- Scope and Acceptance. These Terms and Conditions of Sale (“Terms”) are applicable to all sales of goods and products (“Products”) by STO Responsible(“STO Responsible”) to customers purchasing such Products (each, a “Purchaser”) and are the only terms and conditions applicable to the sale of Products. Any of the following shall constitute Purchaser’s unqualified acceptance of these Terms: (i) written acknowledgement of these Terms; (ii) issuance of a purchase order for Products (“Order”); (iii) acceptance of any shipment or delivery of Products; (iv) payment for any Products; or (v) any other act or expression of acceptance by Purchaser.
- Purchase Orders and Pricing. STO Responsible has no obligation to accept any Order; however, STO Responsible may accept an Order by confirming the Order in writing or by delivering the applicable Products to Purchaser, whichever occurs first. Orders are not binding on STO Responsible unless so accepted, and STO Responsible may reject or cancel an Order, which it may do without liability or penalty and without constituting a waiver of any of STO Responsible’s rights or remedies hereunder. Upon acceptance of an Order, Purchaser shall be obligated to purchase from STO Responsible quantities of Products specified in such Order. Cancellation or modification of all or part of any Order is subject to STO Responsible’s prior written consent in each instance and subject to payment of reasonable charges for any expenses incurred by STO Responsible in processing the Order. Prices for Products are as set forth on the applicable Order, or if no prices are stated on the applicable Order, at STO Responsible’s then-current rates for the Products at the time of shipment, unless otherwise agreed in writing (“Purchase Price”). Purchaser agrees to pay to STO Responsible the Purchase Price. All Purchase Prices are exclusive of, and Purchaser is solely responsible for, and shall pay all taxes, levies, imposts, duties, deductions, charges, fees or withholdings imposed, levied, withheld or assessed by any governmental authority, with respect to, or measured by, the manufacture, sale, shipment, use or Purchase Price of the Products (including interest and penalties thereon). All prices quoted shall be in U.S. Dollars, unless expressly indicated by STO Responsible otherwise.
- Payment Terms. Payment for Products is due to STO Responsible prior to delivery, and notwithstanding any language to the contrary elsewhere between the parties, STO Responsible shall have no obligation to deliver the Products unless and until payment has been received. Purchaser shall remit payment to STO Responsible by wire transfer, credit card, or otherwise as agreed between the parties.
- Delivery; Risk of Loss; Title. Delivery shall be Ex Works (Incoterms 2010) STO Responsible’s manufacturer location within the continental United States. STO Responsible reserves the right to subcontract its fulfillment of any Order or part thereof. In absence of packing instructions from Purchaser that STO Responsible accepts, STO Responsible shall use its own discretion in choice of method of packing. Risk of loss and damage, whether insurable or otherwise, shall pass to Purchaser after the Products are made available at STO Responsible facility. Loss of or damage to the Products after the risk of such loss or damage has passed to Purchaser does not discharge Purchaser from its obligation to make full payment of the Purchase Price and other sums due. STO Responsible shall use commercially reasonable efforts to make delivery of Products within the time requested by or discussed with Purchaser, however, such times are non-binding and are not of the essence or representations of fact, and STO Responsible shall not be liable for any loss, damage, cost, or expense resulting from any delay. In the event of delay beyond any date agreed for STO Responsible’s performance of its obligations under these Terms due to circumstances for which Purchaser is responsible (including a lack of acceptance), the risk of accidental loss of the Products to be delivered (including while in storage) passes to Purchaser from the time of such delay, and STO Responsible will be entitled to compensation for any costs, expenses, and losses it suffers by reason thereof. In case of accidental loss, STO Responsible shall be released from its performance obligations; however, Purchaser remains obliged to make full payment of the Purchase Price and other sums due. Notwithstanding delivery and the passing of the risk of loss to Purchaser, STO Responsible shall retain title to all Products supplied to Purchaser until Purchaser has remitted the entire Purchase Price and any other sums due in full for the applicable Products.
- . Purchaser shall inspect the Products immediately upon receipt. Unless Purchaser provides STO Responsible with written notice of any claim for damaged, defective, or insufficient Products within ten (10) days after delivery,such Products shall be deemed finally inspected, checked, and accepted by Purchaser. Purchaser may not return Products, and STO Responsible is not obligated to accept returned Products, without STO Responsible written authorization and the parties’ agreement as to the terms of any refundable payments. Title to the Products returned in accordance with this Section 5, if already acquired by Purchaser, shall retransfer to STO Responsible upon delivery of the Products to STO Responsible facilities.
- Bankruptcy. If Purchaser becomes insolvent, a petition is filed for Purchaser’s reorganization or for Purchaser’s adjudication as a bankrupt entity, Purchaser makes an assignment for the benefit of creditors, a receiver or trustee is appointed for any of Purchaser’s assets, or in the event any other insolvency proceeding or formal or informal proceeding for the dissolution, liquidation, or winding up or affairs of Purchaser is commenced, then, notwithstanding anything to the contrary contained in these Terms: (i) all sums unpaid by Purchaser for Products shall immediately become due and payable, and (ii) Purchaser’s right to deal in the ordinary course of business or otherwise sell or dispose of Products the title of which is retained by STO Responsible shall automatically and immediately terminate.
- Compliance Requirements. Purchaser shall, and shall ensure its affiliates and its and their respective directors, officers, employees, agents, subcontractors, and representatives (collectively, “Representatives”), comply with all applicable laws regarding the export, import, marketing, advertising, promotion, sale, distribution, and use of the Products, including any applicable tax and foreign exchange legislation or regulations. Without limiting the generality of the foregoing, Purchaser acknowledges that the Products are subject to U.S. export control laws. Purchaser represents, warrants, and covenants that it shall, at its sole risk and expense: (i) obtain any required export or import license or other required official authorization from any governmental body; (ii) comply with all customs formalities for the importing and exporting of Products; and (iii) pay all charges, fees, expenses, duties, taxes, and other costs related to the purchase, transportation, and delivery of the Products to Purchaser. PURCHASER SHALL IMMEDIATELY NOTIFY STO RESPONSIBLE IF PURCHASER’S OR ITS REPRESENTATIVES’ EXPORT PRIVILEGES UNDER U.S. LAW ARE DENIED, SUSPENDED, OR REVOKED IN WHOLE OR IN PART BY ANY U.S. GOVERNMENT ENTITY OR AGENCY.
- Disclaimer. THE PRODUCTS ARE PROVIDED “AS IS” AND STO RESPONSIBLE DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR, AND NON-INFRINGEMENT. Purchaser acknowledges that it has not been induced to enter into these Terms by any representation as to performance or other attributes of the Products. Any description of the Products by STO Responsible is by way of identification only and the use of such description shall not constitute or be deemed to constitute a sale by description. If Purchaser inspected a sample of the Products, the parties agree that such sample was inspected solely to enable Purchaser to judge for itself the quality of the Products and not to constitute a sale by sample.
- Limitation of Liability. IN NO EVENT SHALL STO RESPONSIBLE BE LIABLE TO PURCHASER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF BUSINESS, ARISING FROM THE SALE OR USE OF PRODUCTS, WHETHER BASED UPON TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), BREACH OF CONTRACT, OR ANY OTHER THEORY, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT STO RESPONSIBLE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. IN NO EVENT SHALL STO RESPONSIBLE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO STO RESPONSIBLE PURSUANT TO THE APPLICABLE ORDER GIVING RISE TO THE CLAIM.
- Assumption of Risk. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PURCHASER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY PRODUCTS IN THE PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE RELATED TO THE USE OF SUCH PRODUCTS.
- Force Majeure. STO Responsible shall not be responsible or held liable for any delay or default in the performance of its obligations under these Terms to the extent and as long as such delay and/or default is caused by: acts of God, fires, and natural disasters; government orders, strikes, lockouts, or other industrial action by employees; actions to secure labor, materials or supplies at commercially justifiable rates; accidents or plant or vehicle breakdowns; war, terrorism, or civil commotion; acts of Purchaser; or any other circumstances beyond STO Responsible reasonable control (“Force Majeure”). If there is a delay or non-performance due to Force Majeure, then STO Responsible may, at its option and without liability, revoke all or any portion of its acceptance of any outstanding Orders and/or extend any date upon which any performance thereunder is due.
- STO Responsible’s Performance Excused Upon Purchaser’s Breach. In addition to the rights and remedies STO Responsible may have at law or in equity, STO Responsible shall not be required to proceed with fulfilling any Order or otherwise performing under these Terms if Purchaser is in default in the performance of any of its obligations under these Terms. If STO Responsible has reasonable doubt as to Purchaser’s creditworthiness, STO Responsible may suspend shipments under any Order or may require Purchaser to pay in advance or immediately upon delivery. STO Responsible shall be excused from fulfilling subsequent Orders if Purchaser is in breach with regard to any prior fulfilled Orders, including with respect to non-payment.
- Confidentiality. All non-public, confidential, or proprietary information of STO Responsible, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, that STO Responsible discloses to Purchaser, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and regardless of whether marked, designated, or otherwise identified as “confidential,” in connection with these Terms, is confidential, solely for the use of performing these Terms, and may not be disclosed or copied unless authorized in advance by STO Responsible in writing. Upon STO Responsible’s request, Purchaser will promptly return all documents and other materials received from STO Responsible. STO Responsible will be entitled to injunctive relief for any violation of this Section 13, without having to post bond or establish the insufficiency of a remedy at law. This Section 13 does not apply to information that is: (i) in the public domain; (ii) known to Purchaser at the time of disclosure; or (iii) rightfully obtained by Purchaser on a non-confidential basis from a third party.
- Intellectual Property. Purchaser’s purchase of Products from STO Responsible does not entitle Purchaser to use, register, or otherwise identify Purchaser or its business with the name, trademark, service mark, or other indicia of STO Responsible or any of its affiliates without STO Responsible prior written consent. All such marks and goodwill associated with such marks remain the sole and exclusive property of STO Responsible or its affiliates. Nothing in these Terms is intended to grant or confer any rights by license or otherwise to Purchaser under any of STO Responsible or its affiliates’ intellectual property, including any trade secrets.
- Governing Law. These Terms and the sale of Products shall be governed by and construed in accordance with the laws of the State of Colorado, USA, applicable to contracts made and performed in the State of Colorado, without reference to conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods is hereby excluded from application to these Terms. The governing language of these Terms shall be English. If these Terms are translated into a language other than English, then the English version shall prevail.
- Dispute Resolution. In the event of any conflict or claim arising out of or relating to any provision of these Terms or breach thereof, the parties shall make a good faith effort to settle such conflict amicably between themselves. Any such conflict which the parties are unable to resolve shall be settled in accordance with the rules of the American Arbitration Association. The award or decision shall be rendered by a majority of an arbitration panel consisting of three (3) members, one (1) of whom shall be appointed by Purchaser, one (1) of whom shall be appointed by STO Responsible and the third of whom shall be the chairperson of the panel and appointed by mutual agreement of said two (2) party-appointed arbitrators. Such arbitration proceedings shall be conducted in Denver, Colorado. The award or decision through arbitration shall be binding upon the parties and may be incorporated into and thereupon enforced as an order of a court of competent jurisdiction. Any arbitration award pursuant to this Section 16 shall be subject to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR THEIR INTERPRETATIONS. Notwithstanding the foregoing, nothing in this Section 16 will prevent STO Responsible from seeking interim injunctive other equitable relief in any court having jurisdiction, nor shall anything in this Section 16 prevent STO Responsible from filing any debt collection action against Purchaser in local courts.
i. Nature of Relationship. In performing hereunder, STO Responsible and Purchaser are both acting as independent contractors and neither party undertakes to perform any obligation of the other, whether regulatory or contractual, or to assume any responsibility for the other’s business or operations. STO Responsible may sell similar Products to third parties without restriction. Nothing in these Terms shall be deemed to constitute a partnership or joint venture between STO Responsible and Purchaser. Neither party shall hold itself out as having any authority to enter into any contract or create any obligation or liability on behalf of or binding upon the other party. STO Responsible and Purchaser shall separately assume complete responsibility for obligations under any applicable employers’ liability, workmen’s compensation, social security, unemployment insurance, occupational safety, and health administration laws and other laws with respect to its own hired or leased employees or workers.
ii. Severability. If any provision of these Terms shall be held to be invalid, illegal, or unenforceable, such provision shall be enforced to the fullest extent permitted by law and the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. A provision of similar economic effect shall be substituted for any invalid, illegal, or unenforceable provision.
iii. Waiver. No change, modification, or waiver of any provision of these Terms shall be valid or binding unless it is in writing and accepted by STO Responsible. Any delay or omission in exercising any right, power, or remedy pursuant to a breach or default by a party shall not impair any right, power, or remedy that either party may have with respect to a future breach or default.
iv. Assignment. Purchaser may not assign any of its rights or delegate any of its obligations hereunder or under any Order without obtaining STO Responsible prior written consent in each instance. Any attempted assignment or delegation by Purchaser in violation of this Section 17(iv) is void. These Terms shall be binding upon and shall inure to the benefit of the successors and permitted assigns of Purchaser and STO Responsible.
v. Construction. The section headings used in these Terms are inserted for convenience only and shall not affect the meaning or interpretation of these Terms. All words used in these Terms will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word “including” does not limit the preceding words or terms.
vi. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms including, but not limited to, the following provisions: Payment Terms, Disclaimer Limitation of Liability, Assumption of Risk, Confidentiality, Governing Law, Dispute Resolution, and Miscellaneous.
vii. Entire Agreement. These Terms supersede all prior oral or written agreements, proposals, discussions, correspondence, representations, warranties, and covenants. No course of prior dealings, acceptance, or acquiescence in a course of performance and no usage of the trade shall be relevant to supplement, explain, or modify any provisions contained herein. All representations, promises, warranties, or statements by an agent or employee of STO Responsible that differ in any way from these Terms shall be given no force or effect. No waiver or alteration of terms herein shall be binding unless in writing signed by an authorized representative of STO Responsible. STO RESPONSIBLE HEREBY OBJECTS TO AND REJECTS ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED BY PURCHASER, INCLUDING THOSE CONTAINED IN A PURCHASE ORDER, confirmation form, or OTHER document SUBMITTED BY PURCHASER, AND SUCH ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS SHALL BE VOID AND OF NO FORCE OR EFFECT.