Terms & Conditions

The following Purchase Order Terms and Conditions, along with the language of the applicable individual Purchase Order, constitute the entire and exclusive contract (the “Terms”) between Presmane Chem LLC LLC. and/or its affiliates, subsidiaries, successors and assigns (“Presmane Chem LLC”) and Seller. The Terms supersede and replace all other terms, understandings, agreements and representations other than stated herein. The Terms apply to every Presmane Chem LLC purchase of goods from Seller. Without limitation, the Terms take precedence over and supersede all terms, conditions and other language set forth by Seller’s existing or future quote, invoice, bills of lading, terms or any other Seller prepared or provided contract-related document. Presmane Chem LLC will not accept nor be bound by and hereby expressly rejects any different or additional terms or conditions relating in any manner to the purchase of goods — Presmane Chem LLC expressly rejects any incorporation attempt by the Seller of any other terms and conditions, whether from Seller or from what is common industry practice, and whether such attempt is made in relation to offering, correspondence, website, order acceptance, invoicing or any other means. Without limitation, Seller’s

1. acceptance of the Purchase Order,
2. any performance of Seller under the Purchase Order, or
3. shipment or delivery of some or all of the goods shall constitute Seller’s assent to and acceptance of the Terms. Presmane Chem LLC reserves the right to revoke or withdraw the Purchase Order, in whole or in part, prior to Seller’s acceptance.

 
1) Delivery, Timing/Quantity and Documentation Unless otherwise expressly specified on the Purchase Order, the goods shall be transported F.O.B. destination, freight pre-paid by Seller at the date/time set forth in the Purchase Order. Without limitation, no Seller charges will be allowed for transportation, boxing, crating or other packaging of the goods.

1. TIME IS OF THE ESSENCE WITH RESPECT TO SELLER’S OBLIGATIONS HEREUNDER. Seller must use Presmane Chem LLC’s Bill of Lading (“BOL”) provided. If any delivery is, or is threatened to be, delayed, Seller shall promptly give written notice thereof to Presmane Chem LLC, together with all related relevant information. The giving of such notice shall not relieve Seller of any other duty hereunder. Seller’s failure to deliver the goods of the quality, within the time, at the place, at the rate and in the manner specified by the Terms shall, at the sole option of Presmane Chem LLC, without waiver of any other Presmane Chem LLC rights and remedies, relieve Presmane Chem LLC of any obligation to accept and pay for such goods or any undelivered installment thereof. For Seller’s such failure, Presmane Chem LLC shall be entitled to, without limitation, compensation for damages incurred and suffered including consequential loss.
2. If the goods are delivered to Presmane Chem LLC in excess of the quantities ordered, Presmane Chem LLC is not obligated to pay for the excess and any excess will remain at all times at Seller’s risk and will be returnable at Seller’s sole expense. Seller is liable for all damage which it or its carrier causes to the goods or to Presmane Chem LLC’s property, or the property of any Presmane Chem LLC customer, agent, warehouse, or other contractor, or any third party, in the course of delivery of the goods. If goods are delivered before the date specified in the Purchase Order, Presmane Chem LLC shall be entitled at its sole discretion to refuse to take delivery or to charge Seller for insurance and storage of the goods until the Purchase Order date of delivery.
3. In the case of goods supplied from outside the country from where it will be delivered, Seller shall ensure that all required documents, including, without limitation, ISF documents, and accurate information is provided to Presmane Chem LLC as to the country of origin of the goods. Upon Presmane Chem LLC’s request, Seller shall provide Presmane Chem LLC with an appropriate certification stating the country of origin of the goods sufficient to satisfy the requirements of
   1. the U.S. customs authorities, and
   2. any applicable export licensing regulations, including those of the United States. Seller shall clearly mark all goods with their country of origin. Seller shall be liable to Presmane Chem LLC for any additional costs, damages, duties, or taxes for which Presmane Chem LLC may be accountable should the country of origin be different from that advised by Seller, and for any costs, damages, duties, fees, fines and penalties assessed as a result of Seller’s failure to timely provide such required documentation on time. Unless otherwise expressly stated in the Purchase Order, Seller is responsible for obtaining all the export and/or import licenses for the goods and shall be solely responsible for any delays due to such licenses not being available when required.
4. Seller shall provide Presmane Chem LLC, free of charge, with all relevant documentation (including but not limited to the Certificates of Analysis, Safety Data Sheets “SDS” and technical bulletins) before and at the time of delivery. Presmane Chem LLC is entitled to rely upon and otherwise use the documentation without restrictions, including but not limited to, the right to make copies of the documentation. The Certificate of Analysis report must specifically identify the material by reference to the number of the lot, or other similar designation and must indicate the applicable specification, revision, and Purchase Order designation. Each part, component, or material quantity furnished shall be identified by lot or batch, traceable to the actual manufacturing process.
5. Where Presmane Chem LLC has requested that Seller deliver the goods direct to Presmane Chem LLC’s customer, a signed Proof of Delivery (“POD”) (with all details, including Presmane Chem LLC’s customer’s signatory name, clearly printed) must be provided to Presmane Chem LLC at its corporate headquarters. The POD must quote Presmane Chem LLC’s Purchase Order number, quantity and description of goods delivered and be received by Presmane Chem LLC, free of charge, within three (3) days of delivery of the goods.
6. Seller shall package all goods in suitable one-way containers (which will not be returned) to permit safe transportation and handling, and insure against damage from weather or transportation. Such containers must be appropriately labeled, contain packing sheets listing each item and its associated Purchase Order line item number. Seller must comply with Presmane Chem LLC’s packaging instructions or special packaging specification. All goods shall be palletized unless directed otherwise by Presmane Chem LLC in writing. Presmane Chem LLC’s Purchase Order number must appear on all containers, packing sheets, delivery tickets and bills of lading.

 
2) Price and Payment The price payable for the goods shall be that specified in the Purchase Order. Payment terms shall also be as stated on the Purchase Order. (Presmane Chem LLC’s standard payment terms are Net sixty (60) days from date of invoice unless otherwise specifically agreed by the parties in writing.) If Presmane Chem LLC is in delay with payment of amounts due, such delay shall not constitute a material breach that gives Seller a right to terminate the Purchase Order. If Presmane Chem LLC objects to a Seller invoice, Presmane Chem LLC shall be entitled, without limitation, to suspend payment until the objection has been resolved between the parties. Time for calculation of Presmane Chem LLC’s payment for the goods shall be computed from the date of Presmane Chem LLC’s receipt of an acceptable invoice for same or Presmane Chem LLC’s acceptance of the goods, whichever is later. Payment by Presmane Chem LLC to Seller shall not constitute Presmane Chem LLC’s acceptance of the goods. All Seller invoices must be sent to Presmane Chem LLC’s address as stated in the Purchase Order and contain the Purchase Order number. The prices listed in the Purchase Order are inclusive of all costs (including taxes) and expenses of Seller in providing the goods to the delivery point.
 
3) Title and Risk of Loss Except if and as otherwise expressly dictated by Presmane Chem LLC’s Purchase Order shipping term:

1. Title to the goods shall pass to Presmane Chem LLC upon delivery of the goods to Presmane Chem LLC’s designated destination.
2. Seller assumes and shall be responsible for all risk of loss of, damage to and liability for
   1. the goods and all works in process, materials and other property of Presmane Chem LLC, Seller or third persons in connection with Seller’s performance of the Purchase Order, until acceptance by Presmane Chem LLC of the goods,
   2. any property received by Seller from, or held by Seller or its supplier for the account of, Presmane Chem LLC, from the time of Seller’s receipt or holding of same, and
   3. any goods or part thereof rejected by Presmane Chem LLC or as to which Presmane Chem LLC has revoked acceptance, from the time of such rejection or revocation.

 
4) Inspection Presmane Chem LLC is not obligated to perform a specific inspection of the goods after delivery. Seller is obligated to subject all goods to be supplied to Presmane Chem LLC or to third parties under the Terms to an exit inspection prior to shipment. Seller must provide Presmane Chem LLC with photographic and/or video documentation of the condition of all goods once prepared for transport, prior to releasing the goods for transport. Presmane Chem LLC is at all times entitled to inspect the goods to be delivered or to have the goods inspected by its representatives, both during production, processing and storage, and after delivery; Seller shall fully cooperate and assist Presmane Chem LLC in this regard. Any such inspection by Presmane Chem LLC shall not mean that the goods shall be deemed delivered or accepted by Presmane Chem LLC. Presmane Chem LLC’s failure to discover a defect to the goods during an inspection, or after receipt of the required photographic and/or video documentation, shall not relieve Seller of any responsibilities if a defect to the goods is subsequently discovered.
 
5) Seller’s Warranty Seller warrants and represents that the goods shall be new, merchantable, of the best available design, of the best available quality (including packaging), material and workmanship, be without fault, contaminants or defects and strictly conform in all respects with the Purchase Order and any specifications supplied or advised by Presmane Chem LLC to Seller. In addition, Seller warrants and represents to Presmane Chem LLC that:

1. Seller has good and marketable title to all of the goods delivered to Presmane Chem LLC hereunder, free and clear of all liens and encumbrances and, immediately following delivery of same to Presmane Chem LLC, Presmane Chem LLC shall have good and marketable title to all such goods, free and clear of all liens and encumbrances;
2. The goods are supplied in accordance with the specifications, samples, drawings and/or descriptions agreed by the parties and have been tested accordingly by Seller;
3. The goods are fit for their intended purpose and for such particular uses specified by Presmane Chem LLC and/or otherwise known by Seller;
4. The goods, their packaging, and all labeling are compliant with all applicable laws and regulations (including, without limitation, all safety, health and environmental laws and regulations) which may govern in any jurisdiction which may apply;
5. All information provided by Seller to Presmane Chem LLC in relation to the goods shall be true, accurate, complete and timely in all material respects, including, without limitation, Seller’s product literature;
6. The goods and any related information shall not infringe any patent, trademark, copyright or other intellectual property right;
7. The price for the goods specified in the Purchase Order is Seller’s lowest price currently in effect for the quantity of the goods involved;
8. There shall be greater than eighty-percent (80%) of the goods’ remaining published shelf life from the date of Presmane Chem LLC’s receipt of the goods; and
9. Seller has provided Presmane Chem LLC with all product, technical and safety information relating to the goods as may be required by the Terms and/or otherwise at law.

Seller’s warranties contained herein (and any consumer warranties or similar undertakings of Seller) shall be enforceable by Presmane Chem LLC’s customers and any subsequent owner or user of the goods or products produced from or containing the goods as well as by Presmane Chem LLC. Such warranties shall survive Presmane Chem LLC’s inspection, testing, acceptance and payment for such goods. Seller’s warranties set forth herein are in addition to and not in lieu of any warranty or service guarantee offered by Seller or implied or provided by law.
 
6) Certain Remedies Seller shall be liable for all damages, including all consequential, incidental, third party and special damages incurred by Presmane Chem LLC for any breach of the Terms, defective goods and/or as a result of Seller’s failure to meet or otherwise strictly comply with Seller’s warranties contained herein.

1. Without limitation to any other Presmane Chem LLC right or remedy available at law, if
   1. the goods are defective in any way or do not conform to Seller’s warranties or with the other provisions of the Terms,
   2. Seller fails to meet or otherwise strictly comply with any warranty contained herein, and/or
   3. Seller otherwise breaches any provision of the Terms, Presmane Chem LLC may revoke its acceptance of or may reject any or all of the goods, and/or request a price reduction. Upon such revocation, rejection and/or price reduction request, and without limitation to any other right or remedy available at law, Presmane Chem LLC may return, at Seller’s expense, any or all of the goods or require prompt correction or replacement of the goods, also at Seller’s expense. Seller is only entitled to remedy the defect by repair or by delivery of substitute goods if Presmane Chem LLC expressly agrees thereto – Seller shall bear all costs and all risk in the event of remedy by repair or by delivery or substitute goods. Seller has the same liability for permitted repaired or exchanged parts of the goods as for the original goods. Presmane Chem LLC, at its discretion, may return or keep defective goods at the expense of Seller until Seller has issued further instructions as to what should be done with the goods. Storage of such goods will be made at Seller’s account and risk.

 
7) Indemnification Seller shall, in addition to any other remedy available to Presmane Chem LLC under the Terms or at law, defend, indemnify and hold fully harmless Presmane Chem LLC, and its affiliates, officers, shareholders, directors, employees, agents, customers, users, and their respective successors and assigns from and against any and all claims, losses, liabilities, damages and expenses of any nature (including, without limitation, attorneys’ fees, court costs and expenses) arising out of, directly or indirectly, or relating in any manner to:

1. Seller’s performance of, or failure to perform, any of its obligations hereunder, including without limitation Seller’s breach of any warranty herein;
2. any claim of infringement or violation of any trademark, copyright, patent or other intellectual property right relating to any of the goods;
3. any product liability or other claim or action with respect to any of the goods or any products produced from or containing the goods, except to the extent such claim or action is a direct result of Presmane Chem LLC’s negligence or wrongful acts or omissions;
4. Seller’s or the goods’ failure to comply with applicable laws,
5. Seller’s failure to comply with its safety obligations set forth herein and/or otherwise at law relating to the goods, and/or
6. Seller’s (and/or Seller’s employee’s, agent’s or subcontractor’s) negligent or wrongful acts or omissions.

 
8) Compliance with Law Seller shall strictly comply with all applicable laws, governmental regulations and any other legal requirements which may in any manner affect or be applicable to the goods and/or Seller’s performance hereunder, including without limitation any applicable requirement under the Toxic Substances Control Act (the “TSCA”) (and all other rules and regulations of the Environmental Protection Agency), the Fair Labor Standards Act, and laws concerning environmental protection and occupational health and safety. Such Seller compliance shall include, without limitation, strict compliance with any regulation, statute, statutory instrument, standards, business practice, law, production, Purchase Order resolution, notice, rule of court, bylaw, directive, code of conduct or other instrument or requirement having the force of law within any national or local jurisdiction issued, declared, passed or given effect to in any manner in the United States of America. To the extent that any codes, guidance and/or legal requirements are advisory rather than mandatory, the standard of compliance to be achieved by Seller shall be the best practice of the relevant industry. In all cases the costs of compliance shall be borne solely by Seller. Not by way of limitation to the foregoing, Seller further certifies:

1. That all goods constituting or containing chemical substances subject to the TSCA (including substances which Seller does not make or import) are correctly listed on the TSCA Chemical Substances Inventory, 15 USC 2601 et seq. and regulations thereunder, or else comply with an exemption to such Inventory listing. Seller shall notify Presmane Chem LLC in writing (prior to delivery) of ANY TSCA restrictions known to it governing the use and disposal of the goods, including, but not limited to, any proposed or final Significant New Use Rule restrictions;
2. While supplying goods, Seller will comply with the US Foreign Corrupt Practices Act, the UK Bribery Act, local anti-corruption laws and all other laws prohibiting any form of commercial or private bribery. Seller represents and warrants that no goods supplied will be manufactured by child or slave labor or by victims of human trafficking. Seller warrants that neither it nor any of its employees, agents or representatives have offered or given, or will offer or give, any gratuities to Presmane Chem LLC; and
3. Seller shall fully cooperate with Presmane Chem LLC including by sharing information permitting Presmane Chem LLC representatives to visit and audit its sites and addressing any concerns raised by Presmane Chem LLC or any governmental entity or authority, to assure there is continuous and full compliance by Seller with all applicable laws. Seller will fully comply with all reasonable requests from Presmane Chem LLC for information, documentation and certifications relating to Seller’s compliance with this Section 8.

 
9) Insurance Without limiting other Seller Terms obligations or liabilities, and except if and as otherwise expressly dictated by Presmane Chem LLC’s Purchase Order shipping term, Seller shall at its sole expense obtain and maintain in full force and effect adequate liability insurance to insure all of Seller’s obligations under the Terms and the sale of goods, and Presmane Chem LLC reserves the right to establish minimum insurance requirements (over and above as set forth below) with respect to same. Said insurance shall, without limitation, cover any other claims, damages or demands which may be brought or made against Seller and/or Presmane Chem LLC by any person suffering any injury, damage or loss in connection with the Terms and/or goods including, without limitation, Personal Injury, Property Damage and Product Liability Insurance with limits of not less than $2,000,000.00 per occurrence. Seller shall produce to Presmane Chem LLC its current policy or policies of insurance; Seller shall further arrange for Presmane Chem LLC to be designated as an “additional insured” under the policy or policies.
 
10) Changes Seller shall notify Presmane Chem LLC in writing at least thirty (30) days prior to such change of all changes in raw materials, manufacturing or testing methods/processes, packaging, shelf life, site of manufacturer or any other material changes which may affect the quality of the goods delivered herein. Such changes must be agreed upon in advance by Presmane Chem LLC in writing. Without limitation to other rights and remedies, Presmane Chem LLC in its discretion may terminate the Purchase Order in whole or in part if it does not consent to the changes without liability to Presmane Chem LLC
 
11) Termination Presmane Chem LLC may at any time terminate the Purchase Order or any part thereof for its sole convenience and Presmane Chem LLC’s sole liability upon such termination for convenience shall be payment to Seller for any goods delivered by Seller prior to notice of such termination for which payment has not already been made. Without limitation, Seller shall not be entitled to any damages (including, without limitation, consequential damages) as a result of any such termination for convenience.
 
12) Force Majeure Under no circumstance shall Presmane Chem LLC be liable to Seller and/or any third party for non-performance, delays or defaults due to acts of God, war, labor dispute, lock-outs, civil commotion, accident, fire, flood, government action, shortage of labor, epidemic, pandemic (and/or any virus or disease), shortage or failure of usual transportation mode, and/or any other circumstance beyond Presmane Chem LLC’s direct control (broadly, a “Force Majeure Event”). Without limitation, Presmane Chem LLC reserves the right to defer the date of delivery or payment, to reduce the volume of Goods ordered, and/or to cancel a Purchase Order due to a Force Majeure Event, all without liability to Presmane Chem LLC.
 
13) Product Safety & Recall Seller shall immediately notify Presmane Chem LLC (and where such notification is oral, confirm such notification in writing as soon as reasonably practicable) if Seller has ANY reason to believe or suspect any of the following:

1. that there is any defect in the goods that would render them unsafe to any purchaser or user of such goods or cause an unacceptable risk to consumers, and/or
2. that there is any error or omission in the instructions for use and/or assembly of the goods which exposes or may expose consumers to any risk of death, injury or damage to property. Seller shall promptly provide Presmane Chem LLC with all relevant detailed information relating to the circumstances giving rise to the notification.

1. Without limitation to Seller’s product safety obligations at law, Seller shall at its own expense:
   1. use all reasonable endeavors to cooperate with Presmane Chem LLC to take any remedial action necessary to minimize the impact of any defect in the goods including without limitation making any agreed notifications to the relevant enforcement authorities, and issuing any written or other notification to Presmane Chem LLC’s customers about the manner of or operation of the goods;
   2. recall any goods already sold by Presmane Chem LLC to its customers;
   3. collect any recalled goods or defective goods held by Presmane Chem LLC;
   4. appropriately destroy and dispose of any recalled goods;
   5. comply with any reasonable directions (including, without limitation, any request of Presmane Chem LLC) to label the goods in a manner that Presmane Chem LLC deems appropriate to warn consumers; and/or
   6. comply with any other arrangements as may be agreed between the parties relating to the goods and safety issues. For avoidance of doubt, Seller is fully and solely liable for any damage to goods, property or person that the delivered goods (or elements therein) may cause relating to any safety issue, whether the claims are directed against Presmane Chem LLC, Seller or both and whether Seller has been negligent or not. Accordingly, Seller is fully and solely responsible for any and all claims on the basis of product liability.

 
14) Taxes. Relating to the goods, Presmane Chem LLC shall be responsible only for taxes that Presmane Chem LLC is required to pay under applicable statutes. All other taxes with respect to any of the same shall be paid by Seller.
 
15) Presmane Chem LLC’s Damages Limitation In no circumstance shall Presmane Chem LLC and/or its owners, employees or agents be liable for SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR ANY CONSEQUENTIAL DAMAGES (including, without limitation, lost profits) of Seller or such claims or damages of any third party involving Presmane Chem LLC WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. IN NO EVENT WILL THE LIABILITY OF INDO AMINES AMERICA AND/OR ITS OWNERS, EMPLOYEES OR AGENTS TO SELLER EVER EXCEED THE TOTAL AMOUNT OF THE PURCHASE PRICE FOR THE APPLICABLE GOODS PURCHASED. In the event that any claim is made against Presmane Chem LLC, Seller agrees that any claims made or liabilities assessed to Presmane Chem LLC are limited to the Presmane Chem LLC corporation itself – no liability or damages shall be sought, collected from or assessed to any individual shareholder, director, officer, employee, or representative of Presmane Chem LLC under any circumstance.
 
16) Law and Miscellaneous. At Presmane Chem LLC’s sole discretion, jurisdiction and venue of any lawsuit relating to these Terms and/or the purchase of goods may be laid in King County Superior Court, Seattle, Washington. The validity, interpretation, performance and enforcement of these Terms shall be governed by the laws of the State of Washington. These Terms are severable; the invalidity or illegality of any term shall not affect the others. The prevailing party to any lawsuit relating to these Terms and/or the sale of goods shall be entitled to recover from the other party all pre-judgment and post-judgment attorneys’ fees, costs, and expenses incurred. Presmane Chem LLC’s failure to strictly enforce any term or condition herein shall not constitute a waiver of Presmane Chem LLC’s right to strictly enforce such terms or conditions at any time in the future. Seller may not assign, subcontract or transfer its interest in the Terms or purchase of goods without Presmane Chem LLC’s prior written consent. (Presmane Chem LLC may assign or transfer the benefits of the Terms or purchase of goods, in whole or in part, including without limitation Seller’s warranties, without Seller’s approval.) The Terms may not be amended, modified or supplemented except in a writing signed by Presmane Chem LLC. The headings of the Sections of the Terms are for convenience only and are not part of the agreement between the parties. The Terms nor any ambiguity found herein shall not be construed against a party merely because such party was the drafter. Presmane Chem LLC’s rights and remedies set forth in the Terms shall not be exclusive and are in addition to all other rights and remedies provided by law.
 
17) Confidentiality and Personal Data Seller agrees that all drawings, prints, other technical material, pricing information and/or other proprietary information which Presmane Chem LLC provides to Seller, whether prepared by Presmane Chem LLC or by third parties under contract to Presmane Chem LLC, contain data which embody trade secrets and confidential know-how of commercial value to Presmane Chem LLC or third parties under contract to Presmane Chem LLC. Accordingly, except as otherwise required by applicable law or judicial process, Seller agrees

1. to keep such information strictly confidential;
2. that it will not disclose such information to any other person, corporate division or entity;
3. that it will not use such information except in direct connection with the goods purchased hereunder; and
4. that it will not sell, lease, loan or permit any other person, corporate division or entity to use such information for any purpose, without Presmane Chem LLC’s prior written consent.

Seller shall restrict disclosure of such confidential material to such of its employees, agents or subcontractors as need to know the same for the purpose of discharging Seller’s obligations to Presmane Chem LLC and shall ensure that such employees, agents or subcontractors are subject to like obligations of confidentiality as bind Seller. Nothing herein shall restrict the sharing or use of information generally available to the public. In addition, the purchase of the goods does not authorize Seller to use Presmane Chem LLC’s name or make reference to Presmane Chem LLC for any purpose in any release for public or private dissemination; nor shall Seller divulge or use in any advertisement or publication any specifications, data, or other information pertaining to or relating to this usage without the prior written consent of Presmane Chem LLC. Seller agrees to comply with all applicable laws relating to privacy and protection of personal data in respect of personal data obtained by or disclosed to it, pursuant to the Purchase Order. Seller agrees to

1. only process personal data for the purposes of the Purchase Order and as directed by Presmane Chem LLC,
2. timely report to Presmane Chem LLC any complaints or notices it has received regarding the misuse or disclosure of personal data, and
3. maintain appropriate measures to protect against unauthorized processing, access or disclosure of personal data and notify Presmane Chem LLC of any such unauthorized use, access, or disclosure.

 
18) Notices All notices and other communications relating to the Terms, including consents, shall be in writing and shall be addressed to Seller or Presmane Chem LLC at the addresses set forth on the face side of the Purchase Order and shall be considered given when:

1. delivered personally,
2. sent by confirmed facsimile or email,
3. sent by commercial overnight courier with written verification receipt, or
4. three (3) days after having been sent, postage prepaid, by first class or certified mail.

Standard Terms & Conditions of Sale
 

1. These Standard Terms and Conditions of Sale (along with any Commercial Credit Agreement or Cash Sale Customer Agreement as applicable) constitute the entire and exclusive contract (“Terms”) between Presmane Chem LLC LLC. and/or its affiliates, subsidiaries, successors and assignees (“Presmane Chem LLC”) and Customer. These Terms supersede and replace all other terms, understandings, agreements and representations other than stated herein and applies to every sale whether or not the Terms are enclosed with the goods. Without limitation, the Terms take precedence over and supersede all terms, conditions and other language set forth by Customer’s existing or future purchase order(s) or any other Customer prepared or provided contract-related document.

 

2. The price payable for goods shall be as quoted in writing by Presmane Chem LLC. In addition to the price, and unless otherwise agreed in writing by Presmane Chem LLC, Customer shall pay all taxes, excises, fees or other charges relating to the production, sale, use and/or transportation of the goods. If Presmane Chem LLC agrees in writing to shipping responsibility to a particular destination, then title and all risk of loss for the goods transfers to Customer when the vehicle first enters Customer’s real property. If Presmane Chem LLC agrees to FOB Shipping Point, then title and all risk of loss for the goods transfers to Customer when the goods are placed in the delivery vehicle.

 

3. For all goods sold, Presmane Chem LLC warrants that as of the time of delivery the goods will conform to the Certificate of Analysis (“COA”) provided to Customer with the goods, subject to any and all COA remarks and qualifications. INDO AMINES AMERICAS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OR GUARANTEES, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT — INDO AMINES AMERICAS BEARS NO RESPONSIBILITY AS TO THE HANDLING, APPLICATION, STORAGE, USE, MISUSE, DISPOSAL, RE-SELLING OR OTHER DISPOSITION OF ANY GOODS SOLD. CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD INDO AMINES AMERICAS AND ITS OWNERS, EMPLOYEES OR AGENTS FULLY HARMLESS FROM ANY CLAIMS OR LIABILITY FOR INJURY OR DAMAGES ARISING OUT OF, OR IN ANY WAY RELATING TO, THE SALE, HANDLING, APPLICATION, STORAGE, USE, MISUSE, DISPOSAL, RE-SELLING OR OTHER DISPOSITION OF ANY GOODS SOLD TO CUSTOMER. Presmane Chem LLC makes no warranty or representation that the use or sale of the goods, whether alone or in combination with other products, will not infringe the claims of any letters patent, trademarks, registered designs or other proprietary rights of any party and Customer assumes all risks and liabilities associated therewith. In no circumstance shall Presmane Chem LLC and its owners, employees or agents be liable for SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR ANY CONSEQUENTIAL DAMAGES (including lost profits) of Customer or such claims or damages of any third party involving Presmane Chem LLC WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. IN NO EVENT WILL THE LIABILITY OF INDO AMINES AMERICAS OR ITS OWNERS, EMPLOYEES OR AGENTS TO CUSTOMER EVER EXCEED THE TOTAL AMOUNT OF THE PURCHASE PRICE FOR THE APPLICABLE GOODS PURCHASED. All Customer claims relating to alleged
   1. quantity, leakage or delivery errors,
   2. pricing errors, and/or
   3. defective, non-conforming and/or unacceptable goods shall be WAIVED by Customer unless made in detailed writing to Presmane Chem LLC within forty-five (45) days after delivery (or pickup as applicable) of the goods. Customer assumes all risks and liabilities with respect to results obtained by the use of the goods, whether used alone or in combination with other materials.

 

4. Under no circumstance shall Presmane Chem LLC be liable to Customer and/or any third party for non-performance, delays or defaults in providing goods due to war, labor dispute, accident, fire, flood, government action, shortage of labor, inability of Presmane Chem LLC’s suppliers to timely furnish materials, shortage or failure of usual transportation mode, shortage of equipment, machinery breakage, or any other circumstance beyond Presmane Chem LLC’s direct control. Any delivery so delayed or suspended may be cancelled without liability to Presmane Chem LLC, but these Terms shall otherwise remain unaffected.

 

5. Unless otherwise expressly provided herein, all sales are final. Any returned goods which Presmane Chem LLC elects to accept in its sole discretion shall be subject to a minimum 25% restocking charge. Presmane Chem LLC will not accept returned special ordered (non-inventory) goods. All shipping charges are non-refundable. Presmane Chem LLC may cancel a sale in its sole discretion if
   1. Customer is in default of its material obligations hereunder, or
   2. Presmane Chem LLC has a reason to doubt the ability or willingness of Customer to pay for the goods. Unless otherwise expressly provided herein, Customer may not withdraw or cancel an order for goods without Presmane Chem LLC’s consent in writing.

 

6. All goods should be handled only by properly trained/experienced personnel who are familiar with all handling and use procedures and all potential associated hazards. Customer assumes sole responsibility
   1. to learn and understand all hazards and risks associated with the goods, and
   2. for instructing its employees, agents, customers and any other persons who might reasonably be expected to come into contact with the goods, in all appropriate procedures and techniques for the safe and lawful handling, storage, use and disposal of the goods, and of any potential risks to person and property in any way related to the goods. Customer shall forward any Presmane Chem LLC labeling and literature (including SDS’s) regarding the goods to its employees, agents and customers. Customer assumes sole responsibility for the safe handling, storage, use and disposal of all goods in full and strict accordance with all applicable domestic and foreign laws, rules, regulations and other domestic and foreign environmental, health and safety standards (collectively “Laws.”) Further, if Customer is a reseller, then Customer agrees to fully and strictly comply (and ensure its customer’s full compliance) with all Laws related to the sale, import, export, shipping, handling, storage, use and disposal of goods purchased from Presmane Chem LLC.

 

7. At Presmane Chem LLC’s sole discretion, jurisdiction and venue of any lawsuit relating to these Terms and/or the sale of goods may be laid in King County Superior Court, Seattle, Washington. The validity, interpretation, performance and enforcement of these Terms shall be governed by the laws of the State of Washington. These Terms are severable and the invalidity or illegality of any term shall not affect the others. Customer expressly and knowingly WAIVES the right to a jury trial for any claims involving Presmane Chem LLC relating to its goods and/or these Terms. The prevailing party to any lawsuit relating to these Terms and/or the sale of goods shall be entitled to recover from the other party all pre-judgment and post-judgment attorneys’ fees, costs, collection agency costs/fees and expenses incurred. Presmane Chem LLC’s failure to strictly enforce any term or condition herein shall not constitute a waiver of Presmane Chem LLC’s right to strictly enforce such terms or conditions at any time in the future. Customer may not assign or transfer its interest in the Terms or purchase of goods without Presmane Chem LLC’s prior written consent. The Terms may not be amended, modified or supplemented except in a writing signed by Presmane Chem LLC. Customer agrees that
   1. all sales herein are commercial, non-consumer, sales, and
   2. all goods purchased are for lawful purposes.

 

8. Customer agrees that all drawings, prints, other technical material and/or pricing information which Presmane Chem LLC provides to Customer, whether prepared by Presmane Chem LLC or by third parties under contract to Presmane Chem LLC, contain data which embody trade secrets and confidential know-how of commercial value to Presmane Chem LLC or third parties under contract to Presmane Chem LLC. Accordingly, except as otherwise required by applicable law or judicial process, Customer agrees
   1. to keep such information strictly confidential;
   2. that it will not disclose such information to any other person, corporate division or entity;
   3. that it will not use such information except in direct connection with the goods sold hereunder; and
   4. that it will not sell, lease, loan or permit any other person, corporate division or entity to use such information for any purpose, without Presmane Chem LLC’s prior written consent. Nothing herein shall restrict the sharing or use of information generally available to the public.