Terms of Sale
1. General Terms
words not defined in these Terms of Sale have the meanings assigned to them in
the agreement (the "Sales Agreement") by which ZEON has agreed
to sell and Customer has agreed to purchase products (the "Products").
These Terms of Sale form an integral part of the Sales Agreement and are
incorporated therein by this reference. To the extent any provisions of the
Sales Agreement conflict with the provisions of these Terms of Sale, these
Terms of Sale shall control.
2. Delivery, Packing and Pricing
A. Product shall be
suitably packed and shipped as designated by ZEON in accordance with
requirements of common carriers in a manner to secure lowest transportation
B. Prices for Product
and delivery of Product shall be FOB ZEON'S facility designated by it as the
place of shipment (the "Facility"), in accordance with Section
2-319 of the Kentucky Uniform Commercial Code – Sales (KRS 355.2-319) in effect
as of the date of shipment.
C. ZEON reserves the
right to sell remanufactured Product.
3. Additional Delivery and Payment Terms
If ZEON fails to
deliver Product on the delivery date set forth in the Sales Agreement, Customer
shall give ZEON written notice of that delinquency and shall allow ZEON a
reasonable period of time to cure that deficiency; provided, that ZEON shall be
considered in default of its obligation to deliver such Product if such Product
is not delivered before the later of (a) 30 days after such notice from
Customer, or (b) 60 days after the delivery date set forth in the Sales
Agreement. Unless otherwise expressly set forth in the Sales Agreement, Product
need not be tendered by ZEON in a single delivery, and payment by Customer is
due with respect to each tender or delivery of Product, and may not be withheld
by Customer until all Product to be purchased under the Sales Agreement is
tendered or delivered. Payment shall be due from Customer net thirty (30) days
after ZEON's invoice, which invoice may be delivered by ZEON to Customer at any
time following ZEON's delivery of the relevant Product at the delivery point.
All payments shall be made to ZEON at the following address without set-off or
deduction: ZEON CHEMICALS LP, 4100 Bells Lane, Louisville, Kentucky 40211,
Attn: Accounts Payable Department.
4. Title and Risk of Loss
Title to Product shall
be vested in Customer at such time as the Product has been tendered by ZEON to
the delivery point and Customer has paid the full purchase price for such
Product, but not before. Risk of loss or damage to Product shall pass to
Customer upon tender of such Product by ZEON at the delivery point.
5. Warranty; Customer Rejection
A. ZEON warrants to
Customer that Product shall be free from defects in design, materials and
workmanship. The warranty period shall be for 12 months from shipment date. Any
warranty claims made by Customer following that period shall be ineffective.
Customer warranty claims, to be effective, must be delivered by Customer to
ZEON in writing at the following address, and must identify the Product(s) in
question, the relevant date(s) of its delivery by ZEON and the particular
defect(s) in reasonable detail: ZEON CHEMICALS LP, 4100 Bells Lane, Louisville,
Kentucky 40211, Attention: Director of Sales.
B. Customer shall also
notify ZEON of any rejection of Product for failure to conform to the Sales
Agreement, giving detailed reasons for the rejection, within ten (10) days
after Customer's receipt of such Product. Failure of Customer to reject any
Product within that period shall constitute acceptance.
C. If Customer rejects
Product for such nonconformity or makes a warranty claim, in either case in
accordance with the requirements set forth above, Customer shall allow ZEON a reasonable
period of time thereafter to remedy the relevant non-conformity or defect
(subject to any claim by ZEON that the Product was conforming or was not
defective, as applicable). Customer shall render necessary assistance to ZEON
in connection with that effort, and shall furnish adequate means for operating
and testing the relevant Product.
D. Should Product
prove to be nonconforming with the Sales Agreement or defective under the
warranty provided for above, and that nonconformity or defect is not remedied
by ZEON within the time period contemplated above, Customer must return the
particular Product to ZEON at ZEON's expense. Customer shall immediately notify
ZEON of the return by registered mail addressed to ZEON, and ZEON shall then,
at its option, either replace the relevant Product with conforming or
non-defective Product, or rescind the Sales Agreement with respect to the
nonconforming or defective Product and return to Customer any purchase price
amounts already paid for that nonconforming or defective Product.
E. If ZEON does cure
the nonconformity or defect at its cost, Customer shall remain obligated for
the timely payment of the full price as set forth in Sales Agreement for that
F. ZEON'S warranty
shall immediately become null and void with respect to any Product to the
extent it has been subject to (a) other than normal wear and tear, or (b) any
unreasonable use, installation or repair (including without limitation, any
use, installation or repair in a manner that is inconsistent with written
guidelines that may have been delivered by ZEON to Customer), any installation
or repair by unauthorized service personnel, or any tampering, negligence,
abuse or accident undertaken or caused by any person or entity other than ZEON
or its employees or agents.
G. THIS WARRANTY IS IN
LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION,
ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
OF TECHNOLOGICAL VALUE, ALL OF WHICH OTHER WARRANTIES ARE HEREBY DISCLAIMED.
H. The remedy of
Customer provided for in Section 5.D above shall be ZEON's sole liability and
Customer's sole and exclusive remedy resulting from, arising out of or with
respect to any breach of ZEON's warranty set forth in Section 5.A.
6. Fit for Purpose
applications support, compounding formulations, and regulatory/product
stewardship information are provided for customer or buyer knowledge only and
do not modify, amend, enlarge or create any specification or warranty. By receipt
and use of ZEON Products and/or materials, recipients expressly acknowledge and
agree that recipients are responsible for determining and ensuring that all
conditions, specifications, and legal and regulatory requirements are met and
that all products or components fabricated from ZEON Products and/or materials
are acceptable for use in the intended applications.
7. Excusable Delay
Neither party shall be
liable to the other for damages for any delay in performance under the Sales
Agreement arising out of causes or circumstances beyond its reasonable control
and without its negligence or willful misconduct; provided that Customer's
obligation to pay the purchase price for Product when due shall not be
suspended or excused by any causes or circumstances of the type(s) contemplated
ZEON reserves the
right at any time to make changes in (a) its drawings and specifications, (b)
methods of packaging and shipping, and (c) prices for Product prior to its
acceptance of any Customer Purchase Order or any other commitment by ZEON to
sell such Product to Customer.
In event of insolvency
as defined in the Uniform Commercial Code in effect in Kentucky (KRS Chapter
355.2), any act of bankruptcy, whether voluntary or involuntary, or any insolvency
proceeding instituted, by or against Customer, ZEON shall be entitled, in its
discretion, to (a) cancel the Sales Agreement (and any Customer's Purchase
Order then outstanding) and to receive reimbursement for ZEON's reasonable and
proper cancellation charges, (b) refuse delivery of Product except for cash
including payment for all Product delivered, and/or (c) stop delivery of
Product in transit.
ZEON and Customer each
agree to release and waive any liability of and claim against the other, its
officers, agents and employees, for physical loss of or physical damage to
property or injury or death to any person(s), including loss of use, arising
directly or indirectly out of or in connection with the other's performance
under the Sales Agreement.
11. Confidentiality; Proprietary Property
A. Each party agrees
to hold in strictest confidence the contents of this Agreement and any
information provided to it by the other party, except to the extent these Terms
of Sale have been or may be included by ZEON on its website or otherwise placed
in the public domain by ZEON (at its sole discretion), and except as otherwise
required by applicable law or judicial process.
B. ZEON retains all
title and all associated rights to its intellectual property, including without
limitation, all trademarks, trade names, copyrights, patents, formulae,
methods, processes, inventions, recipes, product packaging, associated
markings, advertising, marketing materials and manuals, which may not be
copied, removed, disguised or changed by Customer.
acknowledges that ZEON has informed it that US law and US Export Administration
Regulations govern, and may prohibit the re-export or other disposition of
Product and related technical data received by Customer or its customers from
ZEON without prior US government approval.
B. Customer agrees
that diversion of Product from destinations identified in the Shipper's Export
Declaration constitutes a fundamental and material breach under Sales
Agreement. If Product is diverted from intended destinations, the sale may be
voided at the sole discretion of ZEON, and all right, title and interest in
Product shall revert to ZEON. In the event of such breach, Customer shall be
liable to ZEON for all costs, fees and expenses incurred by ZEON in connection
with recovery of Product, including reasonable attorney fees.
C. Customer agrees and
warrants that in the performance of its obligations under the Sales Agreement
or its use or transportation of Product, Customer will at all times comply with
all applicable domestic and foreign laws, rules and regulations, including
without limitation, all import and export laws, rules and regulations, and the
U.S. Foreign Corrupt Practices Act.
A. ZEON's acceptance
of any terms or conditions set forth in any purchase order or other form of
Customer provided to ZEON is conditioned on Customer's assent to and acceptance
of any additional or different terms or conditions set forth in these Terms of
Sale or in any proposal, confirmation or other form provided by ZEON to
Customer. Acceptance of any offer made by ZEON to Customer in these Terms of
Sale or in any proposal, confirmation or other form provided by ZEON to
Customer is limited to the terms of that offer. Any additional or different
terms set forth in Customer's acceptance are rejected and excluded.
B. Any action, suit or
proceeding by Customer on account of or with respect to any breach by ZEON of
any of its duties or obligations under the Sales Agreement, to be effective and
eligible for prosecution against ZEON, must be commenced within 1 year of date
of the breach or it shall be deemed to be barred.
C. EXCEPT AS OTHERWISE
PROVIDED IN THE FOLLOWING SENTENCE, AT NO TIME SHALL EITHER PARTY HERETO BE
ENTITLED TO RECOVER FROM THE OTHER PARTY ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL
OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOST REVENUES, LOST
PROFITS OR LOST BUSINESS OPPORTUNITY, WHETHER ARISING OUT OF A BREACH OF ZEON'S
WARRANTY SET FORTH IN SECTION 5.A OR ANY OTHER OBLIGATION OF ZEON UNDER THE
SALES AGREEMENT (INCLUDING THESE TERMS OF SALE), OR OTHERWISE, ALL OF WHICH ARE
HEREBY DISCLAIMED AND EXCLUDED. Notwithstanding the foregoing, ZEON shall be
entitled to recover from Customer any incidental damages of the types
contemplated in Section 2-710 of the Kentucky Uniform Commercial Code – Sales
(KRS 355.2-710) to the extent arising out of any breach of the Sales Agreement
by Customer, in addition to all other remedies. ZEON's damages for a breach of
the Sales Agreement by Customer shall be cumulative to the fullest extent
permissible under applicable law.
D. The Sales Agreement
(including these Terms of Sale) constitutes the entire agreement and
understanding between ZEON and Customer with respect to the subject matter
thereof, and supersedes any prior or contemporaneous written or oral agreements
or understandings with respect to that subject matter. The Sales Agreement is a
complete and exclusive statement of the terms of the parties' agreement.
E. The Sales Agreement
may not be amended, modified or supplemented except in a writing signed by ZEON
F. Neither ZEON nor
Customer shall be deemed to have waived any right or remedy under or available
pursuant to the Sales Agreement unless such waiver is in writing and signed by
the party against which enforcement of the waiver is sought.
G. ZEON shall be
permitted in its discretion to assign its rights under the Sales Agreement, in
whole or in part, and to delegate its performance of the Sales Agreement, in
whole or in part, to one or more other persons or entities; provided, that such
an assignment or delegation shall not relieve ZEON from any of its obligations
under the Sales Agreement.
H. In the event any
provision of the Sales Agreement shall be or become unenforceable in whole or
in part, the remainder of the Sales Agreement shall not be affected thereby and
shall remain enforceable to the fullest extent permissible under applicable
law, unless such enforcement would frustrate the parties' essential objectives
as reflected in the Sales Agreement as originally agreed to by the parties.
I. Headings set forth
in these Terms of Sale are convenience only and do not constitute a portion of
these Terms of Sale.
J. The Sales Agreement
shall be governed by and construed and enforced in accordance with the laws of
the Commonwealth of Kentucky, without regard to its conflicts of laws, rules,