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- - Procter & Gamble

CONDITIONS OF SALE

These terms and conditions shall apply to all contracts for the sale of Product by Seller to Buyer, including but not limited to sales offer letters, sales confirmation letters and order confirmations (“Agreement”) to the exclusion of any terms or conditions which the Buyer may purport to apply under any purchase order, confirmation of order or other document, and supersedes all prior or contemporaneous agreements, oral or written, made between the Parties relating to such subject matter. If there is a conflict between this Agreement and any of the Parties’ purchase orders, releases, delivery schedules, invoices, general terms and conditions of trade and other similar preprinted forms that purport to govern the same matter as set forth in this Agreement, then these terms and conditions prevail.
All orders for Product shall be deemed to be an offer by the Buyer to purchase Product pursuant to these conditions. Any offers, whether made pursuant to a quotation by Seller or in the form of a purchase order or otherwise, made by Buyer to purchase Product shall be subject to acceptance in writing by Seller in the form of a sales confirmation letter or equivalent.
Submission of a purchase order pursuant to a quotation attaching these terms and conditions or acceptance of delivery of the Products shall be deemed conclusive evidence of the Buyer's acceptance of these terms and conditions.
Seller reserves the right to effect a general price increase or change the payment or transportation terms as of the first day of any calendar quarter by written notice to Buyer, dispatched at least fifteen days prior to the first day of that quarter. If Buyer fails to object in writing before the first day of the quarter, the proposed revisions will become effective. If Buyer raises an objection, Seller will within fifteen days advise Buyer whether Seller will continue to supply at the price and terms in effect at the time of the notice of revisions or cancel this Agreement, without penalty. In the event of a price increase, Buyer will receive price protection for volume of one normal month's business (based on an average month calculated from the previous six-month period) for any intervening month or portion of a month between the date of Seller’s notice of revision and the beginning of the next calendar quarter. If less than six months shipping history exists, then the price protection volume will be calculated as one-twelfth (1/12) of the total annual Quantity of this Agreement. Shipment of price protected Product must be made prior to the beginning of the next calendar quarter. Seller may at any time without notice decrease the price, and if Seller puts into effect a general consumer price decrease for the Product, shipments made while such reduced price remains in effect will be charged at the lower price.
The entire amount of Product purchased by Buyer under this Agreement is to be delivered in accordance with Buyer's normal usage requirements not to exceed one-ninth (1/9) of the total annual quantity in a given month, unless Seller agrees otherwise. If Buyer fails during any month to order out a minimum of one-fifteenth (1/15) of the annual total, the quantity not ordered may be at Seller's option deducted from Seller's maximum obligation to supply. Buyer agrees to provide a rolling twelve month forecast to Seller by the fifteenth of each calendar month for the future twelve month period.
Payment Terms are Net 30 days from invoice date to postmark of payment. Any credit extended to Buyer for sales made under this Agreement is subject to approval of Seller's Credit Department at time of any shipment. Seller reserves the right to change its customer credit arrangements for any reason, including, but not limited to, a deterioration in financial condition.
When shipment is made in bulk, certified weights and official sample at point of shipment will govern.
At the time when risk of loss passes to Buyer, Seller will pass to Buyer good and marketable title to the Product, free and clear of all liens, claims, security interests, pledges, charges, mortgages, deeds of trusts, options, or other encumbrances of any kind.
Seller warrants that the Product delivered hereunder meets its specifications as outlined in its published documents or as set forth in this Agreement. Buyer will notify Seller of any claims of whatever nature with respect to any Product delivered hereunder no later than fifteen days from receipt of the Product. Failure to make a claim in accordance with this time limit will constitute a waiver of all claims with respect to such Product. In the event that Product delivered by Seller does not meet the specifications, Buyer and Seller will work together in good faith to determine an appropriate resolution regarding such Product.
Should Seller's supply of available Product or its ability to make delivery be limited by any factor whatsoever beyond the reasonable control of itself or its affiliated companies, including, but not limited to, labor difficulties, fires, action of the elements, accidents, failure or delay occasioned by carriers, governmental action, whether valid or not, or in the event of inability to obtain on terms deemed by Seller to be practicable any raw material (including but not limited to energy source), Seller will allocate its supply, available for sale to its customers, on a fair and equitable basis selected by the Seller. Seller will not be obligated to make up deficiencies in deliveries hereunder due to any such cause. Labor difficulties, fires, action of the elements, accidents, failure or delay occasioned by carriers, governmental action (whether valid or not), or other causes beyond the reasonable control of Buyer which prevent Buyer from receiving and/or using Product covered by this Agreement will operate to suspend deliveries under this Agreement during the period required to remove such cause.
Should Seller elect to limit, curtail or discontinue production or sale of the Product due to significant changes in raw material markets including but not limited to vegetable oils, natural gas, diesel, fuel, coal, or other petroleum products, which in the Seller’s judgment will render the production or marketing of the Product economically, technologically, or commercially infeasible, Seller may terminate this Agreement on thirty days written notice or work with Buyer to determine mutually agreeable alternatives to continue production.
Should Seller elect to discontinue, curtail or limit the production or sale of the Product due to the application of any governmental statute, regulation or order including but not limited to price controls, transportation, energy controls, pollution control, or Product safety which, in Seller's judgment, will render the production or marketing of the Product economically, technologically or commercially infeasible, Seller may terminate this Agreement upon thirty days prior written notice to Buyer.
Each delivery of Product will constitute a separate sale with the same effect as though made under a separate contract covering the amount thereof. Any delay or default by Seller with respect to any delivery will not affect Buyer's obligation to order, accept, and pay for future deliveries.
Each delivery of Product will be made in accordance with Seller’s customer service and logistics guidelines (available upon request).
Buyer will pay $75 a day for each day a railcar is held over 14 days at the Buyer location. Days will be calculated from the time a railroad notifies the Buyer that the shipment is available to be ordered in for unloading until the Buyer notifies the railroad that the railcar is empty and available for pickup for return to a Seller terminal.
Delivery of the Product shall be made to the Buyer’s nominated delivery location on dates to be agreed. The Buyer shall make all arrangements necessary to take delivery of the Product whenever they are tended for delivery. In the event of the Buyer being unable to accept delivery of the Product then the Buyer shall be responsible for and shall reimburse Seller forthwith in respect of any increased costs of delivery.
In the event of a FOB sale where Buyer, in addition to chartering the appropriate ship or vessel, provides any drums, containers or tanks, including any bags, receptacles or other storage materials within (collectively referred to as “Containers”), to take delivery of and store the Product, the Buyer shall be responsible to ensure that the Containers are suitably designed and made to contain and transport the Product, and to supervise (whether in person or through an appointed agent) the loading of the Product into the Containers. Buyer acknowledges that Seller is unable to ascertain or control the quality of the Containers and Buyer will therefore be and remain solely and fully liable for any claims, costs, losses, damages and expenses incurred due to, or arising or resulting from any defect of, damage to, or other associated problem with, the Containers and the use and loading thereof, including but not limited to leakage and/or loss of Product; change in physical / chemical properties of Product; costs for repair, replacement or rental of Containers; additional manpower / resources required to re-deliver and/or re-load Product; and any additional cost of replacement of the Product or any portion thereof where available. Buyer shall indemnify Seller or any claims, costs, losses, damages and expenses arising or resulting from failure to comply with its obligations under this Clause 17.
Seller may deliver against Buyer’s order in excess or deficiency up to 5% of weight or volume ordered. Seller shall use all reasonable endeavours to ensure all deliveries are within the said 5% range.
Seller has available health and safety information and product literature concerning the Product supplied hereunder and its use and shall provide copies thereof to the Buyer upon request. Buyer acknowledges its responsibility to ensure that all applicable health and safety regulations are observed and that it has in place appropriate storage methods and safety procedures with regard to Product sold hereunder. Buyer hereby indemnifies Seller in respect of all costs, expenses, loss and damages that may be awarded against or incurred by Seller arising from claims made by employees, agents, sub-contractors, customers or visitors of the Buyer and arising from the use of, or exposure to, the Product.
Buyer will indemnify, defend and hold Seller, its parent, its affiliates and subsidiaries and their respective agents, officers, directors and employees harmless from and against all claims, including but not limited to third-party claims, allegations, demands, liabilities, fines, losses, damages, costs and expenses including without limitation reasonable fees and expenses of attorneys and any amounts paid in settlement arising out of or related to (i) Buyer’s breach of any warranty or obligation under this Agreement; (ii) the distribution, sale, or use of the Product supplied by Seller to Buyer hereunder, or any material in which the Product is incorporated; or (iii) any contamination, processing, blending, or packaging of the Product after delivery to Buyer.
Buyer will not sell or distribute Seller-branded Product or otherwise use any trademark or trade name of Seller without Seller’s prior written consent. Buyer agrees to defend, indemnify and hold harmless Seller and its affiliates from any loss, damage, claim, liability, or expense (including reasonable attorneys' fees) arising out of or related to any such sales, distribution, or use, and Seller will have no liability whatsoever with respect to such sales, distribution, or use.
SELLER MAKES NO OTHER EXPRESS WARRANTIES OTHER THAN THOSE SET FORTH IN THIS AGREEMENT. THERE ARE NO IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT WILL SELLER BE LIABLE TO BUYER FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFIT, BUSINESS, OR GOODWILL REGARDLESS OF THE CAUSE OF ACTION OR LEGAL THEORY UNDER WHICH THE LIABILITY ARISES. IN NO EVENT WILL SELLER BE LIABLE TO BUYER FOR ANY DIRECT DAMAGES IN EXCESS OF THE VALUE OF THE ACTUAL SHIPMENT GIVING RISE TO SELLER’S LIABILITY, REGARDLESS OF THE CAUSE OF ACTION OR LEGAL THEORY UNDER WHICH THE LIABILITY ARISES.
In the event that (i) Buyer breaches its warranty, covenant or other obligations set forth in this Agreement, and fails to cure such breach as promptly as practicable but in any event within thirty (30) calendar days of notice of such breach by Seller, (ii) Buyer fails to make any payment under this Agreement, or (iii) Buyer goes into liquidation, receivership or insolvency or undergoes any analogous legal proceedings then Seller shall be entitled to terminate this Agreement with immediate effect and without any penalty. The termination provisions set out in this section are not exclusive, and are in addition to, and not in limitation of Seller’s rights under this Agreement.
The Buyer represents and warrants that all Product, either in whole or in part, shall not be used, by itself, its related entities, its agents or its customers for any activities that will or may facilitate the design, development, storage, production and delivery of or in connection with weapons of mass destruction (WMD) or any terrorism activities. The Buyer represents and warrants that all statements in relation to the end-use(s) and destination(s) of the Product made to Seller and all government authorities are true, accurate and made on a full-disclosure basis, and the Buyer further represents and warrants that in the event of a change in the end-use(s) and/or destination(s) of the Product represented to Seller, it will immediately notify Seller and all government authorities it is obliged or has undertaken to notify, in writing. In any event, the Buyer shall not export, sell or convey the Product, either in whole or in part, to any countries, entities or persons sanctioned by the United Nations Security Council at the material time or listed under the Strategic Trade (Restricted End-User and Prohibited End-Users) Order 2010, as amended, or to any of the countries, entities or persons designated on the list of Specially Designated Nationals and Blocked Persons prepared by the United States Office of Foreign Assets Control of The Department of The Treasury.
If any provision of this Agreement is declared void, invalid or unlawful by any court or tribunal of competent jurisdiction, then such provision will be deemed severed from the remainder of this Agreement and the balance will remain in full force and effect. The Parties will undertake to replace such provision with valid and enforceable provisions, which, in their commercial effect, approximate as closely as possible the intentions of the Parties as expressed in the void, invalid or unlawful provision.
Neither Party may assign this Agreement without the express written consent of the other Party; provided, however, that either Party may assign this Agreement to an affiliated company without restriction.
Both Parties warrant and represents that they have the right, ability and all necessary authorities to enter into this Agreement, and subject to the terms of this Agreement no further consents or authorizations are required to complete or perfect this Agreement.
Any variation to this Agreement (including any special terms and conditions agreed between the Parties) shall be inapplicable unless agreed in writing by Seller.
No waiver of any breach, or the failure of a Party to enforce any of the terms of this Agreement, will affect that Party’s right to enforce the terms of this Agreement. Waiver by either Party of any default of the other will not operate to excuse the defaulting Party from further compliance with this Agreement
Each Party will and will cause any person or entity acting on its behalf to fully comply with all applicable governmental, legal, regulatory and professional requirements, including but not limited to anti-money laundering, anti-corruption and anti-bribery laws (including, without limitation, the Foreign Corrupt Practices Act, and commercial bribery laws).
The Buyer will ensure that all communication, either verbally or written, is in English.
This Agreement will be governed by the laws of the State of Ohio without reference to principles of conflicts of laws.