Charkit warrants that (a) the product sold is of the quality set forth in Charkit’s published specifications, if any, or as may be otherwise expressly stated in any negotiated contract, and (b) the title conveyed is good and the product is free from any lawful security interest, lien or encumbrance. CHARKIT MAKES NO FURTHER REPRESENTATION OR WARANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR OTHERWISE. Buyer assumes all risk of patent infringement by reason of any use Buyer makes of the product in combination with any other material or in the operation of any process.
If the product is subject to a negotiated contract, and the contract does not specify quantity, Buyer shall give Charkit thirty (30) days notice of the quantity to be shipped each contract month. The quantity shipped in any contract month may be limited by Charkit to either (a) the monthly quantity as specified in the contract or if no monthly quantity is specified, the pro-rata portion of the maximum quantity so specified, or (b) the average of the monthly quantities purchased by Buyer for the preceding two contract months. Charkit shall not be obligated to deliver in any subsequent month any quantity not shipped as a result of any such limitation.
If the product is not subject to a negotiated contract, the quantity shall be the lesser of the quantity available at the time of shipment or as is stated on the Buyer’s order at the time of shipment.
PRICE AND TERMS.
If the product is subject to a negotiated contract, and the contract does not specify price and/or terms of sale, Charkit may, by giving thirty (30) days prior written notice thereof to Buyer at any time during the term of the contract, change the price and terms of delivery and shipment then current under the contract. Such changes shall be applicable to all product shipped on and after the date the changes become effective. If any governmental action or request restricts Charkit from making a price increase in accordance with these terms or continuing any price in effect, then Charkit shall have the right to (a) terminate the contract upon thirty (30) days written notice to Buyer, (b) suspend deliveries for the duration of such restriction, or (c) have applied to the contract (as of the effective date of such restriction) any price permitted under action or request.
If the product is not subject to a negotiated contract, the price and/or terms of sale are those in effect at the time of shipment.
The terms FOB, FAS, CIF, CF or such similar terms are, except as may be agreed to in any negotiated contract, only terms that express delivery terms and payment terms and are not an agreement as to passage of title.
Charkit may recover for each shipment made as a separate transaction, without reference to any other shipment. If Buyer fails to pay any invoice, whether in accordance with the terms of any applicable contract or after a single transaction, Charkit may, at its option, defer further shipments until payment has been made (in which event Charkit may elect to extend such contract period for a time equal to that for which shipments were so deferred), or, in addition to any other legal remedy, Charkit may decline further performance of such contract. If at any time, in the sole judgment of Charkit, the financial responsibility of Buyer is impaired, Charkit may change the terms of payment, require payment as a condition of shipment, and take any other steps it believes are necessary to protect its interests in the transaction.
Buyer shall reimburse Charkit for any federal, state or local excise or other tax, assessment, license fee or other charge, or increases thereof, which Charkit may be required to pay upon the sale, production, transportation, delivery or use of the product.
Charkit may, at its option, deliver from points other than that specified in any contract or sales agreement (but shall not be obligated to do so) provided that such delivery shall be at the contract price. Where the contract or sales price provides for absorption by Charkit of freight charges, wholly or in part, Charkit shall have the right to select the route, mode and carrier. If Buyer requires a route, mode or carrier other than that selected by Charkit, any extra cost incurred shall be paid by Buyer. If freight or other transportation costs are increased, whether by Buyer’s requirement of route, mode or carrier, or by any other decision, action or inaction of Buyer, Charkit may add any increase to the contract price. All sales are based on and are subject to all present and future tariff, import and export duties, border taxes and similar imports, surcharges and taxes which shall be solely at the cost and risk of Buyer. If any such rates or changes are included in the unit price (whether shown as a separate charge or not) and should be increased pending delivery, Buyer shall pay such increased rates or charges in addition to the unit price.
If the product is subject to a negotiated contract, and the contract does not specify the passage of title and risk of loss, or in the absence of a negotiated contract, title to and risk of loss on all products sold shall pass to Buyer at Charkit’s point of shipment whether or not Charkit pays all or any part of the freight, and notwithstanding any designation of FOB or any other delivery term elsewhere in any invoice or document evidencing the sale.
Neither party shall be liable for its failure to perform if due to any contingency beyond the reasonable control of the party affected, including but not limited to acts of God, war, fire, bad weather, flood, accident, labor trouble or shortage, civil disturbance, plant shutdown, equipment failure, issues involving national security, or voluntary or involuntary compliance with any applicable governmental act, regulation or order. Charkit shall not be liable for its failure to perform if such failure is due to any shortage or inability to obtain (on terms deemed economically practicable by Charkit) any raw material (including energy), equipment or transportation. Any quantities not delivered or accepted because of any such contingency shall be eliminated from any contract or sales agreement. Charkit shall not be obligated to deliver the product from other than the production or shipping points designated and there shall be no obligation to rebuild or repair any damage or destruction to such production or shipping points in order to fulfill the contract or sales agreement. During any period when Charkit is unable to supply the contract quantity of the product, whether caused by the circumstances above or otherwise, Charkit may allocate any available product among its customers, including its own subsidiaries, divisions and departments, on such basis as Charkit deems fair and reasonable.
Should Charkit elect to discontinue, curtail or limit the production or sale of the product in consequence of the application of any governmental act, regulation or order (including but not limited to those relating to national security, environment, ecology, energy, occupational safety and health, toxic substances, product safety, packaging, sale, use or application, consumer protection or transportation), compliance with which will, in the sole judgment of Charkit, render the production, marketing or transportation of the product economically, technically or commercially infeasible, Charkit may terminate the contract or sales agreement upon written notice to Buyer.
The weights, tares and tests fixed by Charkit’s invoice shall govern unless proved to be incorrect. Claims relating to quantity, quality, weight, condition and loss of or damage to any of the product sold hereunder shall be waived by Buyer unless made within fifteen (15) days after receipt of product by Buyer.
LIMITATION OF LIABILITY
Buyer’s exclusive remedy and Charkit’s exclusive liability under a contract or sales agreement (including negligence) shall be for, at Charkit’s option, either replacement of nonconforming goods at the FOB point stated in this contract or damages which shall in no event exceed so much of the purchase price as is applicable to that portion of the particular shipment with respect to which damages are claimed. In no event shall Charkit be liable to Buyer for any incidental or consequential damages arising in connection with the contract or sales agreement or the product sold. Buyer assumes all risks and liability, and Charkit assumes no liability, with respect to unloading and discharge of the product (including failure of discharge or unloading implements or materials used by Buyer, whether or not supplied by Charkit), storage, handling, sale and use of the product (including its use alone or in combination with other substances or in operation of any process), and the compliance or non-compliance with all federal, state and local laws and regulations applicable to the product.
Charkit’s or Buyer’s waiver of any breach or failure to enforce any of the terms or conditions of a contract or sales agreement at any time shall not in any way affect, limit or waive such party’s right thereafter to enforce strict compliance with every term and condition of a contract or sales agreement.
Neither a contract or sales agreement nor any right or obligation under same is assignable or transferable by either party in whole or in part without the prior written consent of the other party and any such purported assignment without such consent shall be void, except that Charkit shall have the right to assign any contract or sales agreement and its rights and obligations, without obtaining the prior written consent of Buyer, to any entity with which Charkit (a) merges, (b) sells a substantial part of its assets or businesses, or (c) sells a substantial part of its assets or business relating to the manufacture and/or sale of the product.
All contracts and sales agreements shall be governed by and construed in accordance with the laws of the State of Connecticut without giving effect to its conflict of laws provisions. The parties agree that venue for any cause of action brought by either shall be in Fairfield County, Connecticut.
The titles contained in these Terms and Conditions are for reference purposes only and shall not affect in any way the meaning or interpretation of this document.
If any provision of this document shall be prohibited or invalid, that provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of that provision and the remaining provisions of the contract.
In the absence of a negotiated contract, or if same is silent, these Terms and Conditions are intended as the final expression of the parties’ agreement and are the complete and exclusive statement of the terms thereof. No statements or instructions, oral or written, except as part of a negotiated contract, shall vary or modify these written terms; and neither party shall claim any amendment, modification or release from any provision hereof by reason of (a) a course of action or mutual agreement unless such agreement is in writing signed by the other party and specifically stating it is an amendment to this contract, (b) course of performance or (c) usage of trade. No modification or addition to any contract or sales agreement shall be effected except by the prior written acknowledgement and acceptance by Charkit of any purchase order, acknowledgement, release or other forms submitted by Buyer containing other or different terms or conditions.