Terms of Sale
1. GENERAL TERMS
INITIAL CAPITALIZED WORDS NOT DEFINED IN THESE TERMS OF SALE HAVE THE MEANINGS ASSIGNED TO THEM IN THE AGREEMENT (THE “SALES AGREEMENT”) BY WHICH ZEON HAS AGREED TO SELL AND CUSTOMER HAS AGREED TO PURCHASE PRODUCTS (THE “PRODUCTS”). THESE TERMS OF SALE FORM AN INTEGRAL PART OF THE SALES AGREEMENT AND ARE INCORPORATED THEREIN BY THIS REFERENCE. TO THE EXTENT ANY PROVISIONS OF THE SALES AGREEMENT CONFLICT WITH THE PROVISIONS OF THESE TERMS OF SALE, THESE TERMS OF SALE SHALL CONTROL.
2. DELIVERY, PACKING AND PRICING
A. PRODUCT SHALL BE SUITABLY PACKED AND SHIPPED AS DESIGNATED BY ZEON IN ACCORDANCE WITH REQUIREMENTS OF COMMON CARRIERS IN A MANNER TO SECURE LOWEST TRANSPORTATION COST.
B. PRICES FOR PRODUCT AND DELIVERY OF PRODUCT SHALL BE FOB ZEON’S FACILITY DESIGNATED BY IT AS THE PLACE OF SHIPMENT (THE “FACILITY”), IN ACCORDANCE WITH SECTION 2-319 OF THE KENTUCKY UNIFORM COMMERCIAL CODE – SALES (KRS 355.2-319) IN EFFECT AS OF THE DATE OF SHIPMENT.
C. ZEON RESERVES THE RIGHT TO SELL REMANUFACTURED PRODUCT.
3. ADDITIONAL DELIVERY AND PAYMENT TERMS
IF ZEON FAILS TO DELIVER PRODUCT ON THE DELIVERY DATE SET FORTH IN THE SALES AGREEMENT, CUSTOMER SHALL GIVE ZEON WRITTEN NOTICE OF THAT DELINQUENCY AND SHALL ALLOW ZEON A REASONABLE PERIOD OF TIME TO CURE THAT DEFICIENCY; PROVIDED, THAT ZEON SHALL BE CONSIDERED IN DEFAULT OF ITS OBLIGATION TO DELIVER SUCH PRODUCT IF SUCH PRODUCT IS NOT DELIVERED BEFORE THE LATER OF (A) 30 DAYS AFTER SUCH NOTICE FROM CUSTOMER, OR (B) 60 DAYS AFTER THE DELIVERY DATE SET FORTH IN THE SALES AGREEMENT. UNLESS OTHERWISE EXPRESSLY SET FORTH IN THE SALES AGREEMENT, PRODUCT NEED NOT BE TENDERED BY ZEON IN A SINGLE DELIVERY, AND PAYMENT BY CUSTOMER IS DUE WITH RESPECT TO EACH TENDER OR DELIVERY OF PRODUCT, AND MAY NOT BE WITHHELD BY CUSTOMER UNTIL ALL PRODUCT TO BE PURCHASED UNDER THE SALES AGREEMENT IS TENDERED OR DELIVERED. PAYMENT SHALL BE DUE FROM CUSTOMER NET THIRTY (30) DAYS AFTER ZEON’S INVOICE, WHICH INVOICE MAY BE DELIVERED BY ZEON TO CUSTOMER AT ANY TIME FOLLOWING ZEON’S DELIVERY OF THE RELEVANT PRODUCT AT THE DELIVERY POINT. ALL PAYMENTS SHALL BE MADE TO ZEON AT THE FOLLOWING ADDRESS WITHOUT SET-OFF OR DEDUCTION: ZEON CHEMICALS LP, 4100 BELLS LANE, LOUISVILLE, KENTUCKY 40211, ATTN: ACCOUNTS PAYABLE DEPARTMENT.
4. TITLE AND RISK OF LOSS
TITLE TO PRODUCT SHALL BE VESTED IN CUSTOMER AT SUCH TIME AS THE PRODUCT HAS BEEN TENDERED BY ZEON TO THE DELIVERY POINT AND CUSTOMER HAS PAID THE FULL PURCHASE PRICE FOR SUCH PRODUCT, BUT NOT BEFORE. RISK OF LOSS OR DAMAGE TO PRODUCT SHALL PASS TO CUSTOMER UPON TENDER OF SUCH PRODUCT BY ZEON AT THE DELIVERY POINT.
5. WARRANTY; CUSTOMER REJECTION
A. ZEON WARRANTS TO CUSTOMER THAT PRODUCT SHALL BE FREE FROM DEFECTS IN DESIGN, MATERIALS AND WORKMANSHIP. THE WARRANTY PERIOD SHALL BE FOR 12 MONTHS FROM SHIPMENT DATE. ANY WARRANTY CLAIMS MADE BY CUSTOMER FOLLOWING THAT PERIOD SHALL BE INEFFECTIVE. CUSTOMER WARRANTY CLAIMS, TO BE EFFECTIVE, MUST BE DELIVERED BY CUSTOMER TO ZEON IN WRITING AT THE FOLLOWING ADDRESS, AND MUST IDENTIFY THE PRODUCT(S) IN QUESTION, THE RELEVANT DATE(S) OF ITS DELIVERY BY ZEON AND THE PARTICULAR DEFECT(S) IN REASONABLE DETAIL: ZEON CHEMICALS LP, 4100 BELLS LANE, LOUISVILLE, KENTUCKY 40211, ATTENTION: DIRECTOR OF SALES.
B. CUSTOMER SHALL ALSO NOTIFY ZEON OF ANY REJECTION OF PRODUCT FOR FAILURE TO CONFORM TO THE SALES AGREEMENT, GIVING DETAILED REASONS FOR THE REJECTION, WITHIN TEN (10) DAYS AFTER CUSTOMER’S RECEIPT OF SUCH PRODUCT. FAILURE OF CUSTOMER TO REJECT ANY PRODUCT WITHIN THAT PERIOD SHALL CONSTITUTE ACCEPTANCE.
C. IF CUSTOMER REJECTS PRODUCT FOR SUCH NONCONFORMITY OR MAKES A WARRANTY CLAIM, IN EITHER CASE IN ACCORDANCE WITH THE REQUIREMENTS SET FORTH ABOVE, CUSTOMER SHALL ALLOW ZEON A REASONABLE PERIOD OF TIME THEREAFTER TO REMEDY THE RELEVANT NON-CONFORMITY OR DEFECT (SUBJECT TO ANY CLAIM BY ZEON THAT THE PRODUCT WAS CONFORMING OR WAS NOT DEFECTIVE, AS APPLICABLE). CUSTOMER SHALL RENDER NECESSARY ASSISTANCE TO ZEON IN CONNECTION WITH THAT EFFORT, AND SHALL FURNISH ADEQUATE MEANS FOR OPERATING AND TESTING THE RELEVANT PRODUCT.
D. SHOULD PRODUCT PROVE TO BE NONCONFORMING WITH THE SALES AGREEMENT OR DEFECTIVE UNDER THE WARRANTY PROVIDED FOR ABOVE, AND THAT NONCONFORMITY OR DEFECT IS NOT REMEDIED BY ZEON WITHIN THE TIME PERIOD CONTEMPLATED ABOVE, CUSTOMER MUST RETURN THE PARTICULAR PRODUCT TO ZEON AT ZEON’S EXPENSE. CUSTOMER SHALL IMMEDIATELY NOTIFY ZEON OF THE RETURN BY REGISTERED MAIL ADDRESSED TO ZEON, AND ZEON SHALL THEN, AT ITS OPTION, EITHER REPLACE THE RELEVANT PRODUCT WITH CONFORMING OR NON-DEFECTIVE PRODUCT, OR RESCIND THE SALES AGREEMENT WITH RESPECT TO THE NONCONFORMING OR DEFECTIVE PRODUCT AND RETURN TO CUSTOMER ANY PURCHASE PRICE AMOUNTS ALREADY PAID FOR THAT NONCONFORMING OR DEFECTIVE PRODUCT.
E. IF ZEON DOES CURE THE NONCONFORMITY OR DEFECT AT ITS COST, CUSTOMER SHALL REMAIN OBLIGATED FOR THE TIMELY PAYMENT OF THE FULL PRICE AS SET FORTH IN SALES AGREEMENT FOR THAT PRODUCT.
F. ZEON’S WARRANTY SHALL IMMEDIATELY BECOME NULL AND VOID WITH RESPECT TO ANY PRODUCT TO THE EXTENT IT HAS BEEN SUBJECT TO (A) OTHER THAN NORMAL WEAR AND TEAR, OR (B) ANY UNREASONABLE USE, INSTALLATION OR REPAIR (INCLUDING WITHOUT LIMITATION, ANY USE, INSTALLATION OR REPAIR IN A MANNER THAT IS INCONSISTENT WITH WRITTEN GUIDELINES THAT MAY HAVE BEEN DELIVERED BY ZEON TO CUSTOMER), ANY INSTALLATION OR REPAIR BY UNAUTHORIZED SERVICE PERSONNEL, OR ANY TAMPERING, NEGLIGENCE, ABUSE OR ACCIDENT UNDERTAKEN OR CAUSED BY ANY PERSON OR ENTITY OTHER THAN ZEON OR ITS EMPLOYEES OR AGENTS.
G. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OF TECHNOLOGICAL VALUE, ALL OF WHICH OTHER WARRANTIES ARE HEREBY DISCLAIMED.
H. THE REMEDY OF CUSTOMER PROVIDED FOR IN SECTION 5.D ABOVE SHALL BE ZEON’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY RESULTING FROM, ARISING OUT OF OR WITH RESPECT TO ANY BREACH OF ZEON’S WARRANTY SET FORTH IN SECTION 5.A.
6. FIT FOR PURPOSE
TECHNICAL OR APPLICATIONS SUPPORT, COMPOUNDING FORMULATIONS, AND REGULATORY/PRODUCT STEWARDSHIP INFORMATION ARE PROVIDED FOR CUSTOMER OR BUYER KNOWLEDGE ONLY AND DO NOT MODIFY, AMEND, ENLARGE OR CREATE ANY SPECIFICATION OR WARRANTY. BY RECEIPT AND USE OF ZEON PRODUCTS AND/OR MATERIALS, RECIPIENTS EXPRESSLY ACKNOWLEDGE AND AGREE THAT RECIPIENTS ARE RESPONSIBLE FOR DETERMINING AND ENSURING THAT ALL CONDITIONS, SPECIFICATIONS, AND LEGAL AND REGULATORY REQUIREMENTS ARE MET AND THAT ALL PRODUCTS OR COMPONENTS FABRICATED FROM ZEON PRODUCTS AND/OR MATERIALS ARE ACCEPTABLE FOR USE IN THE INTENDED APPLICATIONS.
7. EXCUSABLE DELAY
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR DAMAGES FOR ANY DELAY IN PERFORMANCE UNDER THE SALES AGREEMENT ARISING OUT OF CAUSES OR CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL AND WITHOUT ITS NEGLIGENCE OR WILLFUL MISCONDUCT; PROVIDED THAT CUSTOMER’S OBLIGATION TO PAY THE PURCHASE PRICE FOR PRODUCT WHEN DUE SHALL NOT BE SUSPENDED OR EXCUSED BY ANY CAUSES OR CIRCUMSTANCES OF THE TYPE(S) CONTEMPLATED ABOVE.
8. CHANGES
ZEON RESERVES THE RIGHT AT ANY TIME TO MAKE CHANGES IN (A) ITS DRAWINGS AND SPECIFICATIONS, (B) METHODS OF PACKAGING AND SHIPPING, AND (C) PRICES FOR PRODUCT PRIOR TO ITS ACCEPTANCE OF ANY CUSTOMER PURCHASE ORDER OR ANY OTHER COMMITMENT BY ZEON TO SELL SUCH PRODUCT TO CUSTOMER.
9. INSOLVENCY
IN EVENT OF INSOLVENCY AS DEFINED IN THE UNIFORM COMMERCIAL CODE IN EFFECT IN KENTUCKY (KRS CHAPTER 355.2), ANY ACT OF BANKRUPTCY, WHETHER VOLUNTARY OR INVOLUNTARY, OR ANY INSOLVENCY PROCEEDING INSTITUTED, BY OR AGAINST CUSTOMER, ZEON SHALL BE ENTITLED, IN ITS DISCRETION, TO (A) CANCEL THE SALES AGREEMENT (AND ANY CUSTOMER’S PURCHASE ORDER THEN OUTSTANDING) AND TO RECEIVE REIMBURSEMENT FOR ZEON’S REASONABLE AND PROPER CANCELLATION CHARGES, (B) REFUSE DELIVERY OF PRODUCT EXCEPT FOR CASH INCLUDING PAYMENT FOR ALL PRODUCT DELIVERED, AND/OR (C) STOP DELIVERY OF PRODUCT IN TRANSIT.
10. RELEASE
ZEON AND CUSTOMER EACH AGREE TO RELEASE AND WAIVE ANY LIABILITY OF AND CLAIM AGAINST THE OTHER, ITS OFFICERS, AGENTS AND EMPLOYEES, FOR PHYSICAL LOSS OF OR PHYSICAL DAMAGE TO PROPERTY OR INJURY OR DEATH TO ANY PERSON(S), INCLUDING LOSS OF USE, ARISING DIRECTLY OR INDIRECTLY OUT OF OR IN CONNECTION WITH THE OTHER’S PERFORMANCE UNDER THE SALES AGREEMENT.
11. CONFIDENTIALITY; PROPRIETARY PROPERTY
A. EACH PARTY AGREES TO HOLD IN STRICTEST CONFIDENCE THE CONTENTS OF THIS AGREEMENT AND ANY INFORMATION PROVIDED TO IT BY THE OTHER PARTY, EXCEPT TO THE EXTENT THESE TERMS OF SALE HAVE BEEN OR MAY BE INCLUDED BY ZEON ON ITS WEBSITE OR OTHERWISE PLACED IN THE PUBLIC DOMAIN BY ZEON (AT ITS SOLE DISCRETION), AND EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE LAW OR JUDICIAL PROCESS.
B. ZEON RETAINS ALL TITLE AND ALL ASSOCIATED RIGHTS TO ITS INTELLECTUAL PROPERTY, INCLUDING WITHOUT LIMITATION, ALL TRADEMARKS, TRADE NAMES, COPYRIGHTS, PATENTS, FORMULAE, METHODS, PROCESSES, INVENTIONS, RECIPES, PRODUCT PACKAGING, ASSOCIATED MARKINGS, ADVERTISING, MARKETING MATERIALS AND MANUALS, WHICH MAY NOT BE COPIED, REMOVED, DISGUISED OR CHANGED BY CUSTOMER.
12. COMPLIANCE
A. CUSTOMER ACKNOWLEDGES THAT ZEON HAS INFORMED IT THAT US LAW AND US EXPORT ADMINISTRATION REGULATIONS GOVERN, AND MAY PROHIBIT THE RE-EXPORT OR OTHER DISPOSITION OF PRODUCT AND RELATED TECHNICAL DATA RECEIVED BY CUSTOMER OR ITS CUSTOMERS FROM ZEON WITHOUT PRIOR US GOVERNMENT APPROVAL.
B. CUSTOMER AGREES THAT DIVERSION OF PRODUCT FROM DESTINATIONS IDENTIFIED IN THE SHIPPER’S EXPORT DECLARATION CONSTITUTES A FUNDAMENTAL AND MATERIAL BREACH UNDER SALES AGREEMENT. IF PRODUCT IS DIVERTED FROM INTENDED DESTINATIONS, THE SALE MAY BE VOIDED AT THE SOLE DISCRETION OF ZEON, AND ALL RIGHT, TITLE AND INTEREST IN PRODUCT SHALL REVERT TO ZEON. IN THE EVENT OF SUCH BREACH, CUSTOMER SHALL BE LIABLE TO ZEON FOR ALL COSTS, FEES AND EXPENSES INCURRED BY ZEON IN CONNECTION WITH RECOVERY OF PRODUCT, INCLUDING REASONABLE ATTORNEY FEES.
C. CUSTOMER AGREES AND WARRANTS THAT IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THE SALES AGREEMENT OR ITS USE OR TRANSPORTATION OF PRODUCT, CUSTOMER WILL AT ALL TIMES COMPLY WITH ALL APPLICABLE DOMESTIC AND FOREIGN LAWS, RULES AND REGULATIONS, INCLUDING WITHOUT LIMITATION, ALL IMPORT AND EXPORT LAWS, RULES AND REGULATIONS, AND THE U.S. FOREIGN CORRUPT PRACTICES ACT.
13. MISCELLANEOUS
A. ZEON’S ACCEPTANCE OF ANY TERMS OR CONDITIONS SET FORTH IN ANY PURCHASE ORDER OR OTHER FORM OF CUSTOMER PROVIDED TO ZEON IS CONDITIONED ON CUSTOMER’S ASSENT TO AND ACCEPTANCE OF ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS SET FORTH IN THESE TERMS OF SALE OR IN ANY PROPOSAL, CONFIRMATION OR OTHER FORM PROVIDED BY ZEON TO CUSTOMER. ACCEPTANCE OF ANY OFFER MADE BY ZEON TO CUSTOMER IN THESE TERMS OF SALE OR IN ANY PROPOSAL, CONFIRMATION OR OTHER FORM PROVIDED BY ZEON TO CUSTOMER IS LIMITED TO THE TERMS OF THAT OFFER. ANY ADDITIONAL OR DIFFERENT TERMS SET FORTH IN CUSTOMER’S ACCEPTANCE ARE REJECTED AND EXCLUDED.
B. ANY ACTION, SUIT OR PROCEEDING BY CUSTOMER ON ACCOUNT OF OR WITH RESPECT TO ANY BREACH BY ZEON OF ANY OF ITS DUTIES OR OBLIGATIONS UNDER THE SALES AGREEMENT, TO BE EFFECTIVE AND ELIGIBLE FOR PROSECUTION AGAINST ZEON, MUST BE COMMENCED WITHIN 1 YEAR OF DATE OF THE BREACH OR IT SHALL BE DEEMED TO BE BARRED.
C. EXCEPT AS OTHERWISE PROVIDED IN THE FOLLOWING SENTENCE, AT NO TIME SHALL EITHER PARTY HERETO BE ENTITLED TO RECOVER FROM THE OTHER PARTY ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOST REVENUES, LOST PROFITS OR LOST BUSINESS OPPORTUNITY, WHETHER ARISING OUT OF A BREACH OF ZEON’S WARRANTY SET FORTH IN SECTION 5.A OR ANY OTHER OBLIGATION OF ZEON UNDER THE SALES AGREEMENT (INCLUDING THESE TERMS OF SALE), OR OTHERWISE, ALL OF WHICH ARE HEREBY DISCLAIMED AND EXCLUDED. NOTWITHSTANDING THE FOREGOING, ZEON SHALL BE ENTITLED TO RECOVER FROM CUSTOMER ANY INCIDENTAL DAMAGES OF THE TYPES CONTEMPLATED IN SECTION 2-710 OF THE KENTUCKY UNIFORM COMMERCIAL CODE – SALES (KRS 355.2-710) TO THE EXTENT ARISING OUT OF ANY BREACH OF THE SALES AGREEMENT BY CUSTOMER, IN ADDITION TO ALL OTHER REMEDIES. ZEON’S DAMAGES FOR A BREACH OF THE SALES AGREEMENT BY CUSTOMER SHALL BE CUMULATIVE TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
D. THE SALES AGREEMENT (INCLUDING THESE TERMS OF SALE) CONSTITUTES THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN ZEON AND CUSTOMER WITH RESPECT TO THE SUBJECT MATTER THEREOF, AND SUPERSEDES ANY PRIOR OR CONTEMPORANEOUS WRITTEN OR ORAL AGREEMENTS OR UNDERSTANDINGS WITH RESPECT TO THAT SUBJECT MATTER. THE SALES AGREEMENT IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE TERMS OF THE PARTIES’ AGREEMENT.
E. THE SALES AGREEMENT MAY NOT BE AMENDED, MODIFIED OR SUPPLEMENTED EXCEPT IN A WRITING SIGNED BY ZEON AND CUSTOMER.
F. NEITHER ZEON NOR CUSTOMER SHALL BE DEEMED TO HAVE WAIVED ANY RIGHT OR REMEDY UNDER OR AVAILABLE PURSUANT TO THE SALES AGREEMENT UNLESS SUCH WAIVER IS IN WRITING AND SIGNED BY THE PARTY AGAINST WHICH ENFORCEMENT OF THE WAIVER IS SOUGHT.
G. ZEON SHALL BE PERMITTED IN ITS DISCRETION TO ASSIGN ITS RIGHTS UNDER THE SALES AGREEMENT, IN WHOLE OR IN PART, AND TO DELEGATE ITS PERFORMANCE OF THE SALES AGREEMENT, IN WHOLE OR IN PART, TO ONE OR MORE OTHER PERSONS OR ENTITIES; PROVIDED, THAT SUCH AN ASSIGNMENT OR DELEGATION SHALL NOT RELIEVE ZEON FROM ANY OF ITS OBLIGATIONS UNDER THE SALES AGREEMENT.
H. IN THE EVENT ANY PROVISION OF THE SALES AGREEMENT SHALL BE OR BECOME UNENFORCEABLE IN WHOLE OR IN PART, THE REMAINDER OF THE SALES AGREEMENT SHALL NOT BE AFFECTED THEREBY AND SHALL REMAIN ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, UNLESS SUCH ENFORCEMENT WOULD FRUSTRATE THE PARTIES’ ESSENTIAL OBJECTIVES AS REFLECTED IN THE SALES AGREEMENT AS ORIGINALLY AGREED TO BY THE PARTIES.
I. HEADINGS SET FORTH IN THESE TERMS OF SALE ARE CONVENIENCE ONLY AND DO NOT CONSTITUTE A PORTION OF THESE TERMS OF SALE.
J. THE SALES AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF KENTUCKY, WITHOUT REGARD TO ITS CONFLICTS OF LAWS, RULES, OR PRINCIPLES.