prices and Terms. Price, terms and availability of merchandise are subject to change without notice, including but not limited to changes caused by the fluctuations in market price, availability or quality of any of the items employed in the manufacture of the goods described herein. Avantik may increase the prices for goods under this contract by providing the buyer (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 Avantik in writing to the contrary, whereupon Avantik shall have the right to terminate this contract with respect to such goods or to continue shipments without such increase. Unless otherwise provided on the face hereof, payment hereunder shall be due net thirty (30) days from the date of shipment. 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. Avantik’s obligation to produce or deliver hereunder is conditioned upon the continued good credit of Buyer and upon Buyer’s payment when due of any sum owing by Buyer to Avantik under any agreement between the parties. Based on Avantik’s reasonable judgment, if Buyer’s financial condition at the time the merchandise is ready for shipment does not justify the terms specified, Avantik reserves the right to change these terms, to require full or partial payment in advance, or to ship the goods C.O.D.
2. Taxes. Any taxes or other government levy or charge (or any increase in same) which Avantik may be required to pay or collect, under any existing or future law, upon or with respect to the sale, purchase, delivery, storage, processing, use or consumption of any of the material covered hereby, including taxes upon or measured by the receipts from the sale thereof, shall be for the account of Buyer, and may, at Avantik’s option, be added to the price of good shipped hereunder.
3. Shipments. Shipment dates are based upon Avantik’s best judgment and are subject to factory schedules and production limitations, and hence are not guaranteed.
4. Delivery in Installments. Avantik reserves the right to make delivery in installments, unless otherwise expressly stipulated herein. 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.
5. Delay; Force Majeure. Avantik shall not be liable for delays in performance caused by force majeure, act of God, fire or other casualty, accident, strike, boycotts, shortage of labor or materials, governmental action or other cause beyond Avantik’s reasonable control; and the time for Avantik’s performance shall be extended by the period of any such delay. Avantik reserves the right to apportion its production among its customers as it may determine.
6. Limited Warranty. EXCEPT AS SPECIFICALLY SET FORTH HEREIN OR IN ANY SEPARATE WRITTEN WARRANTY PROVIDED BY AVANTIK WITH RESPECT TO A SPECIFIC PRODUCT, IF ANY, AVANTIK MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. No agent, employee, or representative of Avantik has any authority to bind Avantik to any affirmation, representation or warranty concerning the goods 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.
7. Liability. Except to the extent that such is solely and directly caused by Avantik’s breach of its obligations hereunder, Buyer assumes all liability arising out of compliance with any laws, rules or regulations relating to any product or container therefor. In no event shall Avantik be liable for incidental, consequential or other damages from alleged negligence, breach of warranty, strict liability or any other theory, arising from the use or handling of the chemicals it sells. The sole liability, if any, of Avantik for any claims arising out of the manufacture, use or sales of its chemicals shall be for the return of the Buyer’s purchase price.
In accepting the products described herein, Buyer shall be deemed to have declared itself familiar with the nature, hazards and use of the products and their containers and shall assume all liability resulting from or in any way connected with the unloading, discharge, storage, handling, possession, use and disposal of any product or container therefore, including, without limitation, the use of such product or container alone or in combination with other substances, except to the extent that such liability results from Avantik’s gross negligence or willful misconduct. Avantik shall not be liable for any damage, injury or loss of any indirect or consequential nature suffered by Buyer, however and whenever caused, including, without limitation, loss of sales, revenue or profit.
8. Indemnification. Buyer shall defend, indemnify and hold Avantik and its officers, directors, employees and agents harmless from and against any and all claims, actions, liability, expenses, costs (including, without limitation, reasonable attorneys’ fees), or losses arising from (i) Buyer’s improper use of the product; (ii) Buyer’s combination or use of the products with third party products; (iii) misuse of any product by an end user; (iv) the acts or omissions of Buyer hereunder; and (v) any breach by Buyer of its obligations hereunder. This Section shall survive termination and cancellation of this contract.
9. Inspection; Claims. Buyer shall examine goods upon receipt and shall notify Avantik, in writing, of any non-conforming goods within fifteen (15) days of receipt thereof at destination. Failure to timely give such notice shall constitute an irrevocable acceptance of the goods. No claims, of any kind, by Buyer shall be valid without notice, as specified. Buyer shall afford Avantik a reasonable opportunity to inspect the material and repair or replace any materials determined by Avantik to be non-conforming. No goods shall be returned without Avantik’s consent.
10. Remedy for Non-Conforming Goods. If the goods furnished to Buyer shall fail to conform to this contract, Avantik, at its discretion, shall, within thirty (30) days of notice of said non-conformity, issue credit for or shall replace such non-conforming goods at the original point of delivery and shall furnish instructions for the disposition of the non-conforming goods. Any transportation charges involved in such disposition shall be for Avantik’s account. Buyer’s exclusive and sole remedy on account of or in respect to the furnishing of goods that do not conform to this contract shall be to secure credit or replacement thereof as aforesaid. Avantik shall not, in any event, be liable for any special, direct, indirect, incidental or consequential damages to anyone by reason of the fact that such goods do not conform to this contract, or to any express or implied warranty herein.
11. Governing Law. 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.
12. Non-Waiver. Waiver by Avantik of the breach of any of the terms and conditions of this contract shall not be construed as a waiver of any other breach.
13. Risk of Loss. All shipments will be F.O.B. departure origin. Risk of loss of or damage to the goods passes to Buyer upon F.O.B. departure origin. Title remains with Avantik until Avantik receives payment for said goods.
14. Responsible Care. Both parties agree to handle, store, transport, and dispose of the products in reasonable manner with appropriate regard for the safety of their employees and the general public, and agree to comply with all applicable environmental, transportation and safety regulations.
15. Termination. Without prejudice to any other remedy, Avantik may immediately terminate this contract and any other agreement with Buyer should Buyer fail to timely perform any obligation hereunder.
16. Assignment. This contract shall inure to the benefit of and be binding upon the parties and their respective successors and assigns. This contract is not assignable by Buyer without the Avantik’s prior written consent, but may be assigned by Avantik without Buyer’s consent.
17. Credit Card Payments. Credit card payments on invoices over $5,000 will incur a 3% processing fee.
18. Acceptance Of These Terms. The specifications on the face hereof, together with terms and conditions contained herein constitute the entire agreement between Avantik and Buyer. Neither Avantik’s correspondence nor shipment of any goods is an expression of acceptance or a written confirmation of Buyer’s purchase order. If Buyer does not agree to these terms and conditions, Buyer should reject the goods upon delivery and Avantik will provided shipping instructions, the costs of which shall be borne by Avantik.