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Terms of Sale
STANDARD TERMS AND CONDITIONS OF SALE
DEFINITIONS AND INTERPRETATIONS
| "BORYNET" | means BORYNET LLC and subsidiary, divisions
or trading units of BORYNET LLC;
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| "Buyer" | means the person firm or company so described in the Order;
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| "Conditions" | means the standard terms and conditions of purchase set
out in this document and (unless the context otherwise requires) includes any
varied or special terms and conditions agreed in writing between BORYNET and the Buyer;
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| "Contract" | means the contract of the sale and supply of the Goods
and/or the supply and performance of the Services subject to these Conditions;
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| "Goods" | means the Goods (including any instalment of the Goods or
any part of them) described in the Order;
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| "Order" | means any written quotation of BORYNET which is accepted by
the Buyer, or any written order of the Buyer which is accepted by BORYNET for
the supply of Goods or performance of Services;
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| "Price" | means the Price of the Goods and/or the charge for the
Services;
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| "Specification" | includes any plans, drawings, data, chemical
formula or process or other technical requirements or information including
BORYNET' web site relating to the Goods or Services agreed between the parties;
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GENERAL BASIS OF SALE
- These Conditions apply to all Contracts for sale of Goods by BORYNET.
- The placing of an Order by the Buyer for the Goods shall constitute acceptance
of these Conditions notwithstanding any other terms and conditions subject to which
any quotation by BORYNET is accepted or purported to be accepted or any such order is made
or purported to be made by the Buyer.
- No Order submitted by the Buyer shall be deemed to be accepted by BORYNET unless
and until confirmed in writing by BORYNET' authorised representative.
- No variation to these Conditions shall be binding unless agreed in writing
between the authorised representatives of the Buyer and BORYNET.
- The Buyer acknowledges that all advice, instructions or recommendations of
BORYNET rely and are dependent upon all the information and technical background
given to BORYNET by the Buyer.
- Where the Buyer does not specify a particular process, BORYNET will not be liable
for any defect or failure of the process or entitle the Buyer to withhold payment if
BORYNET have dispensed with such inspection on request of the Buyer for whatever reason.
ORDERS AND SPECIFICATIONS
- The Buyer shall be responsible to BORYNET for ensuring the accuracy of the
terms of any Order
(including any applicable Specification) submitted by the Buyer, and for giving
BORYNET any necessary information relating to the Goods pursuant to clause
II.5 or otherwise within a sufficient time to enable BORYNET to perform the
Contract in accordance with its terms.
- The quantity, quality, description, functionality, facilities, functions,
capacity and description of the Goods shall, subject as provided in these Conditions,
be as specified in the Order and any applicable Specification as set out either in
BORYNET' quotation or in the web site of BORYNET or any documents referred to in
the Order. In the event of conflict, preference will be given to BORYNET' web site.
- All drawings, illustrations or any product literature or other publications
of BORYNET must be regarded as approximations only.
- Any Specification supplied by BORYNET to the Buyer in connection with the
Contract, together with all intellectual property rights in the Specification,
shall be the exclusive property of BORYNET. The Buyer shall not disclose to any
third party or use any such Specification except to the extent that it is or
becomes public knowledge through no fault of the Buyer, or as required for the
purpose of the Contract. Upon request of BORYNET the Buyer will return to BORYNET
any documents (or other media) in or upon which any part of the Specification
has been supplied by BORYNET and shall not retain copies thereof.
- If the Goods are to be manufactured or any process is to be applied to
the Goods by BORYNET in accordance with a Specification submitted by the Buyer,
the Buyer shall indemnify BORYNET against all loss, damages, costs and expenses
awarded against or incurred by BORYNET in connection with any claim for
infringement of any intellectual property rights of any other person which
results from BORYNET' use of the Specification so submitted by the Buyer.
- BORYNET reserves the right to make any changes in the Specification of the
Goods which are required to conform with any statutory or other regulatory
requirements applicable to the Goods.
- No Order which has been accepted by BORYNET may be cancelled by the Buyer
except with the agreement in writing of BORYNET and on terms that the Buyer
shall indemnify BORYNET in full against all loss, costs, damages, charges and
expenses incurred by BORYNET as a result of cancellation.
- No order which has been accepted by BORYNET may be changed or altered by
the Buyer except with the agreement in writing of BORYNET and payment by the
Buyer of a 10% surcharge (calculated as 10% of the Price) to BORYNET.
PRICE OF THE GOODS
- The Price shall be BORYNET' quoted price.
The Price quoted is valid for 30 days only, after which time they may be
altered by BORYNET without giving notice to the Buyer.
- BORYNET reserves the right, by giving notice to the Buyer at any time
before delivery, to increase the Price to reflect any increase in the cost
to BORYNET which is due to any factor beyond the control of BORYNET, any change in
delivery dates, quantities or the Specifications which is requested by the
Buyer, or any delay caused by any instructions of the Buyer or failure of
the Buyer to give BORYNET adequate or accurate information or instructions.
- Except as otherwise stated under the terms of the Order and unless
otherwise agreed in writing between the Buyer and BORYNET, the Price is given
by BORYNET on an ex works basis, and where BORYNET agrees to deliver the Goods
otherwise than at BORYNET' premises, the Buyer shall be liable to pay BORYNET'
charges for transport, packaging and insurance.
- The Price is exclusive of any applicable value added tax, which the Buyer
shall be additionally liable to pay to BORYNET.
TERMS OF PAYMENT
- Subject to any special terms agreed in writing between the Buyer and
BORYNET, BORYNET shall be entitled to invoice the Buyer for the Price on or at
any time after delivery of the Goods or the Buyer wrongfully fails to take
delivery of the Goods, in which event BORYNET shall be entitled to invoice the
Buyer for the Price at any time after BORYNET has notified the Buyer that the
Goods are ready for collection or (as the case may be) BORYNET has tendered
delivery of the Goods.
- The Buyer shall pay the Price within 30 days of the date of BORYNET'
invoice unless otherwise notified by BORYNET to the Buyer in writing, and BORYNET
shall be entitled to recover the Price, notwithstanding that delivery may
not have taken place and the property in the Goods has not passed to the Buyer.
The time of payment of the Price shall be of the essence of the Contract.
Receipts for payment will be issued only upon request.
- If the Buyer fails to make any payment on the due date then, without prejudice
to any other right or remedy available to BORYNET, BORYNET shall be entitled to:
- cancel the Contract or suspend any further deliveries to the Buyer;
- allocate any payment made by the Buyer to such of the Goods
(or goods and/or services supplied under any other contract between the Buyer and BORYNET) as
BORYNET may think fit (notwithstanding any purported appropriation by the Buyer); and
- charge the Buyer interest (both before and after any allocation) on the amount unpaid,
at the rate of 4 per cent per annum above JP Chase Morgan Prime Rate from time to time,
until payment in full is made (a part of a month being treated as a full month for the purpose
of calculating interest) before and after judgment.
DELIVERY
- Delivery of the Goods shall be made to some place agreed by BORYNET, by BORYNET
delivering the Goods to that place.
- Any dates quoted for delivery of the Goods are approximate only and BORYNET
shall not be
liable for any early or late delivery of the Goods however caused.
- Where delivery of the Goods is to be made by BORYNET in bulk, BORYNET reserves
the right to deliver up to 2% per cent more or 2% per cent less than the quantity
ordered without any adjustment in the price,
and the quantity so delivered shall be deemed to be the quantity ordered.
- Where the Goods are to be delivered in instalments, each delivery shall constitute a separate
contract and failure by BORYNET to deliver any one or more of the instalments in accordance with
these Conditions or any claim by the Buyer in respect of any one or more instalments shall not
entitle the Buyer to treat the Contract as a whole as repudiated.
- If BORYNET fails to deliver the Goods (or any instalment), BORYNET' liability shall be limited to the
excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to
replace those not delivered over the Price of the Goods.
- If the Buyer fails to take delivery of the Goods or fails to give BORYNET adequate delivery
instructions at the time stated for delivery (otherwise than by reason of any Force Majeure or
by reason of BORYNET' fault) then, without prejudice to any other right or remedy
available to BORYNET, BORYNET may:
- store the Goods until actual delivery and charge the Buyer for the reasonable
costs (including insurance) of storage; or
- sell the Goods at the best price readily obtainable and (after deducting all
reasonable storage and selling expenses) account to the Buyer for the excess over
the Price or charge the Buyer for any shortfall below the Price under the Contract.
- Any charges quoted for delivery of the Goods including transport, packaging
and insurance are approximate only and BORYNET shall not be liable for any changes
to the charges quoted however caused.
RISK AND PROPERTY
- Risk of damage to or loss of the Goods shall pass to the Buyer:
- in the case of Goods to be delivered at BORYNET' premises, at the time when BORYNET notifies the Buyer that the Goods are available for collection; or
- in the case of Goods to be delivered otherwise than at BORYNET' premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when BORYNET has tendered delivery of the Goods.
- The property in the Goods shall not pass to the Buyer until BORYNET has received in cash or cleared funds payment in full of the Price and all other goods agreed to be sold by BORYNET to the Buyer for which payment is then due.
- Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as BORYNET' fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as BORYNET' property, but shall be entitled to resell or use the Goods in the ordinary course of its business.
- Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), BORYNET shall be entitled at any time to require the Buyer to deliver up the Goods to BORYNET and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
BUYER'S WARRANTIES AND ASSUMPTION OF DUTIES REGARDING SAFETY,
HEALTH, UNLOADING, USE, HANDLING AND DISPOSAL OF THE GOODS
- Buyer has received a material safety data sheet (MSDS) which sets forth information concerning goods and describes certain precautions to be taken in the storage, handling, and use of the same. Buyer assumes the following duties and obligations.
- Buyer will familiarize itself with all information and precautions disclosed
in safety and health information, including but not limited to any MSDS,
transmitted to Buyer and BORYNET before or during the term of this contract,
or any such information supplied to Buyer by BORYNET or otherwise available to
Buyer from BORYNET at any other time.
- Buyer will adopt and follow safe handling, storage, transportation, use,
treatment and disposal practices with respect to goods, including but not
limited to, all such practices required by federal, state, and local government
statutes, rules, regulations, and ordinances.
- Buyers will instruct its employees, independent contractors, agents and
customers of the precautions and safe use practices required in connection with
the unloading, handling, storage, use, transportation and disposal of goods,
including, but not limited to, information contained in BORYNET's most current MSDS; and
- Buyer will comply with applicable safety and environmental laws and take
action necessary to avoid spills or other dangers to personal property or the environment.
- Buyer warrants that it has used its own independent skill and expertise
in connection with the selection and use of goods and that it possesses skill
and expertise in the handling, storage, transportation, treatment, use and
disposal of the goods.
BORYNET'S LIMITED WARRANTY
- SUBJECT TO THE LIMITATION OF PARAGRAPH X, XI, AND XII.
- BORYNET warrants that at the time of render the goods will conform to BORYNET's
then current sales specifications for the goods described on the face of this document,
that they will be fit for ordinary uses explicitly identified for such goods in
BORYNET's then current product literature, that BORYNET will convey good title thereto,
and that such goods will be delivered free from any lawful security interest,
lien, or encumbrance.
EXCLUSION AND DISCLAIMER OF ALL OTHER WARRANTIES
- The limited warranties contained in paragraph IX above are BORYNET's sole warranties
with respect to the goods.
THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, EXCEPT AS EXPRESSLY STATED HEREIN.
WARRANTIES
- Buyer's exclusive remedy and BORYNET's total liability to Buyer for claims
(as defined in subparagraph XI.2 below) is expressly limited as follows: Buyer has
the option of replacement of or credit of the purchase price paid for the goods
supplied hereunder with respect to which damages are claimed. Buyer waives all
other claims by Buyer against BORYNET. BORYNET under no circumstances shall be
liable to Buyer for any incidental, consequential, special, exemplary or punitive
damages to any person r property.
- As used in paragraph XI and XII "claims" means all assertions of any legal,
equitable, and/or admiralty causes of action (including but not limited to negligence;
strict liability; other tort; express or implied warranty; indemnity or contract;
contribution; or subrogation) related to or arising out of the performance or
nonperformance of this contract or the goods purchased hereunder.
- All limitations of Buyer's remedies and BORYNET's liabilities shall survive
the expiration, termination or cancellation of this contract.
NOTICE OF CLAIM
- All claims by Buyer shall be deemed waived unless made by Buyer in writing
and received by BORYNET within 60 days of the receipt of the goods; provided that
for any claim which is not readily discoverable within such 60 day period such a
claim shall be deemed waived unless made by Buyer in writing and received by BORYNET
within 180 days after receipt of the goods or within 30 days after Buyer learns
or should have been reasonably aware of facts which should have rise to such claim,
whichever first occurs. In case of breakage or loss in transit, Buyer shall
also note the breakage or loss on the carrier's proof of delivery document signed
by the carrier's representative.
INTELLECTUAL PROPERTY INDEMNITY
- If any claim is made against the Buyer that the Goods infringe or that their
use or resale infringes any intellectual property rights of any other person,
then unless the claim arises from the use of any drawing, design or specification
supplied by the Buyer, BORYNET shall reimburse the Buyer against all reasonable
loss and damages awarded against or incurred by the Buyer in connection with
the claim, provided that BORYNET is given full control of any proceedings or
negotiations in connection with any such claim and the Buyer shall give all
assistance to BORYNET as it may require and take such steps as BORYNET may reasonably
require to mitigate or reduce any such loss, damages, costs or expenses for
which BORYNET is liable to indemnify the Buyer under this clause.
BUYERS INDEMNITY
- The Buyer shall indemnity BORYNET and keep it indemnified for the duration of
the Contract against all injury (including death) to any persons and any loss
and/or damage as a result of any act, default or negligence by the Buyer and its
employees or agents (other than BORYNET or its sub-contractors) and against all
claims, demands, proceedings, damages, costs, charges and expenses whatsoever
in respect thereof or in relation thereto.
INSOLVENCY OF BUYER
- If the Buyer makes any voluntary arrangement with its creditors or becomes
bankrupt or becomes subject to an administration order or goes into liquidation
or BORYNET reasonably apprehends that any of the events mentioned above is about to
occur then BORYNET shall be entitled to cancel the Contract or suspend any further
deliveries under the Contract without any liability to the Buyer, and if the
Goods have been delivered but not paid for the price shall become immediately
due and payable notwithstanding any previous agreement or arrangement to the contrary.
GENERAL
- BORYNET shall not be liable to the Buyer or be deemed to be in breach of the
Contract by reason of any delay in performing, or any failure to perform, any
of BORYNET' obligations in relation to the Goods, if the delay or failure was
due to any cause beyond BORYNET' reasonable control.
- Any notice required or permitted to be given by either party to the other
under these Conditions shall be in writing addressed to that party as its
registered office or principle place of business or such other address as may
at the relevant time have been notified pursuant to this provision to the party
giving the notice.
- No waiver by BORYNET of any breach of the Contract by BORYNET shall be considered
as a waiver of any subsequent breach of the same or any other provision.
- If any provision of these Conditions is held by any competent authority
to be invalid or unenforceable in whole or in part the validity of the other
provisions of these Conditions and the remainder of the provision in question
shall not be affected thereby.
- The Contract and its performance shall be governed by laws of the State of Illinois.
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