Terms and Conditions of Sale
Terms and Conditions of Sale
Last Modified January 15, 2023
These Terms and Conditions of Sale (these "Terms") (and the documents referenced below) are the only terms that govern the sale of products (the "Products") by Spartech LLC and its current and future direct and indirect subsidiaries ("Spartech" or "Seller") to the buyer (the "Buyer") named in the confirmation of sale (the "Sales Confirmation") that incorporates these Terms by reference.
- Applicability. Unless the parties have a separate written supply or other similar agreement (in which case such agreement shall be part of the Agreement), these Terms, the Sales Confirmation and the Credit Agreement & Terms with the Buyer (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of a conflict between or among these Terms, the Credit Agreement & Terms or the Sales Confirmation, the documents shall control in the order set forth in this sentence. By placing an order with Seller, Buyer accepts and agrees to be bound and abide by these Terms.
The Agreement prevails over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend the Agreement.
Notwithstanding anything herein to the contrary, if there is a written supply or similar agreement that is signed by both parties and that covers the sale of the Products and that specifically states that it controls in the event of a conflict with these Terms, the terms and conditions of said agreement shall prevail to the extent they are inconsistent with these Terms.
- Order Acceptance and Cancellation. Buyer agrees that Buyer’s order is an offer to buy, under these Terms, all Products listed in Buyer’s order. Seller will not be obligated to sell the Products to Buyer unless it accepts Buyer’s order. Seller may choose not to accept orders at its sole discretion. Seller may discontinue any Product sold hereunder at any time, unless Buyer and Seller have otherwise agreed in writing.
- Delivery. The Products will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of finished Products. Seller shall not be liable for any delays, loss, or damage in transit. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
- Shipping Terms. Seller shall make delivery in accordance with the shipping and delivery terms set forth in the Sales Confirmation.
- Title & Risk of Loss. Title and risk of loss to the Product shall pass to Buyer at Seller’s point of shipment. Buyer assumes all risks and liabilities arising out of unloading, discharge, storage, handling and use of the Product, or arising out of compliance or non-compliance with federal, state, municipal or local laws and regulations governing or controlling such activity, except to the extent, if any, attributable to Seller’s gross negligence or willful misconduct. Seller has no liability for the failure of discharge or unloading equipment or materials used by Buyer, whether or not supplied by Seller. Except to the extent attributable to the Product failing to meet the express warranties set forth in Section 10, Buyer will indemnify, defend and hold Seller harmless from all costs, expenses, damages, judgements or other loss, including costs of investigation, litigation and reasonable attorney’s fees, arising out of Buyer’s selection, use, sale and further processing of the Product.
- Prices. Buyer shall purchase the Products from Seller at the prices set forth in the Sales Confirmation.
- Terms Adjustment. Seller may change the price and/or terms of delivery and shipment at any time up until shipment. In addition, at any time prior to delivery, Seller may pass through increased fuel surcharges or taxes imposed upon Seller in connection with the sale/shipment of the Product after order acceptance. If the prices should be increased by Seller before delivery of the Products to a carrier for shipment to Buyer, then these Terms shall be construed as if the increased prices were originally inserted herein, and Buyer shall be billed by Seller on the basis of such increased prices.
- Taxes. Buyer will reimburse Seller for all federal, state, local or other taxes (other than income taxes), duties, sales taxes, excises or charges, including superfund taxes and fees, which Seller must pay in connection with the manufacture and supply of Product, but only those amounts not already included in the price at the commencement of this Agreement.
- Payment & Credit. Buyer will make all payments hereunder in US dollars in cash or in negotiable paper collectible at face value in the funds and at the location indicated on Seller’s invoice. Buyer shall make all payments hereunder on net 30 days terms; late payments will bear interest at 1.5%/month or the highest rate permissible under applicable law, calculated daily and compounded monthly. If Seller determines that Buyer’s financial responsibility has become impaired or otherwise unsatisfactory to Seller, Seller may require advance cash payments, COD, shorter terms, and/or the posting of satisfactory security by Buyer, and may withhold shipments until Buyer complies.
Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under the Agreement or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Products if Buyer fails to pay any amounts when due hereunder and such failure continues for 15 days following written notice thereof.
Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise.
- Limited Warranty.
Seller warrants to Buyer, upon delivery, good and free title in the Product (subject to Seller’s security interest set forth in Section 9) and that the Product will materially conform to Seller’s published specifications, if any exist, or to such other quality standards and/or measurements the parties have agreed upon in writing. Seller has based any recommendations to Buyer for the use of the Product upon information that Seller considers reliable, but Seller makes no warranty as to any results Buyer might obtain in Buyer’s use(s) for the Product. These warranties extend only to Buyer. EXCEPT FOR THE WARRANTY SET FORTH IN THIS SECTION 10, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Seller makes no other warranties extending beyond the description of the Product, whether used alone or in combination with any other substance or in any process. Products manufactured or Products altered by a third party ("Third Party Product") are not covered by the warranty set forth above. For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
The Seller shall not be liable for a breach of the warranty set forth in this Section 10 if: (i) Buyer makes any further use of such Products after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products; or (iii) Buyer alters or repairs such Products.
- Inspection and Notice.
Buyer will examine Product promptly after receipt for damage, defects, short-weight and non-conformance. Buyer must give Seller written notice of the existence of each claim involving Product (whether based in contract, breach of warranty, negligence, strict liability, other tort or otherwise) within the earlier of thirty (30) days after receipt of the quantity of Product forming the basis for the claim or applicable shelf-life expiration, if any. A failure by Buyer to give such notice within the applicable time constraint will constitute an absolute and unconditional waiver of all such claims.
If Buyer timely provides any such notice and Seller determines such Products to be damaged, defective and/or non-conforming, Seller shall, in its sole discretion, (i) replace such Products with conforming Products, or (ii) credit or refund the price for such Products, together with any reasonable shipping expenses incurred by Buyer in connection therewith. Upon Seller’s instructions, Buyer shall ship, at its expense and risk of loss, any such Products to the facility designated by Seller. If Seller exercises its option to replace Products, Seller shall, after receiving Buyer’s shipment of Products, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Products to the original delivery location.
Except as provided in the preceding paragraph, all sales of Products to Buyer are made on a one-way basis and Buyer has no right to return Products purchased under this Agreement to Seller.
Buyer assumes all risk of patent infringement by reason of any use Buyer makes of the Product in combination with other substances or in the operation of any process, and all infringement arising out of Seller’s compliance with Buyer’s designs, specifications or instructions, and Buyer shall defend, indemnify and hold Seller harmless from and against the same.
- Limitation of Liability.
THE REMEDIES SET FORTH IN SECTION 11 SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY WITH RESPECT TO THE PRODUCTS, INCLUDING ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 10.
IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE PRODUCTS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND WHETHER ARISING OUT OF THE AGREEMENT OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS GIVING RISE TO SUCH CLAIM.
- Governmental Constraints. If a present or future law, governmental decree, order, regulation, or ruling under any existing or future legislation prevents Seller from increasing or revising the price as provided herein, or nullifies or reduces any price or price increase hereunder, upon written notice from one to the other Seller and Buyer will attempt to identify mutually agreeable changes to conform the Agreement with such law, decree, order, regulation, or ruling. If the parties cannot agree upon and implement such changes within sixty (60) days after such notice, Seller shall thereupon have a right to terminate any order forthwith by written notice to Buyer.
- Force Majeure. Seller shall not be liable, nor be deemed to have defaulted, for any delay in or failure of performance if the failure to perform arises out of causes beyond the control of Seller, including acts of God or of the public enemy, acts of the government in either its sovereign or contractual capacity, fires, floods, earthquakes, explosions, epidemics, quarantine restrictions, moratoriums, wars, invasions, hostilities (whether war is declared or not), terrorist threats or acts, riot, civil unrest, government order, law or actions, embargoes or blockades, national or regional emergency, strikes, labor stoppages or slowdowns, or other disturbances, freight embargoes, shortage of adequate power or transportation facilities, unusually severe weather, or other events beyond the control of Seller.
- Safety & Health Indemnity. Buyer acknowledges that Seller has furnished to Buyer Material Safety Data sheets, which include warnings together with safety and health information concerning the Product and/or the containers for such Product. Buyer will disseminate such information so as to give warning of possible hazards to persons whom Buyer can reasonably foresee may receive exposure to such hazards, including, but not limited to, Buyer’s employees, agents, contractors and customers. Buyer will indemnify, defend and save Seller harmless against any and all liability arising out of or in any way connected with Buyer’s failure to disseminate such information, including without limitation, liability for injury, sickness, death and property damage, and costs of investigation, litigation and reasonable attorney’s fees.
- Shortage of Product. During periods when demand for Product exceeds Seller’s available supply, whether due to a force majeure or otherwise, Seller may distribute Product among itself for its own manufacturing uses, its customers, and Buyer in such manner as Seller deems fair and practicable. Buyer will accept, as full and complete performance by Seller, deliveries in accordance with such determinations as Seller may make. Except in the case of a force majeure, if not satisfied with Seller’s determination, Buyer as its sole remedy shall have a right to terminate the applicable order without further obligation upon: (i) 10 days written notice; and (ii) payment for all Product received to date.
- Buyer’s Acts or Omissions. If Seller’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Seller shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
- Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate any order and its obligations under the Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any provision of the Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
- Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing the Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
- Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (without notice of non-delivery), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
- Assignment/Delegation. Buyer may assign/transfer rights and/or delegate duties/obligations hereunder only with the prior written consent of Seller, which shall not be unreasonably withheld, and any such assignment, transfer or delegation in violation of this provision shall be void. Seller may assign the Agreement and/or rights and delegate obligations under the Agreement without the consent of Buyer.
- Integration. These Terms apply to all sales by Spartech LLC and its present and future direct and indirect subsidiaries, each of which is a beneficiary of and entitled to enforce these Terms. No modification or addition to this contract shall occur by the acknowledgment or acceptance by Seller of a purchase order, acknowledgment, release or other form submitted by Buyer containing additional or different terms or conditions, and Seller hereby gives Buyer notice of the rejection of such additional terms and conditions.
- UN Convention. The United Nations Convention respecting Contracts for the International Sale of Goods shall not apply to transactions under the Agreement.
- Severability. In the event of illegality or invalidity of a provision of the Agreement under the law of a particular jurisdiction, the parties shall deem that provision stricken in its entirety; the balance of the Agreement shall remain in full force and effect.
- Survival. Provisions of the Agreement which by their nature should apply beyond their terms will remain in force after any fulfillment, termination or expiration of any order or the Agreement, including, but not limited to, Sections 1, 5, 8 through 33 of these Terms.
- Applicable Law. The law of state of Missouri shall govern the interpretation and construction of the Agreement without regard to the principles of conflicts of law.
- Export/Re–Export. Buyer will comply with all U.S. laws and regulations in relation to the Agreement. export control and trade embargo laws, rules and regulations (including but not limited to the U.S. Export Administration Regulations), and shall not sell, export, import, re-export, distribute, transfer or otherwise deal with or dispose of Products, whether directly or indirectly, without first obtaining all necessary written consents, permits and authorizations and completing such formalities as may be required by any applicable such laws, rules and regulations. Failure by Buyer to comply with such laws, rules and regulations shall constitute a material default under the contract. Buyer agrees to impose this same compliance requirement in its contracts with third parties pertaining to the Products.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- No Third-Party Beneficiaries. Except as expressly provided in the Agreement, (i) this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and (ii) nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement.
- Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to the Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Missouri in each case located in or serving the County of St. Louis, Missouri, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
- Changes to the Terms. Seller may revise and update the Terms from time to time in its sole discretion. All changes are effective immediately when Seller posts them on its website. The most current version of the Terms will be indicated by the "Last Modified" date at the top of this document.