OxyChem
Email Us
Phone: 800-752-5151
SDS

 

 

Login

Email Address


Password



 

 

Connect2.OxyChem.com
Request Access
Forgot Password
Forgot ID
Terms and Conditions
Hazard Warning

 

Terms and Conditions

1. PRICE ADJUSTMENTS
     
Seller may, at any time, institute or remove a temporary voluntary allowance or other similar competitive allowance off, or reduction of, the Product's price hereunder (the "Price") without notice to Buyer. Such change shall not be deemed a change of Price for purposes of Section 2 below.

Buyer may give Seller a copy (confirmed by an officer of Buyer) of a bona fide, written offer from a reputable manufacturer of Product for a quantity of Product that is at least equivalent to at least half the annual quantity of Product covered by this contract (the "Contract"). If Buyer's cost of purchasing that substitute product would be less than the applicable Price after giving effect to all discounts and rebates, and the other terms of such offer are substantially similar to the terms of this Contract, Seller shall, within 15 days of receipt of that proof from Buyer, either (a) reduce the Price to meet such lower cost for the term and quantity covered by that other offer or for the remaining term and quantity under this Contract, whichever is less, or (b) permit Buyer to purchase such offered quantity by reducing the Contract quantity accordingly.
 
2. PRICE INCREASES
 
Seller shall have the right to increase the Price at any time and from time to time, by giving Buyer at least 30 days prior written notice. Unless Buyer gives Seller written notice of objection to such a change at least 5 days before the effective date for that Price increase (the "Effective Date"), Buyer shall be deemed to have accepted that change. However, if (a) Buyer gives such notice of objection and (b) (i) Seller fails to rescind the proposed Price increase or (ii) Buyer and Seller fail to agree on a price adjustment within 30 days after that Effective Date, the proposed Price increase shall take effect on the Effective Date but this Contract shall automatically terminate 45 days after that Effective Date.
 
3. TAXES
 
Seller shall bear all taxes, duties, excises, and other governmental charges (singly or collectively, "Taxes") that are levied on or in connection with, the manufacture of the Product, the assets and raw materials used in such manufacture, and/or the income of Seller. Buyer shall bear all Taxes (including, without limitation, any Superfund Tax) that are levied on or in connection with the sale of the Product or the storage, transportation, handling, use and/or consumption of the Product at or after the time that title to the Product has passed to Buyer.
 
4. PAYMENT
 
Unless otherwise specified herein, payment to Seller shall be calculated from the date of Seller's invoice. Payment shall be deemed made when checks are received by Seller (subject to collection) or as funds are electronically transferred to Seller's account. If Seller has reasonable grounds for concern about Buyer's creditworthiness, Seller may, upon reasonable notice to Buyer, change the payment terms, suspend shipments and/or cancel this Contract without Seller having any liability to Buyer. Seller may recover for each shipment as a separate transaction.
 
5. QUANTITY / SHIPMENTS
 
Shipments shall be approximately evenly spaced. Buyer shall give Seller reasonable advance notice for each shipment. Seller shall not have to deliver in any one calendar month (a) more than the lesser of (i) 1/10th the annual quantity (which annual quantity shall be the maximum annual quantity if one is specified) in this Contract or (ii) the average quantity of Buyer's prior monthly purchases hereunder or (b) any Product that Buyer has not taken in a prior calendar month.
 
6. WARRANTY
 
Any technical information or assistance that Seller gives Buyer is provided at Buyer's risk and is not a warranty or specification. Seller warrants that (a) the Product shall meet the specifications set forth in this Contract, (b) the Product was produced in material compliance with all applicable laws, (c) Seller has good title to the Product and (d) the Product will not infringe any valid claim of any United States or Canadian patent covering the Product itself (but Seller does not warrant against patent infringement caused by Buyer's use or handling of the Product). SELLER MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WHETHER OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE. Buyer warrants that (a) the Product is being purchased only for Buyer's use or consumption and will not be resold or otherwise transferred, (b) Buyer's handling, use or consumption of the Product will not infringe any valid claim of any United States or Canadian patent, (c) Buyer will not use, consume or combine the Product for end uses intended to be toxic or lethal to humans, (d) Buyer has, and will use, the requisite expertise, personnel and equipment to handle, store, transport, use, consume and dispose of the Product (i) in compliance with all applicable laws and governmental regulations, actions, orders, decrees and requests and (ii) in a manner so that the Product will not be injurious to any person or the environment, and (e) Buyer will promptly and carefully inspect the Product upon receipt.
 
7. LIABILITY & CLAIMS
 
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL AND/OR SPECIAL DAMAGES. SELLER'S MAXIMUM LIABILITY TO BUYER FOR A CLAIM, SHALL NOT EXCEED THE PURCHASE PRICE OF THE QUANTITY OF PRODUCT IN RESPECT OF WHICH THAT CLAIM IS MADE. (By "CLAIM" or "Claim," we mean, singly or collectively, all claims, damages, losses, costs and expenses, whether based on this Contract, tort, strict liability or otherwise, that result from, or arise out of, the delivery, non-delivery, transportation, storage, handling or use of the Product.)
Each party shall notify the other party of any Claim against that other party within 60 days after that Claim was discovered or reasonably could have been discovered, whichever is less. Failure to give such notice shall constitute a waiver and release of the applicable Claim.
Subject to the limitations in this Section, (a) Seller shall defend, indemnify and hold harmless Buyer for Buyer's Claim concerning non-delivery of Product, Seller's breach of any warranty in this Contract and/or Seller's storage, handling or transportation of the Product; and (b) Buyer shall defend, indemnify and hold harmless Seller for Seller's Claim concerning Buyer's failure to purchase, receive or pay for Product as required by this Contract, Buyer's breach of any warranty in this Contract, Buyer's handling, transportation, storage, use or disposal of the Product or its container, Buyer's failure to promptly and safely handle and return clean non-disposable containers and clean, transportation equipment, and/or Buyer's infringement of any patent. These indemnifications shall survive termination of this Contract. IT IS THE INTENTION OF SELLER AND BUYER THAT THE INDEMNIFICATIONS SET FORTH IN THIS SECTION ARE INTENDED TO EXPRESSLY INDEMNIFY AN INDEMNIFIED PARTY FROM THE CONSEQUENCES OF ITS OWN STRICT LIABILITY OR ITS NEGLIGENT ACTS OR OMISSIONS TO THE EXTENT PROVIDED HEREIN.
 
8. PATENTS
 
Seller reserves the right to discontinue deliveries of any Product if, in Seller's reasonable opinion, the sale, manufacture or use of the Product by Seller or Buyer would infringe any patent now or hereafter issued.
 
9. TITLE / RISK
 
Unless otherwise agreed in this Contract, title and risk of loss for the Product shall pass to Buyer upon delivery to any contract carrier, Buyer's equipment or its authorized representative at the Shipping Point.
 
10. CONTAINERS / EQUIPMENT
 
Buyer shall protect and be responsible for the prompt and safe return of all non-disposable containers and the proper disposal of all other containers. Product containers are intended only for the temporary storage of the Product contained therein since any other use of those containers may be hazardous or unlawful and Buyer shall take all actions necessary to prevent their reuse.
Buyer shall return to Seller, at Buyer's expense, in an empty condition all transportation equipment and non-disposable containers provided or arranged by Seller.
Buyer shall use reasonable efforts to unload and return Seller's transportation equipment to the carrier within the time period specified in the applicable tariff or contract free of demurrage/detention. Buyer shall promptly pay any demurrage/detention charges that result from Buyer's failure to so unload and return such transportation equipment unless and to the extent that Buyer's delay is due to Seller's fault.
If any transportation equipment provided by Seller arrives at destination in damaged condition, Buyer shall promptly notify (orally and in writing) the carrier and Seller about that condition. Buyer shall be responsible for all transportation equipment and containers while they are within Buyer's possession or jurisdiction, except for damages or injuries caused by Seller or the carrier.
If Seller provides any transportation equipment or absorbs any portion of the transportation charges, Seller shall have the right to designate the carriers and routings, which designation shall be subject to Buyer's reasonable approval.
Seller shall not have to load or handle any container or equipment provided or arranged by Buyer if such container or equipment does not meet Seller's reasonable standards.
 
11. MEASUREMENT
 
Seller's determination of the quantity and quality of a shipment shall govern except when proven erroneous. There will be no Claims, credits or waivers for shipment shortages or overages of 1/2 of 1% or less.
 
12. ALLOCATION
 
During the time when the demand for Product exceeds Seller's supply, Seller may allocate its available supply of Product among Seller's written contract customers and Seller's internal uses in such manner as Seller deems fair and reasonable. Such allocation shall not be deemed a breach of this Contract. It is not Seller's intent to unreasonably exercise this right of allocation or to give an unfair preference to Seller's internal uses.
 
13. ENVIRONMENT & SAFETY
 
Seller shall furnish Buyer with Safety Data Sheets ("SDS") for the Product. Buyer shall familiarize itself and its employees with the contents of the SDS. Buyer shall disseminate all the information in the SDS to persons whom Buyer reasonably foresees being exposed to the Product's potential hazards. Buyer shall handle, store, transport, use and dispose of the Product and its container in compliance with all applicable laws and governmental regulations, orders, decrees and requests and the SDS. Buyer shall take reasonable action to prevent Product spills or other Product damage to persons, property and the environment.
 
14. FORCE MAJEURE
 
Performance of any obligation under this Contract (other than to make a payment when due) may be suspended by either party without liability to the other party, to the extent that: an Act of God; war; riot; fire; explosion; accident; flood; sabotage; mechanical breakdown; cancellation of any permit or license; plant shutdown that is beyond a party's reasonable control; Seller's inability to obtain fuel, power, raw materials or equipment from its usual sources at prices it deems, in good faith, to be reasonable; labor trouble, strike, lockout or injunction (whether or not such labor event is within the reasonable control of such party); governmental laws, regulations or orders; or any other cause beyond the reasonable control of such party that delays, prevents, restricts, limits, or renders commercially infeasible or impractical, the performance of this Contract or the consumption, sale or use of the Product, except as to Product already in transit ( "Force Majeure Event"). A Force Majeure Event shall also include a party's suspension of operation or closure of a facility that produces or consumes Product because the operation of or product from that facility fails to comply with, or becomes uneconomical because of compliance with, any applicable law or governmental regulation, order, decree or request. The affected party shall invoke this provision by promptly giving written notice to the other party of the nature and estimated duration and effect of the Force Majeure Event. The total Contract quantity hereunder shall be reduced by the quantity not delivered because of the Force Majeure Event, and the Contract shall otherwise remain unaffected; provided, however, that this Contract shall automatically terminate if such reduction continues for 180 consecutive days.
A party shall not be required to remove or cure any Force Majeure Event if that removal or cure would involve additional expense or departure from its normal practices. If there is a Force Majeure Event, the affected party shall allocate its sales and purchases in a fair and reasonable manner that shall include its internal demands or supply.
 
15. MISCELLANEOUS
 
A.  ACCEPTANCE AND ENTIRETY -
Buyer's acceptance of this Contract is expressly limited to the terms and conditions contained herein. If Buyer accepts any shipments of Product under this Contract prior to Seller and Buyer's execution of this Contract, those shipments shall be governed by the terms and conditions in this Contract. Except for those prior shipments, this Contract shall not bind Seller unless and until it is signed by an authorized representative of Seller.

This Contract constitutes the parties' entire understanding about the Product during the term of this Contract. None of Buyer's inconsistent and/or additional terms and conditions submitted in acknowledging this Contract or in issuing purchase orders, releases, shipping instructions or other documents shall apply to this Contract.

B.  ASSIGNMENT -
Neither party may assign this Contract or any rights or obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld. Any assignment of this Contract without such consent shall be null and void. Notwithstanding the foregoing, Seller may assign this Contract, without such consent, to a purchaser or transferee of all or a substantial portion of Seller's facility(ies) which is usually producing the Product for sale under this Contract. Upon Seller's written request, Buyer shall assign this Contract to any purchaser or other transferee of all or a substantial portion of the facility(ies) for whom Buyer is purchasing the Product.

C.  NOTICES -
Any notice shall be sufficiently given when sent by mail, postage prepaid, or telefacsimile and received by the recipient at the address set forth herein or such other address as the recipient may by notice designate to the other party.

D.  HEADINGS -
The section and sub-section headings or titles are included for ease of reference only and do not affect any part of the text or affect its meaning or interpretation.

E.  DEFINITIONS -
The definitions assigned to certain terms on the first page of this Contract shall apply to these terms and conditions.

F.  WAIVER AND MODIFICATION -
A party's failure to exercise any of its rights under this Contract upon one occasion shall not be a waiver of its right to exercise the same on another occasion. No alteration, modification or amendment of this Contract will be effective unless it is in writing and signed by both parties.

G.  GOVERNING LAW -
This Contract shall be governed by, and interpreted according to, the internal laws of the State of New York without giving effect to any conflict of laws principles.

H.  SEVERABILITY -
If any provision of this Contract is or becomes invalid, illegal, or otherwise void, the remaining provisions of this Contract shall not be affected and shall continue in full force and effect. If such invalidity, illegality or voidness becomes known or apparent to a party, that party shall promptly notify the other party, and the parties shall promptly negotiate in good faith in an attempt to make appropriate changes to this Contract to achieve as closely as possible, consistent with applicable law, the intent and spirit of that illegal, invalid or void provision.

I.  COUNTERPARTS -
This Contract may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be deemed to be one and the same agreement.

J.  CONFLICT -
In the event that there is a conflict between the typed terms on the first page of this Contract and any term in Sections 1 through 15 of these General Terms and Conditions, that typed term shall prevail and govern that conflict.