TERMS AND CONDITIONS OF SALE
- TAXES
Except where the law otherwise provides, Buyer will pay DCL in addition to the purchase price, the amount of all governmental taxes, excises and/or other charges (except taxes on or measured by DCL’s net income) that DCL may be required to pay with respect to (a) the production or transportation of any Product delivered hereunder to the extent that such tax, excise or charge is first imposed or increased after the Effective Date, or (b) the sale of any Product delivered hereunder. Buyer’s obligation to pay such amounts will survive termination or expiration of this Agreement.
- SHIPMENTS
(a) Buyer will submit to DCL in a manner approved by DCL a written delivery order conforming to DCL’s customary lead time or to the lead time specified in the Commercial Terms and Conditions (Attachment A). Such delivery orders will identify the Product being ordered for shipment, the quantity of Product, the shipping instructions, and the date on which delivery is requested.
(b) Buyer will submit delivery orders for, and shipments will be made in, approximately equal monthly quantities, or if the total quantity of any Product required to be purchased hereunder is insufficient to permit monthly shipments, then in quantities approximately evenly spaced throughout each Contract Year during the term of this Agreement. If Buyer fails to so order any such quantity provided for hereunder, DCL will not be obligated to subsequently deliver such unordered quantity. If Buyer fails to submit delivery orders or to accept delivery pursuant to the terms hereof for 90 consecutive days, except for reasons excusing performance under Section 5 hereof, then DCL may terminate this Agreement by giving notice to the Buyer at any time thereafter and prior to the date the Buyer submits a delivery order in conformity with the terms hereof.
(c) Buyer will, at the end of each calendar quarter during the term of this Agreement, provide to DCL a written forecast estimating Buyer’s anticipated monthly requirements during the following 18 month period for each Product purchased under this Agreement.
(d) Any demurrage or detention charges legally payable to any transportation carrier due to the action or inaction of the Buyer will be payable by and for the account of the Buyer.
(e) Packaged shipments, if any, will be made in DCL’s standard containers unless otherwise mutually agreed..
- PAYMENT
Invoices not paid when due will bear interest at a rate equal to one and one-half percent per month, or the maximum rate permitted by law, whichever is less, plus applicable penalties. In addition to all other rights and remedies hereunder or at law or in equity, DCL reserves the right to terminate this Agreement, suspend further deliveries and accelerate all amounts due hereunder upon failure of Buyer to make any payment pursuant to this Agreement. If, in the judgment of DCL the Buyer’s financial responsibility becomes impaired or Buyer has exceeded its credit limits with DCL, DCL may refuse to deliver Product(s) except for cash on delivery and DCL may demand immediate payment in full for all Product(s) previously delivered.
- CLAIMS AND LIABILITY
(a) Buyer’s receipt at Buyer’s delivery location of any Product delivered will be an unqualified acceptance of, and a waiver by Buyer of any and all claims with respect to, such Product unless DCL receives notice of such claim within days after Buyer’s receipt. In the event of delayed delivery or non-delivery, all claims will be deemed waived unless DCL receives notice of such claim within 30 days after the date set for delivery in the delivery order submitted to DCL pursuant to Section 2 hereof. Buyer assumes all risks and liabilities resulting from Buyer’s use of Product(s) in the manufacturing processes of Buyer or the combination of Product(s) with other substances. Claims for shortages of less than ½ of 1% of the gross weight of bulk shipments will not be allowed. DCL’s weights taken at the shipping point will govern, unless proven to be in error.
(b) DCL’s sole liability and Buyer’s sole remedy for any claim arising with respect to non-conforming Product delivered under this Agreement will be as follows: (i) at Seller’s option, replacement of such non-conforming Product or refund of the purchase price, (ii) reimbursement of reasonable out-of-pocket costs incurred by Buyer for removal, storage, transportation and disposal of such non-conforming Product (unless such non-conforming Product is returned to DCL at DCL’s request and expense) and (iii) reimbursement of reasonable out-of-pocket costs incurred by Buyer to rework non-conforming Product.
(c) TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL DCL’S AGGREGATE LIABILITY FOR CLAIMS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE PURCHASE PRICE OF THE PRODUCT OR PRODUCTS WITH RESPECT TO WHICH SUCH CLAIMS ARE MADE, WHETHER SUCH LIABILITY IS BASED ON NEGLIGENCE, BREACH OF WARRANTY, BREACH OF CONTRACT, INDEMNITY OR ANY OTHER LEGAL OR EQUITABLE THEORY.
(d) TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES (INCLUDING PENALTIES, TAXES OR FILING FEES) OR LOST PROFITS, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES.
- FORCE MAJEURE
A party’s failure to perform (except for the obligation to make any payment when due) will not be considered a breach of this Agreement to the extent such nonperformance results from, or is made impracticable by, any cause beyond its reasonable control, including, without limitation, acts of God, war, fires, explosions, natural disasters, pandemics, strikes or lockouts, sabotage, critical equipment failure, governmental laws and regulations or the inability to obtain raw materials, equipment or utilities (a “Force Majeure Event”). The party whose performance is prevented or impeded by a Force Majeure Event will (a) give prompt notice to the other party stating the details and the full particulars in connection with, and the expected duration of, the event and (b) take commercially reasonable steps to resume performance promptly. If the Force Majeure Event continues for more than 90 days, the party whose performance is not prevented or impeded will have the option to terminate this Agreement upon notice to the other party. To the extent a party’s performance is prevented or impeded by a Force Majeure Event, such party will have the right to omit any portion of the quantity of Product deliverable under this Agreement. If, due to any such Force Majeure Event, DCL is unable to supply the total quantity for Product(s) deliverable hereunder, DCL will allocate its available supply among its internal and external customers in a fair and equitable manner.
- SAFETY, HEALTH AND PRODUCT STEWARDSHIP
(a) Buyer acknowledges that it has received documents, including DCL’s Material Safety Data Sheets and product information bulletins, containing DCL’s safety and health information concerning Product(s) deliverable hereunder, that it has read and it understands such information, and that it agrees (i) to comply with all applicable recommendations and warnings and use the Product(s) only in a manner consistent with all information included in such documents and (ii) to incorporate such information into its personnel safety programs. Buyer will inform its employees, contractors, agents, carriers and customers who may become exposed to such Product(s) after delivery to Buyer, of any hazards associated with such Product(s), and of the proper storage, handling and use procedures for such Product(s) disclosed in such documents or in additional documents provided to Buyer during the term of this Agreement. Buyer will indemnify DCL from and against any claims, damages, liabilities and expenses (including attorney’s fees) arising from Buyer’s breach of the foregoing obligations.
(b) Various principles outlined by the International Council of Chemical Associations are the basis for product stewardship practices that have been developed for the global chemicals industry. DCL and its affiliates around the world support these principles and practices and expect its customers to support and comply with these principles and practices as well. Buyer will (i) comply with all applicable statutory and regulatory requirements associated with the storage, transportation and use of the Products and proper disposal of Product waste and (ii) inform DCL promptly of (A) any complaints or reports relating to environmental, health, safety or security matters related to any of the Products or to the storage or use of any of them and (B) any health, safety, environmental or security incidents or other such matters relating to any of the Products that require notification or reporting to any governmental agency.
- WARRANTIES
DCL warrants that Product(s) delivered hereunder will meet the written specifications referred to in Section 4 of the Commercial Terms and Conditions (Attachment A). DCL NEITHER MAKES NOR INTENDS, NOR DOES IT AUTHORIZE ANY BUYER, AGENT OR REPRESENTATIVE TO MAKE, ANY OTHER WARRANTIES, EXPRESS OR IMPLIED AND, TO THE EXTENT PERMITTED BY LAW, IT EXPRESSLY EXCLUDES AND DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- CONTAINERS AND PACKAGING; DISPOSAL
(a) Buyer agrees that in the event Product is shipped in returnable containers (including IBCs), such containers will remain the sole property of DCL. Returnable containers are not to be used for any purpose other than to supply DCL’s products to Buyer. All returnable containers must be empty before being returned to DCL. In addition, Buyer agrees to reimburse DCL for any lost or missing returnable containers, cleaning cost beyond that which is usual and customary, damage to containers and missing parts, to the extent such losses, damages or costs are caused by or attributable to Buyer or its employees or agents.
(b) Buyer will be responsible for the lawful disposal of (i) all disposable containers and packaging and (ii) any expired Products.
- TERMINATION FOR CAUSE
A party will have the right to terminate this Agreement in the event (a) of any breach of this Agreement by the other party that goes uncorrected for a period of 30 days after notice of such breach, setting forth the details with reasonable particularity, (b) of the institution by or against the other party of voluntary or involuntary proceedings in bankruptcy or under any insolvency law or law for the relief of debtors, or (c) the other party passes a resolution for winding up its business (other than for the purpose of amalgamation or restructuring).
- NOTICE
(a) All notices and other communications required or permitted to be given under this Agreement will be in writing and (i) delivered (A) by hand, (B) by prepaid first-class registered or certified mail (or the equivalent in the country of mailing) or (C) by recognized overnight/express air courier service, or (ii) transmitted by email (with written confirmation of delivery), to the applicable party at the address designated on the first page of the applicable Agreement or to such other address as will be designated by such party in a written notice to the other party.
(b) Notice given hereunder will be deemed given (i) on delivery if given in person or by recognized overnight/express air courier service, (ii) four business days after being deposited in the mails, or (iii) on the date of transmission if sent by email (with written confirmation of delivery).
- CONFIDENTIALITY
All designs, formulas, data, or other technical information of DCL or any of its affiliates relating to this Agreement will remain Seller’s or its affiliates confidential property, and Buyer shall not have any rights thereto, nor any rights to disclose such items or information to any third party. Nothing in this Agreement shall be construed (by implication , estoppel or otherwise0 as granting, or as an undertaking by DCL to subsequently grant, to Buyer any license, right, title or interest in or to any present or future patent, patent application, know-how, copyright, trademark, trade secret or other proprietary right.
- GOVERNING LAW; JURISDICTION
(a) This Agreement will be governed by the laws of the State of Delaware and the federal laws of the United States of America applicable therein without giving effect to its principles of conflict of laws.
(b) The parties agree that any suit, action or proceeding brought by either party against the other party related to this Agreement will be brought solely in the federal courts in the city of Wilmington, DE and if such court lacks jurisdiction, in the State courts of DE located in Wilmington. BUYER AGREES THAT ANY SUIT, ACTION OR PROCEEDING, WHETHER CLAIM OR COUNTERCLAIM, BROUGHT BY IT RELATED TO THIS AGREEMENT SHALL BE TRIED ONLY BY A COURT AND NOT BY A JURY. BUYER HEREBY KJNOWINGLY, VOLUNTARILY, INTENTIONALLY AND INTELLIGENTLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) The United Nations Convention for the International Sale of Goods will not apply to this Agreement.
- COMPLIANCE WITH LAW
Buyer will ensure that any goods, technology, software or services that Buyer purchases or receives from DCL under this Agreement will not be exported, re-exported, transferred or used by Buyer except in compliance with applicable laws, including applicable export control laws and that Buyer shall sell or use the goods, technology, software or services solely in compliance with the Corruption of Foreign Public Officials Act. Further, Buyer will not use or sell, or support the use or sale by others of, any such goods, technology, software or services for any military applications or uses. [If goods, technology, software or services are being sold for military applications or uses, contact DCL Attorney.]
- REACH
This Section 14 applies only if the Product(s) delivered under this Agreement are either manufactured in the European Community (“EC”) or are to be imported into the EC. The parties acknowledge that such Product(s) may contain substances requiring compliance with EC Regulation No. 1907/2006 on Registration, Evaluation, Authorization and Restriction of Chemicals (“REACH”). DCL represents that all REACH-relevant substances in the Product(s) have been pre-registered in accordance with REACH or are capable of being pre-registered in accordance with Article 28(6) of REACH. Buyer acknowledges that (a) even though DCL may have performed such pre-registrations, DCL has not determined which substances it will register under REACH and cannot assure that any substances it wishes to register are capable of being registered under REACH, and (b) if any substance in the Product(s) becomes subject to Authorization under REACH, DCL may, in its sole discretion, elect not to proceed with the Authorization process. If DCL’s performance of this Agreement requires registration of substances in the Products under REACH and if DCL does not seek or obtain such registration(s) for any reason, or if EC regulatory authorities restrict or prohibit the use of these substances, the affected Product(s) will be automatically deleted from this Agreement and DCL will have no obligation or liability to Buyer with respect thereto.
- MISCELLANEOUS
(a) This Agreement may not be amended, supplemented or otherwise modified except by a written document signed by both parties. This Agreement will not be affected by the acknowledgment or acceptance of any form containing additional or different terms or conditions.
(b) Neither party may assign its rights or obligations or delegate its duties hereunder, in whole or in part, without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed, except that either party may assign its rights and obligations or delegate its duties (i) to a legal entity controlling, controlled by or under common control with that party or (ii) if such assignment or delegation is in connection with the transfer by either party of the business to which this Agreement relates, provided the purchaser of such business is not a competitor of the non-assigning party.
(c) Failure by either party at any time to enforce performance of any provision of this Agreement will not constitute a waiver of such provision and will not affect or impair the enforceability of such provision or the right of either party at any time to avail itself of any remedies it may have for breach of such provision.
(d) All rights accruing prior to the expiration or other termination of this Agreement will survive such expiration or termination.
(e) If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality or enforceability of the other provisions of this Agreement will not be affected and there will be deemed substituted for the provision or provisions at issue a valid, legal and enforceable provision as similar as possible to the provision at issue.
- PURCHASE ORDER MODIFICATIONS FOR TOLLED PRODUCTS SOURCED FROM DCL’s CHINA TOLLING MANUFACTURERS AND SHIPPING FROM DCL’S US WAREHOUSES
(a) Order Cancellation Fee:
In the event of a cancellation after 30 days of order confirmation, whether in whole or in part, a cancellation fee of 20% of the total value of the canceled portion will be applied. This fee reflects the significant costs associated with the significantly higher material procurement costs due to the Chinese Tariffs. The terms of this fee are 14 days from the cancelled date.
(b) Order Delay Fee:
If the confirmed ship date of any purchase order is delayed by more than eight (8) weeks due to actions initiated by your team, a delay fee equal to 20% of the total line value will be assessed and the order will be considered cancelled with no additional penalties. This is to offset costs related to inventory holding, storage, and other associated charges. The payment terms for this fee are 14 days from the invoice date.
(c) In addition, we are transitioning away from a forecasting model and will now rely on confirmed booked orders for all products with a Country of Origin (COO) of China. This change is intended to improve supply accuracy and reduce overstock and obsolescence risk. We kindly request that you place your purchase orders that match your forecast month as soon as possible so we can ensure we have adequate supply in place to meet your needs. Please remember the lead time is approximately 4 months. Any orders with a confirmed shipping date after June 1, 2025, will be subject to the above terms and conditions.
Version 5-19-25