Terms and Conditions of Sale

HYDRITE CHEMICAL CO.
TERMS AND CONDITIONS OF SALE
NOVEMBER 11, 2022

Please read these terms and conditions carefully.  They materially affect the parties’ obligations.  Hydrite Chemical Co. (“Seller”) will accept orders from and do business with the buyer (“Buyer”) only on the terms and conditions on this form.

1. Acceptance; Contrary Terms; Entire Agreement.  This document contains all of the terms and conditions of the agreement (the “Agreement”) between Seller and the buyer (“Buyer”) of the goods and services to be sold or provided to Buyer (collectively, “Products”), to the exclusion of any terms and conditions incorporated in Buyer’s order or other documents of Buyer, and to the exclusion of any other statements and agreements except as set forth in a separate written agreement signed by Buyer and Seller that expressly incorporates by reference these Terms and Conditions.  Seller’s acceptance of Buyer’s order is expressly conditioned on Buyer’s acceptance of these Terms and Conditions, and Buyer, upon placing an order, is presumed to have accepted these Terms and Conditions without modification.  No alteration, waiver, modification of, or addition to this Agreement or to the Terms and Conditions herein shall be binding on Seller unless set forth in writing and signed by an officer of Seller.  Any attempt to amend, modify, or change the provisions of this Agreement or these Terms and Conditions by a non-officer of Seller shall be null and void.  No course of dealing, usage of trade or course of performance shall be relevant to supplement or explain any terms used in the Agreement.
    
2. Taxes and Fees.  All sales, excise and similar taxes that Seller may be required to pay or collect with respect to the Products are for the account of the Buyer, except as otherwise provided by law.  Except as otherwise expressly stated in the Agreement, Seller will not be responsible for freight, transportation, insurance, shipping, storage, handling, demurrage or similar charges.  If the Agreement expressly states that such charges are included in the price, any increase in such charges effective after the date hereof will be for the account of Buyer.
    
3. Notification of Claims; Acceptance.  Buyer must notify Seller and the carrier, within seven (7) days of the receipt of the Products, of any reasonably apparent damage to, or any loss of, the Products in transit.  Failure by Buyer to give such notification shall result in a waiver of all claims which Buyer may otherwise have against Seller for such damage or loss resulting from, or occurring during, transit.  As to any such damage or loss, Buyer shall (a) mark the delivery receipt with appropriate exceptions describing the damage or loss before signing, (b) request the carrier to inspect the damage or loss and forward a signed exception report to Seller describing the damage or loss, and (c) promptly and separately notify Seller of such damage or loss.  If damage or loss is not reasonably apparent at time of delivery, then upon discovering such damage or loss Buyer shall (i) immediately notify Seller of such damage or loss, and (ii) cooperate fully with Seller in any claims that are available against third parties. If delivery is made in installments, claims which Buyer may have as to any one installment do not relieve Buyer of the obligation to accept delivery of the remaining installments, or permit Buyer to cancel or rescind the remaining installments.  Any rightful rejection of the Products by Buyer shall be made within a commercially reasonable time by written notice to Seller, but in any event within fifteen (15) days following the date of receipt of the Products.
    
4. Risk of Loss; Shipment.  Unless otherwise expressly stated in writing, all shipments are F.C.A. Seller’s facility.  Shipping dates on any order are estimates only.  Seller will use reasonable commercial efforts to meet the estimated shipping dates, subject to Buyer’s prompt provision of all necessary, complete and correct specifications, but Seller will not be held responsible for failure to meet such estimated dates.  Unless otherwise stated herein, Seller may make delivery in installments.  All installments will be separately invoiced and paid as billed without regard to subsequent deliveries.  Failure to pay any installment when due will excuse Seller from making future deliveries.  Seller will not be liable for normal variations in dimensions, weights and quality.  Weights, sizes and quantities as determined at Seller’s plant or other source of supply will be conclusive in the absence of manifest error.  Buyer shall take deliveries in approximately equal monthly quantities, except as expressly indicated herein.
    
5. Inventory.  If Buyer discontinues its purchase of the Products from Seller, changes the formula of the Products or of the related raw materials, reduces the demand for the Products, or if Seller is required to manufacture a minimum quantity of the Products or purchase a minimum order quantity of the related raw materials or intermediates, including any work-in-process (all raw materials, intermediates, work-in-process, finished goods, wastes, restocking fees, and freight costs shall be collectively referred to as “Discontinued Products”) for Buyer, Buyer shall purchase from Seller at current market prices all such Discontinued Products in Seller’s control.  In addition, Buyer shall within thirty (30) days following the date of discontinuance, reimburse Seller for all Discontinued Products that are not otherwise reasonably usable by Seller, in Seller’s sole discretion, plus the actual cost to properly dispose of the Discontinued Products.  Seller shall use reasonable commercial efforts to cancel any outstanding orders or contracts with its suppliers to produce the Products.  The Products shall be considered Discontinued Products if Buyer does not issue a purchase order to Seller within sixty (60) days after the date of Buyer’s most recent purchase order. 
    
6. Containers.  Carboys, drums, barrels, totes or other returnable containers provided by Seller to Buyer shall remain the property of Seller and are provided to Buyer solely for the purpose of transporting and storing Products purchased from Seller.  Buyer will use Seller’s containers only for reasonable transportation and storage of the Products and will return the same (F.O.B. Seller’s plant) in good condition (normal wear and tear excepted) upon termination of the business relationship with Seller or otherwise upon request by Seller.    If any container provided by Seller is not returned to Seller in good condition (normal wear and tear excepted), Seller may charge Buyer for any loss or damage or charge Buyer for the current replacement cost of such containers.  Buyer shall have the sole responsibility to review the containers to determine if the containers and the Products are fit for Buyer’s intended purpose.
    
7. Hazardous Materials.  Buyer understands and acknowledges that the Products may be of a toxic or otherwise hazardous nature.  Buyer assumes all risk and liability for the Products upon passage of risk of loss to Buyer as provided herein.  Seller will not be liable for any loss or damage to persons or property resulting from the Products or their handling except as otherwise provided expressly stated in the Agreement.  Buyer must determine and provide for any hazards involved in connection with retention and disposal of the Products, waste materials relating to the Products, and any disposable containers in which the Products are shipped.
    
8. Prices; Payment Terms; Minimum Order Quantity.
   • Unless specifically held open for a length of time on Seller’s quotation, all prices are subject to change without notice and any unshipped balances on purchase orders will be invoiced to and paid by Buyer at prices in effect at the time of delivery.  Invoices are payable in full within thirty (30) days following the date listed on Seller’s invoice.  If by the terms of sale, credit is extended to Buyer, Seller reserves the right to revoke such credit if Buyer fails to pay for any Products when due, and Seller may demand payment before any further shipment.  
   • In the event of conditions beyond Seller's control, Seller shall have the right to request a price increase, and both Seller and Buyer shall have the right to immediately terminate this Agreement if additional price increases are not accepted.
   • If Buyer’s purchase volume for the Product decreases by more than ten (10%) at any facility, Seller shall have the right to renegotiate the price for the Products delivered to such facility.
   • Notwithstanding any provision in the Agreement, Seller shall have no obligation to pay any rebate, issue any credit or make any other payment of any kind to Buyer unless Buyer is fully in compliance with its payment and other obligations under the Agreement and any other contractual obligation in favor of Seller.
   • Pricing does not include any sales taxes, excise taxes, or any other taxes or fees, all of which are the responsibility of Buyer.
   • Buyer agrees to pay service charges of 1.5% per month or the highest rate allowed by law (whichever is the lesser) from the due date of each invoice to date of payment. In the event Buyer’s account is placed for collection, Buyer agrees to collection and/or attorney fees of 25% of the amount owed.
   • If Seller requires Buyer to purchase a minimum order quantity (“MOQ”) for the Products, such MOQ shall be communicated by Seller to Buyer and will be applicable to all future orders placed by Buyer for such Products. 
9. Limited Warranty and Remedies.  Seller warrants to Buyer that the Products sold hereunder will conform to the applicable specifications at the time of shipment.  If the Products fail to conform to the applicable specifications at the time of shipment, Seller will, at its option, replace such Products, rework such Products so that they conform to the applicable specifications (if practicable) or give a credit therefor equal to the price paid by Buyer.  Such replacement, rework or credit shall be Seller’s sole obligation and Buyer’s exclusive remedy hereunder for breach of this limited warranty, and shall be conditioned upon Seller receiving written notice of any alleged breach of this warranty within a reasonable time after discovery of such defect, but in no event later than thirty (30) days from date of shipment.  At Seller’s request, Buyer shall return to Seller any Products for which a warranty claim has been made, F.C.A. Seller’s plant with freight prepaid. THE FOREGOING WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES WHATSOEVER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
    
10. No Consequential Damages.  SELLER SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION ANY BUSINESS INTERRUPTION, LOST PROFITS, LABOR COSTS OR DAMAGE TO EQUIPMENT, ARISING FROM THE SALE OR USE OF THE PRODUCTS, FROM THE PRODUCTS BEING INCORPORATED INTO OTHER ARTICLES, FROM ANY BREACH OF THE AGREEMENT OR FROM ANY OTHER CAUSE WHATSOEVER, WHETHER BASED ON WARRANTY (EXPRESSED OR IMPLIED) OR OTHERWISE BASED ON CONTRACT, TORT OR OTHER THEORY OF LIABILITY.
     
11. Limitation of Liability.  Seller’s aggregate liability for any and all claims shall be limited to the total amounts paid by Buyer to Seller for the specific Product leading to the claim for the preceding three (3) month period prior to notice for such claim.   
     
12. Product Risk and Compliance with Laws. Buyer represents and warrants that it has the appropriate knowledge and information regarding the risks associated with handling, using, transporting, storing, and disposing of the Product, including without limitation those risks set forth in the Safety Data Sheet ("SDS") for the Product.  Buyer affirms that it shall maintain compliance with all safety and health related governmental requirements concerning the Product purchased hereunder and shall take all reasonable precautions to inform its employees, agents, contractors, and customers of any risks associated with the Product, including without limitation dissemination of pertinent information contained in the SDS. Buyer shall comply with all applicable federal, state, and local laws, regulations, and regulatory guidance (“Laws”) with regard to the Products, including, without limitation, any Laws relating to the disposal of any waste materials. 
     
13. Equipment.  BUYER ACKNOWLEDGES THAT SELLER DOES NOT MAKE RECOMMENDATIONS FOR CHEMICAL COMPATIBILITY RELATED TO NEW OR EXISTING EQUIPMENT (INCLUDING, BUT NOT LIMITED TO, TANKS, PIPING, DISPENSERS, OR FLOW-METERS) TO INTERACT WITH THE PRODUCTS.  BUYER ACKNOWLEDGES AND AGREES THAT IT IS SOLELY RESPONSIBLE FOR EVALUATING, SELECTING, AND ENSURING THAT ANY EQUIPMENT IS APPROPRIATE FOR AND COMPATIBLE WITH THE PRODUCTS AND WITH BUYER’S OPERATIONS.  ANY NEEDED REPAIRS OR REPLACEMENT PARTS FOR EQUIPMENT SHALL BE THE SOLE RESPONSIBILITY OF BUYER.  SELLER WILL NOT BE LIABLE FOR DAMAGES OF ANY SORT (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR BUYER’S PRODUCTION DOWNTIME OR OTHER BUSINESS INTERRUPTION, LOST PROFITS, LOST BUSINESS, PERSONAL INJURY, PROPERTY DAMAGE, DEATH, OR ANY OTHER SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES) ARISING OUT OF OR RELATING TO EQUIPMENT OR ITS USE, OR FOR THE REPAIR, MAINTENANCE, REPLACEMENT, OR REPLACEMENT PARTS FOR EQUIPMENT. 
     
14. No Advice or Recommendations.  Buyer acknowledges and agrees that Seller does not have control over the design, testing, or labeling of any product produced using the Products, and that Buyer is not relying on any representation or statement made by, or on behalf of, Seller with respect to the compatibility or suitability of any Product for any purpose, or on any advice, recommendation, or information obtained from Seller’s product literature or web sites, including any design aid or other service made available by Seller.  Buyer has tested and investigated the Products sufficiently to form an independent judgment concerning their compatibility and suitability for the use, conversion, or processing intended by Buyer and will not make, and hereby waives, any claim against Seller based on Seller’s statements or information perceived by Buyer to be advice or recommendations.
     
15. Safety Data Sheets.  Unless otherwise expressly stated or required by applicable law, Buyer shall be responsible for preparing and providing to its purchasers of the Products accurate safety data sheets for such Products.
     
16. Limitation of Responsibility and Damages.  SELLER WILL HAVE NO RESPONSIBILITY FOR ANY PRODUCTS MODIFIED BY BUYER OR MADE OR MODIFIED BY SELLER IN ACCORDANCE WITH BUYER’S ORDER, AND BUYER WILL INDEMNIFY, DEFEND, AND HOLD SELLER HARMLESS AGAINST ALL DAMAGES, COSTS OR EXPENSES, INCLUDING ATTORNEYS’ FEES, PAID OR INCURRED BY SELLER IN CONNECTION WITH ANY CLAIM OF INFRINGEMENT OF A PATENT, COPYRIGHT OR TRADEMARK, TRADE SECRET, OR OTHER PROPRIETARY RIGHT WHICH ARISES OUT OF SELLER’S COMPLIANCE WITH BUYER’S SPECIFICATIONS.  SELLER SHALL HAVE NO RESPONSIBILITY WITH REGARD TO ANY SETTLEMENT, ADMISSION OR PROMISE MADE BY BUYER WITHOUT SELLER’S PRIOR WRITTEN CONSENT, NOR WILL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING LOST PROFITS, CLAIMED TO HAVE BEEN SUSTAINED BY BUYER OR ANY USER OF PRODUCTS ARISING OUT OF ANY CLAIM OF INFRINGEMENT.
     
17. Descriptions.  Except for the specifications for the Products provided by Seller as part of the technical information for the Products, all descriptions, samples and other particulars of the Products provided by Seller, whether contained in plans, photographs, catalogs, price lists or advertising material or otherwise, are only approximate, are included solely for Buyer’s guidance, and do not form part of the Agreement.
     
18. Trademarks.  Buyer warrants that Buyer owns or has the right to use any trademark that Seller affixes to the Products at the request of Buyer.
     
19. Excuse from Performance; Allocation. Seller shall not be considered in default in the performance of its obligations hereunder or be liable in damages or otherwise for any failure or delay in performance which is due to strike, lockout or concerted act of workers or other industrial disturbance; fire, explosion, flood or other natural catastrophe; civil disturbance, riot or armed conflict whether declared or undeclared; curtailment, inflation, shortage, rationing or allocation of normal sources of supply of labor, materials, transportation, energy or utilities; mechanical breakdown or equipment failure; accident; Act of God; significant price increases from or delay of suppliers or subcontractors; effects of or voluntary compliance with acts of government and government regulations (whether or not valid); embargo; imposition of anti-dumping or countervailing duties increasing the price of the materials for the Products; epidemic, pandemic, or any other cause whether similar or dissimilar to any of the foregoing causes and which is beyond Seller’s reasonable control.  Promptly upon learning of such event and ascertaining that it has or will affect its performance hereunder, Seller shall give notice to Buyer stating the nature of the event, its anticipated duration and any action being taken to avoid or minimize its effect.  If the event lasts or in Seller's judgment is expected to last more than thirty (30) days, Seller may terminate the Agreement, or may allocate its available supply of the Products (without being obligated to acquire additional supplies of the Products or materials) among itself and its purchasers in Seller’s sole discretion.  Seller shall have the right to request a price increase, and both Seller and Buyer shall have the right to immediately terminate this Agreement if additional price increases are not accepted
     
20. General.
    • No modification or waiver of the Agreement or any of its provisions shall be valid unless expressly agreed to by Seller in writing and signed by an officer of Seller.  No waiver by Seller of any default under the Agreement shall be a waiver of any other or subsequent default.
    • Any notice required pursuant to this Agreement shall not be valid or effective unless it is in writing and delivered by U.S. mail or by email to Seller at:
      • Hydrite Chemical Co.
        Attn:  Legal Department
        17385 Golf Parkway
        Brookfield, WI  53045
        Email:  Legal@Hydrite.com
    • The unenforceability or invalidity of one or more of the provisions of the Agreement will not affect the enforceability or validity of any other provision of the Agreement.
    • Buyer may not assign any of its rights, duties or obligations under the Agreement without Seller’s prior written consent and any attempted assignment without such consent, even if by operation of law, shall be void.
    • This Agreement shall be governed by and construed according to the laws of the State of Wisconsin, United States of America, without giving effect to its conflicts of law rules.  Any legal suit, action or proceeding arising out of or relating to this Agreement shall be brought in the federal or state courts located in Wisconsin, United States of America, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.  The Parties waive their right to a jury trial in any action or proceeding arising out of or related to this Agreement.
    • All clauses of this Agreement which by their nature or operation are expected to extend beyond termination or expiration of this Agreement shall survive the expiration or termination of this Agreement to the full extent necessary for their enforcement and for the protection of the party in whose favor they operate including but not limited to limitation of liability, governing law, jurisdiction and venue, payment terms and obligations, and Buyer’s reimbursement obligation to Seller for any equipment fund or incentive if one was provided. 
21. Provisions for International Transactions.  The following provisions shall apply if the Products are to be shipped to Buyer at a location outside the United States or if Buyer’s principal place of business is located outside of the United States.
    • The 1980 United Nations Convention on Contracts for the International Sale of Goods shall not apply.
    • Except as otherwise provided expressly stated in the Agreement, terms of delivery are Ex-Works (within the meaning of INCOTERMS 2000) and all customs fees, import duties, cargo insurance, taxes and other charges imposed on or relating to the purchase or sale of the Products shall be paid by Buyer in addition to the stated price.
    • Except as otherwise provided expressly stated in the Agreement, payment shall be made by issuance to Seller of an irrevocable letter of credit which (i) is issued and confirmed by a U.S. bank acceptable to Seller, (ii) is governed by the Uniform Customs and Practice for Documentary Credits (1993 Revision, ICC Publication No. 500) and otherwise acceptable in form and substance to Seller, and (iii) provides for payment to Seller of the full amount of the purchase price plus prepaid freight in U.S. dollars upon presentation by Seller of sight drafts, Seller’s invoice and such other documents as shall be required by the letter of credit.  All banking and other charges for such letter of credit shall be for the account of Buyer.
    • Prices include Seller’s standard commercial export packaging which may vary depending on whether shipment is made by air, land or sea.  Buyer will bear any additional expenses required to satisfy Buyer’s packaging requirements.  Packages will be marked in accordance with Buyer’s instructions, if any.  Seller shall furnish packing lists and such other information as may be necessary to enable Buyer’s agent to prepare documents required for export shipment.  Buyer shall supply Seller with all necessary information and assistance for the most expeditious clearance of such shipment through customs.
    • All shipments hereunder are subject to compliance with the U.S. Export Administration Act, as amended, regulations thereunder and all other U.S. laws and regulations concerning exports.  Buyer shall comply with all such laws and regulations concerning the use, disposition, re-export and sale of the Products provided hereunder.

Latest Revision: 11/11/2022