Definitions
“Buyer” means the entity or person who buys Goods from the Seller;
“Conditions” means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller;
“Goods” means the goods to be supplied to the Buyer by the Seller;
“Order Confirmation” means an electronic or written confirmation issued by the Seller in response to a purchase order from the
“Price” means the price set out in the list of prices of the Goods maintained by the Seller, as amended at any time, or such other price as the parties may agree in writing;
“Seller” means Colonial Chemical, Inc., a Tennessee corporation, with its principal place of business located at 225 Colonial Drive, South Pittsburg, TN, 37380.
1. General
These Conditions are the only terms and conditions which govern the sale of Goods by the Seller to the Buyer. These Conditions and the accompanying Order Confirmation comprise the entire agreement between the parties and prevail over any terms or conditions which the Buyer may seek to apply under any purchase order, order confirmation, or similar document.
All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions.
Fulfillment of the Buyer’s order does not constitute acceptance of any of the Buyer’s terms and conditions and does not serve to modify or amend these Conditions.
Any variation to these Conditions (including any special terms and conditions agreed between the parties including without limitation as to discounts) shall be inapplicable unless agreed in writing by the Seller.
2. Price and Payment
All orders are subject to acceptance by the Seller and are subject to receipt of payment.
Pricing for shipments of Goods shall be based upon the prices applicable on the actual date of order by the Buyer. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by the Buyer and all freight, packing, interest, and other charges as may be quoted by the Seller. The Buyer shall be responsible for all such charges, costs and taxes.
All online purchase orders are final.
Payment of the Price is strictly in advance.
3. Delivery of the Goods
Unless otherwise agreed in writing, delivery of the Goods shall take place at the address specified by the Buyer on the date specified by the Seller. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for shipment.
The date of delivery specified by the Seller is an estimate only. The Seller shall not be liable for any delays, loss or damage in transit. Time for delivery shall not be of the essence and, while every reasonable effort will be made to comply with any stated delivery date, compliance is not guaranteed, and the Buyer shall have no right to damages or to cancel the order for failure to meet any stated delivery date.
Notwithstanding any delay in delivery of the Goods, the Buyer shall be bound to pay for the Goods in full at the time of online order.
4. Acceptance
The Buyer shall inspect the Goods upon receipt, and the Buyer shall be deemed to have accepted the Goods unless it notifies the Seller in writing of any nonconforming Goods within seven (7) days of receipt and furnishes such written evidence or other documentation as required by the Seller.
No claim for defect, damage, or quality will be considered (without prejudice to the parties’ other rights pursuant to these Conditions) and the Buyer shall not be entitled to reject any Goods unless written notice of any nonconforming Goods together with all supporting evidence is received by the Seller within seven (7) days of receipt.
The Buyer shall accept shipment of Goods tendered notwithstanding that the quantity so shipped shall be either greater or lesser than the quantity purchased; provided that any such discrepancy shall not exceed 1% of net weight, and any variance above 1% shall be pro-rated once evidence is received, confirmed, and agreed.
5. Risk and Title
Unless otherwise expressly specified in writing by the parties, the Buyer shall take title to, and shall bear all risk of loss of, the Good(s) when they are delivered to the specified address.
6. Warranty
The Seller represents and warrants that the Goods purchased and delivered pursuant to these Conditions shall be manufactured in accordance with the specifications supplied by the Seller and that title to the Goods purchased and delivered pursuant to these Conditions shall be transferred to the Buyer free from any liens or encumbrances. THE SELLER MAKES NO OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH OTHER WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED BY THE SELLER.
If the Buyer notifies the Seller in writing of any nonconforming goods within seven (7) days of receipt of the Goods and furnishes such writtenevidence or other documentation as required by the Seller, the Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if the Seller so requests, the Buyer shall, at the Seller’s expense, return such Goods to the Seller.
The Buyer acknowledges and agrees that the remedies set forth in this Paragraph 6 are the Buyer’s exclusive remedies for the delivery of nonconforming goods. All sales of Goods to the Buyer are made on a one-way basis and the Buyer has no right to return Goods purchased under these Conditions to the Seller.
The remedies contained in this Paragraph are without prejudice and subject to the other terms and conditions herein, including, but without limitation, to Conditions 7 and 8 below.
7. Liability
IN NO EVENT SHALL THE SELLER BE LIABLE TO THE BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, 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 THE SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
8. Limitation of Liability
IN NO EVENT SHALL THE SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE CONDITIONS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO THE SELLER FOR THE GOODS SOLD HEREUNDER.
9. Compliance with Laws
The Buyer shall comply with all applicable laws, regulations and ordinances. The Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Conditions. The Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under these Conditions or any resale of the Goods by the Buyer. The Buyer assumes all responsibility for shipments of Goods requiring any government import clearance.
10. Confidential Information
All non-public, confidential or proprietary information of the Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by the Seller to the 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 these Conditions is confidential, solely for the use of performing these Conditions and may not be disclosed or copied unless authorized in advance by the Seller in writing. Upon the Seller’s request, the Buyer shall promptly return all documents and other materials received from the Seller. The Seller shall be entitled to injunctive relief for any violation of this Paragraph. This Paragraph does not apply to information that is: (a) in the public domain; (b) known to the Buyer at the time of disclosure; or (c) rightfully obtained by the Buyer on a non-confidential basis from a third party.
11. Force Majeure
The Seller shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, accidents, war, fire, flood, commercial impracticability, problems associated with transportation (including truck shortages), or failure of suppliers to make timely shipment of materials, breakdown of plant or machinery, or shortage or unavailability of raw materials from source of supply, and the Seller shall be entitled to a reasonable extension of its obligations. If the delay persists for such a time as the Seller considers unreasonable, it may without liability on its part, terminate the contract or any part thereof.
12. Relationship of Parties
Nothing contained in these Conditions shall be construed as establishing or implying any partnership or joint venture between the parties, and nothing in these Conditions shall be deemed to construe either of the parties as the agent of the other.
13. Waiver
The failure by either party to enforce at any time or for any period any one or more of the Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce any one or more of the Conditions.
14. Governing Law and Venue
The validity, interpretation, construction, performance and enforcement of these Conditions shall be governed by the laws of the State of Tennessee. Any legal suit, action or proceeding arising out of or relating to these Conditions shall be instituted in the federal courts of the United States of America or the courts of the State of Tennessee in each case located in the City of Chattanooga and County of Hamilton, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.