The Terms and Conditions herein (“Terms and Conditions”) shall be incorporated in and apply to the Sales Contracts and any and all Invoices issued pursuant thereto, to which these Terms and Conditions are attached, or are provided to Buyer separately in the course of relationship of Buyer and Seller (the Terms and Conditions, Sales Contract and any Invoices are collectively referred to herein as the “Sales Documents”). Buyer and Seller are individually and collectively referred to herein as the “Party” or “Parties”. These Terms and Conditions expressly limits Buyer’s acceptance to the terms herein. These Terms and Conditions shall prevail over any terms or conditions contained in any other documentation and expressly exclude any of Buyer’s general terms and conditions of sale or any other document issued by Buyer in connection with the purchase of products (the “Product”). In the event of a conflict between these Terms and Conditions and the specific provisions contained in the Sales Contracts or Invoices, the specific provisions contained in such Sales Contract or Invoice shall control. Terms not defined herein shall have the meanings set forth in the Sales Contracts or Invoice.
Seller may transmit its Sales Documents to Buyer by electronic transmission. In the event that Buyer fails to return a countersigned copy of the Sales Documents to the Seller within three (3) calendar days after the electronic copy has been sent by Seller, then, at the option of Seller: a) it shall be conclusively established that the Buyer has agreed to and is contractually bound by the terms of the Sales Documents, together with these Terms and Conditions; or b) the Sales Documents will be deemed null and void.
(a) All payments shall be made in U.S. dollars (unless otherwise designated in the Sales Documents). (b) Buyer shall pay all invoiced amounts due to Seller as provided in such Invoices, and if Invoices are silent as to the payment time, within 15 days after the receipt of an Invoice. (c) In the event that Buyer fails to specify the type of balance (i.e., currently due amounts, past due amounts, or interest) to which any payment shall be applied, then any such payment shall be applied to any amount that Buyer owes Seller as Seller sees fit in its sole discretion. (d) Interest may be charged on all past due amounts owed by Buyer hereunder at an interest rate equal to the lesser of (i) 12% per annum or (ii) the maximum rate permitted by applicable law, from the payment due date until paid in full. If the payment due date is a Saturday, Sunday, or a federal or state holiday where banks are closed, payment shall be made on the next business day after such due date. Notwithstanding anything contained in any other agreement to the contrary all payments will be made by Buyer to Seller without deduction, set-off or counterclaim for amounts owed by Seller to Buyer or any third Party (including without limitation amounts owed by or to any affiliate of either Party). Buyer acknowledges and agrees that any common law claim for set-off does not apply to the Sales Documents and hereby waives any claim to said right. If Buyer has not paid for any previous order in full or otherwise has committed an act constituting an Event of Default (as defined in Section 8) , Seller may condition its acceptance of any new order on payment in full of all past amounts due in addition to requiring payment in full, in advance, for any new order.
(a) Seller may, in its sole discretion, provide Buyer with a line of credit to facilitate sales under the Sales Documents. Such credit line may be amended, decreased, or terminated at any time at the sole discretion of Seller. (b) If Seller reasonably believes that the creditworthiness or performance of Buyer under the Sales Documents has become unsatisfactory, Seller may (i) require prepayment by wire transfer prior to a scheduled shipment of Product, and/or (ii) require Performance Assurance at least three (3) business days prior to a scheduled shipment of Product. “Performance Assurance” means collateral in the form of either cash, letter(s) of credit, guaranty, or other security acceptable to the Seller in its sole discretion.
(a) Except in case of a Force Majeure Event as further defined in Section (9) herein:
1) Seller shall ship Product promptly as provided in the Sales Documents, using its standard methods for shipping such Product;
2) Seller shall indemnify and hold Buyer harmless against any loss or liability Buyer may incur, by reason of Seller’s delay beyond the periods specified in the Sales Documents, for shipping Product which results in a claim for demurrage and/or damages against Buyer; and
3) Time is of the essence with respect to Seller’s obligations to make deliveries or shipments under the Sales Documents.
(b) Buyer may refuse any Product delivered in excess of the quantities specified in the Sales Documents.
(c) Title to Product shall pass to Buyer upon Seller’s receipt of full and complete payment for Product. Risk of loss shall pass to Buyer upon delivery of Product by Seller to be shipped or transported to Buyer.
6. INSPECTION/COMPLAINTS:
Upon prior written request by Buyer, Seller shall, at its sole cost and expense, provide to Buyer upon delivery of the Product, an independent surveyor’s analysis on vessel or barge composite. No claim may be asserted by the Buyer for nonconforming Product unless (i) with respect to any visible nonconformity of the Product, the Buyer gives a written notice to the Seller of such nonconforming within three (3) days of unloading the Product (provided Buyer shall use reasonable efforts to provide a written notice to Seller immediately upon discovery of a visible defect in the Product), and (ii) with respect to the chemical analysis of the Product, the Buyer gives written notice of any noncomformity to the Seller within thirty (30) days after Buyer has received the Product. Should the Buyer at any time commingle the Product with other product or fails to provide a written notice of nonconformity during the time as set forth in subsection (i) and (ii), the Buyer shall be deemed to have accepted the Product as meeting the specifications and it shall be deemed to have waived any claims in that regard.
Seller warrants to Buyer that Buyer shall receive good and valid title to the Product, free from any security interest, lien, or encumbrance.
EXCEPT AS SPECIFICALLY SET FORTH IN THE PRECEDING PARAGRAPH, BUYER ACKNOWLEDGES AND AGREES THAT SELLER AND ITS AFFILIATES HAVE NOT MADE, DO NOT MAKE, AND EXPRESSLY DISCLAIM ANY WARRANTIES, REPRESENTATIONS, COVENANTS, OR GUARANTEES, EITHER EXPRESS OR IMPLIED, WHETHER ARISING BY OPERATION OF LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, AS TO THE MERCHANTABILITY, QUANTITY, CONDITION, OR QUALITY OF THE PRODUCT OR ITS SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE AND THE PRODUCT IS SOLD “AS IS”. SELLER’S LIABILITY, AND BUYER’S EXCLUSIVE REMEDY, FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE BREACH OF SELLER’S LIMITED WARRANTY AS SET FORTH ABOVE, OR PURSUANT TO SECTION 6, IS, AT BUYER’S OPTION, LIMITED TO (I) REPLACEMENT OF THE NONCONFORMING PRODUCT AT A MUTUALLY AGREEABLE DELIVERY POINT OR (II) A REFUND TO BUYER OF THE PORTION OF THE PURCHASE PRICE ALLOCABLE TO SUCH NONCONFORMING PRODUCT.
An occurrence of any of the following events shall constitute an “Event of Default” under the Sales Documents: (a) the failure of Buyer to pay any payment due hereunder by the date such payment is due under the Sales Documents, and such failure shall remain uncured for a period of three (3) business days after Seller has notified Buyer in writing of such failure; (b) the failure of a Party to perform any other material obligation in the Sales Documents, including any material obligation contained in these Terms and Conditions, and such failure is not excused or cured within five (5) business days after written notice thereof to such defaulting Party; (c) the occurrence of a Bankruptcy Event (as defined below) with respect to such Party or its Performance Assurance provider; (d) the failure of a Party to provide Performance Assurance when due; or (e) the failure by any Performance Assurance provider to perform any obligation of such Performance Assurance provider under any document executed and delivered in connection herewith. Upon an Event of Default, the non-defaulting party (the “Non-Defaulting Party”), in its sole discretion and with notice to the other party (the “Defaulting Party”), may do any one or more of the following: (i) suspend performance under the Sales Documents; (ii) terminate the Sales Documents, whereby any and all obligations of Defaulting Party, including payments or deliveries due, will, at the option of Non-Defaulting Party, become immediately due and payable or deliverable, as applicable; and/or (iii) Set-off against any amount that Defaulting Party (or any of its affiliates) owes to Non-Defaulting Party (or any of its affiliates) under the Sales Documents or any other agreement between or among any such Parties. In addition, Non-Defaulting Party shall be entitled to recover from Defaulting Party all reasonable court costs, attorneys’ fees and expenses incurred by Non-Defaulting Party in connection with Defaulting Party’s default, and interest on past due amounts as set forth in Section 2 above. The foregoing rights, which shall include, but not be limited to, specific performance, shall be cumulative and in addition to any other rights or remedies to which Non-Defaulting Party may be entitled to at law or in equity. “Set-off” means set-off, offset, combination of accounts, netting of dollar amounts of monetary obligations, right of retention or withholding or similar right to which Non-Defaulting Party is entitled (whether arising under the Sales Documents, another agreement, applicable law, or otherwise) that is exercised by Non-Defaulting Party. “Bankruptcy Event” means the occurrence of any of the following events with respect to a Party or any Performance Assurance provider for such Party: (i) filing of a petition or otherwise commencing, authorizing or acquiescing in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar law; (ii) making of an assignment or any general arrangement for the benefit of creditors; (iii) having a bankruptcy petition filed against it and such petition is not withdrawn or dismissed within thirty (30) days after such filing; (iv) otherwise becoming bankrupt or insolvent (however evidenced); (v) having a liquidator, administrator, custodian, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets; or (vi) being generally unable to pay its debts as they fall due.
Except with regard to a Party’s obligation to make payment(s) due under the Sales Documents, neither Buyer nor Seller shall be liable to the other for failure to perform or a delay in performance under the Sales Documents to the extent such failure or delay was caused by a Force Majeure Event.
(a) The term “Force Majeure Event”, as used herein, means any event not reasonably within the control of the Declaring Party (as defined herein), and shall include, without limitation, the following: (i acts of God, disease, plague, epidemic, pandemic, quarantine, landslides, lightning, earthquakes, fires, storms or storm warnings, such as hurricanes, which result in evacuation of the affected area, floods, washouts, explosions, breakage or accident or necessity of repairs to machinery or equipment or lines of pipe; (ii) weather related events affecting an entire geographic region, such as low temperatures which cause freezing or failure of equipment or lines of pipe or other regional or national emergency; (iii) interruption and/or curtailment of transportation and/or storage; (iv) terrorist attacks, strikes, lockouts or other industrial disturbances, riots, sabotage, insurrections, wars or other civil unrest,; (v) interference with, delay in shipment by or other disruption of one or more of Seller’s intended sources of supply of the Product or interference with or disruption of one or more of Seller’s intended means of transportation for the delivery of such Product, whether or not such Seller’s source(s) and/or transportation service provider(s) have declared an event of force majeure pursuant to the supply agreement between such source and Seller or the transportation services agreement between Seller and such transportation services provider; (vi) any law, statute, ordinance, regulation, policy, order or request of any federal, state, provincial or local government unit, or any officer, department, agency, or committee thereof (except to the extent such order or request arises from Declaring Party’s failure to comply with applicable law); (vii) embargo or blockades in effect on or after the date of this Agreement; (viii) telecommunication breakdowns, power outage or shortages, lack of warehouse storage space, or (ix) any other event or contingencies of like or different character beyond the reasonable control of Declaring Party, that, in each case, interferes with the ability of Declaring Party to perform its obligations under Sales Documents or causes a delay in the performance of such obligations hereunder. As used herein, the term “Declaring Party” shall mean the Party that has failed to perform under the Sales Documents due to Force Majeure, and the “Non-Declaring Party” shall mean the Party receiving notice pursuant to subsection (b) below. For the avoidance of doubt, a Force Majeure Event shall not include (a) financial distress, or (b) a party’s financial inability to perform its obligations hereunder.
(b) Notice. If a Declaring Party’s performance is prevented by Force Majeure, it must provide notice to the Non-Declaring Party within three (3) business days of learning of the Force Majeure. Initial notice may be given orally; however, delivery of written notice with specific details of the event or occurrence shall be required as soon as reasonably possible. Delay or failure to give the notice required herein shall not prevent Declaring Party from claiming its performance is excused by Force Majeure, unless such delay or failure has adversely affected the Non-Declaring Party.
(a) Seller Indemnity. To the fullest extent permitted by law, Seller shall protect, defend, indemnify, and hold Buyer, any affiliates of Buyer, and their respective shareholders, partners, officers, directors, members, representatives, managers, and employees (collectively the “Buyer Indemnitees”) harmless from and against any and all losses, costs, claims, strict liability claims, actions, suits, proceedings, demands, damages, natural resource damages, fines, penalties, amounts paid in settlement; interest, Taxes, expenses or infringement of any patent, trademark, copyright or other property right, regardless of whether such harm is to Buyer, Seller, the employees or officers of either or any other person (including reasonable attorneys’ and consultants’ fees, court costs and other out-of-pocket expenses incurred in investigating, preparing or defending the foregoing) (collectively, “Damages”) incurred by a Buyer Indemnitee arising out of or incident to the possession, use, transportation, handling, delivery, or supply of Product arising prior to the point in time that title of the Product transfers to Buyer, to the extent that such Damages were not caused by Buyer’s negligence, or willful misconduct .
(b) Buyer Indemnity. To the fullest extent permitted by law, Buyer shall protect, defend, indemnify, and hold Seller, any affiliates of Seller, and their respective shareholders, partners, officers, directors, members, representatives, managers, employees, agents and assigns (collectively the “Seller Indemnitees”) harmless from and against all claims, demands, lawsuits, causes of action, strict liability claims, taxes, penalties, fines, administrative law actions and orders, expenses (including, without limitation, attorneys’ fees and expenses) and costs of every kind and character due for any reason whatsoever, including personal injuries, death, damage to property, damage to the environment, or infringement of any patent, trademark, copyright or other property right, and fees and the costs of enforcing any right to indemnification under these Terms and Conditions and the cost of pursuing any insurance providers, regardless of whether such harm is to Buyer, Seller, the employees or officers of either or any other person (collectively, “Claims”), arising out of or in any way incident to: (i) the Buyer’s possession, use, transportation, or handling of the Product at or after the time that title to and risk of loss of the Product passes to Buyer, , (ii) Buyer’s or Buyer’s agents, subcontractors or subsequent purchasers, or any of their employees’ use, Misuse or disposal of the Product (including, without limitation, liability for environmental pollution caused by Buyer’s or Buyer’s agents, subcontractors or subsequent purchasers , or any of their employees), as further defined in Section 11 herein, (iii) Buyer’s failure to comply with the requirements for an exemption on sales or use tax in any State, and/or (iv) Buyer’s negligence, willful misconduct or breach of the Sales Documents. (c) Seller shall not bear any liability, whatsoever, for any damage or interruptions caused by any computer viruses, spyware, scareware, Trojan horses, worms or other malicious code that may affect your computer or other equipment, or any phishing, spoofing or other attack. Seller advises the regular use of a reputable and readily available virus screening and prevention software. Buyer should also be aware that SMS and email services are vulnerable to spoofing and phishing attacks and should use care in reviewing messages purporting to originate from Seller. Buyer in reviewing and fulfilling any requests for deposits or withdrawals must exercise diligence and care in reviewing messages purporting to originate from Seller, and if it has any uncertainty regarding the authenticity of any communication or notice, let Seller know as provided under Notice section.
(d) Limitation of Liability.
1) IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH ANY BREACH OF SALES DOCUMENTS, INCLUDING THESE TERMS AND CONDITIONS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (D) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. THE PRECEDING SENTENCE INCLUDES THOSE INCIDENTAL AND CONSEQUENTIAL DAMAGES REFERENCED IN § 2-715(2)(A) AND (B) OF THE UNIFORM COMMERCIAL CODE.
2) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT AND/OR PRODUCT, INCLUDING PURSUANT TO SECTIONS 6 AND 7, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER BY BUYER FOR THE PRODUCT SOLD HEREUNDER.
3) Notwithstanding the previous paragraphs, the Parties intend that Buyer’s rights under Section 5, Section 6, and Section 7 are Buyer’s exclusive remedies for the events specified therein.
Unless otherwise specifically stated in the Product description section of the Sales Documents, the Product shall not be used in the production or processing of livestock feed or the use of feed by livestock, and any such use shall be deemed a “Misuse of the Product”. Buyer acknowledges that the bulk nature of the Product makes it impractical for Seller to include labels or warnings regarding the misuse of the Product, and Buyer represents that it will include such warnings and labels as are necessary and practical. Buyer shall defend, protect, indemnify, and hold Seller, its affiliates, and their respective officers, directors, and employees harmless from and against all claims, demands, lawsuits, causes of action, strict liability claims, penalties, fines, administrative law actions and orders, expenses (including, without limitation, attorney’s fees and expenses) and costs of every kind and character due for any reason whatsoever, including personal injuries, death, damage to property, damage to the environment that are caused or resulted from Buyer’s Misuse of Product, in accordance with the terms of Section 10(b) herein.
The rights and duties under the Sales Documents are not assignable or transferable by either Party, in whole or in part, without the express written consent of the other Party. Notwithstanding the foregoing, Seller may assign its rights and obligations hereunder to any party acquiring all, or substantially all, of Seller’s equity interests or assets. Any assignment or attempted assignment in contravention of the foregoing shall be null and void.
All notices, consents, communications or transmittals under the Sales Documents shall be in writing and shall be deemed received on the day of delivery if personally hand delivered or sent by facsimile or electronic transmission (with written Documents of the completed transmittal); or within two (2) business days if mailed by United States mail as certified or registered mail with return receipt, postage prepaid addressed to the party to whom such notice is given at the address of such party stated in the Sales Documents.
Buyer understands that the Product sales price is exclusive of all taxes, duties, fees, levies, penalties, licenses or charges imposed by any government authority (“Taxes”). Buyer is responsible for paying all Taxes imposed on a sale of Product, and for providing Seller the required exemption documentation to exempt a sale from Taxes for each State in which a sale creates a tax nexus, regardless of whether title and risk of loss have passed to Buyer. Buyer is solely responsible for obtaining, maintenance and renewal of all applicable State registrations, exemption certificates, or permits required by any government authority, and shall provide updated information to Seller upon demand. Buyer shall pay all Taxes which may be imposed on or with respect to the Product at or after title and risk of loss passing to Buyer. If either Party is required to remit or pay Taxes that are the other Party’s responsibility hereunder, such Party owing the Taxes shall reimburse the other Party for such Taxes within ten (10) days of receipt of written notice hereunder.
For all railcar deliveries under the Sales Documents, Buyer is solely responsible for offloading or unloading of all Product. To the extent Buyer fails to offload or unload the entire quantity of Product from the railcar, then Buyer shall be responsible for any and all costs, charges or fees that may be charged by any third party and associated with the railcar which are paid by Seller to such third party (“Third Party Rail Fees”). Such Third Party Rail Fees shall be invoiced to Buyer in addition to the purchase price for the Product. At the option of Seller: (a) any residual or remaining Product shall be deemed to have been abandoned by the Buyer for the beneficial use or re-use by the Seller and will become the property of Seller when received and accepted by Seller at Seller’s facility or a facility designated by Seller to receive and store the Product; (b) Buyer will not receive credit, payment or other consideration for any such residual or remaining Product; (c) Buyer is solely responsible for the transportation of such residual or remaining Product (including freight charges, shipping documents, and compliance with all laws, rules and regulations related thereto) until received and accepted by Seller at Seller’s facility or a facility designated to receive and store the Product, and (d) Buyer shall reimburse Seller for any and all costs, charges or fees that may be charged to Seller arising in respect of such residual or remaining Product, including any charges associated with cleaning the railcar.
Seller and Buyer shall provide a level of care ordinarily exercised by similar Sellers and Buyers rendering similar industry under similar circumstances.
Each Party shall have the right to require the execution of a separate agreement with the other Party desiring access to the other Party’s facility(ies) (an “Access Agreement”) prior to granting the other Party, its affiliates, contractors, or agents access to its facility. Each Party agrees that it will, and will cause its contractors and agents, to comply with all of the Access Agreement, as well as the other Party’s safety rules and regulations to the extent such Party or the contractor or agent of such Party has been made aware of the same when they are at such other Party’s facility in connection with the performance of the Sales Documents.
Seller may reject any rail cars, trucks, transports, pipelines, barges, vessels, containers, or storage presented for loading/unloading/transfer of Product, which would present, in Seller’s reasonable discretion, an unsafe or potentially unsafe situation. Either Party may refuse to unload, transfer or handle any Product under any conditions which it deems, in its reasonable discretion, unsafe or potentially unsafe, including, without limitation, any conditions caused by Product, drivers, personnel, equipment, procedures and/or adverse weather conditions.
If and to the extent a Party (or its agent or contractor) loads, unloads or ships “hazardous products” (as designated in accordance with Part II of the Hazardous Products Act, as amended from time to time) or “hazardous materials” (as designated in accordance with 49 C.F.R. Parts 100-185, as amended from time to time), such Party hereby warrants that all such products or materials shall be prepared for shipment, loaded, shipped and unloaded in compliance with all applicable laws, rules, regulations, orders, and other requirements of federal, provincial or state and local governments and agencies thereof, related to the handling and transportation of such products or materials.
Seller may designate, from time to time, certain of its affiliates to act as its agent for the sole purpose of soliciting purchasers for Product. Said agent shall not, however, have the authority to bind or otherwise obligate Seller regarding the sale of Product or alter any of the terms of this Sales Documents. This Sales Documents shall not be binding upon Seller unless and until signed by a duly appointed representative of Seller.
Each Party agrees that the Sales Documents and any other documents to be delivered in connection herewith may be electronically signed and executed, and that any electronic signatures appearing on the Sales Documents, or such other documents are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility. The Sales Documents may be signed and executed in one or more counterparts (including by electronic means such as facsimile, scanned email signature, pdf, or DocuSign), each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument. The Sales Documents may be copied and stored on any form of digital media, including computer disks, tapes, external hard drives and/or cloud-based storage systems (the “Imaged Agreement”). A digitally regenerated copy of the Imaged Agreement, and any facsimile, and all computer records of the foregoing, shall be admissible as between the parties if the same is introduced as evidence in any judicial, arbitration, mediation, or administrative proceedings, to the same extent and under the same conditions as other business records originated and maintained in documentary form. Neither Party shall object under any rule of evidence on the basis that such business records were not originated or maintained in documentary form.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the transactions under the Sales Documents. The provisions of the most current version of INCOTERMS, International Chamber of Commerce Publication, are incorporated herein by reference, except to the extent that any such provisions are contrary to or inconsistent with any of the terms of the Sales Documents.
Each Party shall comply fully with all applicable U.S. and non-U.S. laws and regulations in the performance of its obligations under the Sales Documents and shall neither take nor refrain from taking any action that could result in liability to the other Party under applicable law, including without limitation the U.S. Foreign Corrupt Practices Act, the OECD Anti-Bribery Convention or any other applicable anti-bribery law or treaty, or those regulations maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (31 C.F.R. Chapter V) or the U.S. Commerce Department’s Bureau of Industry and Security (15 C.F.R. Parts 730 et seq.). Neither Buyer nor Seller shall be required to take or refrain from taking any action impermissible or penalized under any applicable U.S. laws or non-U.S. laws.
Buyer shall comply with all Environmental Laws, including but not limited to those laws pertaining to the Sales Contract. “Environmental Laws” shall mean all federal, state, and local laws, regulations, rules, permit terms, codes, ordinances, and legally enforceable guidance documents, now or hereafter in effect, as the same may be amended from time to time, and applicable decisional laws, pertaining to health, industrial hygiene, Hazardous Substances (as defined under Environmental laws) or the environment.
Seller and Buyer are independent contractors only and nothing in the Sales Documents shall be construed as creating any agency, partnership, principal/agent, franchise, business opportunity, joint ventures or other form of joint enterprise, employment, or similar legal relationship with respect to the transactions contemplated under the Sales Documents or otherwise, and no fiduciary, trust, or advisor relationship, nor any other relationship imposing vicarious liability shall exist between the Parties under the Sales Documents or otherwise at law.
The Sales Documents is solely for the benefit of, and shall inure to the benefit of, Buyer and Seller, and except for permitted assignees under Section 29(b) hereinabove, shall not otherwise be deemed to confer upon or give to any third Party any right, claim, cause of action or other interest herein.
Except as may be agreed to in writing by the other Party, or as may be necessary to perform its obligations herein, Buyer and Seller shall each maintain in confidence all information concerning costs and price to be disclosed in connection with the Sales Documents. Unless otherwise required by law, neither Buyer nor Seller shall disclose such information other than to its employees with a need to know such information in connection with performance under the Sales Documents, and such employees shall be advised of the confidential nature of such information. Buyer and Seller shall take all proper precautions to prevent such information from being transmitted to or acquired by any unauthorized person.
These Terms and Conditions, together with the Sales Documents into which they are incorporated, shall supersede all prior negotiations, discussions, and dealings concerning the subject matter hereof, and shall constitute the entire agreement between Seller and Buyer concerning the subject matter hereof. Neither Party shall claim any amendment, modification, or release of any provisions hereof unless the same is in writing and such writing: (i) specifically refers to the Sales Documents; (ii) specifically identifies the term amended; and (iii) is signed by duly authorized representatives of Seller and Buyer. No waiver by either Party of any breach of any terms, conditions, or obligations under the Sales Documents shall be deemed a waiver of any continuing or subsequent breach of the same or any other terms, conditions, or obligations hereunder.
The Sales Documents and its execution, performance, interpretation, construction, and enforcement shall be governed by the law, both procedural and substantive, of the State of Florida, without regard to its conflicts of law rules. No course of dealing, course of performance, or usage of trade shall be considered in the interpretation or enforcement of the Sales Documents. Any action or proceeding between Buyer and Seller relating to the Sales Documents shall be commenced and maintained exclusively in the state or federal courts in Tampa, Florida, and each Party submits itself unconditionally and irrevocably to the personal jurisdiction and venue of such courts. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BUYER AND SELLER EACH WAIVE ANY RIGHT EACH MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION, CLAIM OR PROCEEDING RELATING TO THE SALES DOCUMENTS.
(a) The captions and section headings set forth herein and in the Sales Documents are used for convenience only and shall not be used in defining or construing any of the terms and conditions set forth in the Sales Documents. The term “days”, as used herein, shall mean actual days occurring, including, Saturdays, Sundays, and national holidays. The term “business days” shall mean days other than Saturdays, Sundays and national holidays. Unless the context indicates otherwise, words importing the singular number shall include the plural and vice versa, and words importing person shall include firms, association, partnerships, and corporations, including public bodies and governmental entities, as well as natural persons, and words of masculine gender shall be deemed to include correlative words of the feminine gender and vice versa as the circumstances may require. The invalidity or unenforceability of any provision of the Sales Confirmation shall not affect the validity or enforceability of its other provisions.
(b) The Sales Documents are binding on and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.
(c) If any term or provision of the Sales Documents is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision the Sales Documents or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Terms and Conditions to affect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.