NOTICE: THIS LANGUAGE FORMS YOUR CONTRACT WITH CHEM SERVICE, INC.
1. ACCEPTANCE GOVERNING PROVISIONS - Buyer places any order subject to the terms and conditions herein contained, whether additional to or different from those contained in Buyer's purchase order or any other form or document heretofore or hereafter supplied by Buyer to Seller. Seller's failure to object to provisions contained in any purchase order or any other form or document from Buyer shall not be construed as a waiver of these terms and conditions and not an acceptance of any such provision. If Buyer places an order from Seller's catalogue or catalogue supplement, Buyer is deemed to have assented to these terms. If Buyer places an order without reference to the catalogue, Buyer is deemed to have assented to these terms within ten (10) days of receipt of Seller's invoice or delivery of all or any part of the order, whichever is first, unless Seller receives written notice of any objection within 10 days fter Buyer's receipt of this form. This contract and the terms and conditions shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania.
2. CHANGES, CANCELLATION - No change by Buyer of any term or condition of this contract or any of Seller's rights or remedies hereunder shall be binding on Seller, nor shall the order thereby acknowledged be cancelled or changed by Buyer, unless Seller shall expressly consent thereto in writing by Seller's authorized officer. There are no representations, agreements, promises or understandings between Buyer and Seller that are not expressed herein.
3. DELIVERY, CLAIMS, DELAYS, RETURNS - Unless specified differently in writing, all sales are F.O.B. Seller's shipping point. Delivery of goods to the carrier at Seller's plant or other loading point shall constitute delivery to Buyer and, regardless of shipping terms, all risk of loss or damage in transit shall be borne by Buyer. Seller reserves the right to make delivery in installments, all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept remaining deliveries. Immediately upon Buyer's receipt of any goods shipped hereunder, Buyer shall inspect the same and shall notify Seller, in writing, of any claims for shortages, defects or damages and shall hold the goods for Seller's written instructions concerning disposition. If Buyer shall fail to so notify Seller, within five days after the goods have been received by Buyer, such goods shall conclusively be deemed to conform to the terms and conditions thereof. Seller shall not be liable for any loss, damage or penalty as a result of any delay in or failure to manufacture, deliver or otherwise perform hereunder due to any cause beyond Seller's reasonable control, including, without limitation, unsuccessful reactions, act of Buyer, embargo or other governmental act, regulation or request, including but not limited to reinterpretation of any regulation, or change in enforcement or policy, affecting the conduct of Seller's business, fire, explosion, accident, theft, vandalism, riot, acts of war, strikes or other labor difficulties, lightning, flood, windstorm or other act of God, delay in transportation or inability to obtain necessary labor, fuel, materials, supplies or power at current prices.
4. ALLOCATION OF GOODS - If Seller is unable for any reason to supply the total demands for goods specified in Buyer's order, Seller may allocate its available supply among any or all buyers on such basis as Seller may deem fair and practical, without liability for any failure of performance which may result therefrom.
5. PAYMENT - Terms of sale are net 30 days of date of invoice, unless otherwise stated. Materials will be billed at the price in effect at the time shipment is made. If the financial condition of Buyer does not justify the terms of payment specified, Seller may demand full or partial payment in advance before proceeding with the contract. If Buyer defaults in any payment when due, under this or any other order, Seller at its option without prejudice to its other lawful remedies, may defer delivery or cancel this contract.
6. TAXES AND OTHER CHARGES - Any use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between Seller and Buyer shall be paid by Buyer in addition to price quoted or invoiced. In the event Seller is required to pay any such tax, fee or charge, Buyer shall reimburse Seller therefor or, in lieu of such payment, Buyer shall provide Seller at the time the order is submitted an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.
7. WARRANTIES - Unless specified differently in writing, Seller warrants that its products shall conform to the description of such products as provided in the Seller's catalog. THIS WARRANTY IS EXCLUSIVE, AND SELLER MAKES NO OTHER WARRANTY, EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURCHASE. Seller's warranties made in connection with this sale shall not be effective if Seller has determined in its sole discretion, that Buyer has misused the products in any manner or has failed to use the products in accordance with instructions, if any, furnished by the Seller and/or in accordance with any material safety data sheet. Seller's sole and exclusive liability and Buyer's exclusive remedy with respect to products proved to Seller's satisfaction to be defective or nonconforming shall be the replacement of such product without charge or refund of the purchase price, at Seller's sole discretion, upon the disposition of such products in accordance with Seller's instructions. SELLER SHALL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL OR CONTINGENT DAMAGES.
8. COMPLIANCE WITH LAWS, REGULATIONS - Seller certifies that to the best of its knowledge its products are produced in compliance with applicable requirements of the Fair Labor Standards Act, as amended, and the Occupational Safety and Health Standards Act of 1970 and regulations, rules and orders issued pursuant thereto. Seller also certifies to the best of its knowledge, it is in compliance with Executive Order 11246 and its regulations, rules and orders issued pursuant thereto, that it does not discriminate against any employee or prospective employee because of race, creed, color, national origin, sex, age or handicap, nor permit discrimination in any form nor maintain segregated facilities for its employees; that it actively pursues employment of minorities, females, handicapped, disabled veterans and veterans of the Vietnam era; and that it uses its best efforts to award contracts to and place purchase orders with minority business enterprises and with labor surplus area concerns and small business concerns.
9. BUYER'S USE OF PRODUCTS - Seller's products are intended only for laboratory use and, unless otherwise indicated on Seller's invoice, other writings, or on product labels, are not to be used for other purposes, including but not limited to as, or a component in a food, drug, medical device (including in vitro diagnostic reagents) or cosmetics as defined in the Federal Food, Drug and Cosmetic Act, as amended, nor as a pesticide unless otherwise stated by Seller in writing furnished to Buyer. Buyer expressly represents and warrants to Seller that Buyer will properly test, use, manufacture and market any products purchased from Seller and any final articles made from them in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with all applicable federal and state food, drug, device and cosmetic and other relevant laws and regulations, now and hereinafter enacted. Buyer further warrants to Seller that any final articles manufactured from Seller's products shall not be adulterated or misbranded within the meaning of the Federal Food, Drug, and Cosmetic Act and shall not be articles which may not be introduced into interstate commerce. Buyer agrees to comply with instructions, if any, furnished by Seller relating to the use of the products and not misuse the products in any manner. Buyer acknowledges (1) that Seller's products are small quantities solely for purposes of scientific experimentation, or analysis, or chemical research and intended only for laboratory use by technically qualified individuals, (2) that the products will be used only for such purposes, and by such qualified individuals and, (3) that some of Seller's products may not be on the Inventory of Existing Chemical Substances defined pursuant to the Toxic Substances Control Act (TSCA). Seller assumes no responsibility to assure that products purchased hereunder may be used in a commercial application under the provisions of TSCA and regulations promulgated under TSCA. Seller will provide a Material Safety Data Sheet (MSDS) to Buyer which will inform persons using the product of the health risks which Seller has reason to believe may be associated with the product. Buyer agrees that it will inform its employees (1) that some of Seller's products may not be on the Inventory of Existing Chemical Substances defined pursuant to the Toxic Substances Control Act (TSCA)and that (2) a current MSDS is available to any and all employees or other personnel working, handling and/or in contact with or proximity to Seller's products for which an MSDS is required. Buyer agrees that it will comply with all provisions of 29 C.F.R. Part 1910. If the products purchased from Seller are to be repackaged, relabeled, or used as starting material or components of other products, Buyer will verify Seller's assay of the product and accept its obligations to conform to the requirements of TSCA. Buyer agrees that it has the responsibility to verify the hazards and to conduct any further research necessary to learn the hazards involved in using products purchased from Seller. Buyer also has the duty to warn Buyer's employees, customers and any auxiliary personnel (such as freight handlers, etc.) of any risks involved in using or handling the products.
10. INDEMNIFICATION - Buyer agrees to indemnify and hold Seller harmless from and against any and all losses, damages and expenses, (including attorney's fees and other costs of defending any action) that Seller may sustain or incur as a result of any claim for damages for personal injury, death, damage to property or other injury by reason of any claim of negligence, breach of express or implied warranty, strict liability in tort or other theory of law made by Buyer, its officers, agents or employees, it's successors and assigns, and its customers, whether direct or indirect, in connection with the use of Seller's products, or by reason of Buyer's failure to perform the obligations herein contained. This obligation of indemnification shall exist notwithstanding any ordinary negligence or fault by the Seller. In the event of any claim against Seller by an employee of Buyer or an employee of a subcontractor of Buyer or other person who might or would benefit from an immunity from making indemnity, contained in any state or federal workers' compensation law or similar law, the Buyer specifically waives the immunity and agrees to indemnify Seller and hold Seller harmless from any claim for any type of injury or damages. Buyer shall notify Seller within 15 days of Buyer's receipt of knowledge of any claim involving Seller's products resulting in personal injury, death, or damage to property and Buyer shall fully cooperate with Seller in the investigation and determination of the cause of such accident and shall make available to Seller all statements, reports and tests made by Buyer or made available to Buyer by others. The furnishing of such information to Seller and any investigation by Seller shall not constitute an assumption of any liability by Seller.
11. PATENT DISCLAIMER - Seller does not warrant that the use or sale of the products delivered hereunder will not infringe the claims of any United States or other patents covering the product itself or the use thereof in combination with other products or in the operation of any process.
12. RETURNS AND DISPOSAL - Goods may not be returned for credit except with Seller's written permission and then only in strict compliance with Seller's return shipment instructions. Buyer agrees that it will, at all times, handle and dispose of goods in accordance with Seller's instructions, the current Material Safety Data Sheet, and all applicable law and government regulations.
13. TECHNICAL ASSISTANCE - At Buyer's request, Seller may furnish technical assistance and information with respect to Seller's products. Unless otherwise agreed, all such technical assistance and information will be provided gratis, and Buyer assumes sole responsibility for results obtained in reliance thereon. SELLER MAKES NO WARRANTIES OF ANY KIND OR NATURE WITH RESPECT TO TECHNICAL ASSISTANCE OR INFORMATION PROVIDED BY IT. ANY SUGGESTIONS BY SELLER REGARDING USE, APPLICATION OR SUITABILITY OF THE PRODUCTS SHALL NOT BE CONSTRUED A WARRANTY UNLESS EXPRESSLY DESIGNATED AS SUCH, IN WRITING, SIGNED BY SELLER.
14. RUSH ORDERS (SAME DAY SHIPMENT) - Seller will accept rush orders for any in-stock items until 4pm EST, for next day delivery by Federal Express or UPS. This service is provided without additional charge to all customers, but Buyer will be responsible for any additional charge for shipping made by the carrier. Seller will use reasonable efforts to ship by next day service but Seller assumes no liability for failure to deliver a rush order the next day.