General Terms and Conditions of Sale
PAYMENT; TERMS. Customer agrees to make payment in full for the Product purchased from Company. Customer agrees to pay the total amount due on each Product order, invoice, or customer statement, as applicable, in accordance with the payment terms thereon, unless otherwise agreed in writing. If not paid when due, Customer agrees to pay Company a service charge equal to the lesser of 18% per annum (1.5% per month) or the highest rate allowed by law. Customer agrees to pay all costs of collection, with or without suit, including actual out-of-pocket expenses incurred by Company and its agents, including attorney’s fees for litigation or bankruptcy and collection agency fees.
NO RETURNS. The Product is not eligible for return.
ASSUMPTION OF RISK. Customer assumes any and all liability for loss, damage or injury to persons or property, resulting from the use or subsequent sale of the Product, either alone or in combination with other goods and/or services.
SHIPMENT. Unless otherwise agreed to in writing, all transportation and shipping charges shall be invoiced to and paid by Customer. Risk of loss or damage shall pass to Customer upon delivery of the Product to Customer, Customer’s agent, or the common carrier for shipment, as specified in the order, invoice, or customer statement, as applicable. Unless otherwise specifically stated in the order, Company’s sampling and analysis shall be final, and on all deliveries involving shipments by rail, Transcontinental Freight Bureau weight certificates shall govern.
FAILURE TO TAKE. If Customer fails to give shipping instructions for or to accept delivery of all or any part of this order within the time limit specified, Company may at its option without prejudice to its other legal rights, either cancel such undelivered portion or hold the Product for Customer’s account, in which latter event Customer agrees to pay a carrying charge at Company’s then-current rates.
SECURITY INTEREST. Company retains and Customer hereby grants to Company a security interest in the Product until the full purchase price has been paid. Customer agrees to allow Company to register or otherwise perfect such security interest, as permitted by the law in any relevant jurisdiction, and to do all things, provide all assistance and information, and execute all relevant documents, on request, as may be required to ensure Company obtains and maintains a perfected, first ranking security interest in such Product. Customer’s failure to pay any amount when due shall give Company the right to possession and removal of the Product at any time upon giving at least ten (10) days prior notice. Company’s taking of possession shall be without prejudice to any other remedies Company may have.
FORCE MAJEURE. Neither party shall be liable for damages for any delay or failure to perform resulting from any cause beyond the reasonable control of the respective parties, including labor strikes, perils of the sea, pandemics, fire, or acts of God, and Company shall have the option of canceling this order as to any portion thereof so affected. Nothing in this provision shall excuse Customer from its payment obligations hereunder.
LIMITED WARRANTY; DISCLAIMER. EXCEPT FOR THE WRITTEN LIMITED WARRANTY, IF ANY, WHICH ACCOMPANIES THE PRODUCT PROVIDED TO CUSTOMER BY COMPANY, CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTY OR GUARANTEE OF ANY KIND WITH RESPECT TO THE PRODUCT, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ACCURACY OR COMPLETENESS OR ANY WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
LIMITATION OF LIABILITY. IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT COMPANY 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 COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS ORDER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO COMPANY FOR THE PRODUCT SOLD HEREUNDER.
CUSTOMER OBLIGATIONS. CUSTOMER CONFIRMS THAT IT HAS READ AND WILL COMPLY WITH ALL LABELS AND ALL LAWS AND REGULATIONS RELATED TO THE PRODUCT. CUSTOMER, ON BEHALF OF ITSELF AND ITS CUSTOMERS, EMPLOYEES, AGENTS, AND CONTRACTORS, HEREBY: (A) ASSUMES ALL RISK AND LIABILITY ARISING OUT OF THE USE OF THE PRODUCT AND (B) RELEASES AND DISCHARGES, AND SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS, COMPANY AND ITS AFFILIATES, EMPLOYEES, AGENTS, AND CONTRACTORS FROM, FOR, AND AGAINST ANY AND ALL LOSSES, CLAIMS, DAMAGES, AND EXPENSES (INCLUDING ATTORNEYS’ FEES) ARISING FROM THE USE OF THE PRODUCT IN VIOLATION OF ANY APPLICABLE LABELS OR ANY APPLICABLE LAWS OR REGULATIONS.
GOVERNING LAW; PERSONAL JURISDICTION; VENUE. This order shall be interpreted and governed by the laws of the State of Colorado, without giving effect to its principles of conflicts of law. EACH PARTY IRREVOCABLY SUBMITS AND AGREES TO THE JURISDICTION OF THE STATE AND FEDERAL COURTS OF THE STATE OF COLORADO SITTING IN DENVER COUNTY IN ANY ACTION, SUIT OR PROCEEDING RELATED TO, OR ARISING FROM THIS ORDER, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, WAIVES AND AGREES NOT TO ASSERT AS A DEFENSE IN ANY SUCH ACTION, SUIT OR PROCEEDING ANY CLAIMS THAT (A) SUCH PARTY IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF THOSE COURTS; (B) THAT THE VENUE IS IMPROPER; © THAT THE FORUM IS INCONVENIENT; OR (D) THAT THE SUBJECT MATTER MAY NOT BE ENFORCED IN OR BY THE STATE OR FEDERAL COURTS OF THE STATE OF COLORADO.
BANKRUPTCY. In the event that: Customer goes into liquidation, bankruptcy or dissolution (voluntary or involuntary), becomes insolvent, fails to pays its debts to Company as they come due or makes an assignment for the benefit of creditors; a receiver, trustee or administrator is appointed for all of Customer’s assets; or any liquidation, bankruptcy, composition or insolvency proceedings are filed against Customer, Company may, at its sole discretion and without notice, immediately cancel all or any part of any unfilled portion of this order, subject to applicable law.
NO ASSIGNMENT. Customer shall not assign this order without obtaining the prior written consent of Company.
MISCELLANEOUS. In the event of a conflict between the terms set forth in these General Terms and Conditions of Sale (“Terms”) and the terms set forth in a separate written agreement related to the subject matter hereof (“Agreement”), the conflicting terms in the Agreement shall prevail. All rights of Company hereunder are separate and cumulative and not one of them, whether or not exercised shall be deemed to be an exclusion of any of the other rights and shall not limit or prejudice any other legal or equitable right which Company may have. No waiver by Company of any default shall be deemed a waiver of any subsequent default. No amendment to the order or the Terms shall be effective unless in writing and signed by both of the parties hereto.