CHEMICAL CONCEPTS, INC. or its affiliates(s) (“Chemical Concepts”) as identified on the Quotation, Acknowledgment, Invoice, online order form or other commercial document provided by Chemical Concepts (“Commercial Document”) offers to provide the goods and/or services described in such Commercial Document (the “Products”) to the buyer to which this offer is addressed (“Buyer”), subject to the terms and conditions set forth herein and in such Commercial Document (together, the “Agreement”). Chemical Concepts’ agreement to provide to Buyer the Products, and Buyer’s purchase of the Products, is expressly limited to the terms of this Agreement. Buyer may not amend, modify or replace the terms of this Agreement with any conflicting, different or additional terms previously or hereafter received by Chemical Concepts, even if such terms recite that any action or inaction by Chemical Concepts constitutes agreement or consent by Chemical Concepts to such amendment, modification or replacement. If this document is deemed an acceptance of a prior offer by Buyer, such acceptance is limited to the express terms contained herein including, without limitation, all additional terms contained herein. Chemical Concepts objects to and rejects any additional, different or varying terms proposed by Buyer, unless an authorized officer of Chemical Concepts expressly accepts such terms in a signed writing. Any proposal of additional, different or varying terms by Buyer shall not operate as a rejection of Chemical Concepts’ offer, and Chemical Concepts’ offer shall be deemed accepted without such additional, different or varying terms.
Buyer shall be deemed to have made an unqualified acceptance of this Agreement, and the terms and conditions herein, on the earliest to occur of the following (a) Chemical Concepts’ receipt of a copy of this Agreement, or any agreement incorporating this Agreement, signed by Buyer (with scanned or facsimile signatures treated as original signatures); (b) Buyer’s order of Products after receiving notice of this Agreement; (c) Buyer’s payment of any amounts due under this Agreement; (d) Buyer’s delivery to Chemical Concepts of any material to be furnished by Buyer; (e) Chemical Concepts’ delivery of the Products; (f) Buyer’s failure to notify Chemical Concepts to the contrary within ten days of receipt of this Agreement; or (g) any other event constituting acceptance under applicable law. Written quotations are void unless accepted within 45 days from date of issue. Other Chemical Concepts publications are maintained as sources of general information and are not quotations or offers to sell. For purchases made by Buyer on Chemical Concepts’ website, Buyer is deemed to have accepted this Agreement by clicking the checkbox reading “I have read and agree to the Terms and Conditions” on the final checkout page in the website shopping cart. Chemical Concepts is deemed to have accepted the Agreement upon shipment of the Products.
(a) Orders. Buyer shall ensure that its orders are received by Chemical Concepts not less than 20 working days before the requested delivery dates. Chemical Concepts shall have the right to accept or reject purchase orders in its sole discretion. Buyer’s orders or mutually agreed change orders shall be subject to all provisions of this Agreement, whether or not the order or change order so states. Minimum order quantity is $50 per order or blanket release ($50 for purchases made by Buyer on Chemical Concepts’ website). Chemical Concepts shall use commercially reasonable efforts to provide Buyer with reasonable notice if a Product for which Chemical Concepts has accepted an order has or becomes obsolete, discontinued or otherwise unavailable or, in Chemical Concepts’ reasonable determination, materially modified (whether by Chemical Concepts or its vendor). Buyer agrees that Chemical Concepts is not obligated to provide any specific amount of notice and Chemical Concepts shall have no liability for such obsolescence, discontinuation, unavailability, modification or resulting order cancellation by Chemical Concepts, other than to refund to Buyer any amounts received by Chemical Concepts from Buyer with respect to such Products that are not delivered to Buyer.
(b) Cancellation or Modification. Buyer may not cancel or modify its order except upon terms accepted by Chemical Concepts in writing, as cancellation and modification requests are subject to Chemical Concepts receiving vendor approval. In the event of any cancellation or modification, Buyer shall compensate Chemical Concepts for all costs and damages resulting there from, including, but not limited to, out-of-pocket expenses and lost profits and the fees and charges imposed by Chemical Concepts’ suppliers.
(c) Returns. No Products may be returned to Chemical Concepts without its prior, written authorization and Products may be returned only on the terms or conditions specified in such authorization. Returned Products must be of current manufacture, unused, in resalable condition, and securely packed to reach Chemical Concepts without damage. Return freight will be at the Buyer’s expense. Any cost incurred by Chemical Concepts to put Products in first class condition will be charged to Buyer. All Product returned to Chemical Concepts shall be subject to a 15% or greater restocking charge (depending on vendor restock policies) with a minimum restocking charge of $40.00, plus the costs of freight, packaging, insurance, and any import or export costs.
(d) Special Orders. No returns will be accepted on special order products. All special orders are subject to a minimum 25% deposit at the time of order. Special order items and deposits are non-refundable. Special orders cannot be canceled once placed with our suppliers. We are not responsible for production delays or other unforeseen circumstances that delay delivery of any special order. We will provide an estimate of the lead time required for your item to arrive to best of our ability, however, we cannot guarantee a lead time in any case.
(a) Minimum Shelf Life: Products are shipped with at least one month or 8% of their total shelf life remaining, whichever is greater.
(b) Short Dated Items: If the remaining shelf life of an item is less than the above, we will contact you to determine whether you would like to proceed with the shipment or place a backorder for fresh stock.
(c) Specific Requirements: If you have specific minimum shelf life requirements that exceed our standard policy, a batch fee may apply. This fee covers the potential costs associated with producing a new batch to meet your needs, even if existing stock with adequate shelf life is available. Batch fees are assessed on a case-by-case basis and will be communicated to you prior to order fulfillment.
(a) Generally. Unless previously agreed by Chemical Concepts and Buyer in writing, for shipments within the United States, Chemical Concepts shall deliver the Products F.O.B. Chemical Concepts’ facility (the “Facility”). “F.O.B.” shall be interpreted in accordance with the Uniform Commercial Code as adopted in the State of Pennsylvania. For international shipments, unless otherwise provided in Chemical Concepts’ Commercial Document. Chemical Concepts shall deliver the Products FCA the Facility in accordance with INCOTERMS 2020 of the International Chamber of Commerce, as amended from time to time. Buyer shall pay for all costs of shipping. All risk of loss, damage or delay, and title to Products, shall pass from Chemical Concepts to Buyer upon delivery at the Facility. Partial shipments shall be permitted and Buyer shall pay for them pro rata. Buyer shall accept overrun and/or under runs not exceeding 10% of quantity ordered, to be paid for or allowed pro rata. Buyer shall fully ensure all Products from time of Chemical Concepts delivery hereunder until Chemical Concepts is paid in full therefor. For purchases made by Buyer on Chemical Concepts’ website, delivery shall be pursuant to the web order terms and Chemical Concepts has no obligation to ship Product to Buyer unless Chemical Concepts has accepted the order and Buyer had paid for such Products in full prior to the time of delivery.
(b) Delivery Dates. All delivery dates are approximate. Delivery dates given by Chemical Concepts are based on prompt receipt of all necessary information regarding the order. Chemical Concepts will use reasonable efforts to meet such delivery dates, but does not guarantee to meet such dates. Failure by Chemical Concepts to meet any delivery date does not constitute a cause for cancellation and/or for damages or penalties of any kind. Time for delivery shall not be of the essence.
(c) Delivery Delays. Any delay in delivery due to causes beyond Chemical Concepts’ reasonable control, or due to any priorities or allocations necessitated by governmental orders or regulations, or due to any causes specified in the following sentence, shall extend the term of delivery by a period equal to the length of such delay. In the event of delay in delivery requested by Buyer or caused by Buyer’s (a) failure to supply adequate instructions; (b) failure to arrange for pickup; (c) failure to supply or approve necessary data in a timely manner; (d) requested changes; or (e) failure to provide documents required for Chemical Concepts to effect delivery, Chemical Concepts will store all Products at Buyer’s risk and expense. Buyer shall pay all storage costs and expenses upon Chemical Concepts’ demand.
(d) Claims. Claims for shortages or other errors must be made in writing to Chemical Concepts within ten days after Chemical Concepts’ delivery. Failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Buyer. Buyer shall, promptly upon delivery, open, inspect and test all Products and report any discrepancy in writing to Chemical Concepts.
Unless prices are stated in Chemical Concepts’ Commercial Document, prices shall be the higher of Chemical Concepts’ most recent quote to Buyer, prevailing market price, Chemical Concepts’ list price, or the last price charged by Chemical Concepts to Buyer for the Products. Chemical Concepts may from time to time increase prices for the Products, effective on notice to Buyer, in response to increases in the prices of raw or other supplied products or materials. Without limiting the foregoing, for a purchase order which contemplates delivery of Products (either in whole or in part) more than 30 days after the date of such purchase order, Chemical Concepts reserves the right to increase prices for Products delivered more than 30 days after the date of the purchase order. Chemical Concepts shall give Buyer verbal or written notice of any price increase at the time that Chemical Concepts is made aware of such increase and its effective date. Unless otherwise stated in Chemical Concepts’ Commercial Document, prices are in U.S. Dollars, as delivered at the Facility. Buyer shall pay or reimburse Chemical Concepts for any tax (including sales tax but not including taxes on Chemical Concepts’ income), duty, inspection or testing fee or any other fee or charge imposed on, in connection with or measured by the transaction between Chemical Concepts and Buyer in addition to the prices quoted or invoiced.
Unless otherwise stated in Chemical Concepts’ Commercial Document, payment terms are as follows. If Buyer resides in the United States, payment terms are net 30 days from Chemical Concepts’ invoice date if Chemical Concepts approves credit. If Buyer resides outside the United States, Buyer shall pay Chemical Concepts by irrevocable Letter of Credit, including such provisions as are determined by Chemical Concepts at time of quote. All banking and other charges for any Letter of Credit are the responsibility of Buyer. Credit terms are subject to the approval Chemical Concepts’ credit department and may be changed at any time and from time to time by Chemical Concepts in its sole discretion. For purchases made by Buyer on Chemical Concepts’ website, payment may be made in U.S. dollars via Paypal Accounts, VISA, MasterCard, American Express and Discover. Payment is due and payable upon clicking the “Place Order” button on the website. Payment does not constitute Chemical Concepts’ acceptance of the order. Chemical Concepts’ declination of an order shall be deemed remedied by a refund of payment to Buyer within 30 days.
(a) Generally. If, during performance of this Agreement, Chemical Concepts determines in its discretion that Buyer’s financial condition does not justify the terms of payment specified, Chemical Concepts may (a) demand, before proceeding with delivery of Products, full or partial payment in advance, satisfactory security or guaranties invoices will be promptly paid when due or (b) at its option and without prejudice to other remedies, defer delivery of the Products or cancel this Agreement. Buyer agrees to reimburse Chemical Concepts for all costs and fees including, (but not limited to attorneys’ fees and repossession fees, incurred by Chemical Concepts in collecting any sums owed by Buyer to Chemical Concepts. Buyer agrees to pay a late payment charge of 1-1/2% per month (or, if less, the maximum amount allowable by law) on all amounts not paid in full when due, payable on Chemical Concepts’ demand. Buyer shall not set off amounts due to Chemical Concepts against claims or other amounts.
(b) Security Interest. In partial consideration for Chemical Concepts’ sale of Products to Buyer, Buyer hereby grants to Chemical Concepts and Chemical Concepts hereby retains a security interest in all Products sold to Buyer and documents relating to such Products now or hereafter in the possession of or under the control of Buyer, title to which might at any time be determined to have passed to Buyer, including, without limitation, all inventories of the Products (or any other product bearing any trademark or trade name of Chemical Concepts or its affiliates or suppliers), returns or repossessions and the proceeds, including insurance proceeds and proceeds from products in which the Products were an input, of all of the foregoing, together with the additions and accessions thereof, to secure all of Buyer’s obligations to Chemical Concepts under this Agreement and all other obligations of Buyer to Chemical Concepts. Buyer agrees to execute financing statements, continuation statements and other documents evidencing the security interest in the Products, and to take such actions as may be required by Chemical Concepts to evidence or perfect the security interest granted herein. With respect to such statements and documents, Chemical Concepts is authorized in Buyer’s name or otherwise to take such actions as are permitted under this Agreement or applicable law, including, without limitation, signing Buyer’s name, and Buyer hereby appoints Chemical Concepts as its attorney-in-fact for such purpose.
(a) Products in Original Packaging and not Manufactured by Chemical Concepts. IF BUYER IS PURCHASING PRODUCTS IN THEIR ORIGINAL PACKAGING AND NOT MANUFACTURED BY CHEMICAL CONCEPTS, THE ONLY WARRANTY AVAILABLE TO BUYER AS TO THE PRODUCTS SHALL BE ANY MANUFACTURER’S WARRANTY WHICH MAY APPLY AND CHEMICAL CONCEPTS MAKES NO INDEPENDENT WARRANTIES, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE). Chemical Concepts does not adopt, guarantee or represent that the manufacturer will comply with any of the terms of the warranty of such manufacturer. Buyer assumes all liability with respect to the Product, its transport, use, misuse, storage and disposal.
(b) Repackaged Products and Chemical Concepts’ Products.
Repackaged Products. If Buyer is purchasing Products not manufactured by Chemical Concepts, but repackaged by Chemical Concepts, causing the original manufacturer’s seal to be broken, Chemical Concepts warrants to original user only that the Products will be free from material defects in materials and workmanship attributable to the repackaging process under normal use and service for the shelf life of the Product as described in the technical data sheet, but no event longer than one year from the date of Chemical Concepts’ delivery of such Product hereunder. Chemical Concepts is not the manufacturer and Buyer assumes all liability with respect to the Product, its transport, use, misuse, storage and disposal.
Chemical Concepts’ and Chem-Set’s Products. If Buyer is purchasing Products manufactured by Chemical Concepts, Chemical Concepts warrants to original user only that the Products will be free from material defects in materials and workmanship under normal use and service for the shelf life of the Product as described in the technical data sheet, but no event longer than one year from the date of Chemical Concepts’ delivery of such Product hereunder.
Limitations and Remedies. There is NO WARRANTY in cases of damage in transit, negligence, abuse, abnormal usage, misuse, accidents, normal wear and tear, damage due to environmental or natural elements, failure to follow Chemical Concepts instructions or improper installation, storage or maintenance. Chemical Concepts’ makes NO WARRANTY regarding Product compliance with Buyer’s or its representative’s needs, specifications, instructions or requirements. Buyer must make claims for defects in writing within 10 days after discovery of such defects. Buyer’s failure to make such claim within the warranty period and within 10 days after discovering a defect shall constitute Buyer’s irrevocable acceptance of the Products and Buyer’s acknowledgement that the Products fully comply with the terms and conditions of this Agreement. Chemical Concepts may require Buyer to return to Chemical Concepts all Products subject to the claim. Chemical Concepts shall repair or replace, at its expense, any covered Products proved to Chemical Concepts’ reasonable satisfaction to be defective within the warranty period. Such warranty satisfaction shall be available only if: (i) Chemical Concepts is notified in writing within 10 days after discovery of an alleged defect; (ii) the defect has not been caused by Buyer’s misuse, neglect or alteration or by physical environment; and (iii) the manufacturer’s shelf life of the Product (as indicated on the Product packaging) has not expired when the alleged defect is discovered. CHEMICAL CONCEPTS’ SOLE OBLIGATION AND BUYER’S EXCLUSIVE REMEDY HEREUNDER SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF DEFECTIVE PRODUCTS DETERMINED BY CHEMICAL CONCEPTS IN ITS REASONABLE DISCRETION TO BE COVERED BY THIS LIMITED WARRANTY. Notice of any warranty claim or request for warranty service should be sent to Chemical Concepts at the following address: Chemical Concepts Inc., 410 Pike Road, Huntingdon Valley, PA 19006. Any assistance Chemical Concepts provides to or procures for Buyer outside the terms, limitations or exclusions of this warranty will not constitute a waiver of the terms, limitations or exclusions of this limited warranty, nor will such assistance extend or revive the warranty. Chemical Concepts will not reimburse Buyer for any expenses incurred by Buyer in repairing, correcting or replacing any defective Products, except for those incurred with Chemical Concepts’ prior written permission.
This warranty gives Buyer specific legal rights, and Buyer may also have other rights which vary from state to state.
(c) NO LIABILITY FOR OTHER OBLIGATIONS OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. CHEMICAL CONCEPTS SHALL NOT BE LIABLE TO BUYER, OR TO ANYONE CLAIMING UNDER BUYER, FOR ANY OTHER OBLIGATIONS OR LIABILITIES, INCLUDING, BUT NOT LIMITED TO, OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORT OR STATUTE OR ANY THEORY OF STRICT LIABILITY, WITH RESPECT TO THE PRODUCTS OR THEIR USE (WHETHER THE PRODUCTS ARE IN ORIGINAL PACKAGING OR HAVE BEEN REPACKAGED OR MANUFACTURED BY CHEMICAL CONCEPTS) OR CHEMICAL CONCEPTS’ UNDERTAKINGS, ACTS OR OMISSIONS. CHEMICAL CONCEPTS WILL NOT, TO ITS KNOWLEDGE, SELL PRODUCTS OR PARTS TO BUYER THAT ARE COUNTERFEIT, BUT CHEMICAL CONCEPTS IS NOT OBLIGATED TO TAKE SPECIFIC STEPS TO ASCERTAIN THE AUTHENTICITY OF PRODUCTS OR PARTS IT PROCURES FROM VENDORS. IN NO EVENT SHALL CHEMICAL CONCEPTS BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR LOST PROFITS (WHETHER DIRECTLY OR INDIRECTLY INCURRED) EVEN IF CHEMICAL CONCEPTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF THE LIMITED REMEDY OR ANY OTHER REMEDY IN THIS AGREEMENT. CHEMICAL CONCEPTS’ AGGREGATE LIABILITY WITH RESPECT TO A DEFECTIVE PRODUCT AND THIS AGREEMENT SHALL BE LIMITED TO THE MONIES PAID TO CHEMICAL CONCEPTS FOR THE RELEVANT PRODUCT(S), EXCEPT WITH RESPECT TO (i) LIABILITY RESULTING FROM CHEMICAL CONCEPTS’ GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND (ii) DEATH OR BODILY INJURY RESULTING FROM CHEMICAL CONCEPTS’ ACTS OR OMISSIONS IN BREACH OF THIS AGREEMENT OR IN VIOLATION OF APPLICABLE LAW. Buyer agrees that Chemical Concepts has no post—sale duty to warn Buyer or any other party about any matter or, if such duty exists, Chemical Concepts satisfies that duty by providing any required warnings only to Buyer. Buyer assumes all post—sale duty to warn its customers and indemnifies Chemical Concepts against any Damages (as defined in section 11) in connection with such duty or failure to warn.
Some states do not allow the exclusion or limitation of incidental and consequential damages, so the above limitation or exclusion may not apply to Buyer.
(d) Retains. Chemical Concepts has no obligation to retain Product samples and Buyer accepts all responsibility for obtaining and retaining any required or desired retains or samples. If Buyer requests in writing that Chemical Concepts obtain and maintain a sample, and if Chemical Concepts agrees to do so, Buyer will pay Chemical Concepts’ associated costs.
(e) Buyer’s Obligations. Prior to using or permitting use of the Products, Buyer shall determine the suitability of the Products for the intended use and under Buyer’s operating conditions, and Buyer shall assume all risk and liability whatsoever in connection therewith. Buyer agrees to test and evaluate samples to ensure compliance with all specifications, quality requirements and other requirements of Buyer’s application. Chemical Concepts does not guaranty the accuracy of information given and recommendations made as to suitability of Products for Buyer’s application or operating conditions. Nothing shall be construed to imply the nonexistence of any relevant patents or to constitute a permission, inducement or recommendation to practice any invention covered by any patent without authority from the patent owner. Buyer agrees to familiarize itself with and comply with all laws and regulations now or hereafter in effect and applicable to the purchase, transport, use, supply, storage, sale, offer for sale, lease and/or disposal of the Products (“Laws”) including, without limitation, to the extent applicable, the U.S. Foreign Corrupt Practices Act and all other antibribery laws, all U.S. antiboycott laws, the U.S. Export Administration Act and all regulations thereunder and all laws relating to exports or re-exports of Products. If Buyer or its affiliates, agents or representatives engages a freight forwarder or similar service provider, Buyer shall provide Chemical Concepts with copies of freight forwarder (or similar) records regarding Product exports promptly upon request. Buyer shall promptly notify Chemical Concepts in writing if Buyer receives notice of or otherwise has reason to believe that a violation of U.S. export law has occurred or is likely to occur. Buyer assumes all risk with respect to Product compliance with applicable Laws (including without limitation all Environmental Laws in any jurisdiction). Buyer acknowledges that certain Products have restrictions on who can purchase, transport, use, supply, store, sell, offer for sale, lease and/or dispose of (the “Actions”) the Product and on how and where such Actions may take place. Buyer agrees to be responsible for determining who may take such Actions and how and where such Actions may take place after Chemical Concepts’ delivery hereunder, and further agrees to ensure that its customers comply with such requirements. Buyer shall maintain records pertaining to the Product’s sale and use and Buyer’s and its customers’ compliance with applicable Environmental Laws, and Buyer shall make such records available to Chemical Concepts on demand. “Environmental Laws” means all applicable federal, state and local laws including rules of common law, statutes, rules, regulations, codes, ordinances, binding determinations, orders, permits, licenses, injunctions, writs, decrees or rulings of any governmental authority, and other governmental restrictions and requirements relative to or that govern or purport to govern air quality, soil quality, water quality, sub-slab vapor and indoor air quality, wetlands, natural resources, solid waste, hazardous waste, hazardous or toxic substances, pollution or the protection of employee health and safety, public health, human health or the environment, including, but not limited to, the Comprehensive Environmental Response Compensation and Liability Act, the Hazardous Materials Transportation Act, the Clean Water Act, the Resource Conservation and Recovery Act, the Clean Air Act, the Emergency Planning and Community Right-to-Know Act, and the Toxic Substances Control Act, as each of these laws have been amended from time to time, and any analogous or related statutes and regulations, regulations of the U.S. Environmental Protection Agency, and regulations of any state department of natural resources, state environmental protection agency, and air quality management district or consortium now or at any time hereafter in effect.
(f) Patent Infringement and Defects in Buyer’s Specifications. Orders manufactured to specifications, drawings, designs or descriptions provided by or for Buyer are executed only with the understanding that Buyer hereby agrees to indemnify and hold harmless Chemical Concepts from any and all Damages (as defined in section 11) sustained by Chemical Concepts, resulting from any action or threatened action against Chemical Concepts for (a) infringement of the patents or proprietary right of any other person, or (b) injury to person or property, including death, relating to defects in specifications, drawings, designs or descriptions provided by or for Buyer.
CHEMICAL CONCEPTS AND BUYER AGREE THAT THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS WARRANTIES. CHEMICAL CONCEPTS HEREBY DISCLAIMS ALL OTHER EXPRESS WARRANTIES. FOR COMMERCIAL PRODUCTS, ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED. FOR CONSUMER PRODUCTS, ALL WARRANTIES IMPLIED BY LAW, INCLUDING THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY LIMITED TO THE PERIOD OF THE WARRANTY STATED ABOVE FOR THE RELEVANT PRODUCT. Any oral or written description of the Products is for the sole purpose of identifying the Products and shall not be construed as an express warranty. Some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to Buyer.
(a) Confidential Information. Buyer acknowledges that all trade secrets and Confidential Information (as defined below) which may be disclosed to it by Chemical Concepts or its affiliates shall at all times, both during and after expiration or termination of this Agreement for any reason, remain the exclusive property of Chemical Concepts or its affiliates or Suppliers and that Buyer shall not acquire any proprietary interest whatsoever therein. “Confidential Information” means all knowledge and information disclosed by Chemical Concepts or its affiliates to Buyer orally or in writing, or acquired by Buyer through observation, regarding Chemical Concepts’ or its affiliates’ or suppliers’ products, technology, inventions, formulas, know-how, services, forecasts, sales methods, customer lists, customer usages and requirements, financial information, business plans, strategies and future business relationships, engineering data, design information and engineering and shop drawings, with the exception of such information which Buyer can demonstrate by competent written evidence: (i) was already part of the public domain at the time of the disclosure by Chemical Concepts or its affiliates; (ii) becomes part of the public domain through no fault of Buyer (but only after and only to the extent that it is published or otherwise becomes part of the public domain); or (iii) is received (after the disclosure by Chemical Concepts or its affiliates) by Buyer from a third party who did not require Buyer to hold it in confidence and did not acquire it directly or indirectly from Chemical Concepts or its affiliates under a continuing obligation of confidence. Except as necessary to perform its duties under this Agreement, Buyer shall not use or disclose any of such Confidential Information or Chemical Concepts’ or its affiliates’ trade secrets, but shall care for such confidential information and trade secrets using at least the same degree of care given its own confidential information and trade secrets. Upon expiration or termination of this Agreement for any reason, Buyer shall, within 15 days, surrender to Chemical Concepts all plans, drawings, specifications, sketches, pictures, films, tapes, computer disks, literature, samples, documents, other tangible and intangible objects and all copies thereof relating to trade secrets and other Confidential Information and all of Chemical Concepts’ or its affiliates’ or suppliers’ property. Buyer shall be permitted to destroy rather than return all analyses, extracts, and summaries prepared by Buyer which contain Confidential Information, and such destruction shall be certified in writing to Chemical Concepts by an authorized officer of Buyer who has supervised such destruction. Buyer’s obligations of non-use and non-disclosure of Chemical Concepts’ and its affiliates’ trade secrets will survive for so long as such trade secret constitutes a trade secret or for five years, whichever is longer. Nothing in this Agreement shall be construed to limit or negate the common or statutory law of torts or trade secrets where it provides Chemical Concepts with broader protection than that provided herein.
(b) Trademarks. Any use of Chemical Concepts’ or its affiliates’ or suppliers’ trademarks or other intellectual property shall be subject to Chemical Concepts’ prior written approval in each instance and such restrictions as Chemical Concepts may, in its sole discretion, impose from time to time. Buyer agrees that neither it nor its affiliates will seek to register any trademark, service mark, or trade dress owned by Chemical Concepts or its affiliates or suppliers, and if Buyer or any of its affiliates does obtain such a registration, Buyer or its affiliate shall immediately assign and do hereby assign the same to Chemical Concepts or its designee. Buyer acknowledges and agrees that Chemical Concepts or its affiliates or suppliers own all right, title, and interest in and to its trademarks. Except as otherwise agreed by Chemical Concepts, Products sold by Buyer shall bear Chemical Concepts’ or its affiliate’s or supplier’s trademark, and Buyer shall not remove or efface such trademark. Buyer shall not sell Products unless Chemical Concepts has granted Buyer the right to do so. Buyer will not repackage the Products or resell Products without Chemical Concepts’ prior written consent, which consent may be withheld by Chemical Concepts in its sole discretion. Any use of Chemical Concepts’ or its affiliates’ or suppliers’ trademarks in advertisements or promotion must be preapproved in writing by Chemical Concepts. Buyer and its affiliates agree to take all steps which Chemical Concepts may from time to time consider to be necessary to perfect or protect Chemical Concepts’ or its affiliates’ or suppliers’ rights in its trademarks including, without limitation, executing all necessary assignments, declarations, and other documents requested by Chemical Concepts from time to time. Upon expiration or termination of this Agreement for any reason, Buyer and its affiliates shall take such steps and execute such documents as Chemical Concepts requests to cause Chemical Concepts or its affiliates or suppliers to own all rights in its trademarks and to terminate any rights Buyer may have to use such trademarks. Buyer shall inform Chemical Concepts promptly of any potential or actual infringement of any of Chemical Concepts’ or its affiliates’ or suppliers’ trademarks and shall provide all assistance and information required by Chemical Concepts, at Chemical Concepts’ expense, in connection with any such infringement.
Buyer hereby releases and agrees to indemnify, defend and hold harmless Chemical Concepts, its shareholders, officers, agents, employees, affiliates, successors, assigns and third-party suppliers (“Chemical Concepts’ Indemnified Parties”) from and against any and all direct and indirect claims, debts, actions, causes of action, liabilities, loss, suits, demands, fines, penalties, judgments, omissions, damages or expenses whatsoever, including, without limitation, attorneys’ fees and costs of proceedings (“Damages”) incurred by or against Chemical Concepts or any of Chemical Concepts Indemnified Parties due to or arising out of, in connection with, resulting from or relating to (i) misrepresentations, breach of the warranties, representations, covenants or agreement contained in this Agreement or any law by Buyer or any of Buyer’s shareholders, directors, officers, employees, affiliates, representatives, agents, successors or assigns (“Buyer’s Parties”), or (ii) any damage to or destruction of property, or injury to or death of persons caused, or alleged to have been caused, in whole or in part, by any intentional, reckless, negligent or other act (or failure to act) of Buyer or any of Buyer’s Parties, or (iii) losses, damages or injuries caused by Buyer’s products, Buyer’s specifications, designs, approvals or instructions provided to Chemical Concepts, or due to improper application or use of the Products or otherwise. Prior to settling any claim, Buyer will give Chemical Concepts an opportunity to participate in the defense and/or settlement of such claim. Buyer shall not settle any claim without Chemical Concepts’ written consent. In the event of any form of recall affecting or relating to the Products, Chemical Concepts shall have the right to control the recall process and Buyer shall fully cooperate with Chemical Concepts in connection with the recall.
(a) General Provisions. Chemical Concepts reserves the right to correct clerical or similar errors relating to price or any other term shown in this Agreement. The failure of Chemical Concepts to insist, in any one or more instances, upon performance of any of the terms, covenants and conditions of this Agreement shall not be construed as a waiver or relinquishment of any rights granted hereunder or the future performance of any such term, covenant or condition. The invalidity of any provision or clause of this Agreement shall not affect the validity of any other provision or clause hereof. Buyer is an independent contractor and neither Buyer nor any of its employees or agents shall be considered an employee or agent of Chemical Concepts. Neither Buyer nor any of its employees or agents is authorized to incur any obligations or make any promises or representations on Chemical Concepts’ behalf. The provisions found in sections 3(c), 4(d), 6, 7, 8(e), 8(f), 10, 11 and 12 and the warranty and damage limitations in sections 8 and 9, and any other provision the performance or effectiveness of which naturally survives, shall survive expiration or termination of the parties’ agreement for any reason. All of Chemical Concepts’ remedies herein are cumulative and not exclusive of any other remedies available to Chemical Concepts at law, by contract or in equity.
(b) Entire Agreement. THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF. ANY NEGOTIATIONS OR UNDERSTANDINGS BETWEEN CHEMICAL CONCEPTS AND BUYER WHICH ARE NOT CONTAINED IN THIS AGREEMENT (INCLUDING WITHOUT LIMITATION, PURCHASE ORDERS, CORRESPONDENCE OR STATEMENTS THAT CONFLICT WITH, DIFFER FROM OR MODIFY THIS AGREEMENT) SHALL HAVE NO FORCE OF EFFECT, UNLESS IN WRITING AND SIGNED BY AUTHORIZED OFFICERS OF CHEMICAL CONCEPTS AND BUYER. Chemical Concepts’ sales representatives are without authority to change the terms of this Agreement.
(c) Assignment. Neither party may assign this Agreement or any rights or obligations hereunder without the prior written consent of the other party; provided, however, Chemical Concepts may assign, without Buyer’s consent, this Agreement or its interest herein to any affiliate or to any assignee or successor of Chemical Concepts’ business. Chemical Concepts reserves the right to use subcontractors. Subject to the foregoing, this Agreement shall bind and inure to the benefit of Chemical Concepts and Buyer and their successors and assigns.
(d) Governing Law; Dispute Resolution. The internal laws of the State of Pennsylvania, without regard to conflict of law provisions, shall govern the rights and obligations of Chemical Concepts and Buyer under this Agreement and any disputes hereunder. Neither this Agreement nor sales hereunder shall be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods. Any cause of action, claim, suit or demand by Buyer allegedly arising from or related to the terms of this Agreement or the relationship of the parties shall be brought in a Court situated in the State of Pennsylvania. Both parties hereby irrevocably admit themselves to and consent to the jurisdiction of said Court. Upon expiration or termination of this Agreement for any reason, Chemical Concepts shall have all of the rights and remedies provided by law, including, without limitation, the rights of a secured party under Chapter 409, Pennsylvania Statutes or any successor statute or similar statute in the jurisdiction where Buyer is located or stores the Products. Chemical Concepts shall be entitled to temporary and/or permanent injunctive relief and/or other equitable remedies to protect its (or its affiliates’ or suppliers’) Confidential Information or intellectual property.
(e) Force Majeure. Chemical Concepts shall not be responsible for delay in delivery or failure to fill orders or other default or damage where such has been caused by an act of God, war, major disaster, terrorism, third-party criminal acts, insurrection, riot, flood, earthquake, fire, strike, lockout or other labor disturbance, delay by carriers, shortage of fuel, power, materials or supplies, operation of statutes, laws, rules or rulings of any court or government, demand for goods exceeding Chemical Concepts’ available supply or any other cause beyond Chemical Concepts’ control. In the event of any delay in delivery, failure to fill orders or other default or damage caused by any of the foregoing, Chemical Concepts may, at its option and without incurring liability, prorate its deliveries, cancel all or any portion of the Agreement and/or extend any date upon which performance is due hereunder.
(f) Termination. In addition to any remedies that may be provided herein, Chemical Concepts may terminate this Agreement with immediate effect upon written notice to Buyer if Buyer (i) fails to pay any amount when due hereunder, (ii) has not otherwise performed or complied with this 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.
(g) No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and 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 this Agreement, except as may be set forth in section 11 with respect to Chemical Concepts’ Indemnified Parties.
