The seller of the product, Ergon International Inc., and any of its subsidiaries or affiliated companies shall hereinafter be referred to as “Seller.” The buyer of the product shall hereinafter be referred to as “Buyer.” These general terms and conditions apply to any and all sales of product by Seller to Buyer, with exclusion of any other terms and conditions of the Buyer. Notwithstanding the foregoing, these terms and conditions shall not apply to purchase orders issued under an ongoing contract of sale which has been signed by both parties, unless such contract of sale specifically includes these general terms and conditions.
PRICE – Unless otherwise specifically agreed to by the Seller and Buyer in writing, Seller’s offered price valid on the date the product is loaded on the carrier shall be applied for all sales. Any discrepancies between the offered price (determined in accordance with the previous sentence) and the price mentioned on the invoice must be notified in writing to the Seller within fifteen (15) calendar days following the date of the invoice at the latest. If the Buyer does not do so, the Buyer will be deemed to agree with the price mentioned on the invoice.
PAYMENT – Subject to ongoing credit approval by Seller, and unless otherwise agreed to in writing, terms of payment shall be thirty (30) calendar days from date of invoice. All bank charges or expenses related to the payment of the invoice shall be for Buyer’s account. Seller reserves the right to withhold shipment for Buyer’s (a) late payment; (b) non-payment; or (c) failure to provide reasonable assurance of payment upon Seller’s request. Any invoice that is not paid in accordance with the payment terms shall accrue interest at a rate of ten percent (10%) per annum on the outstanding balance of the invoice until such invoice is paid in full, including any interest which has accrued. However, the interest due shall only accrue interest at a rate of ten percent (10%) per annum if such accrued interest has been due for over one (1) year. In addition, Buyer shall be responsible for Seller’s costs of collection of any amounts due equal to a lump sum of 10% of the amounts due. In the event Buyer shall fail to make timely payment of any monies due and owing to Seller, Seller may set off, withhold or recoup any payments due under this or any other agreement between the parties, without any prior notification to the Buyer.
TAXES – Any tax, excise or governmental charge imposed upon the value added to the production, sale, storage, use or transportation of any product sold hereunder, or imposed upon crude oil or any other raw materials from which such product is made, which Seller may be required to pay, shall be paid by Buyer to Seller in addition to the purchase price. Buyer shall provide Seller, on request, with properly completed exemption certificates for any tax from which Buyer claims exemption.
TITLE; RISK OF LOSS – (a) Unless specifically agreed to otherwise in writing, if Seller is arranging for transportation, risk of loss shall pass to Buyer DDP Buyer’s facility or the place specified in the purchase order acknowledgement (Incoterms 2010). Unless specifically agreed to otherwise in writing, if Buyer is arranging for transportation, the risk of loss shall pass to Buyer EXW Seller’s facility or the place specified in the purchase order acknowledgement (Incoterms 2010).
(b) The title to the product shall pass to the Buyer, simultaneously with the transfer of the risk of loss, as set forth in paragraph (a).
PRODUCT QUANTITY AND QUALITY – Seller may supply an excess or deficiency of product of up to 5% of the weight or volume ordered and Buyer shall pay for the actual quantity supplied. Only differences in net weight or volume in excess of 5% may be subject to quantity claims. Seller shall measure, sample and test product in its customary manner at the loading location to determine the quantity and quality of product loaded. The results of such measurement, sampling and testing shall be treated, in the absence of fraud or manifest error, as conclusive and binding as to the quantity and quality of product loaded. Claims as to shortage in quantity or defects in quality shall be made by written notice from Buyer to Seller within ten (10) business days after the delivery in question or shall be deemed to have been waived.
LIMITED WARRANTY – At the time of delivery, the product sold hereunder shall conform to Seller’s standard specifications at the time of the order confirmation (with such standard specifications to be accessed from www.ergoninternational.com/products) or such other specifications expressly agreed upon in writing. Seller makes no warranty, express or implied, of merchantability, fitness for any other use or otherwise of the products, whether used singly or in combination with other substances or in any other progress.
LIMITATION OF REMEDIES – Defective or nonconforming product shall be replaced by Seller without additional charge, or in lieu thereof, at the Seller’s option, the Seller may refund the purchase price upon return of the product at Seller’s expense. The foregoing remedies are Buyer’s exclusive remedies for defective or nonconforming product.
LIMITATION OF LIABILITY – (a) Notwithstanding any other provision, the Seller shall only be liable for direct damages arising out of or related to any sale of Seller’s product to Buyer, regardless whether the action in which recovery of any such damages is sought is based upon contract, tort, statute or otherwise.
(b) In no event shall the Seller be liable for special, incidental, consequential or reputational damages (such as but not limited to loss of profit and loss of opportunity) arising out of or related to any sale of product to Buyer (including without limitation the sale or use of products), whether the action in which recovery of any such damages is sought is based upon contract, tort, statute or otherwise, even if Seller has been advised of the possibility of such damages.
(c) Notwithstanding any other provision, Seller’s total liability to Buyer for any and all claims, losses or damages arising out of, connected with or resulting from the sale, purchase and use of products purchased by Buyer from Seller, shall in no event exceed the purchase price of the product in respect to which such cause arose. Buyer acknowledges that this limitation of liability is reasonable and that the price of Seller’s product has been determined based upon the foregoing limitation of liability.
COMMENCEMENT OF ACTION – Any cause of action that Buyer may have against Seller and which may arise under any sales agreement must be commenced within one (1) year after the delivery of the products.
COMPLIANCE WITH LAWS AND REGULATIONS – Buyer agrees to indemnify and hold Seller harmless against all losses, claims, causes of action, penalties and liabilities arising out of Buyer’s failure to comply with all applicable laws, ordinances, regulations, rules and orders.
FAILURE IN PERFORMANCE – (a) With the exception of payment obligations associated with any sales agreement, no liability shall result to either party from delay in performance or non-performance in whole or in part caused by circumstances reasonably beyond the control of the party affected including, but not limited to, acts of God, fire, flood, war, accident, explosion, breakdowns or labor trouble; embargoes or other import or export restrictions; shortage or inability to obtain energy, equipment, transportation, product deliverable hereunder, crude petroleum or other feedstock from which said product is derived; or good faith compliance with any regulation, direction or request (whether valid or invalid) made by any governmental authority or person purporting to act therefor.
(b) Regardless of the occurrence or non-occurrence of any of the causes set forth in paragraph (a) above, if for any reason, any of Seller’s existing sources are curtailed or cutoff or are inadequate to meet Seller’s own requirements and its obligations to the Buyer, Seller’s obligation to the Buyer during such period of curtailment, cessation or inadequacy shall at its option be reduced to the extent necessary in Seller’s sole judgment to allocate among Seller’s own requirements, Buyer, and Seller’s other customers (whether under contract or not) such product as received and as may be available in the ordinary and usual course of Seller’s business.
(c) In the event set forth in paragraph (b), Seller shall not be obligated to purchase or otherwise obtain other supplies of such product, crude petroleum or other feedstock from which such product is derived to make up inadequate supplies or to replace the supplies so curtailed or cut off. Seller shall not be obligated to make up deliveries omitted or curtailed hereunder, and any such deficiencies in deliveries shall be canceled from any sales agreement with no liability to either party therefor.
SAFETY, HEALTH AND INDEMNITY – Each party agrees that its agents and employees shall comply with all safety regulations of the other when such agents or employees are upon the premises of the other in connection with the performance of any sales agreement. Seller shall furnish to Buyer material safety data sheets, including warnings and safety and health information concerning the product and/or the containers for such product sold hereunder. Buyer agrees to communicate such information to all persons Buyer can reasonably foresee may be exposed to or may handle such materials or containers, including but not limited to Buyer’s employees, agents, contractors or customers.
FACILITY ACCESS AGREEMENT – Seller acknowledges that, in the event Buyer elects to take delivery at Seller’s facility, Seller may require Buyer to execute Seller’s form of facilities access agreement and to provide satisfactory evidence of insurance coverages as set forth in the facilities access agreement. In the event Buyer nominates a common or contract carrier to take delivery at Seller’s facility, then Buyer shall furnish to Seller the name(s) and address(es) of nominated carrier(s) and shall assist Seller in securing from carrier(s) signed facilities access agreement(s) and certificate(s) of insurance.
LANGUAGE – In case of any inconsistency between the English version of these General Provisions and a version in any other language, the English version shall prevail.
SANCTIONS AND EMBARGOES – Buyer shall ensure that no volumes of the product will reach any countries, entities or individuals which are under sanctions and/or blockades of the United States and/or the European Union.
MISCELLANEOUS – Any sales agreement shall not be assigned in whole or in part by either party without the written consent of the other party, except that Seller may, upon written notice to Buyer, assign its obligation hereunder to any subsidiary of or affiliate of Seller.
No waiver by either party of any breach of any of the terms and conditions hereunder contained shall be construed as a waiver of any succeeding breach of the same or any other term and condition.
No modification of any sales agreement shall be of any force or effect unless such modification is in writing and signed by the party to be bound thereby.
Any sales agreement shall be construed and enforced under the laws of Belgium, with exclusion of the United Nations Convention on Contracts for the International Sale of Goods (1980). Both parties agree that any action arising out of any sales agreement shall be exclusively brought in the state courts of Antwerp, Belgium.