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Sale of Goods Terms and Conditions
Purchase Orders. Buyer shall initiate all Purchase Orders in written form via facsimile or e-mail and cause all Purchase Orders to contain the Basic Purchase Order Terms. By placing a Purchase Order, Buyer makes an offer to purchase the Goods pursuant to the terms and conditions of this Sales Order, including the Basic Purchase Order Terms, and on no other terms. Except with respect to the Basic Purchase Order Terms, any variations made to the terms and conditions of this Sales Order by Buyer in any Purchase Order are void and have no effect.
Seller’s Right to Accept or Reject Purchase Order. Seller has the right, in its sole discretion, to accept or reject any Purchase Order. Seller may accept any Purchase Order by sending Customer a written Sales Order or by delivering such Goods pursuant to a Purchase Order, whichever occurs first. No Purchase Order is binding on Seller unless accepted by Seller as provided in this Sales Order.
Cancellation of Individual Transactions. Seller may, in its sole discretion, without liability or penalty, cancel any Individual Transaction if Seller determines that Buyer is in violation of its payment obligations. Unless agreed to by Seller, Buyer shall have no right to cancel or amend any Purchase Order accepted by Seller
Shipment. The method of shipment shall be specified in the Purchase Order or Sales Order, whichever the case may be. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of a Purchase Order.
Delivery. Unless expressly agreed to by the Parties in any Individual Transaction, Seller shall deliver the Goods to the Delivery Location, using Seller’s standard methods for packaging and shipping such Goods. All prices for shipping and packaging shall be set forth in the Sales Order or an invoice. No delay in the shipment or delivery of any Goods relieves Buyer of its obligations under this Agreement, including without limitation accepting delivery of any remaining installment(s) of Goods.
Late Delivery. Any time quoted by Seller for delivery is an estimate only. Seller is not liable for or in respect of any loss or damage arising from any delay in filling any order, failure to deliver or delay in delivery.
Inspection. Buyer shall inspect the Goods with twenty four hours (24) of receipt of the Goods and either accept or, if such Goods are Nonconforming Goods or Excess Goods, reject such Goods. Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods or Excess Goods at time of receipt and furnishes such written evidence or other documentation as required by Seller. If the Buyer notifies Seller of any Nonconforming Goods or Excess Goods, Seller shall determine, in its sole discretion, whether the Goods are Nonconforming Goods or Excess Goods. If Seller determines that the Goods are Nonconforming Goods or Excess Goods, it shall, replace such Nonconforming Goods with conforming Goods, or refund the Price for such Nonconforming Goods or Excess Goods, together with all shipping and handling expenses incurred by Buyer in connection therewith.
Return of Conforming Goods. In the event Buyer wishes to return Conforming Goods, then such return shall be at the discretion of Seller. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility located at 30 E. Oakton, Des Plaines, Illinois 60018. No damaged, unpackaged, opened, or adulterated Conforming Goods may be returned. Seller reserves the right to charge a restocking fee to the Buyer which will be deducted from a refund or credit issued. Seller may refuse to accept the return of any Conforming Good in its sole discretion. Should Seller accept the return of a Conforming Good, Seller, in its sole discretion, shall either issue a refund or partial refund directly to Buyer, or apply a credit or partial credit to Buyer toward future Purchase Orders. BUYER ACKNOWLEDGES AND AGREES THAT THE REMEDIES SET FORTH HEREIN ARE BUYER’S EXCLUSIVE REMEDIES FOR THE DELIVERY OF NONCONFORMING GOODS OR EXCESS GOODS,
Title and Risk of Loss. Title to Goods ordered under any Individual Transaction passes to Buyer upon delivery of such Goods to the Delivery Location specified in the Purchase Order. Risk of loss to all Goods ordered under any Purchase Order passes to Buyer upon (1) If the Delivery Location is Seller’s premises, then the risk of loss transfers when the Goods are loaded onto the vehicle transporting the Goods; (2) or If the Delivery Location is Buyer’s premises, then the risk of loss transfers when the vehicle transporting the Goods arrives at the unloading location of Buyer’s premises.
Price. Buyer shall purchase the Goods from Seller at the prices set forth in Seller’s Sales Order in effect at the time that Seller accepts the related Purchase Order. All Prices include shipping charges, insurance, and Taxes related to the Goods, and any duties and charges of any kind imposed by any Governmental Authority with respect to, or measured by, the manufacture, sale, shipment, use, or Price of the Goods shall be outlined in the Sales Order or as outlined in an invoice.
Payment Terms. Buyer shall make all payments in US dollars by check, credit card, ACH transfer, or other method made available by Seller and pursuant to the terms set forth in the invoice issued by Seller to Buyer and/or as provided for in the Credit Agreement executed between the Parties.
Invoice Disputes. Buyer shall notify Seller in writing of any dispute with any invoice along with a reasonably detailed description of the dispute within ten (10) days from the date of such invoice. Buyer will be deemed to have accepted all invoices for which Seller does not receive timely notification of disputes and shall pay all undisputed amounts due under such invoices.
Late Payments. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, reasonable attorneys’ fees. In addition to all other remedies available to Seller at law, if Buyer fails to pay any amounts when due, Seller may (a) suspend the delivery of any Goods, (b) reject Buyer’s Purchase Orders, or (c) cancel Purchase Orders accepted by Seller.
Purchase Money Security Interest. Buyer hereby grants Seller a security interest in all Goods purchased hereunder (including Goods, Nonconforming Goods, and Excess Goods) and the proceeds therefrom to secure Buyer’s payment obligations under this Sales Order. Buyer acknowledges that the security interest granted is a purchase money security interest under Illinois law. Seller may file a financing statement for such security interest and Buyer shall execute any such statements or other documentation necessary to perfect Seller’s security interest in such Goods.
No Set-off Right. Buyer shall not, and acknowledges that it will have no right, under this Sales Order, any Purchase Order, any other agreement, document or Law, to withhold, offset, recoup or debit any amounts owed (or to become due and owing ) to Seller.
General Compliance with Laws Covenant. Buyer shall at all times comply with all Laws applicable to this Sales Order, Buyer’s performance of its obligations hereunder and Buyer’s use or sale of the Goods. Without limiting the generality of the foregoing, Buyer shall (a) at its own expense, maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to the purchase or use of the Goods and (b) not engage in any activity or transaction involving the Goods, by way of shipment, use or otherwise, that violates any Law.
Confidential Information. Information about its business affairs, goods and services, relating to Intellectual Property Rights, trade secrets, third-party confidential information, and other sensitive or proprietary information whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential”. This information shall be protected and safeguard with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care.
Limited Warranty. Seller warrants to Buyer that, on the date of shipment or delivery, the Goods will be not adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act (21 U.S.C. Section 301 et. seq); and not an article which may not under the provisions of Section 404 (21 U.S.C. Section 344) or 505 (21 Section 355 or Section 512 (21 U.S.C. Section 306b) of said act be introduced into interstate commerce, and comprised only of color additives certified in accordance with the applicable promulgated under said Act, when such certification is lawfully required; and not adulterated or misbranded within the meaning of any applicable state law or municipal ordinance in which the definitions of adulterations or misbranding are identical or substantially similar to those in the Federal Act. EXCEPT FOR THE EXPRESS WARRANTIES HEREIN, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER PERSON ON SELLER’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED HEREIN.
Warranty Limitations. Warranties do not apply where the Goods have been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by Seller or have been reconstructed, repaired, or altered by Persons other than Seller or its authorized Representative.
Buyer’s Exclusive Remedy for Defective Goods. Buyer shall notify Seller, in writing, of any alleged claim or defect within ten (10) Business Days from the date Buyer discovers, or upon reasonable inspection should have discovered. Buyer shall ship, at Seller’s expense and risk of loss, such allegedly Defective Goods to Seller’s facility located at 30 E. Oakton, Des Plaines, Illinois 60018 for inspection and testing by Seller. If Seller’s inspection and testing reveals, to Seller’s reasonable satisfaction, that such Goods are Defective, Seller shall in its sole discretion, and at its expense, (i) repair or replace such Defective Goods, or (ii) credit or refund the Price of such Defective Goods less any applicable discounts, rebates or credits. If Seller exercises its option to repair or replace, Seller shall, after receiving Buyer’s shipment of such Defective Goods, ship to Buyer, at Seller’s expense and risk of loss, the repaired or replaced Goods to the Delivery Location. Buyer has no right to return for repair, replacement, credit, or refund any Goods except as set forth in this section. In no event shall the Buyer reconstruct, repair, alter, or replace any Goods, in whole or in part, either itself or by or through any third party.
Third-Party Products. Products manufactured by a third party may contain, be contained in, incorporated into, attached to or packaged together with the Goods. Third-Party Products are not covered by the warranty section. For the avoidance of doubt, Seller makes no representations or warranties with respect to any Third-Party Product.
Withdrawal of Goods. If Seller determines that any Goods sold to Buyer may be Defective, at Seller’s request, Buyer shall withdraw all similar Goods from sale and, at Seller’s option, either return such Goods to Seller or destroy the Goods and provide Seller with written certification of such destruction. Notwithstanding if Buyer returns all withdrawn Goods or destroys all withdrawn Goods and provides Seller with written certification of such destruction within 10 days following Seller’s withdrawal request, in either case consistent with Seller’s instructions, Seller shall (a) repair or replace all such returned Goods or (b) replace such destroyed Goods. Buyer’s remedy hereunder is not available if any such defect has been caused or contributed to by the Buyer.
Indemnification. Customer shall indemnify, defend and hold harmless the other Party and its Representatives/officers, directors, employees, agents, affiliates and successors (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification.
Insurance. In the event the Delivery Location is at Seller’s warehouse or other location of Seller, then Buyer shall, at its own expense, maintain and carry in full force and effect commercial general liability (including product liability) in a sum no less than not less than Two Million Dollars ($2,000,000.00) general aggregate, with Bodily Injury Limits of not less than One Million Dollars ($l,000,000.00) per occurrence, with financially sound and reputable insurers, and upon Seller’s request, shall provide Seller with a certificate of insurance evidencing the insurance coverage specified in this Section.
Assignment. Buyer may not assign any of its rights or delegate any of its obligations under this Sales Order without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under this Sales Order.
No Third-Party Beneficiaries. This Sales Order benefits solely the Parties to this Sales Order and their respective permitted successors and assigns and nothing in this Sales Order, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Sales Order.
Intellectual Property Rights Buyer acknowledges and agrees that any and all Seller’s Intellectual Property Rights are the sole and exclusive property of Seller or its licensors. Buyer shall not acquire any ownership interest in any of Seller’s Intellectual Property Rights under this Sales Order. Any goodwill derived from the use by Buyer of Seller’s Intellectual Property Rights inures to the benefit of Seller or its licensors, as the case may be. If Buyer acquires any Intellectual Property Rights, rights in or relating to any Goods (including any rights in any Trademarks, derivative works, or patent improvements relating thereto) by operation of Law, or otherwise, such rights are deemed and are hereby irrevocably assigned to Seller or its licensors, as the case may be, without further action by either of the Parties. Buyer shall use Seller’s Intellectual Property Rights solely for purposes of using the Goods in this Sales Order and only in accordance with this Sales Order and the instructions of Seller.
No Liability for Consequential or Indirect Damages. SELLER NOR ITS REPRESENTATIVES IS LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF SELLER’S OBLIGATIONS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
Maximum Liability. SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS TRANSACTION WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED 1.5 TIMES THE TOTAL OF THE AMOUNTS PAID TO SELLER PURSUANT TO THIS TRANSACTION.
Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party under this Agreement), when and to the extent such failure or delay is caused by or results from acts beyond the affected Party’s reasonable control, including, without limitation: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) Law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any Governmental Authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; and (i) shortage of adequate power or transportation facilities; or (j) disease.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or otherwise, whether at law, in equity or otherwise.
“Basic Purchase Order Terms” means, collectively, any one or more of the following terms specified by Buyer in a Purchase Order pursuant to Section 5.01: (a) a list of the Goods to be purchased: (b) the quantity of each of the Goods ordered; (c) the requested delivery date; (d) the unit Price for each of the Goods to be purchased; (e) the billing address; and (f) the Delivery Location. For the avoidance of doubt, the term “Basic Purchase Order Terms” does not include any general terms or conditions of any Purchase Order.
“Basic Sales Order Terms” means, collectively, any one or more of the following terms specified by Seller confirming a Purchase Order pursuant to Section 5.01: (a) a list of the Goods to be sold: (b) the quantity of each of the Goods sold; (c) the requested delivery date; (d) the unit Price for each of the Goods to be sold; (e) the billing address; and (f) the Delivery Location. For the avoidance of doubt, the term “Basic Sales Order Terms” does not include any general terms or conditions of any Purchase Order.
“Business Day” means any day except Saturday, Sunday or any other day on which commercial banks located in Chicago, Illinois are authorized or required by Law to be closed for business.
“Claim” means any Action brought against a Person entitled to indemnification under ARTICLE XV.
“Conforming Goods” means Goods that are not Nonconforming Goods.
“Control” (and with correlative meanings, the terms “Controlled by” and “under common Control with”) means, with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of another Person, whether through the ownership of voting securities, by contract, or otherwise.
“Defective” means not conforming to the warranties
“Defective Goods” means goods shipped by Seller to Buyer pursuant to this Agreement that are Defective..
“Delivery Location” means the street address specified in the applicable Purchase Order.
“Disclosing Party” has the meaning set forth in ARTICLE XII
“Excess Goods” means any goods received by Buyer from Seller pursuant to a Purchase Order that materially exceed the quantity of Goods ordered by Buyer pursuant to this Agreement or any Purchase Order. Where the context requires, Excess Goods are deemed to be Goods for purposes of this Agreement.
“Goods” means the goods set forth in the order.
“Governmental Authority” means any federal, state, local, or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations, or orders of such organization or authority have the force of Law), or any arbitrator, court, or tribunal of competent jurisdiction.
“Governmental Order” means any order, writ, judgment, injunction, decree, stipulation, award or determination entered by or with any Governmental Authority.
“Law” means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, Governmental Order, or other requirement or rule of law of any Governmental Authority.
“Losses” has the meaning set forth in Section 15.01.
“Nonconforming Goods” means any goods received by Buyer from Seller pursuant to a Purchase Order or Sales Order that: (i) do not conform to the product type listed in the applicable Purchase Order or Sales Order; (ii) do not significantly conform to the Specifications; or (iii) materially exceed the quantity of Goods ordered by Buyer pursuant to this Agreement or any Purchase Order or Sales Order. Where the context requires, Nonconforming Goods are deemed to be Goods for purposes of this Agreement.
“Patents” means all patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions, and extensions thereof), patent applications, and other patent rights and any other Governmental Authority-issued indicia of invention ownership (including inventor’s certificates, petty patents, and patent utility models).
“Person” means any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, association, Governmental Authority, or any other entity.
“Personnel” means agents, employees, or subcontractors engaged or appointed by Seller or Buyer.
“Price” has the meaning set forth in the order
“Purchase Order” means Buyer’s purchase order issued to Seller hereunder, including all terms and conditions attached to, or incorporated into, such purchase order.
“Representatives” means a Party’s Affiliates, employees, officers, directors, partners, shareholders, agents, attorneys, third-party advisors, successors, and permitted assigns.
“Sales Order” means Seller’s sales order issued to Buyer hereunder, including all terms and conditions attached to, or incorporated into, such sales order.
“Seller’s Intellectual Property Rights” means all Intellectual Property Rights owned by or licensed to Seller.
“Seller’s Trademarks” means all Trademarks owned or licensed by Seller.
“Specifications” means the specifications for the Goods as set forth in a Purchase Order or Sales Order.
“Third-Party Product” has the meaning set forth in Section 14.04
“Trademarks” means all rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names, and domain names, and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals and extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world.
“Trade Secrets” means all inventions, discoveries, trade secrets, business and technical information, and know-how, databases, data collections, patent disclosures, and other confidential and proprietary information and all rights therein.