Colourant Sales Terms & Conditions
At Masterchem Industries, we strive for an open and long-term relationship with each of our customers. To achieve this, we both must know exactly where we stand with regard to our legal relationship, the “terms of business” that underpin our relationship.
For your guidance, we have set out in this document our basic terms and conditions (“Terms”) that will govern the sale of our colorant products (“Products”) to you. If you provide us with any pre-printed terms and conditions that appear on any purchase order or other form document, they will be of no force or effect unless we agree expressly in writing to modify these Terms or to state these Terms will not apply. These Terms are deemed to be a part of our published Price List as it is revised from time to time (“Price List”) and all other documents exchanged between us relating to the sale and purchase of our Products, whether electronic or in writing, including without limitation all quotations, acknowledgements, packing slips, invoices and purchase orders.
1. APPLICATION OF TERMS. Our acknowledgement and acceptance of your order for our Products is expressly limited to and made conditional upon your acceptance of these Terms and we deem material, object to, and reject any of your terms and conditions additional to or different from these Terms or the Price List that we have not expressly agreed to in a separate writing (except additional provisions specifying quantity, description of the Products ordered and shipping instructions). We will deem you to have waived any objection to these Terms if we have not received written notice of any objection from you within ten (10) days of the date of our release of the most recent Price List. You will, in any event, be deemed to have agreed to these Terms if you accept any portion of the Products you order from us.
You acknowledge that the prices we have quoted in the Price List are predicated on the enforceability of these Terms, that the prices would be substantially higher if these Terms did not apply, and that you accept these Terms in exchange for such lower prices.
2. LIMITED WARRANTY. All Products that we sell are warranted by us to be free from defects in material and workmanship when mixed according to the directions in our Colour Formula Book and on the Product label with properly cleaned, maintained and calibrated tinting equipment. Certain colours (e.g. bright yellows, oranges and reds and magenta) naturally fade and/or require a primer coat for optimal hide and these characteristics are not defects. You acknowledge that you alone have determined that the Products will suitably meet the requirements of your intended use when mixed into tint bases that are not manufactured by or for us. THIS EXPRESS WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. We will not be responsible for any non-conformity with any standards, codes or regulations which apply to the combination of our Products with materials other than the tint bases identified in our Colour Formula Book.
3. LIMITATION OF REMEDIES. If we breach our warranty, your sole and exclusive remedy against us will be limited, at our option, to our replacement of any nonconforming Product for which you make a claim or our issuance to you of a credit for the nonconforming Product in accordance with any instructions we have given you for the return of the Product or otherwise. We may require a reasonable opportunity to inspect the Product and confirm the nonconformity. This exclusive remedy will not be deemed to have failed of its essential purpose so long as we are willing and able to replace the nonconforming Product and, in any event, our liability for any damages due you will be limited to the purchase price of the nonconforming Products. THIS PARAGRAPH STATES OUR SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY.
4. LIMITATIONS ON ACTIONS AND LIABILITY. The statute of limitations applicable to all of your claims arising under these Terms will be one (1) year from the date the claim accrues. WE WILL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY RESULTING FROM DELAY IN DELIVERY OF THE PRODUCTS OR FOR ANY FAILURE TO PERFORM DUE TO CIRCUMSTANCES BEYOND OUR CONTROL. OUR MAXIMUM LIABILITY, IF ANY, FOR ALL DAMAGES, INCLUDING WITHOUT LIMITATION CONTRACT DAMAGES AND DAMAGES FOR INJURIES TO PERSONS OR PROPERTY, WHETHER ARISING FROM OUR BREACH OF THIS AGREEMENT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT WITH RESPECT TO THE PRODUCTS IS LIMITED TO AN AMOUNT NOT TO EXCEED THE PRICE OF THE PRODUCTS. IN NO EVENT WILL WE BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST REVENUES AND PROFITS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE RIGHT TO RECOVER DAMAGES WITHIN THE LIMITATIONS SPECIFIED ABOVE IS YOUR EXCLUSIVE ALTERNATIVE REMEDY IN THE EVENT THAT ANY OTHER REMEDY AVAILABLE UNDER THESE TERMS FAILS OF ITS ESSENTIAL PURPOSE.
5. PRICES, TERMS AND SHIPMENT. You will pay the prices for our Products in effect at the time of shipment or performance, unless we otherwise agree in writing. All prices are Net THIRTY (30) Days. No cash discount is allowed unless we otherwise specify that to you in writing, and no set offs or counterclaims are allowed unless we agree in writing. In addition to the prices specified, you agree to pay any applicable taxes or duties assessed by reason of this transaction. Unless we otherwise agree in writing, shipments shall be by a carrier and by the route selected by us; the carrier shall act as your agent and delivery by us to such carrier shall constitute delivery to you; all shipments under this order will be made F.O.B. shipping point, at which time title to and all risk of loss will pass to you, provided that we shall retain, and you hereby grant to us a security interest in any Products we ship to you until the full purchase price is paid by you. You will pay all freight charges and assume the risks of transportation, including delay, damage, and loss, unless we otherwise agree in writing.
6. DELIVERY SCHEDULES. The promised delivery date is our best estimate possible of when we will ship the Products. We will not be liable for any loss, damage, incidental, consequential or other damages due to delays.
7. VARIATIONS IN QUANTITIES. We only ship in full carton quantities and so orders for partial carton quantities will be rounded up and shipped and invoiced as full cartons.
8. SHORTAGES. You must make all shortage claims within 15 days of your receipt of shipment. We will not be responsible for any claim for shortages not reported within that period.
9. RETURNED GOODS. You will need our approval, and issuance of a return authorization number, before returning any Products to us.
10. EXCUSE OF PERFORMANCE. We will not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond our control or the control of our suppliers, including but not limited to failure or delay in transportation, acts of any government, judicial action, labor disputes, fire, accident, acts of nature, shortage of labor, fuel, raw material or machinery or technical failure. If any contingency occurs, we may allocate production and deliveries among our customers in a manner we will determine in our sole discretion.
11. CONFIDENTIALITY. If your personnel visit our facilities or you otherwise receive any proprietary or confidential information from us, such information will be retained as confidential by you and not be used or disclosed to any third party without our written consent.
12. CREDIT APPROVAL. You will furnish to us all financial information reasonably requested by us from time to time for the purpose of establishing or continuing your credit limit. Shipment and delivery of Products will at all times be subject to the approval of our credit department and we may at any time decline to make any shipment or delivery except upon receipt of payment or upon terms and conditions or security satisfactory to us. You agree that we may file a uniform commercial code financing statement with respect to the Products we sell to you in order to protect our interest in such Products until you make payment in full.
13. CANCELLATION. You can only cancel orders with our written approval. If you cancel an order, in whole or part, after shipment we may condition our consent to cancellation on your payment to us of freight charges and restocking fees.
14. DEFAULT. You may terminate our performance for our default, wholly or in part, only if before we receive a notice of termination, we have received notice in writing specifying such default, and such default is not excusable under any provision hereof, and we have not remedied such default within thirty (30) days after we received such notice of default. If we deliver nonconforming Products to you, you will have the rights set forth in paragraph 3 of these Terms, but such delivery will not be deemed a default for purposes of termination. If you are entitled to terminate for default, you will be relieved of the obligation to pay for Products ordered but not delivered before the effective date of such termination. Our default will not subject us to liability, through payment by us, set off or otherwise, for any other damages, whether direct, consequential or incidental, and whether sought under theories of contract or tort.
15. ASSIGNMENT. You cannot assign any order or any claim against us arising directly or indirectly out of or in connection with an order without our prior written consent.
16. PATENTS, INVENTIONS, TECHNICAL DATA. You do not and will not acquire ownership or any rights in our intellectual property under any order, regardless of when such intellectual property has been issued, conceived, generated or produced. We reserve all of our rights in our intellectual property and you will not reproduce or use it for any purpose whatsoever without our prior written permission.
17. INDEMNIFICATION. Technical assistance and information, if any, we furnish to you in connection with the sale of our Products are furnished for your accommodation. You assume all liability for the proper application of such information, using your own technical expertise and know-how. You shall indemnify and hold us and our affiliates harmless from and against all liabilities, losses, claims, costs and expenses (including reasonable attorneys’ fees) related to any claim, investigation, litigation or proceeding (whether or not we are a party) which arises or is alleged to arise from your acts or omissions under these Terms or in any way with respect to our Products.
18. REMEDIES. Our rights and remedies will be cumulative and additional to all other remedies provided by law or equity. We will be entitled to recover costs and attorneys’ fees in the enforcement or defense of any rights under these Terms.
19. PAST-DUE ACCOUNTS. We will be entitled to collect from you interest on all past-due accounts at the maximum rate of interest allowed by law.
20. GOVERNING LAW AND FORUM. All orders will be construed, interpreted and the rights of the parties determined in accordance with the laws of the State of California without regard to any conflict of laws provisions that might otherwise apply. You agree to exercise any right or remedy in connection with these Terms exclusively in, and you agree to submit to the jurisdiction of the appropriate state or federal court of Orange County, the State of California.
21. ENTIRE AGREEMENT. These Terms contain our entire agreement relating to the transactions covered by these Terms. These Terms may not be waived, changed, modified, extended or discharged orally but only by agreement in writing and signed by the authorized representative of the party against whom enforcement of any such waiver, change, modification, extension or discharge is sought.