1. Applicability
(a) These terms and conditions of sale (these “Terms“) are the only terms that govern the sale of the goods (“Goods“) by Silicona USA, LLC, its affiliates, subsidiaries, and parent companies (“Seller“) to the buyer named on the Order Confirmation (as defined below) (“Buyer“). Collectively Buyer and Seller are referred to as the “Parties” and individually as “Party.”
(b) The accompanying order confirmation (the “Order Confirmation“) and these Terms (collectively, this “Agreement“) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Terms supersedes any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Seller expressly rejects Buyer’s general terms and conditions of purchase, and fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions or serve to modify or amend these Terms. Acceptance of the Order Confirmation by Buyer (which shall be deemed accepted should Buyer not object in writing within 1 business day of receipt of the Order Confirmation) is a prerequisite to the purchase of the Goods and shall operate as an acceptance of these Terms which are expressly incorporated into the Order Confirmation. Notwithstanding anything herein to the contrary, if a written contract signed by both Parties is in existence covering the sale of the Goods (“Master Agreement”), then the Master Agreement shall prevail to the extent of any inconsistency with these Terms.
2. Delivery
(a) The goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of the Goods. Delivery dates given by Seller are estimates only and are subject to shipping variations and requirements. Seller shall not be liable for any delays, loss, or damage in transit.
(b) Unless otherwise agreed in writing by the parties in the Order Confirmation, Seller shall deliver the Goods to the location indicated in the purchase order or by the Buyer (the “Delivery Point“) using Seller’s standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods upon delivery at the Delivery Point Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point. Buyer is responsible for fees associated with not taking timely delivery of the Goods, such as storage fees.
(c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
3. Quantity
If Seller delivers to Buyer a quantity of Goods of up to 95% more or less than the quantity set forth in the Order Confirmation, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods at the price set forth in the Order Confirmation adjusted pro rata.
4. Title and Risk of Loss
Title and risk of loss pass to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Texas Uniform Commercial Code or the Uniform Commercial Code of the applicable state.
5. Amendment and Modification
Except for Section 2
(b), these Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each Party.
6. Inspection
(a) Buyer shall inspect the Goods upon receipt (“Inspection Period“). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods (as defined below) during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in the Order Confirmation; (ii) product’s label or packaging incorrectly identifies its contents; or (iii) when the Goods fail to meet the specifications set forth in the technical data sheet, quality certificate, or safety data sheet.
(b) If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable third-party shipping and handling expenses actually incurred and paid by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 6 (b) are Buyer’s exclusive remedies for Nonconforming Goods. Except as provided under Section 6 (b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
7. Price
(b) All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, or real or personal property or other assets. The Prices include standard packaging. The Prices exclude transportation and insurance costs which are the responsibility of the Buyer.
8. Payment Terms
(a) Buyer shall pay Seller all invoiced amounts in such terms and by such method indicated by Seller in writing or in the Order Confirmation after delivery of Seller’s invoice. All payments hereunder shall be in US dollars. Seller reserves the right to require pre-payment in its sole discretion.
(b) Buyer shall pay interest on all late payments at the lesser of the rate of 3% (three percent) per month or the highest rate permissible under applicable law. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise.
9. Limited Warranty
Seller warrants to Buyer that:
(a) Seller warrants that the Goods may have a shelf life of up to six (6) months from the date of delivery of the Goods (the “Warranty Period“) if the Goods are kept in their unopened container and stored in a cool, dry, dark environment not exposed to the sun.
(b) The use, application, and results of the manufacturing process of the end user, are the full responsibility of Buyer. Buyer acknowledges and agrees that they have evaluated and/or tested the Goods to their satisfaction before buying the product and/or use it during a manufacturing process.
(c) Buyer will receive good and valid title to the Goods, free and clear of all encumbrances and liens.
The warranties under this section do not apply where: (i) the Goods have been subjected to abuse, misuse, neglect, negligence, accident, abnormal physical stress or environmental conditions, use contrary to any instructions issued by Seller, or improper testing, installation, storage, handling, repair, or maintenance; (ii) the Goods have been contaminated, reconstructed, repaired, or altered by anyone other than Seller or its authorized representative; (iii) the Goods have been used with any third-party product, hardware, or product that has not been previously approved in writing by Seller; or (iv) Buyer has not followed the instructions of use provided by Seller.
10. Buyer’s Exclusive Remedy for Breach of Warranty
During the Warranty Period:
(a) Buyer shall notify Seller, in writing, of any alleged warranty claim within thirty (30) days from the date Buyer discovers, or upon reasonable inspection should have discovered, such alleged claim (but in any event before the expiration of the applicable Warranty Period);
(b) Buyer shall ship the relevant Goods within ten (10) days of the date of its notice to Seller, at Seller’s expense (which can be a note of credit), to Seller’s facility as indicated by Seller for inspection and testing by Seller;
(c) If Seller’s inspection and testing reveals, to Seller’s satisfaction, that such Goods do not conform with the limited warranty set forth herein, Seller shall in its sole discretion, and at its expense (subject to Buyer’s compliance with this Section 10), replace such Goods.
(d) If Seller exercises its option to replace, Seller shall, after receiving Buyer’s shipment of such Goods, ship to Buyer, at Seller’s expense and risk of loss, the replacement Goods to a location designated by Seller.
(e) Buyer has no right to return for repair, replacement, credit, or refund any Goods except as set forth in this Section 10. In no event shall Buyer reconstruct, repair, alter, or replace any Goods, in whole or in part, either itself or by or through any third party.
(f) THIS Section 10 SETS FORTH THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN Section 9.
11. WARRANTIES DISCLAIMER
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN Section 9, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR THEIR PERFORMANCE, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER INDIVIDUAL OR ENTITY ON SELLER’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN Section 9 OF THIS AGREEMENT. ANY TECHNICAL INFORMATION, RECOMMENDATIONS, OR ASSISTANCE (INCLUDING REGARDING FORMULATION, COMPATIBILITY, OR PROCESSING) IS PROVIDED FOR CONVENIENCE ONLY AND WITHOUT WARRANTY, AND BUYER ASSUMES ALL RISK AND LIABILITY FOR RESULTS OBTAINED THROUGH USE OF THE GOODS, WHETHER USED ALONE OR IN COMBINATION WITH OTHER MATERIALS. BUYER IS SOLELY RESPONSIBLE FOR (a) DETERMINING THE SUITABILITY OF THE SILICONE EMULSION FOR BUYER’S INTENDED USES, FORMULATIONS, SUBSTRATES, AND PROCESS CONDITIONS, (b) CONDUCTING ALL NECESSARY TESTING AND VALIDATION (INCLUDING STABILITY, COMPATIBILITY, PERFORMANCE, AND SAFETY TESTING), AND (c) ENSURING COMPLIANCE WITH ALL APPLICABLE LAWS, REGULATIONS, AND INDUSTRY STANDARDS (INCLUDING LABELING, SDS/HAZCOM, TRANSPORT, STORAGE, DISPOSAL, AND ANY PRODUCT-SPECIFIC REGULATORY REQUIREMENTS) FOR BUYER’S USE, HANDLING, PROCESSING, AND SALE OF BUYER’S PRODUCTS. BUYER ACKNOWLEDGES THAT SELLER HAS PROVIDED (OR MADE AVAILABLE) THE APPLICABLE TECHNICAL DATA SHEET (“TDS”) AND SAFETY DATA SHEET (“SDS”) FOR THE GOODS. BUYER WILL HANDLE, STORE, TRANSPORT, USE, AND DISPOSE OF THE GOODS IN ACCORDANCE WITH THE TDS AND SDS AND ALL APPLICABLE LAWS. SELLER IS NOT RESPONSIBLE FOR CLAIMS ARISING FROM IMPROPER HANDLING, STORAGE (INCLUDING FREEZE/THAW OR TEMPERATURE/HUMIDITY CONDITIONS), CONTAMINATION, INCOMPATIBLE MIXING, OR USE OUTSIDE SELLER’S WRITTEN SPECIFICATIONS. SOME LIMITATIONS OR DISCLAIMERS MAY NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW, INCLUDING CERTAIN CONSUMER PROTECTION OR WARRANTY LAWS. IN SUCH CASES, SELLER’S WARRANTIES, REMEDIES, AND LIABILITY WILL BE LIMITED ONLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
12. Limitation of Liability
(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL SELLER OR ANY OF ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, LOSS OF GOODWILL, RECALL COSTS, COST OF COVER, BUSINESS INTERRUPTION, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
(b) TO THE MAXIMUM EXTENT PERMITTED BY LAW, SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED 1.5 (ONE AND A HALF) THE TOTAL OF THE AMOUNTS PAID TO SELLER PURSUANT TO THE CORRESPONDING ORDER CONFIRMATION OR $50,000, WHICHEVER IS LESS.
13. Compliance with Law
Buyer shall at all times comply with all laws applicable to the operation of its business, this Terms, Buyer’s performance of its obligations hereunder, and Buyer’s use of the Goods. Without limiting the generality of the foregoing, Buyer shall (a) at its own expense, maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to the purchase or use of the Goods and (b) not engage in any activity or transaction involving the Goods, by way of shipment, use, or otherwise, that violates any law.
14. Termination
In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for fifteen (15) days after Buyer’s receipt of written notice of nonpayment]; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
15. Waiver
No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement by Seller operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder by Seller precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege by Seller.
16. Confidential Information
All non-public, confidential, or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
17. Force Majeure
Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party“) control, including, the following force majeure events (“Force Majeure Events“): (a) acts of God; (b) flood, fire, earthquake, epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) order or action by any governmental authority or requirements of law; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other events beyond the control of the Impacted Party.
18. Assignment
Buyer’s rights, interests, or obligations hereunder may not be assigned, transferred, or delegated by Buyer without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
19. Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
20. No Third-Party Beneficiaries
This Agreement benefits solely the Parties to this Agreement. Nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
21. Dispute Resolution; Mediation and arbitration
(a) Good-Faith Negotiations. The Parties will first attempt in good faith to resolve any dispute, claim, or controversy arising out of or relating to the Goods or this Agreement (a “Dispute”) through discussions between executives with authority to settle the Dispute. Either Party may initiate negotiations by written notice describing the Dispute in reasonable detail.
(b) Mandatory Mediation. If the Dispute is not resolved within thirty (30) days after the notice under subsection (a) (or such other period the Parties agree in writing), the Parties shall submit the Dispute to non-binding mediation as a condition precedent to arbitration. The mediation shall be administered by a mutually agreed mediator and conducted in Austin, Texas. The Parties shall share the mediator’s fees equally and bear their own attorneys’ fees and costs, unless the mediator allocates costs by agreement of the Parties.
(c) Binding Arbitration.
(i) Agreement to Arbitrate. Any Dispute not resolved by mediation shall be finally resolved by binding arbitration.
(ii) Rules; Administrator. The arbitration shall be administered by AAA in accordance with its Commercial Arbitration Rules then in effect, except as modified by this clause.
(iii) Seat; Hearing Location. The seat (legal place) of arbitration shall be Austin, Texas, and hearings shall be held in Austin, Texas unless the Parties agree otherwise.
(iv) Arbitrator. The arbitration shall be conducted by one (1) arbitrator. The arbitrator shall have experience in commercial contract disputes.
(v) Relief; Remedies. The arbitrator may award any relief available at law or in equity, except that the arbitrator shall not award punitive or exemplary damages unless such damages are expressly permitted under applicable law and cannot be waived.
(vi) Confidentiality. The mediation and arbitration, including all submissions, testimony, and awards, shall be confidential except to the extent necessary to enforce an award or as required by law.
(vii) Award; Judgment. The arbitrator’s written award shall be final and binding, and judgment on the award may be entered in any court of competent jurisdiction.
(viii) Injunctive Relief; Collection. Notwithstanding the foregoing, either Party may seek temporary or preliminary injunctive relief in a court of competent jurisdiction to preserve the status quo pending arbitration. Seller may also pursue judicial remedies solely to collect undisputed amounts due for goods delivered, and Buyer may assert any defenses or counterclaims in arbitration.
(ix) Time Limits. Any arbitration must be commenced within the time period required by applicable law for bringing the claim, and in any event no later than one (1) year after the claim accrued, to the extent permitted by applicable law.
(x) Survival. This Dispute Resolution clause survives termination or expiration of these Agreement.
(xi) Waiver of Jury Trial in the Alternative. SHOULD THIS ARBITRATION CLAUSE BE DEEMED INVALID OR UNENFORCEABLE FOR ANY REASON, THE PARTIES NONETHELESS AGREE TO WAIVE A TRIAL BY JURY.
(xii) Class Action Waiver. Buyer and Seller agree that ANY DISPUTE, CLAIM, OR CONTROVERSY BETWEEN THEM ARISING OUT OF OR RELATING TO THESE AGREEMENT, THE GOODS, OR ANY RELATED TRANSACTION (EACH, A “DISPUTE”) MUST BE BROUGHT AND RESOLVED ONLY IN THE PARTIES’ INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL ACTION, ARBITRATION, OR PROCEEDING. NO CLASS, COLLECTIVE, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL CLAIMS ARE PERMITTED.
There shall be NO CLASS ARBITRATION. The arbitrator shall have no authority to conduct any class, collective, representative, or private attorney general arbitration, to consolidate the claims of more than one person or entity, or to preside over any form of a representative or collective proceeding. SEPARATE ARBITRATIONS MAY NOT BE CONSOLIDATED OR JOINED WITHOUT THE PARTIES’ MUTUAL WRITTEN CONSENT.
This Class Action Waiver applies in any forum—whether in arbitration or, to the extent any Dispute is permitted to be litigated in court, in court—and regardless of the nature of the relief sought (including monetary, injunctive, declaratory, or statutory penalties).
Severability Specific to Class/Representative Waiver. If, and only to the extent that, this Class Action Waiver is found unenforceable with respect to a particular claim or request for relief, then that claim or request for relief shall proceed only on an individual basis in the appropriate forum, and shall be severed from any class, collective, representative, or private attorney general aspects. Under no circumstances shall any claim or issue be arbitrated or litigated on a class, collective, representative, or private attorney general basis, nor shall any arbitration be consolidated, absent the parties’ mutual written consent.
22. Notices
All notices shall be in writing and addressed to the parties at the addresses set forth on the face of the Order Confirmation or to such other address for either Party as that Party may designate by written notice. All notices must be delivered by nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested).
23. Severability
If any term or provision of this Agreement is determined to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.