Terms and Conditions
Terms and Conditions
The following are P2 Science’s General Terms & Conditions. All sales and other transfers of product, services and information, if any, are subject to these Terms & Conditions unless agreed otherwise in writing. All products, including products manufactured as part of P2 Science’s tolling services are offered for sale by P2 Science, Inc., (“seller”) subject to the following terms; and acceptance of any order is subject to such terms. Seller hereby objects to any additions or different terms which may be contained in the Buyer’s Purchase Order, Acknowledgement or other forms of correspondence.
No order may be canceled or altered by Buyer, except on terms and conditions accepted by Seller.
If the financial responsibility of Buyer becomes impaired or unsatisfactory to Seller, advance cash payment or satisfactory security shall be given by Buyer upon demand by Seller, and shipments may be withheld until such payment or security is received. Unless advance payment is required, or other payment terms are negotiated, Seller shall invoice Buyer after each shipment of products. Unless otherwise stated invoice shall be paid thirty (30) days after shipment, by check or wire transfer or immediately available funds delivered to Seller’s bank as stated on invoice or to the attention of Seller’s Accounts Receivable Department, at the address on the Seller’s invoice. Invoices unpaid when due shall bear interest at the rate of 1.5% per month or, if lower, the highest contract rate permitted by applicable law; and Buyer shall reimburse Seller for all costs, including Seller’s attorneys’ fees, incurred by Seller in collecting any overdue invoice.
TITLE, RISK OF LOSS
Unless otherwise agreed by Seller in writing (in which case such provisions shall apply), title to the product and risk of loss shall pass to Buyer Ex-Works Seller’s location. If Seller is to pay or prepay freight for delivery to Buyer, selection of carrier and routing shipment shall be at Seller’s option.
Delivery dates specified by the Seller on the order confirmation are for guidance and do not represent a guarantee. A late delivery shall not allow the Buyer to cancel the order, reject the Products or claim damages. Except as otherwise stated on the order confirmation or approved in writing by the Seller, the Products are sold Ex-Works. The general method of shipment for each item is listed in Seller’s quote or order confirmation. However, where Seller has agreed to pay for shipment, Seller reserves the right to determine the exact method of shipment.
SAFETY, HEALTH AND INDEMNITY
Material Safety Data Sheets, including warnings and safety and health information concerning the products and/or the containers for such products sold hereunder, may be furnished to Buyer by Seller in connection with this transaction. Buyer agrees to disseminate such information so as to give warning of possible hazards to persons who Buyer can reasonably foresee may be exposed to such hazards, including but not limited to Buyer’s employees, agents, contractors or customers. If Buyers fails to disseminate such warnings and information, Buyer agrees to defend and indemnify Seller against any and all liability arising out of or in any way connected with such failure, including but not limited to liability for injury, sickness, death and property damage, without regards to whether Seller contributed to such liability. Seller will provide Buyer with reasonable notice and opportunity to defend in the event any claim or demand is made on Seller as to which such indemnity relates.
Seller’s recommendations or instructions are not intended to suggest operations which would infringe any patents, and Seller assumes no liability or responsibility for any such infringement by Buyer. Seller may, without liability to Buyer of any kind, decline to continue deliveries of any Product, the manufacture, sale or use of which, in Seller’s opinion would infringe any patent now or hereafter issued. Buyer shall defend, indemnify and hold Seller, and its affiliates, and their respective representatives and employees, harmless against any expense, judgment or loss, including attorney’s fees, for infringement of any patents or trademarks or other third-party property rights which results from Buyer’s use of the Product or Seller’s compliance with Buyer’s designs, specifications or instructions.
Seller may at any time, without notice, make such changes in the formulation or manufacture of products as shall constitute an improvement in the opinion of Seller unless by a “Change of Control” requirement as mutually agreed. Seller may also furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority or non-availability of materials from suppliers. In such instances, Seller shall issue an appropriate Change of Control statement to Buyer as soon as practical. “Change of Control” means, with respect to Seller, (a) a sale, conveyance, or other disposition of all or substantially all assets, (b) any merger, consolidation or other business combination transaction of Seller with or into another Person, in which the holders of the shares of voting capital stock of Seller outstanding immediately prior to such transaction continue to hold (either by such shares remaining outstanding or by their being converted into shares of voting capital stock of the surviving entity) less than a majority of the total voting power represented by the shares of voting capital stock of Seller (or the surviving entity) outstanding immediately after such transaction, or (c) the direct or indirect acquisition (including by way of a tender or exchange offer) by any Person, or Persons acting as a “group” within the meaning of Section 13(d) of the Securities and Exchange Act of 1934, as amended, excluding in either case any Person, of beneficial ownership or a right to acquire beneficial ownership of shares representing a majority of the voting power of the then outstanding shares of capital stock of Seller; provided, however, that in no event shall (1) the acquisition of shares issued by Seller in an equity financing be considered for purposes of determining whether there has been a Change of Control, or (2) in the case of clause (c) of this Section 1.8, the acquisition of the right to acquire beneficial ownership of shares of capital stock of Seller be deemed to be the acquisition of beneficial ownership of such shares unless and until such right has been exercised.
INSPECTION AND CLAIMS
Buyer shall inspect and test the products and packaging delivered hereunder for damage, apparent defect or shortage immediately upon receipt at the shipping destination designated by Buyer and shall provide Seller written notice and photographic evidence of any damage, apparent defect or shortage within (10) working days. All claims for damage, apparent defect or shortage not received by Seller, in writing, within such ten working day period shall be absolutely and unconditionally foreclosed. As to any claim of any nature, whether in contract, tort, strict liability, patent infringement or otherwise, Seller’s and its affiliates’ total liability shall not exceed the purchase price of the portion of Product inspected of which such claim is made, plus any transportation charges paid by Buyer.
No liability shall result to Seller from delay in performance or nonperformance in whole or in part if caused by circumstances reasonably beyond its control, including but not limited to acts of God, fire, flood, war, accident, explosion, breakdowns, or labor trouble; embargoes or other import or export restrictions; shortage or inability to obtain energy, equipment, transportation of product deliverable hereunder, crude petroleum or other feedstock from which such product is derived; or good faith compliance with any regulation, direction or request (whether valid or invalid) made by any governmental authority or person purporting to act therefore.
Regardless of the occurrence or non-occurrence of any of the causes as set forth in the paragraph above, if for any reason supplies of any product deliverable hereunder, or of crude petroleum or other feedstock from which such product is derived, from any of Seller’s existing sources are curtailed or cut off or are inadequate to meet Seller’s own requirements and its obligations to its customers, Seller’s obligations hereunder during such period of curtailment, cessation inadequacy shall at its option be reduced to the extent necessary in Seller’s sole judgment to apportion fairly among Seller’s own requirements and its customers (whether under contract or not), such product as received and as may be available in the ordinary and usual course of Sellers’ business from any such existing sources of supply at the location(s) from which deliveries hereunder are normally shipped.
Seller shall not be obligated to purchase or otherwise obtain other supplies of such product, crude petroleum or other feedstock from which such product is derived to make up inadequate supplies or to replace the supplies so curtailed or cut off. Seller shall not be obligated to make up deliveries omitted or curtailed hereunder, and any such deficiencies in deliveries shall be canceled with no liability to either party, therefore. All shipment and delivery dates are estimates only.
Seller warrants that its products (a) conform to Seller’s published specifications (subject to changes permitted as set forth in the “CHANGES” section above), and (b) were produced in accordance with and conform to applicable US law and regulations. In the event of any breach of any such warranty, Buyer’s exclusive remedy (following immediate return of the defective or deficient product) shall be the replacement of the defective product or refund of the purchase price thereof. Such replacement or refund shall be Seller’s sole obligation and Buyer’s exclusive remedy for any breach of warranty.
This warranty is exclusive and in lieu of all other representations and warranties, express or implied; and Seller expressly disclaims any implied warranty of merchantability or fitness for any particular purpose.
LIMITATION OF LIABILITY
Seller’s liability with respect to its products shall be limited to the warranty set forth immediately above and, with respect to other performance of any sales contract, shall be limited to the contract price.
Seller shall not be subject to and disclaims: (a) any other obligations or liabilities arising out of breach of contract or of warranty, (b) any obligations whatsoever arising from tort claims (including negligence and strict liability claims) or arising under other theories of law, with respect to products sold by Seller or any undertakings, acts of omissions relations thereto, and (c) all consequential, incidental, special and contingent damages whatsoever.
LIMITATIONS OF ACTIONS
No action arising out of or relating to the sale of products by Seller to Buyer, whether for breach of contract (including breach of warranty), negligence or other tort, or on any other theory, may be commenced after the expiration of six months following Buyer’s receipt of such products.
These terms, and all sales by Seller, are governed by and construed in accordance with the laws of the State of Connecticut, without reference to principle of conflicts of laws. The rights and obligations of Seller and Buyer in connection with any such sales shall not be governed by the 1980 U.N. Convention on contracts for the international sale of goods unless other negotiated in writing.