1.1 The conditions of the sales agreement (AGREEMENT) shall supersede any conflicting terms in these Conditions. If
BUYER and SELLER have not entered into a written sales agreement, these conditions shall constitute the AGREEMENT. Terms
defined herein are capitalized. Except as otherwise specified in the AGREEMENT, no other conditions shall be applicable to
the AGREEMENT or otherwise accepted by SELLER. All other terms and conditions are hereby expressly rejected. SELLER’S
acceptance of BUYER’S offer to purchase or BUYER’S purchase order is expressly made conditional on BUYER’S assent to
SELLER’S terms and conditions as set forth herein and the rejection of any other terms.
1.2 Acceptance by BUYER of PRODUCT(S) or payment for same shall constitute unequivocal acceptance of the terms and
conditions contained herein. None of any past practice, industry standards, course of dealing or usage of trade shall constitute a
modification of any term or condition contained herein, nor shall same add any term not contained herein.
2.1 BUYER will provide to SELLER written, detailed shipping instructions within a reasonable time prior to shipment. BUYER
will be responsible for any increased costs or delays in delivery resulting from BUYER’S failure to supply such instructions in a
2.2 BUYER may not withhold payment in the event of delay caused by BUYER.
2.3 Unless otherwise stated herein, SELLER shall not be required to deliver in any month more than the monthly
QUANTITY specified, or if no monthly QUANTITY is specified, more than the monthly pro rata amount of the maximum annual
2.4 All shipments of PRODUCT(S) shall be made EXW (as defined by Incoterms 2010) unless otherwise stated in the
2.5 All specified delivery dates refer to the completion of manufacture and availability for shipment of PRODUCT(S) and are
SELLER’S best estimates. SELLER reserves the right to modify the delivery dates with notice to BUYER.
2.6 Title shall pass to BUYER upon delivery to carrier.
2.7 In the event BUYER is unable to take delivery of any shipment or refuses delivery of a scheduled shipment, SELLER will store
the shipment at BUYER’S sole risk and expense and payment for such delayed shipment shall immediately become due.
2.8 BUYER warrants there will be no diversion of any shipment that is a) contrary to any applicable law; b) for resale and/or
transfer to any party not a party to the AGREEMENT unless approved in writing by SELLER; or c) for shipment or use outside of
the U.S., unless approved by SELLER in writing, and if so approved, BUYER warrants it will comply with all applicable laws,
restrictions and regulations of the U.S. and other governments, including without limitation, the Export Administration
Regulations, as amended, the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the Office of Foreign Asset Control
2.9 In instances of bulk carload, tank truck or tank car shipments, shipper’s weights, certified to by sworn weighmaster, shall
govern. Unless otherwise specified, PACKING shall be Seller’s standard packing.
3. FORCE MAJEURE
3.1 Neither party shall be held responsible for any loss, damage, delay or lack of delivery arising from fire; strikes, lockouts,
injunction or other labor troubles; governmental intervention; war; riots; acts of terrorism; explosion; weather; flood; acts of God or
nature; inability to obtain on terms acceptable to SELLER or a shortage of, fuel, power, raw materials, labor, containers
or transportation; accident; breakage of machinery or other apparatus; disruption of normal supplier channels of distribution;
or any other act or force beyond the affected party’s reasonable control.
3.2 BUYER may cancel, without liability, deliveries suspended for at least thirty (30) days by SELLER for reasons stated in
the previous section, but the AGREEMENT shall otherwise remain in effect.
3.3 SELLER reserves the right to allocate and fairly apportion PRODUCT(S) among its internal and external customers during
force majeure events in any manner SELLER, in its sole discretion, deems appropriate.
3.4 SELLER shall have no obligation to acquire by purchase or otherwise any PRODUCT(S) that SELLER is unable to supply to
BUYER due to force majeure events.
4.1 SELLER warrants PRODUCT(S) will conform only to SELLER’S standard specifications for same, unless otherwise agreed to
herein. This warranty applies only to the original purchaser of the PRODUCT(S).
4.2 BUYER shall inspect all PRODUCT(S) for conformance to this warranty. BUYER shall notify SELLER of any nonconformance
no later than the earlier of a) thirty (30) days from date of shipment by SELLER; or b) the date of use of the
PRODUCT(S) by BUYER.
4.3 BUYER’S sole remedy and SELLER’S sole liability for claims of breach of warranty shall be SELLER’S choice of either a)
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7430 Trade Street, San Diego, CA 92121, Tel: (858) 693-6100 Fax: (858) 693 8471 (THP1)
replacement by SELLER of conforming for non-conforming PRODUCT(S); or b) refund of monies paid by BUYER to SELLER for
the non-conforming PRODUCT(S).
4.4 SELLER assumes no liability for any errors that are caused by the inaccuracy or incompleteness of BUYER-supplied data.
4.5 SELLER shall have the opportunity to inspect all PRODUCT(S) that BUYER claims are non-conforming. BUYER shall hold,
at no cost to SELLER, the PRODUCT(S) pending such inspection. The conditions of any test of the PRODUCT(S) for
conformance with any specification shall be mutually agreed upon and SELLER shall be notified of, and may be represented at, all
tests that may be made by or for BUYER.
4.6 BUYER assumes all risk for misuse of the PRODUCT(S).
4.7 THIS WARRANTY IS GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN,
STATUTORY OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NON-INFRINGEMENT WHICH ARE EXPRESSLY DISCLAIMED.
5. TERMINATION FOR DEFAULT
In the event BUYER commits a material breach of the AGREEMENT, SELLER may terminate the AGREEMENT upon thirty (30)
days written notice; provided that during such notice period, BUYER shall have the opportunity to cure its default. If BUYER is
in default, SELLER may suspend shipments during such cure period without liability.
6. LIMITATION OF LIABILITY
6.1 NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT OR ELSEWHERE TO THE CONTRARY: A) SELLER’S
MAXIMUM LIABILITY HEREUNDER AT ANY TIME FOR ANY CAUSE WHATSOEVER SHALL NOT EXCEED THE PRICE PAID
FOR THE PRODUCT(S) AT ISSUE; AND B) SELLER SHALL NOT BE LIABLE FOR ANY PUNITIVE, SPECIAL, INCIDENTAL,
INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND OR NATURE, ARISING AT ANY TIME, FROM ANY CAUSE
WHATSOEVER,INCLUDING LOSS OF REVENUE OR PROFIT.
6.2 These limitations of liability shall apply notwithstanding any finding that any remedy fails its essential purpose.
The AGREEMENT shall be construed, interpreted and controlled by the laws of the State of California, and all claims arising out
of or related to the parties’ relationship created by the AGREEMENT, whether in contract, tort or otherwise, shall be governed
and decided pursuant to the laws of the State of California, including California’s statutes of limitations but not including its
choice of laws rules. BUYER agrees to subject itself to the courts of said jurisdiction and that such venue shall be exclusive
regarding disputes arising out of the AGREEMENT.
8. PRICES; PAYMENT TERMS
8.1 Unless otherwise stated herein, PAYMENT TERMS shall be Net 30 Days from the date of SELLER’S invoice, and
payments shall be made in U. S. dollars. All PRICES shown are exclusive of any applicable tax. Any tax that SELLER is required
to collect pursuant to the sale of PRODUCT(S) hereunder shall be in addition to the PRICE and shall be entirely for BUYER’S
8.2 If BUYER fails to pay any of the amounts due to SELLER within sixty (60) days from the date of invoice, SELLER shall issue
written notice to BUYER and at any time thereafter SELLER may suspend all PRODUCT deliveries without termination of this
Agreement until all past due amounts and accrued interest have been paid to SELLER, following receipt of which SELLER shall
use reasonable efforts to reinstate all PRODUCT deliveries. SELLER may, in its sole discretion and without waiver of its rights
hereunder allow BUYER additional time to make past due payments in lieu of suspension of PRODUCT deliveries. Without
prejudice to the foregoing and notwithstanding same, if BUYER fails to pay any amount due SELLER within ninety (90)
days from the date of invoice, SELLER may immediately terminate this Agreement and all deliveries of PRODUCT upon written
notice to BUYER.
8.3 SELLER may revise the PRICE, PAYMENT TERMS or SHIPPING TERMS by written notice dispatched not less than thirty (30)
days prior to the effective date of such change. Failure of BUYER to provide written objection to such change within fifteen
(15) days of receipt of notice from SELLER shall be considered acceptance of such change.
8.4 If in the sole judgment of SELLER, BUYER’S financial ability to perform hereunder is altered, SELLER reserves the right,
among any other right or remedy, to change PAYMENT TERMS, require full or partial advance payment or to cancel any
outstanding order, without liability.
8.5 Any discount or rebate provided for in the AGREEMENT shall be accounted for exclusively on the basis of sales made to
8.6 Notwithstanding any other provision in the AGREEMENT or elsewhere to the contrary, SELLER shall have the unilateral right to
pass on to BUYER all fuel, freight, energy and/or similar surcharges.
8.7 All PRICES in the AGREEMENT are exclusively for PRODUCTS sold directly to BUYER or BUYER’S agent by SELLER.
8.8 SELLER shall retain a purchase money security interest in the PRODUCT(S) sold hereunder until all payments
(including deferred payments, whether evidenced by notes or otherwise) shall have been received in full by SELLER and, if
requested in writing to do so, BUYER agrees to do all acts necessary to perfect and maintain such security interest in SELLER.
9. PROPRIETARY INFORMATION
9.1 Any information disclosed by SELLER to BUYER incident to the performance of the AGREEMENT, including but not limited to
information related to pricing, volumes or the financial terms of the AGREEMENT and the existence of the AGREEMENT
itself is disclosed in confidence for the sole and exclusive use of BUYER. BUYER shall not publish or otherwise disclose such
information to others without the express written consent of SELLER.
9.2 Nothing herein shall limit the BUYER’S right to disclose any information provided by the SELLER hereunder which a) was
furnished by the SELLER prior to the AGREEMENT without restriction; b) legitimately becomes knowledge available within the
public domain; or c) is received by BUYER from a third party without restriction and without breach of this or any other
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9.3 In the absence of a signed agreement to the contrary, no information disclosed by BUYER to SELLER shall be considered
10. ADDITIONAL TERMS
10.1 This AGREEMENT may not be assigned by either party to any other party without the prior written consent of the other party
hereto; provided, however, that (a) SELLER may assign its rights and obligations hereunder to any AFFILIATE of SELLER by
written notice to BUYER; and (b) SELLER may assign its rights and obligations hereunder, by written notice to BUYER, to
a third party successor or transferee (whether by merger, consolidation, purchase or otherwise) of either (1) all or substantially
all of the assets of SELLER or (2) all or substantially all of the assets of the particular division of SELLER identified with this
AGREEMENT. “AFFILIATE” shall mean, with respect to a party, any individual, corporation or other business entity that, either
directly or indirectly, controls such party, is controlled by such party, or is under common control with such party. “Control” means
possession of the power to direct, or cause the direction of the management and policies of a corporation or other entity whether
through the ownership of voting securities, by contract or otherwise.
10.2 Return of PRODUCT for any reason whatsoever shall require prior written approval of SELLER.
10.3 BUYER represents and warrants that a) it understands the nature and characteristics of the PRODUCT(S) and any hazards
associated with its use; b) it will adequately instruct and warn all persons, including all third parties, who may come in contact
with, or be in the vicinity of, the PRODUCT(S) in the proper safe use and handling of the PRODUCT(S); c) it is not relying
upon any representation, statement or other assertion made by SELLER or its representatives or agents, with respect to the
suitability of the PRODUCT(S) for any purpose and that BUYER has made its own independent inquiry and testing and has formed
an independent opinion concerning the suitability of the PRODUCT(S) for the end use, conversion or application intended; and d)
it will not assert any claim against SELLER or hold SELLER liable, with respect to any information, testing or design
furnished, or failure to be furnished, by SELLER, including, without limitation, technical advice or recommendations. SELLER
assumes no obligation or liability for any technical assistance rendered incident to the AGREEMENT. Appropriate literature has
been assembled which provides information concerning the health and safety precautions that must be observed when
handling PRODUCTS. Before working with PRODUCTS, BUYER must read and become familiar with the available information on
PRODUCT hazards, proper use, and handling. This cannot be overemphasized. Information is available in several forms. Consult
SELLER representative for additional information.
10.4 No type of contractual obligation between BUYER and its customer(s) shall be applicable to, or create any liability with
respect to, SELLER, whether via “pass-through”, flow-down” or otherwise, and BUYER shall not otherwise represent to its
customer(s) such purported SELLER liability.
10.5 The rights and obligations under Articles 4, 6, 7, 9 and 10 herein shall survive the cancellation, termination or expiration of the
10.6 Should any part of the AGREEMENT be deemed invalid by a court of law, it shall not constitute an invalidation of
any other part of the AGREEMENT, which shall otherwise remain in effect.
10.7 Failure of SELLER to effect, or any delay by SELLER to effect, any available right or remedy shall not be construed to
operate as a waiver of same.
10.8 Except as otherwise expressly provided, the AGREEMENT supercedes all prior agreements, understandings or otherwise,
whether oral or written, between BUYER and SELLER concerning the subject matter of the AGREEMENT.
10.9 SELLER’S acceptance of a) payment; or b) specially endorsed checks shall not waive or limit any right or remedy of
10.10 Nothing contained herein is intended nor shall be construed as creating a partnership, joint venture, agency, distributorship or
any other relationship except buyer and seller.
10.11 All headings herein are for reference only.
10.12 The AGREEMENT shall be binding upon and inure to the benefit of the parties and their respective legal representatives,
successors and permitted assigns.