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BASELL CANADA INC. STANDARD TERMS AND CONDITIONS OF SALE FOR ALASTIAN PRODUCTS AND ALASTIAN SERVICES I – GENERAL 1. These terms and conditions of sale comprise the basis on which Seller offers Alastian Products for sale and offers to provide Alastian Services. They shall apply to any Contract (as defined below). In any Contract, they will take precedence over the Buyer's conditions of purchase. No qualification, variation of, addition to or deletion from these terms and conditions of sale shall be effective unless expressly agreed in writing and signed by a duly authorized representative of Seller. Any relaxation or concession that may be granted by Seller shall not invalidate, impair or compromise these terms and conditions of sale and shall in no way affect or prejudice Seller's strict rights hereunder. 2. In these terms and conditions of sale: - "Alastian Products" shall be all or any part of materials sold by Seller through the Alastian Website and supplied or to be supplied by Seller to the Buyer. - “Alastian Services” shall be all or any part of services related to Alastian Products and purchased by the Buyer through the Alastian Website, the Alastian telephone center or the Alastian e-mail service as specified in Section III hereof. - “Alastian Website” shall mean the website www.alastian.com used for the sale of Alastian Products and Alastian Services. - "Buyer" shall mean the firm or company by whom or on behalf of whom the order is placed through the Alastian Website. - "Contract" shall mean any contract between Seller and the Buyer with respect to Alastian Products and/or Alastian Services concluded as detailed in Section II and III hereof. - “Seller” shall refer to Basell Canada Inc., 339 LaSalle Line, Corunna, Ontario NON 1G0 Canada. 3. Buyer shall not assign any Contracts without Seller’s written consent. Seller reserves the right to assign, sell, or otherwise transfer at its sole discretion all Contracts and any and all receivables, claims, related rights and security under or relating to any Contract to any third party. 4. Seller recommends that the Buyer prints and keeps a copy of these terms and conditions of sale and the confirmation page shown at the end of the ordering process. Seller shall keep an electronic record of such documents for a reasonable period of time and shall use and process such documents in accordance with the Privacy Statement. The status of pending orders under a Contract is available on the Alastian Website, as specified under Section II hereof.
II – ALASTIAN PRODUCTS; ORDER PLACEMENT, ACKNOWLEDGEMENT, CANCELLATION AND CHANGE 1. Order for the purchase of Alastian Products can only be placed on the Alastian Website by registered customers using a valid password and “username login”. Orders via e-mail, fax, or phone are not accepted. 2. Orders for the purchase of Alastian Products must be placed not longer than 30 calendar days and not less than 3 working days prior to the planned shipping date. 3. Orders can be placed by filling the form in the first step (1 of 3) of the ordering process. Orders are deemed finally placed when the Buyer clicks on the button marked "Confirm Order" on the second step (2 of 3) of the ordering process and summarizing the content of the specific order (that is product, quantity, price, payment terms, etc.). 4. Seller will use its reasonable endeavors to process orders that are placed on the Alastian Website but Seller does not guarantee that each individual order will be accepted. Orders placed on the Alastian Website shall become binding on Seller only upon acceptance of the order by Seller. In the case Seller accepts an order placed through the Alastian Website, the third step (3 of 3) of the ordering process shall show a confirmation of the order. An order acknowledgement will also be sent to the Buyer by e-mail, to the e-mail address indicated during the registration. Information on the order will remain available on the Alastian Website in the Order Management section, together with the expected delivery date, final price and payment terms. 5. Accepted orders may not be cancelled by the Buyer later than 3 working days before the expected shipping date. To change a placed order, the Buyer must first cancel the existing order via the Alastian Website and then place a new order. The new order is subject to acceptance by Seller as any new order. A cancellation penalty of USD $2000/railcar and USD $500/ bulk truck is charged for each order cancelled. 6. Any order by the Buyer is subject to general credit approval and the specific credit limit set by Seller in its discretion. In the event that at any time the Buyer places orders to Seller for a value of Alastian Products which, on its own or aggregated with the value of previous orders for which payment has not yet been received in full by Seller, or which exceed the specific credit limit set by Seller for the Buyer, Seller may, in its discretion at any time and without prior notice to the Buyer suspend or cancel such order, including orders for which an order acknowledgement has already been sent by Seller to the Buyer, for as long as such credit limit is exceeded. The Buyer acknowledges that such credit limits are fixed by Seller on its own discretion based on, among other things, the financial situation of the Buyer, its credit history, the volumes purchased in previous orders and other elements related to the creditworthiness for the Buyer. 7. In the event and for as long as the Buyer fails to make any payment of any invoices for Alastian Products in full as and when due, or in the event a procedure for insolvency, bankruptcy, liquidation, dissolution, receivership or winding up (or any similar procedure under any jurisdiction) is commenced by or against the Buyer, then Seller may, in addition to any other remedy available under applicable law, withhold any Alastian Products or parts thereof in transit, suspend or cancel the supply of Alastian Products under any order already confirmed, or decline any further orders of Alastian Products by the Buyer. 8. In the event that, as a result of any of the circumstances set forth in Section II, paragraphs 6 or 7 above, Seller has suspended the supply of Alastian Products under an order by the Buyer, and such circumstances cease later than 30 days from the date when the order was originally placed, Seller shall have the right to cancel the suspended order and to request the Buyer to enter a new order at the then-current conditions. 9. In each order, the minimum quantity of a grade of Alastian Product is one full railcar or one full bulk truck. The Buyer accepts that the quantities indicated in an order may be adjusted by Seller accordingly as necessary.
III – ALASTIAN SERVICES; REQUEST PLACEMENT, CONFIRMATION, CANCELLATION AND CHANGE 1. Requests for Alastian Services can be placed contacting the telephone center indicated on the Alastian Website or the following e-mail address: natechnicalservice@alastian.com. Seller shall confirm to the Buyer the Alastian Services that Seller shall provide, specifying the relevant price and dates. 2. Accepted requests for Alastian Services may not be cancelled by the Buyer later than 2 working days before the scheduled date of providing such services. In the event Buyer cancels an accepted request for Alastian Services, Buyer will be responsible for all costs and expenses incurred by Seller up to the date of cancellation. 3. All requests for Alastian Services are subject to the credit limits and other provisions set forth in Section II, paragraphs 6 through 8 above.
IV – PRICES OF ALASTIAN PRODUCTS AND ALASTIAN SERVICES 1. Seller reserves the right to vary at any time the prices at which it offers Alastian Products or the Alastian Services on the Alastian Website. However, once an order for Alastian Products or Alastian Services has been confirmed, the price for that order as indicated in the order acknowledgement shall not change. 2. The prices of Alastian Products sold through the Alastian Website are net of any applicable VAT and consist of 4 components: (1) initial price (FOB Seller’s shipping location), (2) volume-based discount (if any), (3) shipping and handling costs, and (4) payment term extension charge (if any). The initial price is the price per grade before any discount and without shipping and handling costs or payment term extension charge. It excludes technical service and any other charges. The volume-based discount is a discount granted on the basis of the volume purchased and timely paid for during the 12 months preceding the order through the Alastian Website. Volume-based discounts are non-negotiable and there are no additional year-end discounts or rebates available. Volumes purchased through the Alastian Website will not be considered in the calculation of any other discount, premium or rebate provided in any other written or oral agreements which may be in place between the Buyer or one of its affiliates and Seller or one of its affiliates. The shipping and handling costs are separately calculated and may differ from one location to another. Seller shall manage the actual shipping arrangements. If the Buyer chooses a payment term extension, a payment term extension charge shall be applied. For more details, please see Section VII below. 3. Other charges or penalties are applicable if: (i) payment is not received by Seller by the agreed payment term due date, (ii) the Buyer uses fee-based service support, (iii) the Buyer does not timely release railcars or trucks (see paragraph 4 below) or (iv) the Buyer cancels a placed order. Such charges or penalties shall be invoiced separately by Seller. 4. Buyer shall pay any and all expenses, charges or fees, including but not limited to demurrage assessments, incurred by Seller in the event Buyer instructs a carrier to hold delivery of Alastian Products outside of Buyer’s facility (e.g., constructive placement). Buyer shall unload and return railcars furnished by or on behalf of Seller within 30 days of receipt, and trucks within 2 hours of receipt. Failure to do so shall result in the imposition of a holding charge. 5. Buyer shall pay, in addition to the prices of Alastian Products, the amount of any tax (other than income tax), duty or other governmental charges now or hereafter (i) imposed on such Alastian Products or the raw material from which such Alastian Products is made or (ii) imposed on, or required to be paid or collected by, Seller by reason of the manufacture, transportation, sale or use of such Alastian Products or raw material. Buyer shall, upon Seller’s request, supply Seller with the tax exemption certificate for each of Buyer’s locations to which Alastian Products are delivered under these terms and conditions of sale. 6. The price for Alastian Services consists of daily fees and a reimbursement of the travel costs, accommodation costs and living expenses borne by the technical experts performing such services.
V – DELIVERIES OF ALASTIAN PRODUCTS 1. Delivery terms FOB Alastian Products shall be FOB Seller’s shipping location. . 2. Any delivery date indicated by Seller in any order acknowledgement shall be deemed as an approximate estimate. Furthermore, the parties acknowledge that there may be circumstances in which, after an acknowledgement or acceptance of an order indicating an expected delivery date, changes in the availability of Alastian Products may oblige Seller to delay the expected delivery date of Alastian Products ordered. In such event Seller shall promptly inform the Buyer and such delay shall not constitute a breach of the Contract. Should the new expected delivery date be unreasonable for the Buyer, Buyer‘s sole remedy shall be cancellation of the order without charge. 3. Seller may deliver against the Buyer’s order a reasonable excess or deficiency of the weight or volume of Alastian Products ordered. The Buyer shall pay for the amount actually delivered. Seller's measurement of quantity shall be binding upon the Buyer.
VI - FORCE MAJEURE 1. Neither party shall be liable for delay in performance or failure of performance hereunder (except for the payment of money) due to fires, floods, other acts of God; accidents, explosions, equipment or machinery breakdown; sabotage, strikes or other labor disturbances (regardless of reasonableness of the demands of labor); riots, invasions, terrorism, wars; requisitions, regulations or directions of government; voluntary or mandatory compliance with any request of any governmental authority; shortages of, or inability to obtain at reasonable costs, labor, fuel, power, supplies, feedstock or raw materials; inability to obtain or delays of transportation facilities; or any other cause (whether similar or dissimilar to the foregoing) beyond the reasonable control of the party relying upon this section. If by reason of any such cause, Seller’s ability to supply any Alastian Products shall be limited, Seller shall have the exclusive right to satisfy its own needs and thereafter to distribute any remaining available supply among all its customers in such manner as Seller deems appropriate. If any such disability shall continue for more than 30 days, the quantities during such period of disability undelivered as a result thereof may be canceled by either party, without liability, upon written notice to the other. 2. Seller can make a declaration of Force Majeure known to the Buyer by giving notice on the Alastian Website and the Buyer agrees such notice to be an adequate declaration.
VII – PAYMENT TERMS AND PAYMENT METHOD 1. The standard payment term for Alastian Products is 15 days from the end of month in which the invoice is dated. The standard payment term for Alastian Services is 15 days from the end of month in which the invoice is dated. 2. Two extended payment terms for Alastian Products of 30 days from the end of month and 60 days from the end of month are available and must be selected, if at all, when an order is placed on the Alastian Website. There is no extended payment term option for Alastian Services. In the event an extended payment term for Alastian Products is selected, an extended payment term charge in the amount of USD $0.005 per pound (30 days) and USD $0.015 per pound (60 days) of the total invoice price will be added to the invoice.. 3. Except as otherwise provided in these terms and conditions of sale, full payment in cash, without set-off or deduction, shall be due within the payment terms stated on the invoice. However, whenever Seller has any doubt as to Buyer’s financial responsibility, Seller may demand advance cash payment or satisfactory security and may withhold shipments until such payment or security is received from Buyer. Seller shall be under no obligation to make or complete any shipment when Buyer is in default under these terms and conditions of sale or any other agreement between Buyer and Seller. In the event Buyer fails to pay an invoice when due, at Seller’s option, Buyer shall immediately return to Seller any Alastian Product in Buyer’s possession for which Buyer has not paid. Seller may charge Buyer interest on amounts not paid when due at an annual rate equal to the lesser of (i) the Prime Rate offered by The Royal Bank to its commercial customers on the first business day of the month in which payment is due plus two percent (2%) or (ii) the maximum amount allowed by law. In the event that Buyer tenders payment to Seller or its agents in a manner purported by Buyer to serve as payment in full of an invoice, Seller or its agent’s acceptance of such payment (i) shall not act as an accord and satisfaction and (ii) shall be without prejudice to Seller’s right to pursue full payment of such invoice. 4. Seller reserves the right to set off any debt due from the Buyer to Seller or to any associated or subsidiary company of Seller against any amount due from Seller or any associated or subsidiary company of Seller to the Buyer.
VIII -PASSING OF TITLE 1. Title and risk of loss to all Alastian Products shall pass to Buyer upon Seller’s delivery to carrier at shipping point.
IX - WARRANTY AND LIMITATION OF LIABILITY 1. Seller warrants that Alastian Products shall comply with Seller's product specifications for Alastian Products in question as applicable from time to time, unless otherwise agreed. The product specification of Alastian Products can be requested at nacustomerservice@alastian.com. For the avoidance of doubt, properties and any other information relating to Alastian Products contained in Product Data Sheets reported on the Alastian Website do not constitute product specifications but typical values for purposes of description only. 4. Buyer agrees to indemnify, defend and hold Seller harmless against all losses, claims (including claims relating to personal injury, death or property damage), actions, penalties, liabilities, costs and expenses (including reasonable attorneys’ fees and court costs) (collectively, “Damages”) arising out of Buyer’s possession of railcars or trucks, or out of Buyer’s failure to comply with these terms and conditions of sale or any applicable law, ordinance, regulation, rule or order; provided, however, that such obligations shall not apply to the extent the Damages are the direct result of Seller’s gross negligence or intentional misconduct. 5. Descriptions of Alastian Products and services offered on the Alastian web site are accurate to the best of Seller's knowledge. Seller will do its best to correct errors or omissions as quickly as practicable after being notified of them. However Seller and its associated or subsidiary companies are not liable for any loss arising out of or in connection with the use of the Alastian Website or any technical difficulties experienced when using this web site or the accuracy of information or descriptions on it. 6. Seller warrants that the Alastian Services shall be provided through properly qualified personnel and in accordance with commonly acknowledged good industry practice. The Buyer acknowledges and agrees such personnel shall provide services in an advisory capacity in support of the Buyer’s own assessment and activities and that the sole responsibility for the use or implementation of the content of such services rests entirely in the Buyer and no liability shall rest in Seller or the personnel providing the services other than in the event of gross negligence or intentional misconduct. Liability of Seller, if any, for breach of contract, breach of warranty, negligence (including that of Seller), or other tort, strict liability or any other claim arising from or related to , shall in no event exceed in amount the price of the Alastian Services with respect to which such cause arose. In no event shall Seller be liable for special, consequential, incidental, indirect, punitive, or exemplary damages.
X - MISCELLANEOUS
1. Seller may, at its discretion, discontinue the manufacture of any Alastian Products to be furnished hereunder. 2. These terms and conditions of sale shall be construed and enforced under the laws of the Province of Ontario, irrespective of any contrary conflicts of law principles. The provisions of the Uniform Commercial Code as adopted by the Province of Ontario, and not the United Nations Convention on Contracts for the International Sale of Goods, shall apply to all sales of Alastian Products and the provision of Alastian Services. Buyer agrees to submit to the jurisdiction of the provincial and federal courts located in the Province of Ontario with regard to any action arising out of these terms and conditions of sale or any transactions arising under or related to the Alastian Website. 3. Buyer assumes responsibility for the safe and lawful use of, and disposal of all packaging for, the Alastian Products sold hereunder. 4. These terms and conditions of sale constitutes the entire agreement between the parties with respect to the purchase and sale of the Alastian Products and the provision of Alastian Services, and supersede and cancel any prior representations, agreements or understandings, oral or written. 5. These terms and conditions have been drawn up in English at the express wish of the parties. A la volonté expresse des parties, ce contrat a été redigé en anglais.
July 20, 2005
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