Conditions of sale

  1. These Conditions of Sale shall apply to all sales of all materials, chemicals and products (hereinafter referred to as "Products") by Punda Mercantile Inc. (hereinafter referred to as "Seller") to customers located in North or South America, each such customer being hereinafter referred to as ("Purchaser"). Seller and Purchaser are, collectively, herein below referred to as "Parties". No inconsistent terms proposed by Purchaser shall be deemed as part of the sales contract unless explicitly accepted in writing by Seller.

  2. The Seller will determine the prices of products. Buyer shall reimburse seller for all taxes, excises or other charges, which Seller may be required to pay to any government upon the sale, production, or transportation of the products sold hereunder, unless otherwise agreed in writing.

  3. If Purchaser has indicated the ordered quantity on the basis of weight, such weight for pre-packaged materials shall be considered approximate, and the quantity to be delivered may deviate from the quantity ordered by plus/minus ten per cent (10%), for materials shipped in bulk, the quantity to be delivered may deviate from the quantity ordered by plus/minus twenty per cent (20%), unless otherwise agreed in writing. The exact quantity and analysis of the Products being delivered shall be determined at Seller's point of shipment and invoicing shall accordingly be based on such determination.

  4. Risk for destruction and loss shall pass to Purchaser FOB Seller's facility. Delivery of Products: a) in Europe, shall be FOB Seller warehouse in ‘TBA’; b) in Asia, shall be FOB Seller warehouse in ‘TBA’; and c) the Americas, shall be FOB Sellers ‘TBA’ (‘TBA’ or ‘To Be Advised’ location by Seller from time to time). The time of delivery for Products shall be considered approximate. Seller shall not be liable for any indirect or direct damages or consequences attributed to delay in the delivery. Should the Seller be in delay of delivery more than sixty (60) days from the end of the delivery specified in Seller's confirmation of order and it would be unreasonable to require Purchaser to take such late delivery of Products, Purchaser shall, to the exclusion of any other remedy, be entitled to terminate the sales contract by giving a written notice thereof to Seller. Such termination may not, however, be made in respect of Products made to Purchaser's specification. Should Seller be delayed from delivery by any circumstances mentioned in these Conditions of Sale or by an act or omission of Purchaser, there shall be granted such extension of delivery period as is reasonable having regard to all the circumstances of the case.

  5. Purchaser shall make payments to Seller in U.S. Dollars (or other currency as agreed between the Buyer and the Seller, in writing) on the due date defined in Seller's invoice, without any deduction or set-off. Where Purchaser is delayed in making any payment, Seller may postpone the fulfillment of its own obligations until such payment is made and recover delay interest on the sum due from the time fixed for payment at the prevailing interest rate specified in Seller's invoice. The payments shall be considered made first when the amount due has arrived in full at Seller's bank account. Products delivered shall remain the properties of Seller until Seller has received all payments under the contract. As long as the purchase price or any part thereof remains unpaid, products may not be resold or used as security for credit without the prior written consent of Seller.

  6. Purchaser is deemed to have accepted the quantity, quality, condition, and packing and making of Products delivered, unless notice is given to Seller in writing within eight (8) days from the date the Products were delivered to Purchaser. Seller warrants that Products delivered to Purchaser will conform to the Seller's specifications. This warranty shall, however, apply only to non-conformities that have appeared and are notified in writing to Seller within thirty (30) days from the date of delivery. Seller shall remedy such non-conformities as provided below, such remedy being the sole recourse of Purchaser and sole liability of Seller. If Purchaser notifies Seller in writing immediately upon discovery of any non-conformity made within the warranty period, Seller shall, at Sellers Option, on receipt of such notification, provided that Seller confirms that non-conformities fall under the warranty hereunder, either repair the non-conforming Products after having them returned to him or replace them as soon as maybe reasonably practicable (at the same delivery term as the original delivery) or repay or credit Purchaser for the invoice price or part thereof. Products confirmed to be non-conforming by Seller shall be returned upon Seller's request to Seller at Seller's expense. This is the sole warranty given by Seller. Purchaser shall bear the sole responsibility for determining the suitability for the Products for the use contemplated by Purchaser. IMPLIED WARRANTIES OF MERCHANTABLILITY OR FITNESS FOR A PARTICLE PURPOSE ARE EXCLUDED FROM ANY SALE. BUYER ASSUMES ALL RISK WHATEVER AS TO THE RESULT OF THE USE OF THE PRODUCTS PURCHASED.

  7. Seller shall in no event be held liable for any incidental, indirect or consequential loss or damage, including but not limited to loss of profit, loss of production, loss of use of Products or any other property, cost of capital, downtime costs, damage to property, personal injury, and claims from Purchaser's customers or any third party. The maximum liability of Seller under any sale to Buyer shall in no event exceed the amount of payments received from Buyer. Buyer assumes all risk and liability for loss or damage resulting from the handling, use, or application of the products and containers delivered hereunder. Buyer agrees to familiarize itself and keep informed (without reliance on Seller except as to the accuracy of specific safety information actually furnished by Seller) with any hazards to persons and/or property involved in handling and using such products and the containers in which such products are shipped. Buyer shall advise its employees, customers, independent contractors and others who handle or use such products of any hazards. Buyer assumes and agrees to defend and hold Seller harmless from all liability from claims by Buyer and any third parties including without limitation Buyer's employees and customers resulting from the use of the product delivered whether or not such products are used in combination with other articles or substances or are used in any manufacturing process. Any stenciling, marking, or numbering including that contained on the preprinted Punda label shall not be relied upon and no guarantee of accuracy is made with respect to any such markings.

  8. Neither Seller nor Purchaser shall be held liable for any failure to perform caused by reason of industrial disputes, strikes, lockouts, riots, mobs, fires, floods, wars declared or undeclared, civil strife, embargo, delivery delays or defects or shortages of raw materials or components form suppliers, loss or breakdown or shortage of production equipment, power shortages, currency restrictions, or other events caused by laws, regulations or orders of any government, governmental agency, or any supervening circumstances whatsoever beyond the reasonable control of the party relying on Force Majeure. Notwithstanding anything contained in the proceeding, Purchaser shall not be excused from fulfilling its obligations under the sales contract for reasons of Force Majeure in respect of the Products already shipped and products manufactured in accordance with Purchaser's specifications.

  9. The laws of the Province of Quebec, and Canada shall govern the validity, interpretation, and performance of this contract. This agreement contains all of the representations and agreements between the parties hereto. No modification of these terms and conditions herein, or waiver of the terms or conditions thereof shall be binding on Seller, unless approved in writing by the authorized representatives-Seller’s Officers.

  10. If Purchaser becomes insolvent, is adjudged bankrupt or becomes the subject of dissolution, liquidation or bankruptcy proceedings or applies for judicial or extra judicial settlement with its creditors or makes an assignment for the benefit of its creditors or is threatened by measures such as listed above, Seller may, without prejudice to any of his other rights, stop any Products in transit and/or suspend further deliveries and/or, by written notice to Purchaser, terminate the sales contract.

  11. The Purchaser undertakes not to place any purchases with the Seller, when it knowingly is either insolvent or expects to file for Creditors’ Protection within the following 30 days of such offer to purchase, but if any such purchases are made during such period of time the Officers (individually and severally) of the Seller accept full liability to the Seller for any such undertakings.

  12. Buyer expressly assumes all risk of patent infringement by reason of its use of the material provided hereunder in combination with other material or in operation of any process.

  13. No material will be returned without authorization from Punda. Authorization may be obtained by contacting the Transportation & Sales Department at +1.514.931.7278.

  14. Buyer expressly accepts all Terms and Conditions as specified by the Seller herein.

  15. Sellers and Buyers undertake to co-operate in addressing any commercial differences that may arise between them to the best of their ability.