General terms and conditions of sale of DSM Engineering Plastics

Unless otherwise agreed, DSM shall arrange for shipment of product by common carrier to BUYER’s facilities. Title to and risk of loss on product sold hereunder shall pass to BUYER upon DSM’s tender of delivery of product to BUYER at the F.O.B. shipping point unless stated otherwise in sales agreement. DSM shall invoice BUYER on or promptly after the date of each shipment hereunder. Terms of payment shall be net 30 days; provided, however, DSM reserves the right to change payment terms if payments are not made on a timely basis. DSM reserves the right to refuse, delay or cancel order requests and shipments and/or terminates all contractual obligations on the basis of BUYER’s credit worthiness with no liability to DSM whatsoever. 

In the event of the occurrence of contingencies beyond the reasonable control of either or both of the parties, including without limitation, war, fire, explosion, flood, strike, labor disputes, accident, breakdown, emergency repair or maintenance, riot, act of governmental authority, acts of God, or any other event interfering with the production, supply, transportation, or consumption of the goods sold hereunder, or with the supply or consumption of any raw material used in connection therewith, the obligations of the parties to perform hereunder shall be suspended, and quantities so affected may be eliminated from the contract without liability. The party invoking Force Majeure hereunder shall give prompt notice of, and utilize best efforts to terminate or remove, the Force Majeure conditions.

If, for reasons of Force Majeure or otherwise, DSM is unable to supply contract quantities of product to all its customers, DSM may satisfy its obligations under this Agreement by allocating to BUYER, in any commercially reasonable manner, its proportionate share of DSM’s available supply of product, based on the aggregate annual contract obligations and delivery commitments of DSM to all of its then current product customers.

DSM HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE CONCERNING THE PRODUCT SUPPLIED HEREUNDER OTHER THAN (i) THE PATENT WARRANTY SET FORTH IN PAR. 7, (ii) WARRANTY OF TITLE AND (iii) WARRANTY THAT THE PRODUCT SHALL CONFORM TO THE QUALITY AND SPECIFICATIONS STATED HEREIN. IN NO EVENT SHALL DSM BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN.

BUYER acknowledges that it has been adequately warned by DSM of risks associated with handling, using, transporting, storing and disposing of the product, including without limitation those risks set forth in DSM’s Material Safety Data Sheet (“MSDS”) for the product. BUYER affirms that it shall maintain compliance with all safety and health related governmental requirements concerning the product purchased hereunder and shall take all reasonable precautions to inform its employees, agents, contractors and customers of any risks associated with the product, including without limitation dissemination of pertinent information contained in the MSDS.

Buyer shall indemnify, defend and hold DSM, its affiliates and their respective directors, officers, employees, agents, successors and assigns harmless from and against any damages, judgments, claims, suits, actions, liabilities, costs and expenses (including, but not limited to, reasonable attorneys’ fees) resulting from any third-party claims or suits arising out of or connected with (a) Buyer’s further use, handling, distribution, marketing or sale of the product sold to Buyer (except to the extent caused solely by DSM’s negligent acts or omissions or willful misconduct in its performance of the conditions set forth in this Agreement or the manufacture or labeling of the material), (b) Buyer’s material breach of any of its representations or obligations hereunder, (c) Buyer’s negligent acts or omissions or willful misconduct and/or (d) any proceeding instituted by or on behalf of a third-party based upon a claim that the goods or the production, use or sale of the goods infringes a United States patent or any other IP rights (except where such infringement claim is based upon intellectual property owned by DSM as of the commencement of this Contract.

DSM warrants that the manufacture and sale of the product delivered hereunder will not infringe any claim of any United States patent covering the product itself, but DSM does not warrant against infringement by reason of the use thereof alone or in combination with other material or in the operation of any process.

Technical assistance, if any, furnished by DSM in connection with the sale of product hereunder shall be furnished for the accommodation of BUYER; and BUYER assumes all liability for the proper receipt and application of such information, utilizing BUYER’s own technical expertise and know-how. BUYER shall indemnify and hold DSM harmless from and against any claims, demands, or liability arising out of or in connection with BUYER’s receipt and/or use of any technical assistance furnished by DSM.

DSM may recover from BUYER for each shipment hereunder as a separate transaction, without reference to any other shipments. BUYER shall be responsible for inspection of product upon receipt from DSM to insure conformity with stated specifications. All claims regarding product included in a shipment made hereunder will be deemed waived by BUYER unless written notice thereof shall be given to DSM within fourteen (14) days after the arrival of such shipment at BUYER’s facilities, or until the moment of process conversion by BUYER or its transferee, whichever is earlier; and in no event shall DSM’s liability with regard thereto exceed the sum of the purchase price, plus delivery costs, attributable to the specific delivery as to which such claim is made.

BUYER shall reimburse DSM for all taxes, customs duties, excises, or other charges hereafter imposed or increased which DSM may be required to pay to any government (federal, state, or local) and which are levied directly upon, or measured directly by, the sale, production or transportation (a) of product supplied hereunder or (b) of raw materials utilized by DSM in the production of product supplied hereunder.

This Agreement shall be governed by the laws of the State of Indiana. Any litigation between the parties shall be brought and maintained exclusively in a state or federal court located in Vanderburgh County, Indiana.

Neither party may assign this Agreement without the consent of the other, which consent shall not unreasonably be withheld.

This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and there are no understandings or warranties, express or implied, except as set forth herein. No modification shall be effected by the acknowledgement or acceptance of purchase orders, invoices, shipping documents, order confirmations, or other forms or documents containing terms or conditions at variance with or in addition to those set forth herein. This Agreement may be amended only by mutual agreement in writing, duly signed by authorized representatives of both parties.  

The terms and conditions of this Agreement shall be deemed to be separable.  If any part thereof is held to be invalid for any reason, the other terms and conditions hereunder shall remain in full force and effect. DSM’s waiver of any breach, or failure to enforce any of the terms and conditions, of this Agreement shall not be deemed to affect, limit or waive DSM’s right thereafter to require compliance with the terms and conditions hereof.