By submitting a purchase order or otherwise ordering products (“PO”) from CERES 14 INC. or SIMPLE SOLVENTS LLC (“CERES 14”), the customer identified on the PO (“Customer”) agrees to be bound by these terms and conditions (“Terms”).
- ACCEPTANCE OF ORDERS. All POs are subject to acceptance by CERES 14 in writing. Any terms or conditions submitted by the customer in connection with a PO that differ from or add to these Terms shall not be binding on CERES 14 unless accepted by CERES 14 in writing. CERES 14 reserves the right to amend, modify, or revise these Terms at any time. If a Supply Agreement exists between the parties, the terms and conditions of the Supply Agreement shall govern the supply of products, and in the event of any inconsistencies between these Terms and the Supply Agreement, the Supply Agreement shall take precedence, but upon the expiration or termination of such Supply Agreement, these Terms shall govern.
- PRODUCTS, PRICES, AND CHANGES. The products covered by these Terms are those specifically identified in the PO, upon acceptance by CERES 14 (“Products”). All prices are in US dollars unless otherwise indicated. CERES 14 reserves the right to change the price for any of the Products at any time by providing written notice to the customer. If a price increase affects a PO or any portion thereof, the customer has the right to cancel such PO or portion thereof, provided the Products have not been shipped. CERES 14 may make changes to or discontinue Products at any time, and if such changes affect Products subject to a pre-existing and unfulfilled PO, CERES 14 shall provide the customer with notice and use reasonable efforts to substitute a Product acceptable to the customer. If no such substitute is agreed upon, either party may cancel all or any portion of the pre-existing and unfulfilled PO by giving written notice to the other party, and neither party shall be liable to the other for any damages resulting from such cancellation.
- INSPECTION. The customer shall have the right to inspect: (i) all bulk Products (such as those arriving in tanks, railcars, trucks, etc.) upon delivery and prior to unloading; and (ii) all packaged Products (such as pails, totes, drums, etc.) within 10 business days of delivery. During the inspection period, the customer may reject any Product(s) that do not meet the product specifications previously agreed upon between the parties, as outlined in CERES 14’s documentation (“Specifications”). The Product rejection process shall be as follows: (i) if the customer proposes to reject a Product, it must immediately notify CERES 14, providing evidence that the Product does not meet the Specifications, identifying the date of shipment, PO number, serial number, and batch number; (ii) if CERES 14 does not agree that the Product does not meet the Specifications, a sample of the Product shall be submitted to an independent third party laboratory, mutually agreed upon by both parties, whose determination shall be final and binding on the parties, and the cost of which shall be borne by the party found to be in error; (iii) if the customer accepts or uses the Product, or if the independent laboratory determines that the Product meets the Specifications, the customer shall be deemed to have accepted the Product and shall make no further claims with respect to it; (iv) if CERES 14 agrees that the Product does not meet the Specifications, or if the independent laboratory determines that the Product did not meet the Specifications, CERES 14 agrees to refund or credit the customer within 10 business days of such determination.
- OBLIGATIONS AND RESTRICTIONS. Customer shall:
(i) use and dispose of Products only in accordance with all applicable federal, state, and local laws, regulations, and industry standards, including but not limited to any and all safety, health, environmental, and transportation regulations;
(ii) conduct all safety testing of the Product and any products created using the Product, and provide any and all documentation of such testing to CERES 14, as requested;
(iii) ensure that the Product, including the quantities and types of ingredients within the Product, can be manufactured, sold, and/or used for Customer’s intended purpose, and that all necessary permits and licenses have been obtained;
(iv) ensure that any modifications made to the Product, and any residual solvents or chemicals remaining in any products created using the Product, are safe for sale and use, including by retail customers (if being sold to them), and are in compliance with all applicable laws and regulations;
(v) ensure the adequacy and safety of all packaging, labelling and warnings, safety devices, and instructions contained in, on, or with any products created using the Product and are in compliance with all applicable laws and regulations;
(vi) comply with any and all regulatory reporting requirements, including but not limited to the reporting and tracking of all product transactions to the relevant authorities.
Customer shall not:
(i) use or sell any Product after its recommended re-test date;
(ii) use Products as gasoline blend stocks;
(iii) use Products as fireplace or lamp fuel (or any similar device);
(iv) use Products for any non-commercial purpose;
(v) resell, distribute, or supply Products to any person for retail sale or personal/household use, unless specifically authorized to do so in writing by CERES 14.
- PAYMENT. Customer shall pay CERES 14 the prices invoiced plus all taxes, duties, charges, or any other impost of a similar nature (“Taxes”). Customer shall also comply with all excise and other applicable taxes and shall accurately report its status with respect to same to CERES 14 and applicable regulatory authorities at all times. Unless otherwise set out on the PO, all invoices shall be payable in full within 30 days of the invoice date (and all excise taxes shall be payable within eight days) by electronic funds transfer, credit card or by cheque. Customer may not make deductions or offsets of any kind from payments due to CERES 14 unless CERES 14 has provided its prior written consent, which may be withheld in CERES 14’s sole discretion. If any invoiced amounts are not paid on the applicable due date, Customer shall be in arrears and such amounts shall bear interest, after the due date until paid in full, at a rate of 1.5% per month calculated and payable monthly (18% per year), with interest on overdue interest accruing at the same rate. In addition, CERES 14 may, without waiving any other rights or remedies to which it may be entitled: (i) deduct or offset any unpaid amounts owing after the applicable due date against any payments owing from CERES 14 to Customer; (ii) refuse to ship ordered Products; and/or (iii) seek collection from Customer of any unpaid amounts, including reasonable legal fees incurred and costs of collection.
- LABELLING. If CERES 14 is private labelling Products for Customer, Customer acknowledges that it has independently verified and confirmed that the labelling and packaging of the Products are fit for Customer’s intended purpose, regardless of whether or not CERES 14 may have assisted in the creation or design thereof. In the event that Customer provides CERES 14 with label content and/or design, Customer shall be solely responsible for ensuring that same:
(i) complies with all applicable laws and regulations;
(ii) is accurate and not misleading;
(iii) contains all safety, use, and other applicable warnings and notifications required, recommended, and/or appropriate to sell the Products to industrial, commercial, or consumer end-users, as may be applicable;
(iv) is properly affixed on the Products and any additional information required are provided and comply with all applicable laws and regulations.
In the event that Customer provides CERES 14 with label stock, Customer shall not make any modifications thereto without CERES 14’s prior written consent.
- FREIGHT. Unless otherwise set out in the PO, all prices are F.O.B. CERES 14’s facility or warehouse and shall be shipped at Customer’s expense, plus shipping and handling charges, by the carrier of CERES 14’s choice. All additional services requested by Customer shall be Customer’s sole responsibility, regardless of whether pricing is “delivered” (or any similar term). For the avoidance of doubt, freight and handling charges, as well as any additional services requested by Customer, shall be considered additional charges and are to be paid by Customer and all damages caused by the carrier will be the responsibility of the customer.
- TITLE AND RISK OF LOSS. Title and risk of loss of, or damage to, Products shall pass to the Customer upon delivery to the carrier at CERES 14’s warehouse or facility, as applicable. In the case of international customers receiving delivered pricing, such title and risk of loss or damage shall pass to the Customer upon arrival at the destination port.
- PARTIAL SHIPMENTS. CERES 14 shall use reasonable efforts to meet the requested delivery dates for Products specified in the PO. CERES 14 reserves the right to ship any PO in part, and such shipments may be invoiced separately. Delay in delivery of a PO or any part of a PO shall not relieve the Customer of its payment obligations for the PO or the remaining part thereof.
- LIMITED WARRANTIES. Subject to the sections entitled Limitation of Liability, Third Party Claims, and Storage, CERES 14 hereby warrants that the Products:
(i) shall meet the Specifications until the earlier of: (A) the re-test date set out in the certificate of analysis (“COA”); and (B) the moment such Product is transferred or pumped into another container, used, combined, blended or in any way otherwise altered; and
(ii) do not infringe any third party’s patent, copyright or trademark in the jurisdiction from which the Product is shipped. To the maximum extent permitted by law, all other warranties, conditions, or representations not specifically included in these Terms, including without limitation those with respect to merchantability or fitness for any particular purpose, whether express, implied, statutory, or arising from a course of dealing or usage of the trade, are expressly excluded.
- STORAGE. It is the Customer’s responsibility to ensure that Products are safely stored in accordance with applicable laws and regulations and to monitor the storage conditions and any effects they may have on the Specifications.
- WEIGHTS AND MEASUREMENTS. The Customer acknowledges that CERES 14 ships and bills in standard US weights and volumes. When conversions from other systems are required, CERES 14 rounds to the nearest whole US shipping unit (e.g. gallon, case, drum or tote).
- LIMITATION OF LIABILITY. Regardless of the basis on which the Customer is entitled to claim damages (including fundamental breach, negligence, misrepresentation, or other contract or tort claim) from CERES 14, CERES 14 is liable to the Customer for no more than the amount of the Customer’s actual direct damages, up to the actual purchase price of the Product in the PO that is the subject of the claim. This limitation of liability is cumulative and not per incident. Under no circumstances is CERES 14 liable to the Customer for any of the following, even if advised or informed of their possibility: (i) special, incidental, indirect, consequential or punitive damages; (ii) lost profits, business, revenue, goodwill, or anticipated savings; (iii) loss of, or damage to, any equipment; (iv) the Customer’s negligence; (v) misuse or modification of the Product after delivery; or (vi) the combination of Products with other products or items. Nothing contained herein shall restrict or limit CERES 14’s liability to the Customer, and the Customer shall contribute to any liability to the extent of the contributory and/or relative fault of the Customer.
- THIRD PARTY CLAIMS. Subject to the section entitled Limitation of Liability, if a third-party claims that Products infringe a third party’s patent, copyright or trademark in the jurisdiction from which the Product is shipped, CERES 14 shall, at its expense, defend the Customer against that claim and pay all costs, damages, and reasonable legal fees that a court finally awards or that are included in a settlement approved by CERES 14. If such a claim is made or appears likely to be made, CERES 14 may, in its sole discretion and at its own expense: (i) resolve the claim in a way that permits continued ownership and use of the affected Products; (ii) replace them with non-infringing products; (iii) modify the Products so that they become non-infringing; or (iv) obtain a license to allow the Customer to continue using the affected Products. If CERES 14 determines that any of the Products may be subject to a third-party claim, it may, in its sole discretion, and without any liability to the Customer, cease shipment of such Products without incurring any liability to the Customer or any other party.
- INDEMNITY. Customer shall indemnify and hold harmless CERES 14 from and against any and all claims, damages, losses, liabilities, costs and expenses, including reasonable attorneys’ fees, that CERES 14 may incur as a result of or in connection with any breach of the Terms by the Customer.
- INSURANCE. The Customer shall maintain, and agrees to continue to maintain, such policies of insurance as are appropriate for the Customer’s business and the Products being purchased, in the amounts, and against the risks, as are customarily carried and insured against by owners of comparable businesses, properties and assets.
- TERMINATION. If Customer: (i) breaches these Terms; or (ii) becomes insolvent, commits an act of bankruptcy, enters into any arrangement or composition with its creditors, goes or is put into liquidation or has a receiver appointed over any part of its business assets, then, in addition to and without prejudice to any other rights or remedies to which it may be entitled at law or in equity, CERES 14 may terminate any unfulfilled PO and recover from Customer, at Customer’s expense, any Products not paid for as of the date of termination together with any Products on which CERES 14 may have a purchase money security interest.
- FORCE MAJEURE. Neither party shall be liable to the other party for non-performance or delay in performance of any of its obligations under this Agreement (other than Customer’s payment obligations for Product) due to causes reasonably beyond its control, including but not limited to: fire, flood, epidemic, natural disasters, strikes, lock-out, labor trouble, other industrial disturbances, lack of raw materials, unavoidable accidents, governmental regulations and/or changes in law, war, riots, terrorism, termination and insurrections. Upon the occurrence of a force majeure event, the affected party shall immediately notify the other party with as much detail as possible and shall promptly inform the other party of any further developments. Immediately after the cause is removed, the affected party shall perform such obligations with all due speed. Should any force majeure event continue for 30 days or more, either party may terminate this Agreement upon notice to the other party.
- INTELLECTUAL PROPERTY. The Customer acknowledges that as between the parties, all intellectual property used on, embodied in, or related to Products belongs to and shall be the exclusive property of CERES 14, and the Customer shall not make use of any such intellectual property without the express written authorization of CERES 14.
- ASSIGNMENT. The Customer shall not assign these Terms in whole or in part without the prior written consent of CERES 14 and any assignment without such prior written consent shall be void. CERES 14 may, by providing notice to the Customer, assign these Terms to any person. Subject to the foregoing, these Terms shall ensure to the benefit of and be binding upon the parties and their respective successors and assigns.
- GOVERNING LAW. These Terms shall be governed by and construed in accordance with the laws of the jurisdiction from which the Product is shipped and shall be treated in all respects as a contract executed in such jurisdiction. Each party hereto irrevocably submits to the exclusive jurisdiction of the courts of such jurisdiction with respect to any matter arising hereunder or in relation to this Agreement and shall be the exclusive forum for all actions arising hereunder. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded.
- ENTIRE AGREEMENT. These Terms and the Supply Agreement, if any, constitute the entire agreement between CERES 14 and Customer with respect to Products and supersede all prior agreements, arrangements, understandings, negotiations, and discussions, whether oral or written, except for any non-disclosure and/or confidentiality agreements, which shall continue until they expire pursuant to their terms. No supplement, modification or waiver of these Terms shall be binding unless executed in writing by the parties. No waiver of any particular term, condition or breach of these Terms shall constitute a waiver thereof nor a waiver of a party’s right at any time thereafter to require strict compliance with all the terms and conditions of these Terms.
- SURVIVAL. The parties’ rights and obligations which, by their nature, would continue beyond the termination, cancellation, or expiration of this Agreement, including but not limited to those rights and obligations of the parties set forth in the Sections entitled LIMITED WARRANTIES, LIMITATION OF LIABILITY, INTELLECTUAL PROPERTY and THIRD-PARTY CLAIMS shall survive such termination, cancellation, or expiration.
- SEVERABILITY. If any one or more of the provisions contained in these Terms is declared invalid, illegal, or unenforceable in any respect under any applicable law, the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired, and in such case, the parties hereto oblige themselves to reach the purpose of the invalid provision by a new, valid, and legal stipulation. The parties will work together in good faith to replace any invalid or unenforceable provision with a valid and enforceable provision that achieves the intended purpose of the original provision as closely as possible.