General applicability
Integrated Polymer Industries, Inc. (“IPI”) will sell the commercial product(s) described on the face hereof (“Product(s)”) to the public subject to the terms and conditions specified herein, which take precedence over Purchaser’s and associated entities’ terms and conditions. Acknowledgment and/or acceptance of these terms and conditions deem these Product(s) as purely commercial Product(s).
Should the Purchaser’s acceptance of this offer contain additions to or modifications of the covenants and conditions hereunder, then said counteroffer shall be void and without legal effect unless such additions or modifications are accepted by IPI in writing. Purchaser shall be deemed to have accepted the provisions contained herein unless IPI is notified otherwise within ten (10) days from the date Purchaser receives this notice. If Purchaser repudiates the contract or notifies IPI to proceed no further therewith, IPI shall have the right to deliver all finished Product(s) and Product(s) in process, and Purchaser agrees to accept same and pay IPI the contract price for Product(s) finished and delivered by IPI plus reimbursement for unfinished Product(s).
In the absence of such an agreement, commencement of performance and/or delivery shall be for Purchaser’s convenience only and shall not be deemed or construed to be acceptance of Purchaser’s terms and conditions. If a contract is not earlier formed by mutual agreement in writing, acceptance of any Product(s) or services shall be deemed acceptance of the terms stated herein.
Disputes
All disputes under any contract concerning the Product(s) not otherwise resolved between IPI and Purchaser shall be resolved in a court of competent jurisdiction in the County of Orange, State of California, USA, which is IPI’s place of business. Additionally, in IPI’s sole discretion, such action may be heard in some place designated by IPI if necessary to acquire jurisdiction over third persons so that the disputes can be resolved in one action. Purchaser agrees to appear in any such action and hereby consents to the jurisdiction of such court. No action, regardless of form, arising out of or in any way connected with the Product(s) furnished or services rendered by IPI may be brought by the Purchaser more than one year after the date of the sale. No penalty clause of any description shall be effective against an officer of IPI.
Default
If Purchaser defaults in the performance of any of the terms hereof or in any other contract between Purchaser and IPI, IPI may at its option render bills at the contract price for all Product(s) deliverable or appropriated hereunder and under any other contract between Purchaser and IPI, and Purchaser agrees to pay same per the terms hereof or in cash at IPI’s option; or IPI may rescind any transfer of Product(s) deliverable or appropriated hereunder or under any other contract with Purchaser, or cancel this and any other contract with Purchaser, reserving, however, all IPI’s rights concerning any liabilities of Purchaser accruing before the cancellation.
Purchaser, in the event of its default hereunder, shall be liable for IPI’s damages, including its loss of profits, reasonable attorney’s fees, costs of collections, and prime rate of interest in addition to other remedies IPI shall have under law. In the event of bankruptcy, assignment for the benefit of creditors, appointment of a receiver, or any other act of insolvency, IPI may, at its option, cancel and terminate this contract.
Price
The prices quoted shall be effective for thirty (30) days from the date hereof. In addition to the price, the Purchaser shall pay all local, state, regional, and national sales, use, property, excise, and transfer taxes, surcharges, or duties arising or levied because of the sale of the Product(s).
Notwithstanding anything contained herein to the contrary, Purchaser and IPI agree that IPI shall have the absolute right during the term of this contract to increase the price or terms of payment upon at least thirty (30) days’ written notice regarding any unshipped Product(s) hereunder. Purchaser’s failure to make a written objection to such increase or change before the effective date shall be considered acceptance thereof. If Purchaser so objects, IPI may elect to continue to supply Purchaser at the price or terms of payment existing at the time of the announced increase or change; if unwilling to do so, then Purchaser or IPI may cancel this contract upon thirty (30) days’ written notice. If the price or terms of payment hereunder are nullified or reduced, or if a proposed change is prohibited by any law, government decree, order, or regulation, IPI may cancel this contract upon thirty (30) days’ written notice.
Payments
All Product(s) are sold on a prepaid basis unless IPI agrees in writing otherwise. If IPI agrees to grant one or more purchases on credit terms, IPI still reserves the right to require full prepayment on any or all future purchases. Financing of Product(s) sales by IPI shall always be within the sole discretion of IPI.
If Purchaser fails to make any payment within thirty (30) days of the due date thereof, Purchaser shall pay a service charge of five percent (5%) of the amount due; provided, however, that not more than one such service charge shall be made on any delinquent payment, regardless of the length of the delinquency. In addition, Purchaser shall pay interest on any such delinquent payments from the due date thereof until paid, at the maximum amount of interest allowed by law.
If payment is not made per the terms hereof, or if at any time in IPI’s judgment Purchaser’s credit standing has been impaired, IPI may withhold delivery of any Product(s) to be sold hereunder until, in the case of future deliveries, satisfactory cash or credit arrangements have been made, and in the case of Product(s) already delivered, satisfactory security arrangements have been made for payment of all outstanding balances. If Purchaser fails, neglects, or refuses to make cash or credit arrangements satisfactory to IPI or to comply with the terms hereof, then IPI may, without prejudice to any right to damages or waiving any other remedies it may have against Purchaser, terminate the contract concerning the whole or any part of the Product(s) remaining undelivered without further liability on IPI’s part and without affecting the obligations of Purchaser to perform hereunder.
Where deliveries are to be made in one or more installments, whether of a specified amount or not, each installment and each part delivery shall be paid for per the terms hereof regardless of the claims of the Purchaser upon this or any other contract or relating to this or any other Product(s), and the failure to deliver any part of the installment shall not relieve the Purchaser from the obligation to accept and pay for other deliveries and installments under this contract. The cancellation of this contract shall not release the Purchaser of any liabilities to IPI accrued before the date of such cancellation.
Errors and omissions
IPI reserves the right to correct errors and omissions without notice.
Export compliance
Before you order from outside the U.S.Some items are export-restricted and require a DSP-5 export licence issued under ITAR to qualified buyers only. Contact IPI for commodity jurisdiction and authorised foreign end-user information before distributing anything.
If applicable, Purchaser warrants that it will not sell or knowingly assist or participate in the sale of any commercial product(s) in countries or to users not approved to receive Product(s) or information under applicable U.S. laws and regulations, and will hold harmless and indemnify IPI for any damages resulting to IPI from a breach of this paragraph by Purchaser.
Transmittals may contain technical data that is controlled under the United States Export Administration Regulations (“EAR”) or the International Traffic in Arms Regulations (“ITAR”). This information may not be exported to a foreign person, either in the U.S. or abroad, without the proper authorisation of the U.S. Department of Commerce or the U.S. Department of State. Before distributing, please contact IPI to obtain information related to commodity jurisdiction and authorised foreign end-users.
Purchaser shall comply with all applicable U.S. export control laws in receiving, utilising, and/or disposing of any articles, technical data, and/or services provided by IPI in connection with this order, and in transferring or otherwise disposing of any articles, technical data, and/or services developed or produced therefrom by the Purchaser. No technical data or other items provided by IPI may be exported, transferred, or disclosed outside the United States or to any foreign person unless IPI provides written consent and the Purchaser obtains all required export licences and/or other approvals from the United States government.
Title and risk of loss
Title to and all risk of loss of any Product(s) sold hereunder shall pass to Purchaser at the point of shipment unless otherwise expressly and specifically provided for on the face hereof by IPI.
Transportation
The method of transportation shall be at IPI’s option, and delivery of the Product(s) to the carrier shall be delivery to the Purchaser. If any Product(s) are damaged in transit or if the Product(s) fail to arrive at their destination, the carrier should be informed of such damage or non-delivery per the provisions of the carrier’s contract, and IPI should be informed in writing within thirty (30) days of dispatch of any non-delivery of Product(s). Provided such notification is received, IPI will use its best efforts to claim for damages or non-delivery on behalf of the Purchaser but will not itself accept liability.
Cancellation
Following acceptance of an order by IPI, the order may be cancelled only with IPI’s written consent. In the event of cancellation or other withdrawal of any order for any reason, and without limiting any other remedy which IPI may have as a result of such cancellation or other withdrawal under the Uniform Commercial Code, cancellation and/or restocking charges which shall include all expenses then incurred and commitments made by IPI shall be paid by Purchaser to IPI.
Returns
Return windowRequest written authorisation within 30 days of delivery. Products with less than 80% shelf life remaining, or expired products, cannot be returned. Authorised returns are subject to a 25% restocking charge plus transportation.
In no case is merchandise to be returned to IPI for credit without prior written notification and authorisation of IPI. Any Product(s) returned without prior written notification and authorisation will remain the property of the sender and IPI shall not be responsible for the same. In no case will Product(s) with less than 80% shelf life remaining or expired Product(s) be accepted for returns. Requests for return authorisation must be initiated within thirty (30) days of delivery.
In the event of a return for any reason, and without limiting any other remedy which IPI may have as a result of such return under the Uniform Commercial Code, Product(s) accepted by IPI for credit shall be subject to service and/or a twenty-five percent restocking charge plus all transportation charges that are borne by IPI. All Product(s) must be securely packed to reach IPI without damage. Any cost incurred by IPI in restoring such Product(s) to first-class condition will be charged to the Purchaser. In the event the return is caused by a defect in the Product(s) attributable to IPI and such return is authorised by IPI, full credit will be allowed.
Commercial product(s) warranties
The sole and exclusive warranty applying to the Product(s) is the Standard Commercial Warranty provided by the manufacturer, Integrated Polymer Industries, Inc., which is as follows:
ALL PRODUCT(S) DESCRIPTIONS ARE BASED ON THE RESULTS OF LABORATORY TESTS AND THE PRODUCT(S) ARE WARRANTED BY IPI TO BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP AND TO CONFORM TO THE DESCRIPTION ON THE FACE HEREOF. THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE THAT EXTENDS BEYOND THE DESCRIPTION ON THE FACE HEREOF. IPI DOES NOT WARRANT ANY OF THE PRODUCT(S) SPECIFIED HEREIN TO MEET THE REQUIREMENTS OF ANY CODE OF ANY STATE, MUNICIPALITY, OR OTHER JURISDICTION.
No distributor, consultant, agent, employee, or representative of the distributor has any authority to bind IPI to any warranty or representation concerning the Product(s) sold. Purchaser shall not represent to any third party that the warranty of IPI is greater than as set forth herein. This warranty extends only to Purchaser and Purchaser’s direct customers and no others.
Limitation of liability
Within thirty (30) days after receipt of each shipment of the Product(s), the Purchaser shall examine such Product(s) for any damage, defect, or shortage. All claims for any cause whatsoever (whether such cause is based on contract, negligence, strict liability, other torts, or otherwise) shall be deemed waived unless made in writing and received by IPI within sixty (60) days after Purchaser’s receipt of the Product(s) in respect to which such claim is made, or, if such claim is for non-delivery of such Product(s), within sixty (60) days after the date upon which such Product(s) were to be delivered; provided that as to any such cause not reasonably discoverable within such sixty (60) day period (including that discoverable only in processing, further manufacture, other use, or resale) any claim shall be made in writing and received by IPI within one hundred eighty (180) days after Purchaser’s receipt of the Product(s) in respect to which such claim is made, or within thirty (30) days after the Purchaser learns of the facts giving rise to such claim, whichever shall first occur.
Failure of IPI to receive written notice of any such claim within the applicable time period shall be deemed an absolute and unconditional waiver by the Purchaser of such claim, irrespective of whether the facts giving rise to such claim shall have been discovered or of whether processing, further manufacture, other use, or resale of the Product(s) shall have then taken place.
PURCHASER’S EXCLUSIVE REMEDY SHALL BE FOR DAMAGES, AND IPI’S TOTAL LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES ARISING OUT OF ANY CAUSE WHATSOEVER (WHETHER SUCH CAUSE BE BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE) SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCT(S) IN RESPECT TO WHICH SUCH CAUSE ARISES OR, AT IPI’S OPTION, THE REPLACEMENT OF SUCH PRODUCT(S), AND IN NO EVENT SHALL IPI BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES RESULTING FROM ANY SUCH CAUSE.
IPI shall not be liable for, and Purchaser assumes liability for, all personal injury and property damage connected with the handling, transportation, possession, processing, further manufacture, other use, or resale of the Product(s), whether the Product(s) are used alone or in combination with any other material. Transportation charges for the return of the Product(s) shall not be paid unless authorised in advance.
If IPI furnishes technical or other advice to Purchaser, whether at Purchaser’s request or otherwise, concerning processing, further manufacturing, or other use or resale of the Product(s), IPI shall not be liable for, and Purchaser assumes all risk of, such advice and the results thereof.
Purchaser reliance and representation
Recommendations, statements, technical data, and information regarding IPI Product(s) are based on tests and extensive research and experience in the field of polymer science and, to the best of our knowledge, are believed to be true and accurate. By making such information available, we do not hereby assume any liability for the accuracy or completeness of the information contained herein beyond the express terms stated. IPI does not warrant, either express or implied, or guarantee the accuracy or continuing accuracy or completeness of any such information whether conveyed orally or in writing, but to the best of our knowledge believe it to be accurate, and disclaim all liability for reliance thereon.
IPI assumes no obligation or liability for the advice given or the results obtained, all such advice being given and accepted at Purchaser’s sole risk, who agrees to indemnify and hold harmless IPI against any liabilities, costs, or expenses resulting therefrom, and Purchaser agrees that it will implement any advice thus given at its own risk. No warranty is expressed or implied regarding such other information, the data upon which the same is based, or the results to be obtained from the use thereof, or that any Product(s) shall be merchantable or fit for any particular purpose. No condition or warranty is given concerning the results from the use of our Product(s) in a particular case, whether the purpose is disclosed or not, and we cannot accept liability if the desired results are not obtained.
Purchaser hereby represents and warrants that Purchaser has not relied on any statement made by IPI’s personnel, and that all recommendations, statements, and technical data provided to Purchaser are given by IPI and accepted by Purchaser on the basis that Purchaser shall perform its independent evaluation, testing, and assessment of our recommendations and Product(s) to determine their suitability for a particular purpose in Purchaser’s environment and operating conditions before adoption, and Purchaser is hereby not relieved of this obligation.
IPI’s liability
IPI warrants only that its Product(s) will meet those specifications designated as such herein or in other IPI publications.
IPI’s liability for claims of any kind, including negligence, for any loss or damage arising out of, connected with, or resulting from this contract or the performance or breach hereof, or from the manufacture, sale, delivery, resale, or use of any Product(s) furnished hereunder, and Purchaser’s exclusive remedy for any cause of action arising out of this contract including Product(s) or services provided hereunder, whether in contract, in tort, under any warranty or otherwise, is expressly limited, in respect of which such damages are claimed, to: in the case of defective Product(s), the difference in value on the contract date of delivery between the Product(s) specified and the Product(s) delivered; and in the case of late or non-delivery, the difference between the contract price of the Product(s) and their market value on the contract delivery date.
IPI shall not be liable for any special, indirect, incidental, or consequential damages from alleged negligence, breach of warranty, strict liability, or any other theory arising out of the use or handling of the Product(s), whether the Purchaser’s claim is in contract, negligence, or otherwise.
No liability is assumed or implied for injury to personnel, labour costs, Product(s) loss, or any other expenses incidental to the structure or operation of the plant and equipment where the Product(s) is used.
IPI shall not be liable for personal injury and property damage resulting from the handling, possession, use, or resale of the Product(s), whether the same is used alone or in combination with other substances. In no event shall Purchaser be entitled to claim or recover special consequential damages for commercial loss resulting from defective Product(s), delay, or non-delivery, and in no instance shall charges include profit on contemplated use or profit of any description.
Purchaser assumes the risk for results obtained from the use of the Product(s) alone or in combination with other Product(s). In no event will IPI recognise any claims of any nature after the merchandise has been incorporated into any other Product(s) or subject to further processing, and such incorporation or such processing shall be deemed to be a waiver of all claims by Purchaser. Purchaser shall notify IPI of any breach of IPI’s warranty within fourteen (14) days of discovery.
Except as provided above, failure by the Purchaser to give notice of claim within fourteen (14) days from the date of delivery or the date fixed for delivery shall constitute unqualified acceptance of such Product(s) and a waiver by the Purchaser of all claims in respect thereof.
Statements regarding the use of our Product(s) or processes are not to be construed as recommendations for their use in violation of any applicable law or regulations. We reserve the right at any time and without notice to update or improve our Product(s) and processes and information concerning the same. Upon payment of the purchase price, Purchaser will receive good title to all such Product(s) free from any lien, encumbrance, or lawful security interest, and the Product(s) sold hereunder shall be of merchantable quality.
Patents
No statements or recommendations contained in the IPI Product(s) literature are to be construed to imply the non-existence of any relevant patents, or to constitute a permission, inducement, or recommendation to practice any invention covered by any patent without authority from the owner of the patent, or as inducements to infringe any relevant patent now or hereafter in existence.
Health and safety
Read the technical documentation firstIPI products can produce adverse health effects ranging from minor skin irritation to serious systemic effects. Nothing should be transported, stored, or used until handling precautions are understood by everyone who will use it.
Purchaser acknowledges receipt of Technical Documentation which sets forth important information concerning the Product(s), including but not limited to instructions regarding the use of the Product(s), performance properties, methods of application, health and safety precautions, and safeguards to be taken in storage and handling.
Unless IPI is notified immediately in writing by Purchaser to the contrary, Purchaser will be deemed to have read and understood the contents of such Technical Documentation or, if evaluation samples were delivered, Purchaser will be deemed to have tested such samples and to have understood the application and performance properties of the Product(s), including said safety and health precautions necessary and relative thereto. Purchaser shall be responsible for knowing all such information and precautions disclosed in said Technical Documentation, including Safety Data Sheets, and conveying same to persons who may be exposed to the Product(s).
All Product(s) may present an unknown health and safety hazard, and IPI neither suggests nor guarantees that any hazards mentioned are the only ones that exist. Anyone intending to rely on any recommendation, or to use any equipment, technique, or Product(s) mentioned, should also satisfy himself that he can meet applicable safety and health standards and has all current data relevant to his particular use. All recommendations made are based upon IPI’s experience and research and are believed to be sound technical approaches to the applications or end-uses for which they are presented. However, these recommendations are directed solely toward technical performance and should not be taken as recommendations about health, safety, or the environment.
Force majeure
Neither IPI nor Purchaser will be liable for default or delay, in whole or in part, in the performance of any of its obligations hereunder due to any cause beyond its control, including but not limited to acts of God, accident, fire, flood, storm, riot, war, sabotage, explosion, strike, labour disturbance, national defence requirement, governmental law, regulation, rule or ordinance, whether valid or invalid, inability to obtain energy, raw material, labour or transportation under reasonable terms and conditions, or any similar or different contingency or any other causes which are beyond the control of IPI, whether or not similar in kind or class to those mentioned, which would make performance commercially impracticable.
Quantities so affected may be eliminated from this contract without liability, but the contract shall otherwise remain unaffected. IPI may, during any period of shortage due to any of the foregoing causes, allocate its supply of such Product(s) in any manner which IPI, in its sole discretion, deems appropriate among itself and its customers, including those customers not then under contract.
Breach of contract
If Purchaser breaches this contract, IPI may terminate all or any part of this or any other existing contracts between IPI and Purchaser, or postpone shipment or stop any Product(s) in transit, and Purchaser shall be liable to IPI for all losses, damages, and expenses including reasonable attorney’s fees thereby incurred.
Security agreement
This contract constitutes a security agreement within the meaning of the Uniform Commercial Code and shall have all rights and remedies of a secured party thereunder.
IPI retains, and Purchaser grants, a security interest in the Product(s) covered hereby and proceeds thereto, including all accessions to and replacements of them, until Purchaser has made payment per the terms hereof.
Purchaser authorises IPI and shall cooperate fully with IPI in executing such documents, including a Uniform Commercial Code financing statement, and accomplish such filing and/or recordings thereof as IPI may deem necessary for the protection of such security interest.
Purchaser hereby irrevocably appoints IPI as its attorney-in-fact to execute and file on behalf of Purchaser all UCC-1 Financing Statements, and amendments thereto, and related instruments, concerning Product(s) sold hereunder.
Applicable law and arbitration
The laws of the State of California, USA, shall govern the construction, interpretation, and application of all terms and conditions of this contract at all times.
Integration and assignment
The rights and duties of this contract are not assignable or transferable, and any assignment or transfer of this Agreement and performance by the parties hereunder by Purchaser shall be void without IPI’s written consent.
This instrument contains the entire and only agreement between the parties concerning the Product(s) and services listed herein, and there are no other promises, representations, or warranties, either expressed or implied.
The rights, title, and/or interest of the Product(s) being commercially sold by IPI are the exclusive property of IPI. Any changes to IPI’s commercially developed Product(s) by either IPI or a Purchaser, no matter how small or large, shall remain the property of IPI in perpetuity. This includes any modification, change, alteration, formulation, Product(s), application(s), or usage. Any such claim made by the Purchaser shall be a breach of the terms and conditions of this contract, entitling IPI to an injunction and a confession of judgment equal to the value of the Product(s) in dispute.
Waiver
These terms and conditions constitute the entire agreement of the parties concerning the subject matter, and any amendments to or modifications of these terms and conditions shall not be construed as a waiver of any other breach hereof.
No claim or right arising out of a breach of this contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing and signed by the aggrieved party.
No waiver of any term, condition, or obligation thereof shall be deemed a waiver of similar terms in the future, nor shall any breach be deemed a waiver of subsequent breaches of the same or other nature, nor shall any default be deemed a waiver of any subsequent defaults.
Purchaser agrees that acceptance of this contract or any of IPI’s Product(s), whichever comes first, shall be construed as a rejection of any legal or regulatory flow-downs from any third party or a party not in privity of contract with IPI.
Amendments
This offer to contract is conditioned upon the Purchaser’s agreement that the covenants and conditions herein, and any other written contract executed by both IPI and Purchaser under which this sale is made, constitute the full understanding of the parties and a complete and exclusive statement of the agreement.
No modification or waiver of any such terms and conditions shall be of any force or effect unless made in writing and signed by the party claimed to be bound thereby, nor shall any modification of the same be effected by the acknowledgment or acceptance of purchase orders or shipping instruction forms or any other document containing terms or conditions at variance with or in addition to those set forth herein or in any such contract, all such varying or additional terms being hereby objected to.