All sales by Calcium Products, Inc, ("CPI ('s)") are expressly conditioned upon the terms and conditions set forth below. Any additional or different terms or conditions set forth in the purchase order of purchaser or in any similar communication are hereby objected to by the CPI and shall not be binding nor effective unless assented to in writing by an authorized representative of CPI.
Price and Terms:
Unless otherwise stated in a prepay contract, all orders will be invoiced at CPI's prices in effect on the date of shipment, which purchaser agrees to pay. Prices do not include freight, sales, use, excise, value added or similar taxes.
Payment terms are as set forth on the invoice, and overdue accounts shall accrue interest at the rate of one and one half percent (1.5%) per month. Credit shall be subject to the CPI's approval. CPI reserves the right to alter the terms of or fix a limit of credit. Purchaser shall be liable for all costs and fees, including reasonable attorneys fees, which CPI incurs in order to collect on any overdue account.
Minimum Order: The value of any order must be at least 1 ton.
Dealer Account Status: Dealer Accounts with limited purchases and/or consistent late payments may have their accounts closed or be redirected to a qualified distributor for purchases.
Delivery: Goods will be shipped only on instructions from purchaser. If purchaser has two or more Contracts in effect, at the time of shipping, shipping instructions from the earlier contract will apply. Title to and risk of loss of all goods sold hereunder shall pass to purchaser upon their delivery, F.O.B. Gilmore City, Alden, and Fort Dodge, IA. Purchaser to be billed all freight costs and expenses.
Any delivery times or dates stated shall be deemed approximate only and shall not be binding on us.
Force Majeure: Neither party shall be liable for delay in its performance when such delay is due to unforeseen causes beyond its control and without its fault or negligence, including but not limited to acts of God, acts of the public enemy, governmental action, fires, floods, earthquakes, epidemics, quarantine restrictions, labor difficulties, freight embargoes, plant breakdowns, or transportation shortages. Should any of the foregoing occur, at the aggrieved party's option and upon notice to the other party, the aggrieved party's performance may be extended for a time equivalent to the delay. We may also repudiate the contract to the extent that it has not already been fulfilled. This shall give rise to no claims for compensation on the part of the Customer Nothing in this provision shall excuse Buyer from its obligation to make timely payment hereunder.
Shipment and Packing: Unless stated otherwise in these Terms and Conditions or agreed otherwise in writing with the Customer, delivery is effected FOB. With the start of shipment, all risk (breakage, shrinkage etc.) shall pass to the Customer even where delivery has been agreed carriage paid. Transport arrange by CPI will be effected by the first freight company available unless another route or mode of transport has been expressly agreed.
Inspection: If upon receipt of the goods by purchaser the same shall appear not to conform to the purchase order, purchaser shall within forty-eight (48) hours after receipt thereof notify CPI of such condition and afford CPI a reasonable opportunity to inspect the goods and make any appropriate adjustment or replacement. The remedies afforded purchaser under the paragraph entitled "WARRANTY" shall be the exclusive remedies for the defective goods whether or not discovered upon inspection by purchaser. Purchaser shall not delay payment for the goods pending their inspection.
Warranty: CPI warrants that all products (the "Product") will meet or exceed guaranteed analysis printed on delivery invoice. CPI agrees to adjust pricing or replace defects or errors in the Product for a period of 1 week from the initial date of purchase from CPI. All shipping costs incurred in shipping Product from CPI for warranty will be borne by the purchaser.
CPI DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO THE PRODUCT.
CPI's sole liability and the exclusive remedy shall be, at CPI's option, price adjustment or replacement of the Product. CPI makes no additional representations or warranties, express or implied, regarding the Product and/or its use. By way of example, but not of limitation, CPI makes no representations or warranties of merchantability or fitness for a particular purpose.
TESTS HAVE NOT BEEN CARRIED OUT UNDER ALL POSSIBLE USE CONDITIONS AND CPI CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE PRODUCT IS USABLE UNDER ALL USE CONDITIONS.
Purchaser assumes the responsibility for the selection of the Product as being adequate for and appropriate for purchaser's purposes. Ineffectiveness of the Product, or other unintended consequences, may result because of such factors as (but not limited to) the presence of unfavorable geologic or weather conditions, or the manner of use or application, all of which are beyond the control of CPI. All such risks shall be assumed by the Purchaser, user, or its customers' Purchaser agrees that it, its agents, and customers are responsible for determining the nature and use of the goods sold and their suitability for any particular use.
IN NO EVENT WILL CPI BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, EVEN IF THE CPI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
The foregoing warranty extends to all purchasers or owners of the Product during the warranty period. The warranty does not extend to defects to (i) the Product arising out material or workmanship not provided or furnished by the CPI, (i.e. impregnation) (ii) the Product resulting from abnormal use of the Product or use in any manner other than as specified by CPI, (iii) improper handling and storage of Product.
Returns: Any return will be for credit or inventory adjustment only. A fifteen percent (15%) restocking fee will be imposed on all returns for credit unless accompanied by a stock balancing order at least two (2) times the monetary value of the return. Product must be in new, saleable condition and must have been purchased within one (1) year of the date of return. Final decision shall be made after the CPI has inspected the returned Product.
BULK PRODUCTS AND TOTES ARE NOT SEALABLE PRODUCTS. DUE TO CONTAMINATION ISSUES UNDER NO CIRCUMSTANCE WILL BULK PRODUCTS BE ACCEPTED FOR RETURN OR EXCHANGE.
Minimum Advertised Price Policy: Calcium Products actively supports the advertising and promotion of its products by its domestic dealers and distributors. Calcium Products has built a strong reputation and following among consumers. Calcium Products has determined that it shall not support through advertising or promotional materials, cooperative advertising or otherwise, advertisements or promotional materials that have the effect of diminishing or detracting from the perceived value of CPI products.
Effective as of May 1, 2008, Calcium Products has established a Minimum Advertised Price (MAP) on all CPI products. The policy applies to U.S. dealers and distributors.
The MAP policy shall work under the following guidelines:
- The MAP for CPI products shall be listed in the Calcium Products price sheet, price addendums, or other official Calcium Products MAP product schedules for dealers and distributors. MAP pricing is established by Calcium Products for it schedules for dealers and distributors. MAP pricing is established by Calcium Products for its products and may be adjusted by Calcium Products at its sole discretion.
- The MAP policy applies to all advertisements of CPI products in any and all media, including, without limitation, flyers, posters, coupons, mailers, inserts, newspapers, magazines, catalogs, mail order catalogs, Internet or similar electronic media, television, radio, and public signage.
- The inclusion in advertising of free or discounted products (whether made by Calcium Products or another manufacturer) with a product covered by the MAP policy would be contrary to the policy if it has the effect of discounting the advertised price of the covered product below the MAP.
- MAP applies only to advertised prices and does not apply to the price at which the products are actually sold or offered for sale to an individual consumer within the dealer's retail location or over the telephone. Calcium Products dealers and distributors remain free to sell these products at any prices they elect.
- MAP does not establish maximum advertised prices. All dealers and distributors may offer CPI products at any price in excess of the MAP established for such product.
- Calcium Products' MAP policy does not in any way limit the ability of any dealer to advertise that "they have the lowest prices" or "will meet or beat any competitors price", that consumers should "call for a price" or phrases of similar import as long as the price advertised or listed for the products is not less than MAP.
- From time to time Calcium Products may discontinue products or engage in promotions with respect to certain products. In such events, Calcium Products reserves the right to modify or suspend the MAP with respect to the affected products by notifying all dealers of such change. Calcium Products further reserves the right to adjust the MAP with respect to all or certain products at its sole discretion upon 7 days advance written notice to the dealers and distributors, provided that such changes shall apply equally to all Calcium Products dealers and distributors.
- Intentional and/or repeated failure to abide by this policy will result in termination of dealership or distributorship. Calcium Products does not engage in business with dealers or distributors who degrade the image of Calcium Products and its products. Calcium Products will not provide prior notice or issue warnings before taking any action under this policy.
- The terms of this MAP policy are confidential and should not be disclosed to other parties. This MAP policy has been established by Calcium Products to help ensure the legacy of Calcium Products as a top producer of high performance, high quality, professional products and to protect the reputation of its name and products. The MAP policy is also designed to ensure dealers and distributors have the incentive to invest resources into services for Calcium Products customers.
- 1This MAP policy supersedes any previous MAP policies implied or in effect as of May 1, 2008. Liability: Our liability in the event of willful intent or gross negligence or for loss or damage resulting from culpable injury to life, limb or health of the Customer or arising under a warranty of quality or warranty for durability/shelf life shall be as specified in the statutory regulations. In the case of any culpable breach of a material contractual duty, the amount of our liability shall, except in any of the cases referred to under Letter a above, be limited to the amount of loss or damage foreseeable and typical in the case of a contract of the kind in question.
Other than in the cases referred to above, our liability shall be limited to the amount of the contractually owed remuneration or at most USD 10,000.00. The foregoing shall be without prejudice to our liability under the United States Product Liability Act. Insofar as our liability for compensation or damages is barred or limited, this shall also apply to the personal liability for compensation or damages of our employees, representatives and vicarious agents.
Industrial property rights, moulds, tools, confidentiality: Insofar as we provide technical documentation, illustrations, moulds, tools, samples or also tender documents, we reserve title and all copyright and other industrial property rights thereto even if the Customer should have borne all or part of the costs therefore. The aforesaid may not be made accessible to any third party and must be returned to us without delay in the event of an order not being placed. The Customer is prohibited from producing the item of sale, or having it produced by any third party, with the aid of the technical documentation, illustrations, moulds, samples and/or tender documents. If the item of sale is produced in accordance with documents supplied by the Customer, the Customer warrants, and shall have liability therefore, that production and/or supply does not infringe the industrial property rights or other rights of any third party.
Governing Law: All disputes will be governed under the laws of the State of Iowa without regard to its conflicts of laws principles.
Additional Terms and Conditions for Prepay Agreements
Assistance: At Buyer's request, Seller may furnish such technical assistance and information as it has available with respect to the use of the Products delivered hereunder. Unless Seller otherwise agrees in writing all such technical assistance and information will be provided gratis, and Buyer assumes sole responsibility for results obtained in reliance thereon.
Conditions Affecting Seller: All orders or contracts are accepted with the understanding that they are subject to the Seller's ability to obtain the necessary materials or products, and all orders or contracts as well as shipments applicable thereto are subject to Seller's current manufacture / distribution schedules, government regulations, orders, directives, and restrictions that may be in effect from time to time.
Fixed Quantity Tonnage: This contract specifies a fixed number of tons; the Seller's weight taken at shipping points shall govern. Seller shall use its best efforts to deliver the Product by the delivery date stated in the Contract. This contract specifies a fixed quantity, a 4% load variance, will be permissible in the fulfillment of a contract. Any overfills and under fills in excess of the 4% variance will be priced at Seller's market price at the time of delivery.
Price Exclusions: Total price does not include taxes, fees, surcharges, or application costs.
Assignment: This Contract cannot be assigned without the express written consent of both parties. This Contract shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
Cancellation: This Contract is non-cancelable without approval from both parties. Product rollover may be requested by Buyer, but approval is at Seller's discretion. Storage fees shall be at Seller's standard rates.
Waiver: The waiver of any of the terms of this Contract by either party will not be a waiver of any subsequent failure to comply fully with or perform the same or any other term of this Contract.
Payment: Full payment must be received from Buyer by the agreed-upon payment date. If a final payment date is not identified payment shall be made according to the terms of the Seller's standard terms, which will be provided on request. All payments shall be made in U.S. Dollars. In the event of nonpayment Buyer agrees to pay any and all costs of collection, including but not limited to reasonable attorney fees, court costs and other associated expenses.
Interest: In the event of a breach of this Contract, the breaching party shall pay interest on any amount owing to the non-breaching party by reason of the breach, until paid, at the rate of 1.5% per month.
Refusal of Delivery: Buyer understands and acknowledges that Seller, in reliance on this Contract, has or will obligate itself to purchase Products to be available for delivery on the date(s) requested by Buyer. In the event any quantity of Product covered under this Contract cannot be delivered during the specified delivery period as a result of the Buyer's refusal to take delivery, Seller may treat Buyer's refusal as a breach and will be entitled to remedies outlined hereunder.
Merchants: Both parties represent and warrant they are merchants as that term is defined by the Uniform Commercial Code.
Acceptance: Buyer's receipt of any Product delivered hereunder shall be an unqualified acceptance of, and waiver by Buyer of any and all claims with respect to, such Product unless Buyer gives Seller notice of claim within ten (10) days after such receipt. Notice by Buyer under this provision is only effective if written objection is received by Seller's officer or manager at Seller's address set forth in the Contract within the time provided by this provision. Seller shall not be responsible for any claims which are not made in accordance with the provisions of this section. All Products claimed as nonconforming for whatever reason shall be properly protected and held intact by Buyer until settlement is made.
Shortages or damage of product or the presence of foreign material must be brought to the attention of the local rail agent or truck driver at the time of delivery and stated in writing on the delivery papers in order to initiate a claim. Claims on account of weight, quality, loss of or damage to said goods are waived by Buyer unless made in writing upon receipt of product, after arrival of product at destination, and Seller's liability for damages, proven to Seller's satisfaction, shall be to refund to Buyer, if paid, the purchase price of that part of said goods which is subject to the condition or cause on which claim is based, or to replace the goods, and shall in no event exceed the purchase price of the particular delivery with respect to which such damages are claimed. In no event shall Seller be liable for any lost profits or other consequential, special or incidental dames of Buyer or Buyer's customers.
Returns: All returned Product requires Seller's prior written authorization. Any return will be for credit or inventory adjustment only. A fifteen percent (15%) restocking fee will be imposed on all returns for credit unless accompanied by a stock balancing order at least two (2) times the monetary value of the return. Product must be in new, saleable condition and must have been purchased within one (1) year of the date of return. Final decision shall be made after the CPI has inspected the returned Product. Seller reserves the right to reject unconditionally any unauthorized return of Product
DEFAULT: In addition to Seller's remedies under the Uniform Commercial Code, Buyer shall be in default hereunder upon the occurrence of any of the following:
- Failure or refusal of Buyer to comply with any provisions hereof;
- Failure or refusal by any third party to issue, advise, confirm, negotiate, extend or reissue any Letter of Credit or other documentary arrangement provided for hereunder:
- If Buyer or any third party issues a Letter of Credit or other documentary arrangement hereunder shall become unable to pay its debts as they become due, shall file a voluntary petition or be declared bankrupt or insolvent, or make a general assignment for the benefit of creditors; or
- If a Trustee, receiver or liquidator be appointed for any material portion of assets of Buyer or any third party issuer of a Letter of Credit or other documentary arrangement.
REMEDIES: Upon the occurrence of any event of default, Seller may exercise any or all rights and remedies hereunder or at law or inequity, including but not limited to:
- Accelerate and declare all remaining sums due and payable.
- Draw against any Letter of Credit or other documentary arrangement issued hereunder.
- Without notice immediately and without further action, to set off against the liabilities of Buyer hereunder all money owed by Seller to Buyer, or any other person or entity obligated hereunder, in any capacity, whether due or not due; and to set off against all other liabilities of Buyer to Seller all monies owed by Seller to Buyer or any other person or entity obligated hereunder in any capacity, whether due or not due. Seller shall be deemed to have exercised such right of setoff upon the occurrence of any such default.
- Exercise any and all rights to lien, security interest or other charge against any Product sold hereunder or under any other arrangement for the sale of any product to Buyer.
- Withhold delivery of the Product or any other product sold to Buyer.
- Stop delivery by any bailee of any Product sold hereunder or any other product sold to Buyer.
- Resell and recover damages.
- Cancel this Contract.
Arbitration: Any controversy or claim arising out of or relating to this Contract or breach thereof shall be settled in accordance with the arbitration rules of a private arbitration firm doing business in Iowa and reasonably agreed to by the parties. The decision and award determined through such arbitration shall be final and binding upon the parties. Judgment upon the arbitration award may be entered and enforced in any court having jurisdiction thereof. If, for whatever reason, the arbitration rules are determined to be unenforceable by a court of competent jurisdiction, this Contract shall be governed and construed in accordance with the laws of the State of Iowa. Jurisdiction for any court proceedings arising out of, or related to, this Contract shall lie exclusively in the courts of Pocahontas County, Iowa. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Contract. Should litigation arise, the prevailing party is entitled to recover all costs of collection, including reasonable attorney's fees and costs.
Solvency: Both parties represent that they are not insolvent, as that term is defined in the Uniform Commercial Code. If either party's financial condition is unsatisfactory to the other party, the complaining party may suspend its performance until it receives reasonable adequate assurance that the other party is able to fully perform under this Contract.
Entire Agreement: These terms and conditions constitute the entire agreement between the parties with respect to the subject matter hereof as of the date hereof and supersede all previous understandings, representations, proposals, and discussions, whether oral or written, between the parties concerning the subject matter hereof. All rights of the parties hereunder are separate and cumulative and not one of them, whether or not exercised shall be deemed to be an exclusion of any of the other rights and shall not limit or prejudice any other legal or equitable right which either party may have.