LUBRIZOL - TERMS AND CONDITIONS OF SALE
THESE APPLY TO ALL PURCHASES FROM LUBRIZOL AND ITS SUBSIDIARIES AND AFFILIATES, UNLESS OTHERWISE AGREED IN A DOCUMENT SIGNED BY BOTH PARTIES
Lubrizol Standard terms and Conditions for Supplies from Non-European Facilities
Lubrizol's European Standard Terms and Conditions of Sale
Lubrizol Standard Terms and Conditions for Supplies from Singapore
Lubrizol European Distribution Policy
LUBRIZOL STANDARD TERMS AND CONDITIONS FOR SUPPLIES FROM NON-EUROPEAN FACILITIES
THESE TERMS AND CONDITIONS APPLY TO ALL PURCHASES FROM LUBRIZOL AND ITS SUBSIDIARIES AND AFFILIATES, UNLESS OTHERWISE SPECIFIED IN PURCHASE DOCUMENTS OR AGREED IN A DOCUMENT SIGNED BY BOTH PARTIES.
1. Prices, Taxes and Permits: Unless otherwise expressly agreed in writing (a) all prices are subject to change without notice, (b) Seller’s price shall be its price in effect at the time of shipment and (c) all prices exclude sales, use, franchise, license, excise and other taxes in respect of manufacture, sale or delivery of the goods furnished hereunder, export or import duties and inspection fees, all of which shall be paid by Buyer unless a proper exemption certificate is furnished.
2. Terms of Payment: Unless otherwise agreed in writing, and subject to on-going credit approval, the terms of payment shall be net thirty (30) days from date of invoice, and payment shall be cash in United States funds payable pursuant to Seller’s instructions. Seller reserves the right to withhold shipment for non-payment and to make delivery in installments, and all such installments are to be separately invoiced and paid for at the then current price when due per invoice, without regard to subsequent deliveries.
3. Delivery: Unless otherwise agreed in writing, delivery will be f.o.b. shipping point at plant of manufacture. Delivery dates are approximate and subject to confirmation.
4. Risk of Loss: Buyer assumes all responsibility for risk of loss of, or damages to or caused by, the goods furnished hereunder, at the plant of manufacture upon the earlier of delivery by Seller or the shipment leaving the plant, including, without limitation, losses and damages arising from unloading, discharge, storage, handling and use. If the Buyer delays shipment, payments are to be made as specified and the goods furnished hereunder shall be held at Buyer’s risk and subject to reasonable storage charges. If goods are furnished in tank cars provided by Seller, Buyer agrees to unload shipments within 48 hours after receipt, agrees to pay Seller a reasonable charge for failure to so comply and Buyer agrees to pay any demurrage charges at a rate of US$50 per tank car per day.
5. Warranties: Seller warrants to Buyer that, at the time of shipment, the goods furnished hereunder will conform to Seller's agreed to specifications. Recommendations of Seller, if any, for the use of the products sold hereunder are based upon laboratory tests believed to be reliable, but Seller makes no warranty of any results Buyer might obtain in any particular application. The obligation of Seller and the Buyer’s sole and exclusive remedy hereunder, shall be limited, at the Seller’s option to replacement at Buyer’s plant of any defective goods or refund of the purchase price thereof. Buyer shall not return goods unless authorized in writing by Seller. Seller shall have the right to inspect the goods at Buyer’s installation. Buyer’s failure to give written notice that goods are non-conforming within 30 days of delivery shall constitute a waiver by Buyer of all claims for product defects. Notwithstanding the foregoing warranties and remedies, Seller shall have no obligation hereunder if the goods become defective as a result of improper storage, contamination, adulteration, improper use or misapplication after delivery thereof to Buyer. Buyer assumes all risk of patent infringement by reason of any use Buyer makes of the product in combination with other substances or in the operation of any process. The above warranties extend only to the Buyer.
EXCEPT AS SET FORTH HEREIN, IT IS EXPRESSLY AGREED (a) THAT THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NOR OTHER WARRANTY, EXPRESS, IMPLIED OR STATUTORY, BY THE SELLER WITH REFERENCE TO THE GOODS WHICH EXTENDS BEYOND THE SPECIFICATIONS MUTUALLY AGREED UPON IN WRITING BY THE SELLER AND THE BUYER AND (b) THAT THE BUYER ACKNOWLEDGES THAT IT IS PURCHASING THE GOODS SOLELY ON THE BASIS OF THE COMMITMENTS OF THE SELLER EXPRESSLY SET FORTH HEREIN.
6. LIMITATION OF LIABILITY: IN NO EVENT SHALL THE SELLER BE LIABLE FOR ANTICIPATED PROFITS, FOR DAMAGES ON ACCOUNT OF NEGLIGENCE, OR FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES. THE SELLER’S LIABILITY ON ANY CLAIM OF ANY KIND, FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THIS AGREEMENT, OR FROM THE PERFORMANCE OR BREACH THEREOF, SHALL IN NO CASE EXCEED, AT THE SELLER’S OPTION THE PURCHASE PRICE ALLOCABLE TO THE GOODS OR UNIT THEREOF WHICH GIVES RISE TO THE CLAIM OR THE REPLACEMENT OF SUCH DEFECTIVE GOODS BY THE SELLER, OR FOR UNDELIVERED GOODS, THE DIFFERENCE BETWEEN THE MARKET PRICE AND SELLER’S PRICE. SELLER SHALL NOT BE LIABLE FOR PENALTY CLAUSES OF ANY DESCRIPTION.
7. Patent Indemnity: In the event of any award of damages by a United States Federal Court from which no appeal can be taken against Buyer arising out of a claim of infringement by the goods supplied hereunder, of any existent valid U.S. patent owned by a third party, Buyer and Seller agree that Seller shall indemnify Buyer for such damages to the extent specified in Sections 5 and 6 hereof, provided Buyer notifies Seller in writing within ten (10) days from the receipt by Buyer of the first notice of said claim of infringement. Seller, as its option shall have the right to participate in the defense of any such infringement action. Such participation, however, will not constitute any admission of liability upon Seller’s part. Any indemnification by Seller will be conditioned upon Buyer’s full assistance and cooperation in the defense of any such action. Seller shall have no obligation or other liability to Buyer for infringement arising from the use of the goods furnished hereunder in the operation of any process or in combination with other materials or arising from any alteration in the goods made by Buyer. Buyer agrees to indemnify and save harmless Seller in a similar fashion where the alleged infringement is a result of application or use to which said goods are put by Buyer or by others. The foregoing provisions of this Section 7 state the entire liability of the Seller with respect to potential claims of patent infringement by the goods furnished hereunder and are given in lieu of all other warranties, express or implied, respecting infringement.
8. Force Majeure: Either party shall be relieved from liability hereunder for failure to perform any of the obligations herein imposed, except the obligation to pay for the product already delivered, for the time and to the extent of such failure to perform, if Buyer's failure to take, use or consume, or Seller's failure to make delivery, is occasioned by any cause or causes of any kind or character reasonably beyond the control of the party failing to perform (any such cause herein called "force majeure") , including, without limitation: Acts of God, accidents, fire, explosion, flood, hurricanes; strikes, lockouts or other industrial disturbances, riots or civil commotion; war, declared or undeclared; compliance with any Federal, State, Municipal or Military law, regulation, order, or rule, foreign or domestic, including priority, rationing, allocation or pre-emption orders or regulations affecting the conduct of Seller’s business which Seller in its judgment and discretion deems it advisable to comply with as a legal or patriotic duty, or cancellation of Seller's or Buyer's license to operate its plant; shortage or breakdown or other failure of facilities used for manufacture or transportation, shortage of labor; inability to secure, all at reasonable prices or on account of shortages, transportation, power, fuel, materials or supplies; or total or partial shutdown due to Seller's normal plant turnaround or as required by Seller’s operation. It is not within the contemplation of the parties that costs associated with the manufacture of products sold hereunder (e.g., transportation, utilities and materials) would increase more than ten percent during the term of this Agreement. In the event of either party being rendered unable by force majeure to carry out its obligations under this contract, other than to make payments due hereunder, such party shall give notice and full particulars including the expected duration of such force majeure in writing, and upon the giving of such notice the obligations of the party giving such notice, so far as they are affected by such force majeure shall be suspended during the continuance of any inability so caused but for no longer period, and such cause shall be so far as possible remedied with all reasonable dispatch. Upon the cessation of the cause or causes for any such failure or delay, performance hereof shall be resumed, but such delay shall not, except by mutual agreement, operate to extend the term of this contract or obligate the Seller to make up deliveries or Buyer to purchases quantities so missed. It is understood and agreed that the settlement of strikes or lockouts involving the parties hereto shall be entirely within the discretion of the party having the difficulty, and that the above requirements that any force majeure shall be remedied with all reasonable dispatch shall not require the settlement of strikes or lockouts by acceding to the demands of the employees involved, when such course is inadvisable in the discretion of the party having the difficulty. Seller shall not be responsible for reasonable delays in filling any order when due. “Reasonable delays” include, without limitation, delays to which the Buyer, when notified, makes no objection. In the event of any such delay, the date of delivery shall be extended for a period equal to the time lost by reason of the delay. In the event of inability, for any reason, to supply the goods to be furnished hereunder, Seller may allocate its available supply of goods or raw materials among any or all Buyers, as well as departments, divisions, subsidiaries or affiliates of Seller or among Seller’s product lines on such basis as Seller may deem practical without liability for any failure of performance which may result therefrom.
9. MSDSs: Buyer acknowledges that Seller has furnished to Buyer Material Safety Data Sheets, including warnings and safety and health information concerning the products and/or the containers for such products sold hereunder. Buyer agrees to disseminate such information so as to give warning of possible hazards to persons whom Buyer can reasonably foresee may be exposed to such hazards, including, but not limited to, Buyer's employees, agents, contractors and customers. If Buyer fails to disseminate such warnings and information, Buyer agrees to indemnify, defend and save Seller harmless against any and all liability arising out of or in any way connected with such failure, including but not limited to liability for injury, sickness, death and property damage.
10. Governing Terms and Conditions: Handbooks and catalogs supply general information and are not considered offers to sell on the part of the Seller. Sale of the goods furnished hereunder is expressly conditioned upon Buyer’s assent to the terms and conditions set forth herein. If the terms and conditions stated in Buyer’s order are inconsistent with the terms and conditions contained herein, Seller's acceptance of said order shall constitute a counteroffer, and Buyer shall be deemed to have accepted these Terms and Conditions unless Buyer notifies Seller to cancel Buyer’s order within five days of the first to occur of its receipt of or knowledge of applicability of Seller’s Terms and Conditions of Sale.
11. Severability Clause: The invalidity or unenforceability of any one or more phrases, sentences, or Sections in these Terms and Conditions shall not affect the validity or enforceability of the remaining portions of these Terms and Conditions, or any part thereof. However, Seller shall have the right to terminate this agreement if any provision related to price is invalid or unenforceable.
12. Law: This Agreement shall be interpreted under the law of the State of Ohio, USA without regard to the provisions related to conflicts of law. Disputes shall be submitted to either the courts in the state of Ohio, USA. Headings are for reference only. Buyer hereby acknowledges that Seller has sufficiently called to Buyer’s attention the underlined and boldfaced provisions which release or mitigate Seller’s liability and responsibility.
Lubrizol’s Standard Terms and Conditions of Sale (Americas)
Rev. December 17, 2007
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LUBRIZOL’S EUROPEAN STANDARD TERMS AND CONDITIONS OF SALE
These TERMS and CONDITIONS of SALE apply to all shipments and delivery of products from LUBRIZOL facilities in Europe, (Seller), to Buyer. They cannot be derogated or changed without a written notice agreed and signed by Seller.
1) Contract formation
Seller will be bound only after a written confirmation has been issued in the form of an acknowledgement of receipt of the order. Prices, products, quantities or volumes mentioned on the acknowledgement of receipt as well as INCOTERMS of reference, remain valid for a 30 days period.
2) Delivery and risk
a) Risk of damage to or loss of the product and title to such product shall pass to Buyer upon delivery which shall be deemed to take place when products are in the physical possession of Buyer or any person authorized to act on behalf of Buyer in accordance with the specified INCOTERM. In the absence of a specified INCOTERM, product is sold Free Carrier (FCA).
b) Any claim for damage, loss, weight discrepancy, must be made and received both by Carrier and Seller within 3 days of delivery. In the absence of any such notification, weight or volume of products shall be deemed to be the weight or volume declared by Seller.
c) For Bulk delivery, seller reserves the right to deliver against any order an excess or deficiency of +/- 300 kg or 2% of weight or volume and to invoice accordingly.
d) No return of products will be accepted without the express prior agreement of Seller.
e) Discharge operations shall always be Buyer’s liability.
f) Buyer shall discharge within 3 hours of arrival at Buyer’s place of delivery. Buyer shall indemnify Seller against any loss, damage and other cost arising from any failure to discharge.
3) Payment
a) Payments shall be received within 30 days following the invoice date.
b) Seller reserves the right to charge interest on any sum not received on due date. Interest rate on overdue account will be the base or legal bank rate of country of shipment, multiplied by 3.
c) Should Buyer fail to pay any invoice on due date, all invoices rendered and unpaid shall be payable immediately, and shall be treated, for all purposes, as a sum not received on due date.
4) Warranties and liabilities
a) Seller warrants that products shall comply with Seller’s specification. Seller has no control on the use and destination of products, and accordingly no liability attached.
b) Seller warrants that to the best of its knowledge that the sale of the products does not infringe a patent of any third party. In the event that Buyer receives notice of a claim that the offer or sale of products infringes a patent of a third party, Buyer must notify Seller in writing within ten (10) days of the receipt of such notice. In the event a patent infringement action is brought, Seller shall have the right to participate in the defense of such action. Such participation shall not constitute an admission of liability by the Seller. Any indemnification by Seller will be conditioned on Buyer’s full assistance and cooperation in the defense of any such action. Seller shall have no obligation or other liability to Buyer for infringement arising from the use of the product furnished hereunder in the operationof any process or in combination with other materials or resulting from any alteration in the product when used by Buyer.
c) Seller’s liability shall be limited to the invoiced value of delivered products. Seller shall not be liable for any other consequential pureeconomic loss or damage.
5) Force Majeure
Neither party shall be liable to the other party in any way if such party is temporarily prevented by Force Majeure from carrying out its obligations under this Contract. Party claiming to be excused under this reason shall give prompt notification to the other party and shall resume performance of its obligations hereunder immediately following cessation of the cause. An event of Force Majeure includes; acts of God, accidents, fire, explosion, flood, storms, strikes, riots, civil commotion, war (declared or undeclared), restrictions or prohibitions imposed by public authorities, government and/or regulation, and any other occurrence that is considered an event of Force Majeure under the laws of Seller’s country.
6) Ethical conduct
Buyer engages to comply with all laws governing its activity, and consequently shall fully assume all administrative and legal consequences in case of non compliance with these regulations, without Seller’s liability be involved. Seller has elaborated a “Policy on Ethical and Legal Conduct” governing its worldwide operations in a manner consistent with the highest moral and ethical standards. In case of non compliance of Buyer to this Policy, available on request, Seller should terminate contract immediately, without indemnity for Buyer.
7) Trade marks and patents
Contract shall not confer to Buyer any intellectual or industrial rights.
9) Applicable Law and Jurisdiction
Contract shall be governed by the Law of the country of Seller. Parties irrevocably agree that any legal action or proceedings shall be brought before the Court in the country of the Seller, and that Court is agreed to be the sole Court with competent jurisdiction.
As required by French regulation, a French version of these T&C is available on request
July 2009
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Lubrizol Standard Terms and Conditions for Supplies from Singapore
1. Prices. Taxes and Permits: All prices are subject to change without notice. Seller’s price shall be its price in effect at the time of shipment. All prices exclude sales, use, franchise, license, excise and other taxes in respect of manufacture, sale or delivery of the goods furnished hereunder, export or import duties and inspection fees, all of which shall be paid by Purchaser unless a proper exemption certificate Is furnished.
2. Terms of Payment: Shall be in accordance with the agreed payment term between Seller and Purchaser, and payment to be in United States Dollars.Seller reserves the right to make delivery in installments, and all such installments are to be separately invoiced and paid for at the then current price when due per invoice, without regard to subsequent deliveries.
3. Delivery and Risk of Loss: Delays: Delivery will be in accordance with the agreed incoterms 2000.Delivery dates are approximate and subject to confirmation.
4. Risk of Loss: Purchaser assumes all responsibility for risk of loss of, or damages to, the goods furnished hereunder, upon delivery by Seller. If the Purchaser delays shipment, payments are to be made as specified and the goods furnished hereunder shall be held at Purchaser’s risk and subject to reasonable storage charges. If the goods furnished hereunder are shipped in tank cars furnished by the Seller, the Purchaser agrees that such tank cars will be unloaded within forty-eight (48) hours (Sundays and holidays excepted) after receipt thereof, except as otherwise agreed to by Seller, and Purchaser agrees to pay Seller a reasonable charge for failure to so comply and Purchaser agrees to pay any demurrage charges of any railroads.
5. Delays: Seller shall not be responsible for reasonable or excusable delays in filling any order when due. “Excusable delays” include, without limitation, delays resulting from: accidents; acts of God; strikes; riots; civil commotion; fires; floods; freight embargoes or transportation delays; shortage of labor; inability to secure fuel, materials, supplies or power, all at present prices or on account of shortages thereof; any existing or future laws, acts, regulations, orders, requests or decrees, of the Federal or of any State Government affecting the conduct of Seller’s business which Seller in its judgment and discretion deems it advisable to comply with as a legal or patriotic duty; or other causes beyond Seller’s control. “Reasonable delays” include, without limitation, delays to which the Purchaser, when notified, makes no objection. In the event of any such delay, the date of delivery shall be extended for a period equal to, the time lost by reason of the delay. In the event of inability, for any reason, to supply the goods to be furnished hereunder, Seller may allocate its available supply of such goods or raw materials among any or all purchasers, as well as departments, divisions, subsidiaries or affiliates of Seller or among Seller’s product lines on such basis as Seller may deem practical without liability for any failure of performance which may result therefrom.
6. Warranties: The Seller warrants to the Purchaser that the goods furnished hereunder will, for a period of sixty (60) days from shipment conform to Seller's agreed to specifications. The obligation of the Seller, and the Purchaser’s sole and exclusive remedy hereunder, shall be limited, at the Seller’s option to replacement at Purchaser’s plant of any defective goods or refund of the purchase price thereof. Purchaser shall not return goods unless authorized in writing by Seller. Seller shall have the right to inspect the goods at Purchaser’s installation. Purchaser’s failure to give prompt written notice (30 days) upon discovery of any alleged defect shall constitute a waiver by Purchaser of all claims with respect thereto. Notwithstanding the foregoing warranties and remedies. Seller shall have no obligation hereunder if the goods become defective as a result of improper storage, contamination, adulteration, improper use or misapplication after delivery thereof to Purchaser.
EXCEPT AS SET FORTH HEREIN, IT IS EXPRESSLY AGREED (a) THAT THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NOR OTHER WARRANTY, EXPRESS, IMPLIED OR STATUTORY, NOR ANY AFFIRMATION OF FACT, OR PROMISES, BY THE SELLER WITH REFERENCE TO THE GOODS WHICH EXTENDS BEYOND THE SPECIFICATIONS MUTUALLY AGREED UPON IN WRITING BY THE SELLER AND THE PURCHASER AND (b) THAT THE PURCHASER ACKNOWLEDGES THAT IT IS PURCHASING THE GOODS SOLELY ON THE BASIS OF THE COMMITMENTS OF THE SELLER EXPRESSLY SET FORTH HEREIN.
7. Patent Indemnity: In the event of any award of damages by a United States Federal Court from which no appeal can be taken against Purchaser arising out of a claim of infringement by the goods supplied hereunder, of any existent valid U.S. patent owned by a third party, Purchaser and Seller agree that Seller shall indemnify Purchaser for such damages to the extent specified in Sections 6 and 8 hereof, provided Purchaser notifies Seller in writing within ten (10) days from the receipt by Purchaser of the first notice of said claim of infringement. Seller, as its option shall have the right to participate in the defense of any such infringement action. Such participation, however, will not constitute any admission of liability upon Seller’s part. Any indemnification by Seller will be conditioned upon Purchaser’s full assistance and cooperation in the defense of any such action. Seller shall have no obligation or other liability to Purchaser for infringement arising from the use of the goods furnished hereunder in the operation of any process or in combination with other materials or arising from any alteration in the goods made by Purchaser.
Purchaser agrees to indemnify and save harmless Seller in a similar fashion where the alleged infringement is a result of application or use to which said goods are put by Purchaser or by others.
The foregoing provisions of this Section 7 state the entire liability of the Seller with respect to potential claims of patent infringement by the goods furnished hereunder and are given in lieu of all other warranties, express or implied, respecting infringement.
8. LIMITATION LIABILITY: IN NO EVENT SHALL THE SELLER BE LIABLE FOR ANTICIPATED PROFITS, FOR DAMAGES ON ACCOUNT OF NEGLIGENCE, OR FOR INCIDENTAL OR CONSEQUENTIAL OF DAMAGES. THE SELLER’S LIABILITY ON ANY CLAIM OF ANY KIND, FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THIS AGREEMENT, OR FROM THE PERFORMANCE OR BREACH THEREOF, SHALL IN NO CASE EXCEED, AT THE SELLER’S OPTION THE PURCHASE PRICE ALLOCABLE TO THE GOODS OR UNIT THEREOF WHICH GIVES RISE TO THE CLAIM OR THE REPLACEMENT OF SUCH DEFECTiVE GOODS BY THE SELLER. SELLER SHALL NOT BE LIABLE FOR PENALTY CLAUSES OF ANY DESCRIPTION.
9. Governing Terms and Conditions: Handbooks and catalogs supply general information and are not considered offers to sell on the part of the Seller. Sale of the goods furnished hereunder is expressly conditioned upon Purchaser’s assent to the terms and conditions set forth herein. If the terms and conditions stated in Purchaser’s order are inconsistent with the terms and conditions contained herein, Seller's acceptance of said order shall constitute a counteroffer, and Purchaser shall be deemed to have accepted these Terms and Conditions unless he notifies Seller to the contrary in writing within five days after receiving Seller s acceptance of order.
10. Severability Clause: The invalidity or unenforceability of any one or more phrases, sentences, or Sections in these Terms and Conditions shall not affect the validity or enforceability of the remaining portions of these Terms and Conditions, or any part thereof.
11. Law: This Agreement shall be interpreted under the law of the State of Ohio without regard to the provisions related to conflicts of law.
terms and condition of sale.doc
Mar 23, 2005
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