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GENERAL TERMS AND CONDITIONS
This Agreement governs the purchase of goods and services between Diversified CPC International, Inc. (“Buyer”) and the undersigned supplier (“Seller”). It applies to all transactions unless otherwise agreed in writing.
RECITALS
A. Seller desires to supply certain goods and related documentation (the “Products”) to Buyer, and Buyer desires to purchase such Products subject to the terms of this Agreement.
B. The parties agree that the terms below shall govern all purchases unless otherwise expressly agreed in a written, signed agreement. Where supplier-provided general terms and conditions have been furnished and agreed upon in writing by both parties, such terms shall govern the purchase.
1. DEFINITIONS
1.1 “Acceptance” means Buyer’s written confirmation that the Products conform to the Acceptance Criteria in Section 2.
1.2 “Business Day” means any day other than Saturday, Sunday, or a day banks are closed in the State of Illinois.
1.3 “Delivery” shall be deemed to occur: (i) if to a ship, when the Product passes the vessel’s loading flange; (ii) if to a tank truck, when the Product is delivered to the buyer’s facility; (iii) if to a tank car, when the buyer receives constructive placement from the carrier; (iv) if to a pipeline, upon metering of the Product; (v) if into an ISO shipping container when the Product is delivered to the buyer’s facility (except when the buyer furnishes the ISO shipping container and delivery is dumped to be upon loading of the product into the container); (vi) if into a cylinder or drum when the Product is loaded into the shipping container; (vii) when into storage (other than vessels), as the Product enters the tank; or (viii) if by book transfer, on the effective date of the transfer. Title transfers to Buyer upon Delivery.
1.4 “Invoice Acceptance” means Buyer’s written acknowledgement that an invoice is accurate and undisputed. Buyer will review invoices within five (5) Business Days of receipt and either (a) accept, or (b) provide written notice identifying specific discrepancies. Upon Seller’s issuance of a corrected invoice addressing noted discrepancies, Buyer will promptly review and accept if accurate.
1.5 “Specifications” means the technical, quality, and performance specifications set forth in Exhibit A.
2. ACCEPTANCE CRITERIA FOR DELIVERY
– The Products will be deemed to meet the Acceptance Criteria when all of the following are satisfied: Conformance to Specifications in Exhibit A, including grade, quality, purity, and performance characteristics.
– Quantity within agreed tolerances, measured per Section 4 (Quantity and Measurement).
– Required documentation provided: certificate of analysis (COA), bill of lading (BOL), safety data sheet (SDS), and any applicable regulatory/customs documents.
– No visible contamination, leakage, damage to containers, or tampering.
– Handling parameters (e.g., temperature, pressure) within agreed ranges where applicable.
– Delivery date/time within the confirmed window or as otherwise agreed in writing.
3. INSPECTION AND REJECTION PROCEDURE
Buyer shall have seventy-two (72) hours from receiving Delivery to inspect the Products and either issue Acceptance or provide a written Nonconformance Notice detailing failures to meet the Acceptance Criteria. Seller shall, at Buyer’s election, (a) promptly repair or replace nonconforming Products at Seller’s expense, or (b) refund the purchase price for the nonconforming Products. Risk of loss for rejected Products remains with Seller. Seller shall remove or dispose of rejected Products in compliance with applicable laws within five (5) Business Days.
4. QUANTITY AND MEASUREMENT
The quantity of Products delivered shall be measured as follows: (i) if to or from a ship or barge, by shore metering facilities; (ii) if to or from a tank truck, by meter, rotary gauge, or weighing in accordance with applicable weights and measures regulations or standards; (iii) if to or from a tank car, by official tank car capacity tables, meters, or slip tube gauges in accordance with applicable weights and measures regulations or standards; (iv) if to or from a pipeline, determined by pipeline meter in accordance with the then-current API Manual; (v) if to or from an ISO shipping container, by meter, rotary gauge, or weighing in accordance with applicable weights and measures regulations or standards; (vi) if to or from a cylinder or drum by weighting in accordance with applicable weights and measures regulations or standards Buyer may witness or verify measurements and shall have access to relevant measurement records.
5. SERVICES TERMS
For services, consulting, or other non-product deliverables, the following terms apply:
– Service Levels & Performance Standards: Seller shall perform services in accordance with industry best practices and agreed service levels.
– IP & Data Protection: Seller shall protect Buyer’s intellectual property and confidential data, and shall not use or disclose such information except as necessary to perform services.
– Acceptance Criteria for Services: Services shall be deemed accepted when they meet agreed deliverables, timelines, and quality standards.
– Remedies for Service Failures: Buyer may require re-performance, price adjustments, or terminate for repeated failures.
6. WARRANTY
Seller warrants that all Products will conform to the Specifications, be free from defects in materials and workmanship, and be supplied in accordance with applicable laws, including safety and environmental regulations. All remedies are cumulative and include repair, replacement, refund, or credit.
7. CREDIT AND PAYMENT TERMS
7.1 Payment Due Date. Buyer shall pay undisputed amounts net sixty (60) days from Invoice Acceptance unless otherwise negotiated in supply agreements by both parties. If Buyer timely issues a discrepancy notice, the payment period will begin upon Invoice Acceptance of the corrected invoice.
7.2 Payment Method. Payments shall be made in U.S. dollars to Seller’s designated account.
7.3 Set-Off; Withholding. Buyer may set off any amounts due from Seller to Buyer against amounts owed to Seller. Buyer may withhold payment of disputed charges pending resolution.
8. DELIVERY, TITLE, AND RISK OF LOSS
Delivery and title transfer occur as defined in Section 1.3. Risk of loss passes to Buyer upon Delivery for conforming Products; for rejected Products, risk of loss remains with Seller.
9. SUPPLIER PERFORMANCE METRICS
Seller agrees to meet performance metrics as may be communicated by Buyer, including quality, delivery, and compliance standards. Failure to meet such metrics may result in corrective action plans, suspension of orders, or termination of this Agreement.
10. CHANGE ORDER REQUIREMENTS
Any changes to the scope of work, deliverables, schedule, or pricing must be documented in a written change order, signed by authorized representatives of both parties. No work shall proceed on any change until a change order is executed. Change orders may adjust the contract price, schedule, or other terms as mutually agreed.
11. TAXES
Buyer shall be responsible for applicable duties, taxes, or other charges Seller is required to collect or pay under law with respect to manufacturing, processing, sale, transportation,
delivery, or use of the Products, except to the extent arising from Seller’s income or gross receipts taxes.
12. COMPLIANCE; SAFETY AND ENVIRONMENTAL
Seller shall comply with all applicable laws, regulations, and industry standards, and shall provide current SDS and COA for each shipment. Seller shall maintain appropriate insurance and shall promptly notify Buyer of any incident affecting Product safety or regulatory status.
13. INDEMNITY
Seller shall defend, indemnify, and hold harmless Buyer, its affiliates, and their officers, employees, and agents from and against all claims, losses, liabilities, damages, and costs (including reasonable attorneys’ fees) arising out of or related to (a) personal injury, death, or property damage caused by the Products or Seller’s acts or omissions; (b) nonconformance with Specifications; (c) violation of law; and (d) infringement of third-party rights. Buyer shall notify Seller of claims and cooperate reasonably.
14. LIMITATION OF LIABILITY
Neither party shall be liable for special, indirect, or consequential damages, except that Seller’s limitation shall not apply to indemnity obligations, breach of confidentiality, gross negligence, willful misconduct, or violations of law. In no event shall Seller’s aggregate liability be less than the price of the affected Products; remedies shall be cumulative.
15. FORCE MAJEURE
A party rendered unable, in whole or in part, by Force Majeure to carry out its obligations (other than payment) may suspend performance to the extent affected, for the duration of the event, upon prompt written notice. Force Majeure includes acts of God, flood, war, riot, strikes, governmental actions, breakdown of facilities, and other causes beyond reasonable control. The affected party shall use diligent efforts to mitigate and resume performance.
16. CONFIDENTIALITY
Each party shall keep confidential non-public information disclosed by the other and use it solely for performance of this Agreement, subject to customary exceptions (public information, independently developed, or required disclosure).
17. ANTI-BRIBERY AND ANTI-CORRUPTION
Seller represents and warrants that it complies with all applicable anti-bribery and anticorruption laws, including the U.S. Foreign Corrupt Practices Act and similar legislation in other jurisdictions. Seller shall not, directly or indirectly, offer, give, or authorize any payment, gift, or anything of value to any government official or third party for the purpose of influencing any act or decision. Breach of this provision shall constitute a material breach of this Agreement.
18. AUDIT RIGHTS
Buyer may, upon reasonable notice, audit Seller’s records relating to quantities, pricing, taxes, and compliance with Specifications for shipments under this Agreement.
19. ASSIGNMENT
Neither party may assign this Agreement without the prior written consent of the other, except to an affiliate or in connection with a merger or sale of substantially all assets, provided the assignee assumes all obligations.
20. GOVERNING LAW; DISPUTE RESOLUTION
This Agreement shall be governed by the laws of the State of Illinois, without regard to conflicts principles. The parties will first engage in good-faith negotiations among senior representatives for at least fifteen (15) days before initiating litigation. Exclusive venue lies in state or federal courts located in Will County, Illinois, and the parties consent to personal jurisdiction and waive jury trial.
21. TERMINATION
Buyer may terminate any pending order for convenience, in whole or in part, prior to shipment, upon written notice. Either party may terminate for material breach not cured within ten (10) Business Days after written notice.
22. MISCELLANEOUS
This Agreement constitutes the entire agreement between the parties with respect to the subject matter and supersedes prior discussions. No modification or waiver is binding unless in writing and signed by authorized representatives. If any provision is unenforceable, it shall be adjusted to the minimum extent necessary while preserving intent. Notwithstanding pre-printed terms, Buyer’s purchase orders and Seller’s order acknowledgements are for administrative convenience only.