LUXCO WAX
General Terms and Conditions of Sale (The
“Agreement”)
1. Terminology
1.1
Lux
International Corp is hereinafter termed “Luxco Wax”. The party who places the
Order is hereinafter termed the “Purchaser”.
1.2 The goods covered by the Order are hereafter
termed the “Product”.
1.3 “Performance” shall mean the
service, shipment, or product, or any combination of them provided by Luxco Wax
to Purchaser.
1.4
“Order”
shall mean Purchaser’s requested performance as described in Purchaser’s Order.
1.5
“Equipment”
shall mean truck, railcar, container, drum, or any equipment used to store,
transport, or handling the Product.
1.6
Whenever
the context so permits, the use of the plural shall include the singular and
the singular shall include the plural.
2. Conditions
2.1
The
conditions set forth in this General Terms and Conditions of Sale shall apply
to the Order and notwithstanding any conflicting terms or conditions contained
in Purchaser’s purchase order. Purchaser’s acceptance of the Performance shall
constitute Purchaser’s agreement to the terms and conditions herein.
2.2
The
agreed Performance, including but not limited to Product, specification, price,
terms of payment, method of delivery, and freight term shall be governed
by Luxco Wax’s confirmation of the Order
and this Agreement.
2.3
Purchaser
accepts the responsibility to verify all information in the Order. The Order combined
with this Agreement, shall constitute the final terms and conditions of the
Order unless Purchaser notifies Luxco Wax in writing of the contrary at least
two business days prior to the shipment.
2.4
In case
of conflicting term(s) between the Order and this Agreement, the term(s)
stipulated in this Agreement shall prevail.
3. Quality
and Claim
3.1 The
Product sold and purchased in terms of this Agreement shall conform to the
specification explicitly indicated by Luxco Wax
3.2
Certificates of analysis provided or
obtained by Luxco Wax shall be deemed conclusive evidence of the matters stated
therein.
3.3
All expenses and costs, relating to Luxco
Wax’s collection of the outstanding account balance from the Purchaser, shall
be paid by Purchaser if a collection action is taken by Luxco Wax, through a
third party or legal process.
3.4
Claims on account of weight, quality, loss
of or damage to the Products are waived unless made in writing to Luxco Wax
within 10 calendar days after the Products have been delivered. Products which
do not conform to specification or any other matter must be verified and
confirmed by Luxco Wax’s representative, or by a neutral third party acceptable
by Luxco Wax (in this case the third party certificate and its detail findings,
supporting such claim, shall be made available to Luxco Wax.
3.5
Should the Purchaser fail to give such
notice within 10 calendar days after the delivery, the Products shall
conclusively presume to be in all respects in accordance with the Agreement and
free from any defect.
3.6
In the event that Luxco Wax is satisfied
that the Products are not in accordance with the Agreement or are so defective,
Luxco Wax may elect to replace such quantity of Product which does not conform
to specification by an equal quantity of Product or alternatively refund the
purchase price to the Purchaser against return of the Products or refund the
purchase price less the best value at which the Products can be disposed of.
3.7
Luxco
Wax may change or alter the specifications of the Products. Luxco Wax will give
Purchaser 30 days written notice of any proposed specification change. If Purchaser
cannot accept the change, Purchaser may cancel purchase of the Products.
3.8
The Purchaser may not return the Product to
Luxco Wax for any reason without an Authorized Return Number issued by Luxco
Wax.
3.9
No Claim amount shall be used to offset
customer’s outstanding account payable balance owed to Luxco Wax.
4
Quantity
4.1
Luxco
Wax’s weights taken at shipping points shall govern.
4.2
Weighbridge
certificates provided or obtained by Luxco Wax shall be deemed conclusive
evidence of the quantities stated therein.
4.3
Shipment
Quantity of within 10% of the Order quantity shall be accepted by Purchaser as
complying with the Order, although Purchaser must pay for only the quantity
actually delivered.
4.4
For
product delivered in bulk tank trucks, bulk tank cars, or packaged shipments,
claims may not be made for shortage of less than 0.5% of net weight.
5 Price
and Payment
5.1
Prices
for the Products sold under the Order shall be Luxco Wax’s prices in effect on
the date of shipment, unless otherwise agreed in writing. Luxco Wax reserves the right to change the
price without prior notice, except otherwise agreed.
5.2
The
terms of payment are agreed before the first purchase, or when the account is
set up. Luxco Wax reserves the right to change the payment term without any
prior notice.
5.3
Purchaser
will also pay any applicable taxes. All payments to be made by the Purchaser to
Luxco Wax hereunder, shall be made gross and without any deduction whatsoever
in respect of taxes, withholdings or otherwise.
5.4
Failure
to settle an account by the due date shall entitle Luxco Wax to charge the Purchaser
interest at a rate of one and a half percent per month, or the maximum
allowable by applicable law(s).
5.5
Customer’s
outstanding account payable due to Luxco Wax shall be paid in accordance with
the payment term established and not be offset by any claim or contra account
unless specifically agreed by Luxco Wax in writing.
6
Title, Risk and Delivery
6.1
Risk in
respect of the Product shall pass to the Purchaser on delivery as set out in
the relevant Incoterm.
6.2
Unless
it is otherwise indicated elsewhere in this agreement, delivery and sales terms
are FOB shipping point.
6.3
Ownership of the Product shall pass
from Luxco Wax to the Purchaser upon receipt of the Product by the Purchaser.
6.4
In the
event that the Purchaser fails or neglects to pay the purchase price on the due
date, Luxco Wax shall have the option at its absolute discretion to recover the
Product, and claim costs incurred, and or to take legal action for the
collection of the purchase price. In the event that such Product is delivered
into Equipment which is the property of the Purchaser, the parties agree that
although the Purchaser’s and Luxco Wax’s Product may have become mixed in the
equipment, the Product withdrawn by Luxco Wax in terms of this clause up to the
quantity delivered by Luxco Wax will be regarded as the sole property of Luxco
Wax.
6.5
Luxco
Wax will endeavor to dispatch the Products promptly and within the time
indicated. All delivery dates specified or notices given are approximate. Luxco
Wax will use all reasonable efforts to make deliveries in accordance with
requested dates. However, Luxco Wax
does not guarantee such dates and accepts no responsibility of failure to meet
such delivery dates.
6.6
Luxco
Wax may execute an Order in full shipment or in partial shipment, in which case
all terms and conditions applicable to the whole shall apply to the partial
fulfillment.
6.7
Should
Luxco Wax be prevented from effecting delivery of the Performance, or Product
or any part thereof by reason of any cause whatsoever beyond the control of
Luxco Wax, the time for delivery shall be extended until a reasonable time
after the operation of the preventing cause has ceased.
6.8
Luxco
Wax shall not be liable for any loss or damage that may occur as a result of
the delays referred to in clauses 6.5 & 6.7.
7
Containers and Railcars
Purchaser is responsible for protecting and returning in
good condition any returnable drums or other containers, or railcars provided by
Luxco Wax. Purchaser is responsible for ensuring that such drums, containers or
railcars are empty before return. Railcars for bulk shipments will be furnished
to Purchaser without charge for a period prescribed by Luxco Wax. Such railcars
may be retained thereafter only with Luxco Wax’s prior consent and subject to
Luxco Wax’s current daily charges.
8
Indemnity
8.1
The
Purchaser indemnifies Luxco Wax and holds Luxco Wax harmless against any claims
or actions resulting from:
8.1.1 any
unauthorized representations or Product warranties made by the Purchaser;
8.1.2
any
negligent acts of the Purchaser or its employees or contractors regarding the
Products or the handling, mixing with other products, and use of the Products;
8.1.3
any
loss, damage or liability resulting from, or arising out of the handling, use,
transport or storage of the Products after they have been delivered in
accordance with the Order.
8.1.4
claims
by third parties for damage, death or injury arising from the Purchaser’s
failure to provide them with information in respect of, but not limited to,
inherent hazards, correct use or storage of the Product.
8.2
The
Purchaser acknowledges that it is familiar with the use, characteristics and
inherent dangers, if any, of the Product.
8.3
The
Purchaser acknowledges that the Product may require special handling, storage,
transportation, treatment or use to comply with applicable safety and
environmental laws, and Purchaser will take all action necessary to comply with
these laws and avoid spills or other dangers to persons, property or the
environment.
9
Liability
9.1
Luxco
Wax does not give any warranties in respect of the Products or their use (all
warranties implied by law are expressly excluded). The Purchaser waives any
claim for loss, damage or liability which it might have against Luxco Wax
arising from, but not limited to, claims based on the Products not being
suitable for the Purchaser’s purposes.
9.2
Notwithstanding
anything contained herein or elsewhere, Luxco Wax shall not be liable for any
consequential loss such as, but not limited to loss of profit, loss of
production and loss of market share. In all instances Luxco Wax’s liability
shall be limited to the replacement of the Products concerned at no cost to the
Purchaser or reimbursement of the purchasing price as set out in paragraph 3.6.
9.3
Any
action that the Purchaser may have against Luxco Wax which may arise under this
contract must be commenced within one (1) year after the cause of action has occurred.
10
Warranty
The Purchaser warrants that he has
complied with all statutory requirements and is in possession of all the
necessary permits, authorizations or any other official documents required for
the purchase of Luxco Wax’s Products. The Purchaser indemnifies and holds Luxco
Wax harmless for any loss or damage, direct or consequential, caused by or
arising from a breach of the warranty contained in this clause.
11
Variation of Agreement
11.1
These
Terms and Conditions, read with any Annexures thereto, constitute the sole
agreement between the Parties in regard to the subject matter thereof and
supersede all prior and contemporaneous negotiations, offers, discussions,
promises, representations, agreements and understandings of the Parties with
respect thereto. Any inconsistencies introduced by the Purchaser’s Order shall
not apply unless expressly agreed to in writing by Luxco Wax.
11.2
No
addition to or variation or agreed cancellation of this Terms and Conditions
shall be of any force or effect unless agreed to in writing by or on behalf of
the Parties.
12
Intellectual Property
12.1
Except
as otherwise agreed upon in writing by the parties, the proprietary interests
of all intellectual property in relation to the Product shall remain vested in
Luxco Wax and no part of these Terms and Conditions shall be construed as
investing upon the Purchaser any right, title or interest to such intellectual
property.
12.2
If the
Purchaser uses or sells the Product in such a manner as to infringe any patent
rights of any third party, Luxco Wax shall not be held responsible or
accountable for such infringement nor for any alleged infringement arising from
the Purchaser’s action in relation to the Product and the Purchaser hereby
agrees to indemnify Luxco Wax from and against all liability including legal
costs arising there from.
12.3
Except
as permitted by express prior consent in writing by Luxco Wax, the Purchaser
shall not use or cause or allow to be used by any other person or entity over
which its exercises control either directly or indirectly (“Controlled
Persons”) as a part of any company or business name, or in any other manner in
connection with the advertising and sale of the Product(s), any trademark or
trade name adopted, owned, or used by Luxco Wax.
12.4
The
Purchaser agrees not to use any Luxco Wax Trademarks for the purpose of
representing, selling, and offering for sale or use, any goods other than the
Product(s).
12.5
Immediately
upon termination of this Agreement, the Purchaser shall remove from its
premises and discontinue the use of any and all signs, labels, stationery,
advertising, and reading materials with Luxco Wax Trademarks that, in Luxco
Wax’s opinion, may create confusion.
13
Confidentiality
13.1
The
Purchaser undertakes to treat as confidential and not to use or disclose to any
third party without Luxco Wax’s prior written consent any information,
technical knowledge, specifications, chemical make-up, data, materials and/or
other communications of a confidential nature, either in tangible or
non-tangible form, relating to or useful in connection with the design,
construction or operation of the facilities and/or feedstock and/or products
and/or business of Luxco Wax, disclosed to the Purchaser or that came to the Purchaser’s
knowledge pursuant to its contact with Luxco Wax.
13.2
This
undertaking excludes information which the Purchaser can establish (a) at the
time of disclosure, is, or, after disclosure, becomes generally known or
available to the public through no act or failure to act by the Purchaser; (b)
was already known to it prior to the disclosure by Luxco Wax; or (c) was
rightfully acquired and free from restriction from a third party having an
unrestricted right to disclose the same. For the avoidance of doubt Luxco Wax
Marketing Brochures and Industrial SMDS’ are considered to be public domain
information
14
Governing Law and
Jurisdiction
This
Agreement shall be governed and construed in accordance with the laws of the
State of California, USA.
15
Notices
All notices given in terms of this
Agreement will be delivered to the parties at the respective addresses stated
in the Order until changed in writing by either party.
16
Assignment
This Agreement is between Luxco Wax
and the Purchaser as principals and is not assignable by either party except
with the written consent of the other party.
17
Force Majeure
17.1
Neither
party shall be liable for its failure to perform due to contingencies
reasonably beyond its control, including, but not limited to, acts of God,
flood, fire, war, accident, labor disputes or shortages, riots, sabotage,
governmental laws, ordinances, rules and regulations, lack of equipment or
feedstock, or inability to transport Product.
The affected party will give the other party reasonable notice of any
such contingency. In the event that Luxco Wax is unable under existing
conditions to supply the requirements of all its customers, Luxco Wax may
distribute its available supply among its customers, including affiliates,
departments and divisions of Luxco Wax, on such basis as Luxco Wax may deem
fair and reasonable. Luxco Wax shall
have the right to omit during the period of such contingency all, or any
portion of the quantity so omitted. The Purchaser hereby releases Luxco Wax
from liability for any resulting incomplete fulfillment of this Agreement.
17.2
Force
majeure notwithstanding, the Purchaser shall not be relieved from payment of
any amount due in terms of this Agreement.
1 March 2008