Sparrowchem Corp. (“Seller” or “Sparrowchem”) is engaged in the business of manufacturing and distribution of fine chemicals and laboratory supplies to its customers. By using Seller’s products or services, you (the “Customer”) agree to be bound by the following terms and conditions which together with any purchase order executed by Sparrowchem and the Customer, comprises the entire agreement (“Agreement”) between Sparrowchem and the Customer. Any provisions contained in any document issued by Buyer are expressly rejected and if the terms and conditions in this Agreement differ from the terms of Buyer’s offer, this document shall be construed as a counter offer and shall not be effective as an acceptance of Buyer’s document. Buyer’s receipt of Products or Seller’s commencement of the services provided hereunder will constitute Buyer’s acceptance of this Agreement. This is the complete and exclusive statement of the contract between Seller and Buyer with respect to Buyer’s purchase of the Products. No waiver, consent, modification, amendment or change of the terms contained herein shall be binding unless in writing and signed by Seller and Buyer. Seller’s failure to object to terms contained in any subsequent communication from Buyer will not be a waiver or modification of the terms set forth herein. All orders are subject to acceptance in writing by an authorized representative of Seller.
All prices published by Seller or quoted by Seller’s representatives may be changed at any time without notice. All prices quoted by Seller or Seller’s representatives are valid for thirty (30) days, unless otherwise stated in writing. All prices for Products will be as specified by Seller or, if no price has been specified or quoted, will be Seller’s price in effect at the time of shipment. All prices are subject to adjustment on account of specifications, quantities, raw materials, cost of production, shipment arrangements or other terms or conditions which are not part of Seller’s original price quotation.
Product specifications are subject to change without prior notice.
3. Payment Terms
Seller may invoice Buyer upon shipment for the price and all other charges payable by Buyer in accordance with the terms herein. If no payment terms are stated on the face hereof, payment shall be net thirty (30) days from the date of invoice. If Buyer fails to pay any amounts when due, Buyer shall pay Seller interest thereon at a periodic rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law), together with all costs and expenses (including without limitation reasonable attorneys’ fees and costs) incurred by Seller in collecting such overdue amounts or otherwise enforcing Seller’s rights hereunder. Seller reserves the right to require from Buyer full or partial payment in advance if Seller believes in good faith that Buyer’s financial condition does not justify the terms of payment specified. All payments shall be made in U.S. Dollars.
6. Taxes and Other Charges
Prices for the Products exclude all sales, value added and other taxes and duties imposed with respect to the sale, delivery, or use of any Products, all of which taxes and duties must be paid by Buyer.
7. Product Return Policy
If it becomes necessary to return a product, please contact Customer Service to obtain a Return Materials Authorization (RMA) number. Requests to return products must be made within 30 days of receipt of the material and returns to Sparrowchem must be received within 30 days of RMA authorization. All returns must be authorized by Sparrowchem and be packed and labeled in accordance with DOT regulations applying to transportation of hazardous materials and in a manner which will preserve the product from any damage in order to insure proper credit. To insure prompt handling, the return authorization number should be placed on the outside of the package and a detailed explanation of the defect enclosed with the Product. Sparrowchem will attempt to accommodate all reasonable requests for returns; however, all returned items are subject to a restocking fee. The following Products cannot be returned:
- • Products which cannot be resold or are not in original packaging;
- • Products which require refrigeration or are otherwise perishable;
- • Products purchased on a Special Order Basis;
- • Products not purchased directly from Sparrowchem; and
- • Products with an expired shelf life; and Products which have been discontinued.
Damaged Shipments – Please inspect your Sparrowchem shipment upon receipt. If any external damage is noticed, accept the shipment only after the driver has noted the damage on both his and your copies of the delivery receipt and you have requested an inspection by the carrier. Keep all containers and packing material for inspection. If, upon opening a shipment, you find a shortage or damage, you must request inspection by the carrier within fifteen (15) days of delivery or you will relinquish your right to make a claim. Sparrowchem reserves the right to repair a damaged product, where applicable, before replacement or credit is determined.
8. Product and Service Warranties and Limitation of Liability
(a) Sparrowchem warrants to Buyer the following:
i. All products provided to Customer pursuant to this agreement (each a “Product”, and collectively, the “Products will meet the manufacturer’s specifications for a term equal to the warranty period stated in the Product manufacturer’s literature or sixty (60) days, whichever is longer; and
ii. Services provided, if any, will be of the kind and quality designated and will be performed by qualified personnel
(b) If any Product or service warranted hereunder proves defective or non-conforming, Sparrowchem’s sole liability and Customer’s sole remedy hereunder shall be for Sparrowchem, to repair or, at Sparrowchem’s option, (i) replace (or re-perform the Service), at no cost to Customer, any such defective or non-conforming Product with a non-defective or conforming Product (as applicable) or (ii) credit Customer’s account for all amounts paid with respect to the defective or non-conforming Product or Service upon Sparrowchem’s receipt of the defective or non-conforming Product. In the event of replacement, the replacement Product will be warranted for the remainder of the original warranty period or ninety (90) days, whichever is longer.
(c) However, in no event shall Seller have any obligation to make repairs, replacements or corrections required, in whole or in part, as the result of (i) normal wear and tear, (ii) accident, disaster or event of force majeure, (iii) misuse, fault or negligence of or by Buyer, (iv) use of the Products in a manner for which they were not designed, (v) causes external to the Products such as, but not limited to, power failure or electrical power surges, or (vi) improper storage and handling of the Products. Any installation, maintenance, repair, service, relocation or alteration to or of, or other tampering with, the Products performed by any person or entity other than Seller without Seller’s prior written approval, or any use of replacement parts not supplied by Seller, shall immediately void and cancel all warranties with respect to the affected Products.
Seller’s warranty shall be limited to Products which are defective or non-conforming, which is defined as a Product which is outside of the manufacturer’s defined Product specifications. A defective or non-conforming product does not include Products that fail to meet any fitness of use by Customer or any unique Customer operating conditions or applications.
(d) If you believe a Product falls within our warranty and requires repair or service, please contact Sparrowchem for instructions on how to proceed.
The obligations created by this warranty statement to repair or replace a defective Product shall be the sole remedy of Buyer in the event of a defective Product. SPARROWCHEM HEREBY DISCLAIMS ALL OTHER WARRANTIES OR GUARANTEES WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER STATUTORY, WRITTEN, ORAL, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABIIITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Any warranties or claims, expressed or implied, by Sparrowchem for its products are valid only if they are sold directly to the buyer by Sparrowchem or sold through one of the US or worldwide distributors authorized by Sparrowchem.
Notwithstanding the foregoing, Products supplied by Seller that are obtained by Seller from an original manufacturer or third party supplier are not warranted by Seller, but Seller agrees to assign to Buyer any warranty rights in such Product that Seller may have from the original manufacturer or third party supplier, to the extent such assignment is allowed by such original manufacturer or third party supplier.
9. Limitation of Liability
Notwithstanding anything to the contrary contained herein, the liability of Seller under these terms and conditions (whether by reason of breach of contract, tort, indemnification, or otherwise, but excluding liability of Seller for breach of warranty (the sole remedy for which shall be as provided under WARRANTY above)) shall not exceed an amount equal to the lesser of (a) the total purchase price theretofore paid by Buyer to Seller with respect to the Product(s) giving rise to such liability or (b) one million dollars ($1,000,000). Notwithstanding anything to the contrary contained herein, in no event shall Seller be liable for any indirect, special, consequential or incidental damages (including without limitation damages for loss of use of facilities or equipment, loss of revenue, loss of data, loss of profits or loss of goodwill), regardless of whether Seller (a) has been informed of the possibility of such damages or (b) is negligent.
Customer shall defend, indemnify and hold Sparrowchem and its officers, directors, employees, and agents with competent counsel and hold harmless Seller from and against any and all claims, actions, liability, expenses, costs, or losses arising (including without limitation reasonable attorneys’ fees and disbursements and court costs) to the extent arising from or in connection with ( (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in an application or environment for which it was not designed;; (iii) modifications of a Product by anyone other than Seller without Seller’s prior written approval; (iv) Seller’s compliance with designs, specifications or instructions supplied to Seller by Buyer; (v) any breach by Customer of its obligations hereunder. This Section 9 shall survive termination and cancellation of this Agreement.
11. Proprietary Information
Buyer agrees that all pricing, discounts and technical information that Seller provides to Buyer are the confidential and proprietary information of Seller. Buyer agrees to (1) keep such information confidential and not disclose such information to any third party, and (2) use such information solely for Buyer’s internal purposes and in connection with the Products supplied hereunder. Nothing herein shall restrict the use of information available to the general public. Buyer shall inform its employees, agents, and representatives of these obligations and shall require them to assume equivalent obligations.
(a) Termination – This Agreement may be terminated by either party for convenience at any time upon reasonable written notice delivered to the other party. In the event of any termination or expiration of this Agreement, Customer shall be billed immediately for Products shipped through the effective date of such termination or expiration and all custom Products purchased for Customer in Sparrowchem’s inventories at such date, and Customer shall pay the invoiced amount immediately upon receipt of such invoice.
(b) Delivery, Cancellation and Changes by Buyer – The Products will be shipped to the destination specified by Buyer, F.O.B. Seller’s shipping point. Seller will have the right, at its election, to make partial shipments of the Products and to invoice each shipment separately. Delivery of all orders will be FCA (INCOTERMS 2000). Shipping and handling fees, special packaging materials (e.g., blue ice), carrier surcharges and hazardous material fees imposed by government regulation will be added separately to the invoice. Seller reserves the right to stop delivery of Products in transit and to withhold shipments in whole or in part if Buyer fails to make any payment to Seller when due or otherwise fails to perform its obligations hereunder. All shipping and delivery dates are approximate only, and Seller will not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond Seller’s reasonable control. In the event of a delay due to any cause beyond Seller’s reasonable control, Seller reserves the right to terminate the order or to reschedule the shipment within a reasonable period of time, and Buyer will not be entitled to refuse delivery or otherwise be relieved of any obligations as the result of such delay. Orders in process may be canceled only with Seller’s written consent and upon payment of Seller’s cancellation charges, where applicable. Orders in process may not be changed except with Seller’s written consent and upon agreement by the parties as to an appropriate adjustment in the purchase price therefore. Credit will not be allowed for Products returned without the prior written consent of Seller.
13. Title and Risk of Loss
Notwithstanding the trade terms indicated above and subject to Seller’s right to stop delivery of Products in transit, title to and risk of loss of the Products will pass to Buyer upon delivery of possession of the Products by Seller to the carrier; provided, however, that title to any software incorporated within or forming a part of the Products shall at all times remain with Seller or the licensor(s) thereof, as the case may be.
(a) Severability – If any term or provision of this Agreement or any application thereof shall be held invalid or unenforceable, the remainder of this Agreement and any application of the terms and provisions shall not be affected thereby, but shall remain valid and enforceable.
(b) Applicable Law, Venue – This Agreement is made pursuant to, and shall be construed and enforced exclusively in accordance with, the laws of the State of Florida (and United States federal law, to the extent applicable), without giving effect to otherwise applicable principles of conflicts of law. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement against any of the parties shall be brought in the courts of the State of Florida, or, if applicable, in the United States District Court for the Central District of Florida, and each of the parties consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding. In the event of any legal proceeding between the Seller and Buyer relating to this Agreement, neither party may claim the right to a trial by jury, and both parties waive any right they may have under applicable law or otherwise to a right to a trial by jury.
(c) Time Limitations– Regardless of any contrary statute or law, any suit seeking to enforce any provision of, or based on any right arising out of, this Agreement must be filed within one (1) year from the date that the cause of action arose.
(d) Enforceability – Seller’s failure to enforce, or Seller’s waiver of a breach of, any provision contained herein shall not constitute a waiver of any other breach or of such provision.
(e) Assignment – This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns and designees; provided, however, neither party shall have the right to transfer, assign or delegate its rights or obligations under this Agreement or any portion thereof without the prior written consent of the other party (except that either party may assign this Agreement to a parent, subsidiary or successor corporation without such consent).