Tiger-Sul Terms and Conditions of Sale
1. General. These Terms and Conditions of Sale, together with the applicable terms of the invoice or sale confirmation to which they relate, are the sole terms governing the sale of products (“Products”) by Tiger-Sul LLC and Tiger-Sul (Canada) Co. (as applicable, “Seller”) and constitute the entire agreement between Seller and the purchaser of such Products (“Customer”), other than as set forth in a written agreement executed by Seller and Customer. These Terms and Conditions of Sale prevail over Customer’s terms and conditions of purchase, if any, which are hereby rejected. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions or otherwise modify these Terms and Conditions of Sale.
2. Payment. Payment terms are subject to change. Subject to the terms of any Credit Application and Agreement between Customer and Seller, payment for all invoices shall be made, by Customer in full promptly upon receipt by Customer of Seller’s invoice, without any deduction or set-off of any kind whatsoever, by check, ACH transfer or by wire transfer as specified on each invoice sent to Customer. If the due date for any payment falls on a weekend or a holiday, the payment must be received by Seller on the next business day. In certain instances, prepayments or letters of credit may be required for Product purchases. If so, the prepayment must be received by Seller before Product will be released. The letter of credit or standby letter of credit must be received by Seller prior to shipment and be in a form and issued by a financial institution acceptable to Seller.
3. Taxes and Other Charges. Any tax, duty, inspection fee or other charge levied upon the sale, shipment, delivery, import, use or storage of Product sold hereunder (but excluding any income taxes payable by Seller on its sale of Product) shall be paid by Customer. Any such payment shall either be made directly by Customer or added to the purchase price and remitted by Seller as required by applicable law. Customer shall obtain, at its expense, any licenses, permits or other registrations required to import or accept delivery of Product.
4. Shipping Date and Instructions. Seller shall have the right to ship Product in one or more shipments and to divide Product into more than one lot, as Seller shall determine. Any delivery dates furnished by Seller are estimates only, and do not bind Seller to deliver the Products on the dates indicated. If Seller shall request shipping instructions with respect to any lot or installment shipped hereunder, Customer shall promptly provide Seller with the requested instructions in writing. If Customer fails to provide or delays in providing said instructions, Seller may hold Customer liable for all storage, handling and other costs incurred by Seller directly or indirectly resulting from such failure or delay.
5. Delivery Terms. Each order submitted by Customer and approved by Seller will include one of the following sales bases and freight payment options which shall have the meanings set forth below:
(a) FOB (Seller pays freight). FOB (Seller pays freight) means that Seller arranges the transportation of Product, that Seller advances the costs of transportation and that Customer reimburses Seller for such costs;
(b) FOB (Customer pays freight). FOB (Customer pays freight) means that Customer arranges and pays for the transportation of Product;
(c) FOB (Consignee pays freight). FOB (Consignee pays freight) means that the consignee receiving the Product arranges and pays for the transportation of Product;
(d) FOB (Third Party pays freight). FOB (Third Party pays freight) means that a third party selected by Customer arranges and pays for the transportation of Product;
(e) FOB (Supplier pays freight). FOB (Supplier pays freight) applies in those cases where Product is sourced from a facility other than Seller’s and the supplier arranges and pays for the transportation of Product. In such cases, Seller reimburses the supplier for the cost of transportation and Customer reimburses Seller for such costs;
(f) Delivered (other than truck shipments with freight allowance). Delivered (other than truck shipments with freight allowance) means that Seller arranges and pays for the transportation of Product; and
(g) Delivered (truck shipments with freight allowance). Delivered (truck shipments with freight allowance) means that Customer arranges and pays for the transportation and that the Product price is reduced by Seller’s applicable freight allowance for the delivery point shown on Seller’s transportation documents. In the event the Product is delivered to a delivery point other than that shown on Seller’s transportation documents, both the Seller’s applicable freight allowance and the price of the Product will be recalculated as of the date of shipment for the market of actual delivery (such freight allowance to be reduced by all costs incurred in such recalculation).
6. Title and Risk of Loss. Except in those cases described in this Section E, title to all Product and risk of loss shall pass to Customer at the time the Product is loaded onto barge, truck, railcar or other applicable transport. In the case where the order or contract specifies that the Product will be “Delivered” and delivery is by a method other than truck with a freight allowance, title to all Product and risk of loss shall pass to Customer when the Product is constructively placed at its destination. In the case of a “Bulk” transfer (i.e., where the Product remains in storage and is not transported to a new location), title to all Product and risk of loss shall pass to Customer as of the date on Seller’s invoice for the Product.
7. Product Warranty. Seller warrants, for a period of ten (10) days from delivery of the Product, that the Product will conform to Seller’s Product Specification Sheet in effect at the time the order is submitted and that such Product will be delivered free from any lawful security interest or encumbrance. Seller reserves the right, at any time and from time to time, to amend the Product specifications by sending to Customer a revised Product Specification Sheet. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. Liability Limits. Seller shall have no liability for a claim by Customer arising out of or in connection with this Agreement unless Customer (i) gives Seller written notice of the claim setting forth, in detail, the facts on which it is based within ten (10) days of delivery of the Product involved in such claim and in any event before any such Product shall have been used and (ii) institutes an action pursuant to Section Q(n) related thereto within one year after delivery of the Product. Customer’s failure to comply with the foregoing shall constitute a waiver by Customer of all claims in respect of such Product. Customer’s exclusive remedy against Seller for any claim arising out of or in any way relating to the Agreement (whether in contract, tort, strict liability or otherwise) shall be for damages only and not for injunctive or other relief (whether at law or in equity). Seller’s liability for damages shall in no event exceed the purchase price of the Product with respect to which such matter arises or such claim relates. NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR BREACH OF THE AGREEMENT OR ANY PROVISION HEREOF.
9. Indemnification. Customer accepts all risk and responsibility for the Product, and Customer shall indemnify, reimburse, defend and hold Seller harmless from and against all claims, losses, damages, deficiencies, fines (including attorney’s fees) and expenses arising out of or in connection with any claim, including claims of injury to persons and damage to property, arising directly or indirectly out of the transportation, storage, handling or use of the Product by Customer or a subsequent purchaser of the Product.
10. Product Weight. The volume of Product purchased shall be equal to the weight of shipped Product determined in the manner set forth in this section. For Product shipped by trucks and railcars, the weight of the Product shipped shall be determined by the scale or metered weight measured at origin. For dry Product shipped by barge, the weight of the Product shipped shall be determined by the origin barge survey. All origin surveys shall be performed by an independent surveyor selected and paid by Seller.
11. Demurrage. Customer shall be responsible for the cost of demurrage based upon Seller’s demurrage policy in effect at the time the demurrage was incurred.
12. Force Majeure. Seller shall not be liable for any failure or delay in performance of any provision of the Agreement if such failure or delay is caused by fire, weather conditions, explosion, war, insurrection, strikes, labor disputes, breakage of machinery or equipment, compliance with governmental orders, curtailment of operations to remedy violations of environmental, health or safety regulations, inability to obtain fuel, supplies, materials, equipment or transportation or any other cause beyond the reasonable control of Seller. In the event any such condition occurs, Seller may elect to reduce the quantity of Product delivered or to postpone the delivery of Product. In the event Seller elects to reduce the quantity of Product delivered, Seller may, but shall not be obligated to, allocate its available supply among any or all customers and on such basis as Seller, in its sole discretion, may elect without liability for failure to comply with the terms of the Agreement.
13. Contingencies. If (i) Seller has an inability to obtain any material (including raw materials), fuel or energy used in manufacturing the Product from its usual sources on terms that it deems to be reasonable; (ii) there is an interference with Seller’s usual means of transporting the Product, (iii) there is failure of any third party to perform any contract affecting either the Product or Seller’s receipt, possession, manufacture or delivery thereof, or compliance with any law, regulation, order, guideline, recommendation or request of any judicial, administrative or other governmental body including, without limitation, prohibition or restriction on export or import; or (iv) there is any other cause, similar or dissimilar, beyond the reasonable control of Seller, then the Seller will not be obligated to purchase material in order to fill purchase orders. Seller may delete from purchase orders the quantities which have not been shipped due to any of such contingencies, or may, at its option, ship such quantities in one or more lots, after Seller deems the effect of such contingencies to have ended, on the same terms as set forth in this Agreement.
14. Confidentiality. Each party shall keep and maintain, and shall cause its officers, employees, agents and contractors to keep and maintain, the confidentiality of all information relating to the price, quantity and type of Product purchased or sold under the Agreement and shall not disclose any information to any third party except to the extent necessary to perform its obligations under the Agreement and except that neither party shall have any obligation of confidentiality with respect to information that (a) is generally available to the public, (b) is or becomes known to such party through sources not bound by any obligation of confidentiality or (c) is required to be disclosed under applicable law. The confidentiality provisions set forth herein shall survive for a period of two (2) years after expiration or termination of the Agreement.
15. Default. In the event that Customer shall at any time (i) fail to make payment when due, (ii) become insolvent, (iii) commit any act of bankruptcy, (iv) take advantage of any law for the benefit of debtors, (v) have appointed a receiver for itself or its properties and such receiver is not discharged within sixty (60) days or (vi) fail to comply with any other terms or conditions of the Agreement and such failure continues for a period of ten (10) business days after written notice from Seller of such failure, the Seller may then or thereafter upon notice (a) refuse to make further deliveries hereunder, (b) terminate the Agreement (but in such event Customer shall remain liable for the payment for all Product theretofore delivered) and (c) exercise such other and further rights and remedies as it may have at law or in equity. Such rights and remedies may be exercised independently and shall not be mutually exclusive.
16. Contract Type.
(a) Fill Program. In the event Seller offers to sell Product to Customer under Seller’s Fill Program and Customer has agreed to purchase Product under such Program, the Product identification, quantity, price, payment terms, shipping dates and other terms and conditions shall be as specified in Seller’s Fill Program in effect at the time the order is submitted. Any terms and conditions set forth in the Fill Program shall supplement the terms and conditions set forth in this document and shall control in the event of any conflict between the terms and conditions set forth in the Fill Program and the terms and conditions set forth in this document.
(b) Prepay Agreement. In the event Customer enters into a Prepay Agreement or other contract type set forth by Seller, the Product identification, quantity, price and other terms and conditions shall be as specified in the Prepay Agreement, or such other contract type available from Seller at the time the parties enter into the agreement. The terms and conditions of the Prepay Agreement and such other contract type shall supplement the terms and conditions set forth in this document and shall control in the event of any conflict between the terms and conditions set forth in such contract types and the terms and conditions set forth in this document.
17. Commitment Type. Customer may agree to alternative commitment types approved by Seller including, among other alternatives, a Take-or-Pay commitment. Customer shall be responsible for storage charges and other costs and fees based upon the commitment type agreed upon by Customer.
(a) Assignment. All covenants and agreements contained in the Agreement by or on behalf of Customer or Seller will bind and inure to the respective successors and assigns of the parties hereto; provided, however, that neither party may assign the Agreement, in whole or in part, without the prior written consent of the other party (which consent shall not be unreasonably withheld); provided, further, that Seller may assign or delegate any of its rights or obligations hereunder, in whole or in part, (i) in connection with a merger or the sale of all or substantially all of Seller’s assets, or (ii) to one or more direct or indirect wholly owned subsidiaries of Seller’s ultimate parent entity, Tiger-Sul Holdings, LLC, a Delaware corporation, or any successor thereto.
(b) Notices. All notices, demands or other communications to be given or delivered hereunder shall be in writing and shall be deemed to have been given when delivered personally, two (2) business days after they have been mailed by certified or registered mail, postage prepaid and return receipt requested, one (1) business day after they have been sent by a nationally recognized private courier service or at the time sent if they have been sent by e-mail, in each case to the recipient at the address specified on the first page of this document or to such other address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party.
(c) Descriptive Headings. The descriptive headings used herein are inserted for convenience only and do not constitute a part of the Agreement.
(d) Waiver. The waiver by a party of any breach of the Agreement or the failure of any party to enforce any of the terms and conditions of the Agreement at any time shall not in any way affect, limit or waive that party’s right thereafter to enforce and compel strict compliance with every term and condition thereof.
(e) Severability. Whenever possible, each provision of the Agreement will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of the Agreement is held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of the Agreement.
(f) Survival of Claims. Termination or expiration of the Agreement shall not relieve either party of any obligation or deprive it of any right arising prior to termination or expiration. All agreements, covenants, indemnities and warranties will continue in full force and effect to the extent required for their full observance and performance.
(g) Conflicting Terms. Without limiting the generality of Section 1 of these Terms and Conditions of Sale, no term in any purchase order, acknowledgement form or other document from Customer which conflicts with the terms hereof or increases Seller’s obligations hereunder shall be binding on Seller notwithstanding any provision in any such purchase order, acknowledgement form or other document to the contrary, unless such term shall have been accepted by Seller in writing.
(h) Existing Contracts. Nothing herein is intended to terminate, extend or in any way modify any contract or agreement between the parties entered into prior to the date hereof.
(i) Finance Charges. Amounts not paid when due shall accrue interest from the date due until the date paid at the rate of one and one-half percent (1.5%) per month or, if less, at the highest rate allowed by applicable law and such interest shall be due immediately on demand from Customer to Seller. A payment is considered past due if it is received by Seller after the invoice due date.
(j) Credit Quality. Seller shall have the right, at any time and from time to time during the term of this Agreement and upon notice to Customer, to change the payment terms applicable to Customer in the event the financial condition or payment history of Customer is not satisfactory to Seller in its sole discretion.
(k) Payment/Deposit Offset. Payments and deposits made by Customer pursuant to this Agreement or any other agreement, including any Credit Application and Agreement, may be applied by Seller against and used to offset any amounts due and owing from Customer to Seller under this Agreement or under any other agreement or transaction between Seller and Customer. If payments or deposits are so applied against amounts due and owing from Customer to Seller, whether under this Agreement or under any other agreement or transaction between Seller and Customer, Seller shall be relieved of any obligation to ship Product unless all amounts due under this Agreement, if any, are on deposit with Seller.
(l) Cost of Collection. Customer shall be liable for, and shall pay to Seller upon demand, all costs and expenses incurred by Seller in collecting any payments due to Seller hereunder or under any other agreement, including any Credit Application and Agreement, or otherwise in enforcing the terms of this Agreement or any other agreement, including any Credit Application and Agreement and, if collection is effected through a collection agency or attorney, a collection fee of 25%. NSF checks are subject to a $40 administrative fee.
(m) Transportation Equipment. In the event Customer supplies equipment for the transportation of Product, Seller shall have the right to inspect such equipment and to reject such equipment in the exercise of its sole discretion. This inspection should not be construed in any way as a guarantee of the fitness or safety of the equipment for the carriage of its cargo; that responsibility rests solely with Customer.
(n) Arbitration; Choice of Law. Any dispute, claim or controversy, whether based in contract or tort, and whether statutory or otherwise, relating to or arising out of this Agreement, or the performance or breach thereof, including issues relating to arbitrability and jurisdiction, shall be resolved by final and binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules in effect when the demand for arbitration is filed. Hearings in any such arbitration shall be conducted in Bridgeport, Connecticut. This Agreement shall be construed exclusively under the laws of the state of Connecticut, procedural and substantive, but excluding its conflict of law rules, and such law shall also apply to any arbitration hereunder. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Judgment on any award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.