The term “Royal” means Royal Adhesives and Sealants. “Buyer” means the purchaser or the purchaser’s customer as the case may be. “Products” means the goods, services or materials sold. The term “Agreement” means an order by Buyer accepted by Royal confirmed by Royal’s documents including these Terms and Conditions of Sale.
1. Acceptance of Buyer’s orders, whether oral or written, is subject to the express condition that Buyer agrees to all the terms and conditions herein. These Terms and Conditions of Sale together with the Royal’s documents referring to these Terms and Conditions represent the complete agreement of the parties, and no terms or conditions in any way adding to, modifying or otherwise changing the provisions stated herein, shall bind Royal unless made in writing and signed and approved by a duly authorized officer of Royal. No modification of any of these terms will be made effective by Royal's shipment of Products following receipt of Buyer’s purchase order, shipping request or similar forms containing printed terms and conditions conflicting or inconsistent with the terms herein.
2. Unless otherwise specified on Royal’s documents referring to these Terms and Conditions, payment terms are net 30 days.
3. All prices are EXW (Incoterms 2010) unless otherwise specified on Royal’s documents referring to these Terms and Conditions and are subject to adjustment without notice to Royal's prices in effect at the time of shipment. All taxes, tariffs and excises of any nature whatsoever, now or hereafter levied, by any governmental authority upon the sale, warehousing or transportation of any Products covered hereby, shall be borne and paid by Buyer. Any increase in transportation rates or any changes in routing resulting in an increase in transportation costs shall be paid and borne by Buyer. Royal will use all reasonable efforts to comply with Buyer’s request as to method of shipment, but Royal reserves the right to use an alternate method of transportation or route of shipment if substantial delays might otherwise occur. In such cases, Royal will notify Buyer of such changes as soon as reasonably possible.
4. Delivery of Products by Royal to carrier at point of shipment shall be deemed delivery to Buyer, and thereupon title to such Products and risk of loss or damage shall be Buyer’s. Buyer shall inspect Products immediately upon delivery. Claims on account of weight, quality, loss of or damage to said material are waived unless made in writing within thirty (30) days after arrival thereof at destination, and any action for breach of this Agreement, other than for non-payment hereunder, must be commenced within one year of the date of delivery or due date of delivery in the event of non-delivery, or the particular shipment upon which such claim is based.
5. The manner and purpose for which Buyer uses the Products, technical information and assistance (whether verbal, written or by way of product evaluations), are beyond Royal’s control. Therefore, it is imperative that Buyer tests the Products to determine to its own satisfaction whether they are suitable for its intended uses and applications, including all health, safety, and environmental conditions and exposures. Buyer acknowledges that it is solely responsible for the safe selection, unloading, handling, storage, use and disposal of products. Buyer warrants that it shall familiarize itself with product information supplied by Royal at any time, including the current SDS for each product, follow safe handing, use, selling, storage, transportation and disposal practices and ensure that all employees, contractors, agents of Buyer follow these practices, including such special practices as Buyer's use of the products requires; take appropriate action to avoid spills or other dangers to persons, property or the environment; and comply with all federal, state, and local laws, ordinances, rules and regulations concerning the transportation, storage, use, sale and disposal of products. Buyer warrants that it has used its own independent skill and expertise in connection with the safe selection and use of the products and that it possesses skill and expertise in the handling, storage, transportation, treatment, use and disposal of the products.
6. The Royal limited warranty is as follows: Royal warrants that the Products sold hereunder shall, at the time of delivery to Buyer, be free from defects in materials and workmanship and will meet Royal’s published physical specifications for such Products subject to normal manufacturing tolerances when tested according to Royal’s standards. Buyer shall determine the suitability of the product for its and its customer’s intended use and assume all risk and liability for such use. Royal does not warrant, and shall not be responsible for, transportation, storage or use in conditions outside its control, including by way of example: environmental conditions, moisture, ambient temperature, surface condition, misuse, accident, improper storage, re-packaging or re-labeling. ROYAL’S LIABILITY FOR DAMAGES, WHETHER BASED UPON ROYAL’S NEGLIGENCE, BREACH OF CONTRACT, BREACH OF WARRANTY OR OTHERWISE SHALL NOT EXCEED THE PURCHASE PRICE OF THE PARTICULAR, INDIVIDUAL PRODUCT UNITS WITH RESPECT TO WHICH SUCH DAMAGES ARE CLAIMED AND SHALL NOT INCLUDE LIABILITY FOR SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES. ROYAL SHALL NOT BE LIABLE FOR ANY INJURY, LOSS OR DAMAGE, BEYOND PRODUCT REPLACEMENT DESCRIBED IN THIS LIMITED WARRANTY. ROYAL MAKES NO WARRANTY OF MERCHANTABILITY WITH RESPECT TO MATERIAL MADE PURSUANT TO BUYER’S SPECIFICATIONS. ROYAL MAKES NO WARRANTY THAT MATERIAL SUPPLIED HEREUNDER SHALL BE FIT FOR ANY PARTICULAR PURPOSE NOR IS THERE ANY OTHER WARRANTY, EXPRESS OR IMPLIED, EXCEPT SUCH AS IS EXPRESSLY PROVIDED HEREUNDER. Any and all claims that any Products are defective must be made in writing within thirty (30) days after discovery of the defect, and in no event more than one (1) year after the original shipment of the Products by Royal. Failure to timely notify Royal of any claim constitutes an irrevocable waiver of such claim regardless of the circumstances. Buyer’s exclusive remedy for breach of warranty or for any fault or negligence in manufacturing or supplying Products is limited to a refund of the purchase price or, at Royal’s option, to replacement of the Products upon their return. THIS LIMITED WARRANTY IS THE BUYER’S AND USER’S SOLE REMEDY AND IS IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. Buyer hereby represents that it is aware of the provisions of the Foreign Corrupt Practices Act (the “FCPA”) and the principles embodied in the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (the “Convention”) and shall neither violate the FCPA nor act in any way that would cause Royal or its equity holders, subsidiaries, affiliates, or any of its or their respective officers, directors or employees to be in violation of the FCPA or the principles of the Convention. Notwithstanding any other provision of this Agreement, and in addition to any other remedies available to Royal, violation of the FCPA shall be ground for immediate termination of this Agreement without further liability on the part of Royal. Buyer agrees to notify Royal immediately upon receipt of any solicitation, demand or other request for anything of value, by or on behalf of any officer, employee or agent of any governmental authority, agency, government-owned corporation, political party or multilateral agency or any candidate for political office relating to the subject matter of this Agreement.
8. Buyer shall comply with all applicable United States laws and regulations controlling the export of goods, technology, software and services, including the International Traffic in Arms Regulation, the Export Administration Regulations, and the sanction regulations administered by the Office of Foreign Assets Controls of the U.S. Department of Treasury. The transfer, export, or re-export of goods, technology, software, and services, including technical data to a foreign person, either inside or outside the United States, may be prohibited or require a license. Buyer warrants that there will be no diversion of any shipment that is contrary to any applicable law, and without written consent of Royal in advance for a.) resale or transfer of the shipment to any party not a party to this Agreement, or b.) shipment outside the U.S. For all permitted shipments outside the U.S., Buyer warrants that it will comply with all applicable laws, regulations and restrictions of the U.S. and other governments, including without limitations, the Office of Foreign Asset Control Regulations, the Export Administration Regulations, and the Foreign Corrupt Practices Act.
9. Royal reserves the right to require payment for any shipment hereunder in advance, or satisfactory security, if the financial responsibility of Buyer becomes unsatisfactory to Royal. Buyer agrees to provide financial information reasonably requested from time-to-time by Royal satisfactory to demonstrate its ability to pay when due all obligations owed to Royal. If Buyer fails to make payment in accordance with the terms of this Agreement, or fails to comply with the provisions hereof, Royal may, at its option, and in addition to any other remedy, cancel any unshipped portion of this order, but Buyer shall remain liable for all unpaid accounts including interest, service charges and legal fees incurred.
10. The failure of either Party to enforce at any time any of the provisions of this Agreement shall not be construed to be a waiver of those provisions or of the right of that Party thereafter to enforce those provisions. No waiver of any provision hereof shall be effective unless in writing, signed by the Party against whom such waiver is sought to be enforced. No waiver shall be a continuing waiver.
11. This Agreement and all rights and obligations hereunder, including matters of construction, validity and performance, shall be governed by the laws of the State of Indiana, including the Uniform Commercial Code as in effect in Indiana. Any claim by Buyer arising hereunder which cannot be amicably resolved shall be tried in the appropriate state or federal court in Indiana. Any claim by Royal arising hereunder may, at Royal's option, be tried in the appropriate state or federal court in Indiana, to the jurisdiction of which Buyer hereby submits.
12. Performance is excused when (i) there is any contingency beyond the reasonable control of Royal or Buyer (for example, war or hostilities, Acts of God, accident, fire, explosion, public protest, breakage of equipment, governmental actions or legislation, or labor difficulties) which interferes with Royal’s or Buyer’s production, supply, transportation or consumption practice or (ii) Royal is unable to obtain raw materials or energy on terms Royal deems commercially acceptable. During times when performance is excused, all quantities of affected Product will be eliminated from this Agreement without liability and Royal will allocate its supplies of raw materials and Product among their various uses in any manner that is fair and reasonable. However, Royal will not be obligated to obtain raw materials or Products from other sources if there are shortfalls or to allocate raw materials or Products from Royal’s internal use. Notwithstanding anything contained in this Agreement to the contrary, whenever (in the sole but reasonable judgment of Royal) (i) Royal’s performance is made substantially more expensive by a contingency or (ii) Royal is unable to acquire from its then contemplated source of supply on terms it deems reasonable any material or service necessary for the manufacture of Product, Royal may (aa) reduce or stop deliveries of Product and apportion as provided above and/or (bb) continue deliveries and immediately increase prices. If Royal increases the price of the Product under this Section, Buyer need not purchase the Product at the increased price. Quantities not purchased or sold due to the provisions of this Section need not be made up later. If any law, regulation, or other governmental action requires Royal to reduce any price in effect under this Agreement or prevents Royal from increasing any price to the extent it wishes pursuant to its rights under this Agreement, Royal may cancel from this Agreement the quantities of Product so affected. However, nothing in this Section will excuse Buyer from its obligations to make payments to Royal when due.
13. Royal shall retain a purchase money security interest in the Products sold under this Agreement until all payments, and deferred payments, shall have been received in full by Royal. If requested by Royal in writing, Buyer agrees to do all acts necessary to perfect and to maintain such security interest in, and for the benefit of, Royal.