ChromaScape LLC - Terms and Conditions of Sale
1. ChromaScape® LLC, (under its own name or under its various brand names including Amerimulch®, Solution Dispersions®, ChromaPave®, Innotech™ and/or Innotech Decorative Concrete Products™, or any brands that may be developed in the future) (hereinafter, “Seller”), does hereby sell and buyer (hereinafter, “Buyer”) does hereby purchase goods as listed on a separate Purchase Order from Buyer to Seller. Notwithstanding any other wording on the purchase order or buyer’s paperwork, the terms and conditions of sale contained herein are to be in effect between any sale from ChromaScape® to Buyer.
2. These Terms and Conditions shall apply to sales of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions referred to, offered or relied on by the Buyer whether in negotiation or at any stage in the dealings between the parties, including any standard or printed terms tendered by the Buyer, unless the Buyer and Seller have mutually agreed to other terms in a mutually signed and executed writing. Any variation to these Terms and Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller.
3. The price shall be as agreed in writing between the parties, and shall be exclusive of any local taxes, sales taxes, import or duties, VAT or other applicable costs. Buyer shall be solely responsible for obtaining any permits, licenses, or other local and regional permissions, if any, for use of the goods or services being procured.
4. Credit terms offered are contingent upon completion of credit application, and satisfactory results to information requested therein. The offer of credit will be at the sole discretion of the Seller.
5. Where credit is offered payment of the price and VAT and any other applicable costs shall be due within 30 days of the date of the invoice supplied by the Seller, unless otherwise agreed in writing. In cases where credit is not offered payment will be required before release of goods by the Seller. The Seller shall be entitled to charge interest on overdue invoices from the date when payment becomes due from day to day until the date of payment at a rate of 1.5% per annum. Further, if payment of the price or any part thereof is not made within 30 days of the due date, the Seller shall be entitled to require payment in advance of delivery in relation to any Goods not previously delivered, and to refuse to make delivery of any undelivered Goods without incurring any liability whatever to the Buyer for non-delivery or any delay in delivery.
6. Shipment, Delivery, Risk of Loss - Unless otherwise agreed in writing, SELLER shall arrange shipping of Goods to Buyer on, or as close as possible to the date required by the Buyer, and Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. SELLER shall use licensed brokered freight companies, and risk of loss of the Goods shall pass to the Buyer upon receipt of the goods. Where the Buyer chooses to arrange shipment and pick up of Goods itself, risk passes to BUYER when the Goods are entrusted to it, or to the carrier it has chosen, at time Goods leave direct control of SELLER. Title in the Goods passes to the Buyer at same time as risk of loss; BUYER shall owe SELLER purchase price at time of transfer of risk of loss.
6. Warranties - Seller warrants that product sold shall be consistent from batch to batch and lot to lot and shall be commercially similar to the sample initially approved by Buyer. Product shall be merchantable, but NO WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE IS GIVEN NOR SHALL BE IMPLIED. Buyer must qualify product for its’ specific particular purpose(s) and any risk of improper performance for the product in that purpose shall rest with Buyer, unless above warranty of consistency is materially breached. Liability shall be limited to replacement of inconsistent or defective product. Where a sample of the Goods is shown to and inspected by the Buyer, the parties hereto accept that such a sample is representative in nature and the bulk of the order may differ slightly as a result of the manufacturing process.
7. Seller shall comply with the following United States laws and regulations - OSHA, DOT regulations, TSCA, RCRA, and California Proposition 65. If customer requires compliances with any other environmental, regulatory, or quality framework, Buyer must specifically present this information to Seller, and Seller shall have right to refuse to produce or to refuse, or to refuse to undertake regulatory requirements and reporting requirements involved in, complying with said regulation at its’ sole discretion. If complying with regulation, Seller will inform customer thereof and Customer shall then have right to expect Seller to conform in professional manner to said regulation or requirement.
8. All goods are sold on a firm sale basis. For Custom or Non-Standard Products, the order cannot be cancelled once it is officially placed. Customers are advised to be certain that the order is accurate when placed, because we will be purchasing materials and invoking costs from the time we receive a Custom or Non-Standard order. For Standard Products, the Seller will not take back any goods not required or sold by the Buyer, unless otherwise pre-authorized by management in writing, in which case, any returns must be accepted back by Seller in re-marketable condition, and any credit given is subject to reasonable restocking fees and shipping and handling charges. If and when Seller agrees to accept the return of goods that are not damaged the Buyer will be responsible for the cost of carriage and will ensure that they are carefully packaged to avoid any damage in transit. The Seller will not be obliged to accept any goods that are damaged in any way, and credit will only be given for goods that are in saleable condition.
9. LIMITATION OF LIABILITY - Seller shall not be liable for any loss or damage suffered by the Buyer in excess of the contract price, unless due to recklessness or deliberate intent of Seller, Seller’s employees, or agents. SELLER SPECIFICALLY DISCLAIMS CONSEQUENTIAL DAMAGES.
10. INTELLECTUAL PROPERTY RIGHTS - All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become the absolute property of the Seller, and the Buyer shall do all that is reasonably necessary to ensure that such rights vest in the Seller by the execution of appropriate instruments or the making of agreements with third parties.
11. FORCE MAJEURE - The Seller shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, pandemic, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the Seller shall be entitled to a reasonable extension of its obligations. If the delay persists for such time as the Seller considers unreasonable, it may, without liability on its part, terminate the contract.
12. RELATIONSHIP OF PARTIES - Nothing contained in these Terms and Conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these Terms and Conditions shall be deemed to construe either of the parties as the agent of the other.
13. ASSIGNMENT AND SUB-CONTRACTING - The contract between the Buyer and Seller for the sale of Goods shall not be assigned or transferred, nor the performance of any obligation sub-contracted, in either case by the Buyer, without the prior written consent of both Parties.
14. WAIVER - The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.
15. SEVERABILITY - If any term or provision of these Terms and Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms and Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
16. GOVERNING LAW AND JURISDICTION - This Agreement shall be governed by and construed in accordance with the laws of the state of Ohio. The parties hereby submit to the exclusive jurisdiction of the Ohio Court of Common Pleas, sitting in Cuyahoga or Summit County – option at sole discretion of Seller.