Diversified CPC

Diversified CPC International, Inc.

TERMS AND CONDITIONS OF SALE

ACCEPTANCE. SELLER’s acceptance of BUYER’s order is expressly made conditional on BUYER’s assent to the terms and conditions set forth herein, notwithstanding the provisions contained in any purchase order, acknowledgment, acceptance, or other document of BUYER. Each delivery of the goods (“Goods”) by SELLER will be deemed to be solely upon the terms and conditions of this document, provided, however, that any conflicting provisions of a separate written contract or a written amendment to this document signed by an authorized representative of SELLER will control.

1. PRICE, PRICE CONTROLS & TAXES.
a. Unless otherwise stated herein, the price of the Goods will be SELLER’s current price in effect as of the time of delivery or such other price to which SELLER expressly agrees in writing. Unless a fixed price is agreed in writing by SELLER, SELLER may, at its sole option, from time to time change its pricing including at any time between the date hereof and the time of delivery.
b. In the event any governmental law regulation or order prohibits SELLER, in its opinion, from collecting from BUYER a price for the Goods herein provided, SELLER may, without liability to BUYER, cancel BUYER’s order as to future shipments by giving BUYER ten (10) days prior written notice of cancellation.
c. Any tax, excise or other governmental charge imposed, excluding SELLER’s income taxes, upon the production, sale or transportation of any Goods sold here under which SELLER may be required to pay will be paid by BUYER to SELLER in addition to the purchase price.

2. PAYMENT.
Unless otherwise stated herein, any credit SELLER may elect to extend to BUYER will be upon SELLER’s credit terms in effect at the time of delivery. BUYER will pay SELLER for Goods delivered hereunder in U.S. currency by wire transfer to SELLER’s bank, at SELLER’s main office or at such other U.S. location as SELLER may designate in writing on its invoices or otherwise. SELLER may decline from time to time to make delivery of Goods hereunder except for cash payable in advance or upon delivery if SELLER for any reason has doubt as to BUYER’s financial responsibility and will so advise BUYER. If BUYER fails to remit the full amount payable by it when due, SELLER reserves the right to impose interest from the date due until the date of payment on the unpaid portion at a rate equal to the lower of (i) the then effective prime rate of interest for large U.S. Money Center commercial banks published under “Money Rates” by the “The Wall Street Journal” plus 2% per annum or (ii) the maximum application lawful interest rate.

3. BULK SHIPMENTS & DELIVERY.
SELLER reserves the right to route shipments. SELLER’s weight and/or measurements taken at the shipping point will control. SELLER reserves the right to ship, and BUYER agrees to accept and pay for quantity within 10% plus or minus of the quantity ordered. Unless otherwise agreed in writing by SELLER, title to the Goods and risk of loss will pass to BUYER as follows: when into a rail car, ISO container, or cylinder when accepted by carrier for shipment; when by truck as the Goods enter the receiving equipment. Deliveries shall be scheduled to allow for a lead time of forty-eight (48) hours from the time of order. Unless otherwise agreed in writing by SELLER, SELLER may, in its sole discretion, without liability or penalty, make partial
shipments of Goods to BUYER. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order. Any liability of SELLER for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered. BUYER acknowledges and agrees that the remedies set forth in this Section 5 are BUYER’s exclusive remedies for the non-delivery of Goods.

4. BULK DEMURRAGE.
BUYER will promptly unload, and release transportation equipment furnished or arranged for by SELLER. In the event BUYER fails to unload and release to the carrier any railroad car furnished or arranged by SELLER within fourteen (14) days, BUYER agrees to any detention charges incurred by SELLER. In the event BUYER fails to unload and release to the carrier any tank truck furnished or arranged by SELLER within two (2) hours from the scheduled delivery time, BUYER agrees to any detention charges in accordance with SELLER’s policy in effect at the time.

5. CYLINDER DELIVERY & CARE.
All gas Products furnished by SELLER shall be delivered in SELLER cylinders, FOB shipping point. SELLER may fill a customer owned cylinder provided such a cylinder and valve satisfies all industry, Compressed Gas Association, State and/or Federal requirements and those of SELLER. SELLER cylinders used for the delivery of Products furnished hereunder shall be manufactured in accordance with the rules and regulations of the U.S. Department of Transportation or Transport Canada, as applicable. BUYER may not loan or refill any SELLER cylinder. Whenever the pressure of the compressed gas in said cylinders is reduced to the minimum required working pressure, the BUYER shall close the valves of said cylinders before detaching them from the BUYER’s apparatus and shall return said cylinders, complete with valves closed and all fittings attached, in good condition and repair and with any protective cap in place securely tightened, to the shipping point of SELLER from which the cylinders were originally shipped to the BUYER, with all transportation and delivery charges prepaid by the BUYER.

6. GAS CYLINDER DEMURRAGE.
The BUYER shall pay the cylinder demurrage charge in effect and as may be modified from time to time. Credit memos will be issued when cylinders are returned, less any charges for demurrage or damage. Current payments for invoices may be reduced by the amount of each credit memo. When they are so reduced, include the credit memo number with your payment. No reductions in payments will be allowed without reference to a credit memo number. If BUYER does not claim credits within one year of issuance of credit memo, the credit shall be deemed void and revert to SELLER. SELLER reserves the right to change the Gas Cylinder Demurrage Terms to BUYER. If Buyer does not return cylinders within the terms of the cylinder demurrage policy in effect, then the cylinder will be deemed lost or destroyed. Payment by Buyer of charges for demurrage, damaged, lost, or destroyed cylinders shall not give any ownership interest in the cylinders to Buyer. The Product in the cylinders is generally not refundable; however, if a Product is refundable, in SELLER’s sole discretion, a restocking charge will be applied to all Products accepted for return to SELLER. No portion of the purchase price will be returned if any returned Product has been used or damaged. No credits will be allowed for gases or equipment returned without SELLER’S express prior written authorization. In the event of termination for any reason, BUYER shall purchase any unused or expired non-standard products held in inventory at SELLER locations specifically for BUYER.

7. WARRANTIES AND DISCLAIMERS.
a. SELLER warrants that, at the time of delivery, the Goods will meet SELLER’s specifications, as certified by a certificate of analysis included with each shipment, in all material respects. THIS WARRANTY IS VOID AND OF NO FURTHER FORCE ONCE THE GOODS ARE ACCEPTED BY OR UNLOADED INTO THE BUYER’S CONTAINER. – SELLER DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, AND BUYER EXPRESSLY WAIVES ANY OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, REGARDLESS OF WHETHER ORAL OR WRITTEN, EXPRESS, OR IMPLIED, OR ALLEGEDLY ARISING FROM ANY USAGE OF ANY TRADE OR
FROM ANY COURSE OF DEALING.
b. With respect to any Goods that do not conform with the warranty set forth in §8(a), SELLER shall, in its sole discretion, either: (i) replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate. THE REMEDIES SET FORTH IN §8(b) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE WARRANTY SET FORTH IN §8(a).

8. INSPECTIONS AND LIMITATION ON LIABILITY
a. BUYER will examine the Goods promptly upon receipt of each shipment and notify SELLER of any off specification Goods, shortfall in delivery, or non-receipt of Goods. SELLER will not be responsible for any variation in quality or quantity unless BUYER gives SELLER written notice of a claim of such variation within five (5) days after receipt of the shipment or, in the case of non-delivery, from the date fixed for delivery. BUYER’s failure to give notice of any such claim will constitute an unqualified acceptance of the Goods and a waiver by BUYER of all claims with respect thereto.
b. SELLER’s total liability arising from this Contract for any claims of any nature will not exceed the purchase price of the portion of the Goods in respect of which such claims are made. IN NO EVENT ILL SELLER BE LIABLE TO BUYER FOR SPECIAL, INCIDENTAL INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR INJURIES TO PERSONS (INCLUDING, WITHOUT LIMITATION, EMPLOYEES OF BUYER) OR TO PROPERTY OR LOSS OF PROFITS, WHETHER OR NOT SAID DAMAGES ARE BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. BUYER ASSUMES ALL RISK AND LIABILITY RESULTING
FROM USE OF THE GOODS WHETHER USED SINGLY OR IN COMBINATION WITH OTHER GOODS OR PRODUCTS.

9. TECHNICAL INFORMATION.
Any technical advice or assistance furnished by SELLER to BUYER with respect to the selection or use of the Goods delivered to BUYER hereunder will be given and accepted at BUYER’s sole risk, and SELLER will have no liability whatsoever for the use of, or results obtained from, such advice or assistance.

10. DUTY TO WARN AND INDEMNIFICATION
a. The BUYER shall always strictly comply, and instruct its employees, agents, and representatives to comply with all applicable federal, state, and local statutes, regulations and orders regarding the safe handling, transportation, and use of the Products. BUYER is aware that OSHA regulations may require BUYER to develop and implement a written chemical hazard communications program for BUYER’S employees, customers, and/or others with respect to the Products. BUYER acknowledges that it understands the hazardous nature of the Products, and will take all steps necessary to inform, warn, and familiarize its employees, agents, customers, contractors, and other persons who may be exposed to those hazards, of all hazards pertaining to and the proper procedures for safe use of the Goods and of the containers or equipment in which the Goods may be handled, shipped, or stored. BUYER understands and agrees that no odorant has been added to the Goods and that it will take all necessary steps in
handling un-odorized Goods. BUYER also undertakes to label as appropriate any materials that it makes or resells that include Goods. BUYER also acknowledges and agrees that SELLER has provided BUYER with all relevant Safety Data Sheets (SDS) and that additional SDS are available upon request. BUYER understands that the Products must not be used without first consulting the SDS. BUYER shall ensure that all employees, customers, and other persons who might become exposed to the Products receive and refer to copies of the SDS. BUYER agrees to comply with all U.S. export regulations which control the Products it purchases from SELLER, including, but not limited to, the Export Administration Regulations administered by the U.S. Department of Commerce and the International Traffic in Arms Regulations administered by the U.S. Department of State.
b. BUYER WILL INDEMNIFY AND DEFEND SELLER FROM AND AGAINST ANY CLAIM, LIABILITY OR EXPENSE, INCLUDING, BUT NOT LIMITED TO, INJURY OR DEATH OF BUYER’S EMPLOYEES, DIRECTLY OR INDIRECTLY ARISING FROM BUYER’S FAILURE TO SO INFORM, WARN, AND FAMILIARIZE ITS EMPLOYEES, AGENTS, CUSTOMERS, AND CONTRACTORS, EXCEPT TO THE EXTENT THAT THE CLAIM, LIABILITY, OR EXPENSE IS CAUSED BY THE FAILURE OF THE GOODS TO MEET SELLER’S PRODUCT SPECIFICATIONS WHEN DELIVERED TO BUYER; AND THESE UNDERTAKINGS APPLY IN FULL MEASURE WHETHER OR NOT IT IS ALLEGED OR PROVED THAT SELLER WAS CONCURRENTLY, PARTIALLY OR JOINTLY NEGLIGENT OR AT FAULT OR LIABILITY WITHOUT FAULT IS SOUGHT TO BE IMPOSED ON SELLER. EXPENSE AS USED HEREIN WILL INCLUDE REASONABLE ATTORNEY FEES.
c. As between the parties, Seller will be deemed in control of the product and responsible for any injury or damage relating to the handling or delivery of the product until it has been delivered. After delivery, Buyer will be deemed in control and possession and responsible for any injury or damage relating to the handling or transportation of the product. Each party shall be responsible and liable for and agrees to indemnify and hold the other party harmless against all costs, expenses, losses, claims, damages, assessments (including without limitation professional fees, penalties, and interest), causes of action, judgments, fines, settlements, penalties and liabilities (joint and several), without regard to amount, arising out of, caused by, or resulting from the indemnifying party’s failure to comply, or indemnifying party’s products failure to comply, with all applicable federal, state, and local laws, ordinances, orders, rules and regulations. The SELLER certifies that the Goods it delivers under this Agreement will be produced and delivered in full compliance with all applicable governmental laws, regulations, and orders including, but not limited to, the Clean Air Act and the EPA regulations promulgated thereunder, the Equal Opportunity Clause contained in 41 C.F.R. 60-1.4 relating to race, color, religion, sex, or national origin, the Affirmative Action Clause contained in 41
C.F.R. 60-250.4 relating to disabled veterans and to veterans of the Vietnam Era, and the Affirmative Action Clause contained in 41 C.F.R. 60-741.4 relating to handicapped workers are incorporated herein by reference.

11. LEGAL, AUDIT AND MISCELLANEOUS
a. This Contract binds and benefits the parties as well as their respective successors and assigns. Neither party may assign any of its rights or obligations under this Contract without the prior written consent of the other party, which consent will not be unreasonably withheld.
b. ANY QUESTIONS CONCERNING THE INTERPRETATION AND ENFORCEMENT OF THIS CONTRACT WILL BE GOVERNED BY THE DOMESTIC LAW OF THE STATE OF ILLINOIS, WITHOUT REGARD TO THE PRINCIPLES OF THE
CONFLICTS OF LAWS.
c. Neither party may give any director, employee, nor representative of the other party any commission, fee, rebate, gift, or entertainment of significant cost or value in connection with this Contract or enter into any other business arrangement with any director, employee, or representative of the other, without prior written notification to the other party. Any representative(s) authorized by either party may cause an audit or any and all records of the other party as necessary and proper to verify that there has been compliance with this paragraph.

12. QUALITY AND MEASUREMENT.
The quantity of product delivered shall be measured at the following points: (i) if to or from a tank truck, by meter, rotary gauge or weighing, in accordance with applicable GPA Publications; (ii) if
to or from a tank car, by official tank car capacity tables, meters or slip tube gauges in accordance with applicable tank car manufacturer and GPA Publication; and (iii) if to or from a pipeline, determined by pipeline meter in accordance with the then current and applicable API Manual.
13. FORCE MAJEURE.
In the event either party is rendered unable, wholly or in part, by force majeure to carry out its obligations under this agreement, other than to make payments due, the obligations of that party, so far as they are affected by force majeure, will be suspended during the continuance of any liability so caused, but for no longer period. The party whose performance is affected by force majeure will provide written notice to the other party. “Force majeure” means acts of God, epidemics or pandemics, fires, flood, wars, explosions, riots, strikes or other industrial disturbances, sabotage, accidents, labor disputes or shortages, governmental law, ordinances, rules and regulations, including but not limited to, priorities, requisitions, allocations and price adjustment restrictions, destruction or breakdown of production or transportation facilities, inability to obtain material, equipment, supplies, licenses, or permits, and other causes, whether of the kind listed above or otherwise, not within the
control of the party claiming suspension and by which the party is unable to prevent or overcome by the exercise of due diligence.

14. TERMINATION.
In addition to any remedies that may be provided hereunder, SELLER may terminate this Agreement with immediate effect upon written notice to BUYER, if BUYER: (a) fails to pay any amount when due under this Agreement and such failure continues for fifteen (15) days after BUYER’s receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of these terms, in whole or in part; or (c) 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.

15. DEFAULT AND NON-WAIVER.
No waiver by either party hereto of any default of the other party hereunder shall operate as a waiver of any future default, whether of like or different character.

16. RELATIONSHIP OF THE PARTIES.
The relationship between the parties is that of independent contractors. Nothing contained in this agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

17. 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 these terms.

18. AMENDMENT AND MODIFICATION.
These terms may only be amended or modified in a writing stating specifically that it amends these terms and is signed by an authorized representative of each party.

19. MISCELLANEOUS.
All of the terms hereof shall be subject to the applicable and lawful orders, rules, regulations, and requests of all governmental authorities. The validity, interpretation, and performance of this agreement with respect to any product delivered or to be delivered hereunder shall be governed by the laws of the State of Illinois. This agreement constitutes the entire agreement between the parties hereto. No modification of this agreement or waiver of the terms or conditions hereof shall be binding unless in writing and signed by an authorized representative of the parties. Neither shall this agreement be affected by the acknowledgement or acceptance of purchase order forms containing other or different terms or conditions, whether or not signed by an authorized representative of either party. The parties hereby consent to the exclusive jurisdiction of the state and federal courts located in Chicago, Illinois and waive any objection thereto on the basis of lack of personal jurisdiction or forum non conveniens. AS A MATERIAL INDUCEMENT TO ENTERING THIS AGREEMENT, THE PARTIES HEREBY WAIVE THEIR RIGHT TO TRIAL BY JURY IN ANY DISPUTE ARISING HEREUNDER.