DEF PURCHASE TERMS & CONDITIONS
The following DEF Purchase Terms and Conditions (“Terms and Conditions”) apply to the purchase of Products from Seller to Buyer as set forth in the Sales Confirmation. These Terms and Conditions and the Sales Confirmation comprise the entire agreement between the parties (collectively, the “Agreement”). Buyer accepts these Terms and Conditions by signing and returning Seller’s quotation, by sending a purchase order in response to the quotation, or by Buyer’s instructions to Seller to ship and/or deliver the Product. No terms, conditions or warranties other than those identified in the quotation and no agreement or understanding, oral or written, in any way purporting to modify the Terms and Conditions whether contained in Buyer's purchase order or shipping release forms, or elsewhere, shall be binding on Seller unless hereafter made in writing and signed by Seller's authorized representative. Buyer is hereby notified of Seller’s express rejection of any terms inconsistent with this Agreement or to any other terms proposed by Buyer in accepting Seller’s quotation. Neither Seller's subsequent lack of objection to any terms, nor the delivery of the products or services, shall constitute an agreement by Seller to any terms. PURCHASE OF DEF AND OTHER ITEMS AND SERVICES FROM SARATOGA IS SUBJECT TO AND CONSTITUTES AND ACKNOWLEDGES BUYER’S ACCEPTANCE OF, THESE TERMS AND CONDITIONS, AS MAY BE AMENDED FROM TIME TO TIME AS SET FORTH HEREIN. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. THESE TERMS AND CONDITIONS ARE SUBJECT TO CHANGE FROM TIME TO TIME IN SARATOGA’S SOLE DISCRETION. THESE TERMS AND CONDITIONS, AND ANY UPDATES THERETO, CAN BE ACCESSED BY BUYER AT ANY TIME AT THE FOLLOWING WEB ADDRESS: https://www.supplypro1.com/def-contract
The below words have the following meanings: “Account(s)” means the credit extended to Buyer by SUPPLYPRO. “Business Day” means any day other than a Saturday, Sunday or other day on which banking institutions are generally authorized or required by law or executive order to close. “Buyer” is the Buyer entity who has applied for and been approved for an account with Saratoga as identified in the quotation, credit application, proposal, order acknowledgement, or invoice. “DEF” shall reference Diesel Exhaust Fluid, 32.5% UREA solution/bulk. The DEF shall meet or exceed the applicable quality specifications for DEF as set forth in the International Organization for Standardization (ISO 22241-1:2006(E)) specifications for DEF. “Product(s)” shall reference DEF or any other form or concentration of UREA and other ancillary products and services purchased by Buyer from Seller. “Sales Confirmation” shall mean any and all of the following documents between Buyer and Seller: quotation, credit application, proposal, order acknowledgement, or invoice.
“Seller” shall reference SUPPLYPRO, LLC.
2. ORDERING PRODUCT
2.1 Seller agrees to sell Product in such quantities as may be agreed to between the parties from time to time. Unless otherwise agreed to between the parties, there is no minimum quantity for purchase or sale hereunder.
2.2. Buyer may order Product from SUPPLYPRO by placing telephone or email orders as needed to Seller’s corporate headquarters. Upon acceptance, the order will be confirmed as to the quantity, price, and the place and/or mode of delivery.
2.3. In the event any significant Product cost component changes occur, the parties agree to meet and confer to arrive at a mutually agreed upon price adjustment. The following examples are events that would qualify as a significant cost component change; however, this provision is not limited to these examples: (i) Product specification changes, (ii) changes in applicable laws or regulations, (iii) changes in Adder costs or (iv) supply issues.
3. TERMS OF PAYMENT AND CREDIT
3.1. Buyer agrees to pay for all Product purchased from Seller when due at the price supplied to Buyer upon Buyer’s order of Product. Buyer will pay for all Product within the agreed upon payment term as set forth in the invoice (“Payment Period”).
3.2. Seller may in its sole discretion extend credit to Buyer after a complete and accurate credit application has been completed. Seller may at any time, investigate the financial condition of Buyer or, as applicable, its subsidiaries and affiliates. If requested, Buyer agrees to furnish Seller copies of its financial statements, or other financial information as soon as available. Financial statements shall have been prepared in accordance with generally accepted accounting principles, consistently applied and shall be in accordance with the books and records of Buyer. Failure to present requested financial information may result in the termination of Buyer’s Account. Nothing herein shall obligate Seller to grant credit to Buyer. Seller may at any time refuse to grant credit to Buyer or condition the granting of credit on such additional credit terms as Seller in its sole discretion may require.
3.3. If Seller does not receive Buyer’s payment within the Payment Period, Buyer’s account shall be considered delinquent and the account will be subject to late charges at the rate of eighteen percent (18%) per annum or at the highest legal rate, whichever is lower, retroactive to the date of the unpaid invoice of invoices, or any portions thereof remaining unpaid. Seller will begin to assess late fees on the first day following the date a payment is due and is not posted to the Account by the end of the business day. The late fee will apply to all past due amounts. Should any transfer, check, or other payment from Buyer be returned to Seller, Buyer agrees that it will be charged a $50.00 processing fee for each payment returned to Buyer for insufficient funds or for any other reason which would cause the funds to be unavailable to Seller.
3.4. Buyer’s Account may be shut off, effective immediately, in Seller’s sole discretion, for nonpayment. Further, Seller shall not be obligated to supply Product to Buyer.
3.5. Payments will be applied first to unpaid late fees and then to any unpaid balances. In addition to any other rights now or hereafter granted under applicable law, Seller may, without notice, set off and apply any and all monies, and any and all other indebtedness at any time held by Seller to or for Buyer’s credit or account, against or on account of any indebtedness owed by Buyer to Seller or any of Buyer’s other obligations and liability to Seller, howsoever arising.
3.6. If Buyer believes an invoice contains information that is incorrect, it must bring the discrepancy to Seller’s attention in writing within the Payment Period or timely pay the invoice in full. If Buyer does bring a discrepancy to Seller’s attention in writing within the Payment Period, Buyer must pay Seller the undisputed portion of the invoice within the Payment Period. All discrepancies or disputes of charges must be sent in writing to Seller within sixty (60) days from the invoice date or they will be considered final and binding and unconditionally waived by Buyer.
3.7. Buyer is responsible for all transactions made by its current and former employees, contractors, affiliates, subsidiaries, or subcontractors who run Transactions or use Buyer’s Account number. It is Buyer’s responsibility to monitor all Account activity.
4. OWNERSHIP/DELIVERY TERMS/RISK OF LOSS
4.1. Where delivery is F.O.B. “Ship From” location, title and risk of loss will pass to Buyer at the “Ship From” location as Product passes (as applicable) the transport truck or railcar inlet flange, barge permanent hose connection, or pipeline upstream flange. Title and risk of loss will not be affected by Seller’s ownership of the transportation assets, arrangement of shipment, and/or pre-payment or collection of shipment expenses from Buyer. Seller will have no obligation to deliver Product at the “Ship From” location unless Buyer, its agents, and its carriers have entered into, and are in compliance with, agreements governing access to the “Ship From” location.
4.2. Where delivery is F.O.B. the “Ship To” destination, title and risk of loss will pass to Buyer at the “Ship To” destination as Product passes (as applicable) the transport truck or railcar outlet flange, barge permanent hose connection, or pipeline downstream flange. Where shipment is by railcar, and Buyer is unable to accept delivery of the railcar when offered, then title and risk of loss will pass to Buyer at the time of constructive placement of the railcar. Buyer will pay and be responsible for any demurrage, fleeting, shifting, parking, detention, port or other charges related to receipt or delivery of Product, unless solely caused by Seller.
5. NON-COMPLIANT PRODUCT
5.1. If Buyer believes that any Product purchased from Seller hereunder fails to meet the specifications set forth herein, Buyer will notify Seller in writing within seven (7) days after the date of the transfer of the title of such Product to Buyer; provided, however, that in the event that upon or after such delivery the Product has been used or commingled with other products or materials, such claims with respect to the Product’s quality are waived. If Buyer fails to provide Seller with a defect notice for any Product sold hereunder within the applicable defect notice period, such Product shall, for all purposes, be deemed to have been fully compliant with all specifications at the time of the title transfer from Seller to Buyer. Seller shall not be responsible or liable in any way to Buyer for any Product sold hereunder that is alleged to vary from the specifications set forth herein unless Seller has timely received a defect notice with respect to such Product.
5.2. If based upon a timely defect notice, it is determined that Seller has supplied Buyer with Product that is not within the specifications set forth herein, Buyer’s sole remedies and Seller’s sole responsibility shall be for Seller, at its option, to (i) refund the purchase price paid by Buyer for the non-confirming Product, or (ii) replace any such non-conforming Product with Product that conforms to the specifications set forth herein.
6. WARRANTIES AND LIMITATION OF WARRANTIES
Buyer represents that it is familiar with the characteristics, qualities, and uses of the Product and that Buyer is not relying on the Seller's skill or judgment to select or furnish Product suitable for any particular purpose. Seller warrants that the Product sold under this Agreement conforms to the description in the Sales Confirmation and that Seller has title to the Product at the time of its delivery free of any liens or encumbrances. Buyer assumes all risk of use of the Product, either alone or in combination with other materials, except for the risk that the Product does not meet the specifications shown on the front page of this Agreement. Except as set forth in this paragraph, there are no REPRESENTATIONS OR WARRANTIES OF ANY KIND, express or implied by operation of law or otherwise, including but not limited to any warranty as to merchantability or fitness for any particular purpose OR ANY OTHER MATTER WITH RESPECT TO THE PRODUCT, whether used alone or in combination with any other material.
7. LIMITATION ON LIABILITY/CLAIMS AND INDEMNIFICATION
7.1. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR REVENUE, BUSINESS INTERRUPTIONS, OR FAILURE OF SUPPLY) RESULTING FROM ANY BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT.
7.2. Buyer shall indemnify and hold Seller harmless from and against all claims, loss, liability and expense (including but not limited to reasonable attorney's fees and litigation or investigation costs) on account of or in any way arising out of any damage to property or injury or death of persons (including Buyer's employees) arising out of Buyer's loading, unloading, transportation, storage, handling, use, or disposal of the Product or any other occurrence arising out of Buyer's business to the extent such damage to property or injury or death of persons is not caused in whole or in part by Seller’s gross negligence or willful misconduct.
7.3. Seller shall not be liable for any loss, damage, injury, or other casualty to the person or property of Buyer or any of Buyer’s employees, agents, common carriers, or contractors, arising out of or by reason of any transfer of Product made hereunder at any Location, unless such loss, damage, injury, or other casualty is caused solely by the gross negligence or willful misconduct of Seller.
8.1. A party to this Agreement may terminate this Agreement at any time upon the default of the other party. “Default” means: (i) the failure of the Buyer to remit payment to Seller in accordance with the terms of this Agreement; (ii) the breach by either party of this Agreement, other than an event of nonpayment by Buyer, provided the breach is not remedied within 7 days of the defaulting party's receipt of written notice from the other party specifying the breach; (iii) the representation or warranty by either party of any facts in connection with this Agreement that prove to have been materially incorrect or misleading when the representation or warranty was made; (iv) the filing by or against either party of any petition in bankruptcy, insolvency, receivership, or reorganization or pursuant to any other debtor relief law or the entry of any order appointing a receiver, custodian, trustee, liquidator, or any other person with similar authority over the assets of either party; (v) the insolvency, dissolution, reorganization, assignment for the benefit of creditors or any other material adverse change in the financial condition of either party; (vii) the entry of any adverse judgment, order or award against either party that has a material adverse impact on the financial condition of either party or a detrimental effect on the ability of either party to perform its obligations; (viii) Buyer fails to make arrangements for payment as Seller may reasonably require, or (ix) a material adverse change occurs in the financial or other condition of Buyer and such material adverse change in the reasonable opinion of Seller makes it unlikely Buyer will be able to perform all or any of its obligations to Seller or (x) the default by Buyer under any other agreement between Buyer and Seller.
8.2. If Buyer Defaults, Seller may, in its sole discretion, (i) stop any Product in transit and defer any further deliveries or require cash in advance of any delivery until Seller has been satisfied of Buyer’s ability to pay or creditworthiness, (ii) suspend Buyer’s ability to further borrow under this Agreement; (iii) declare all outstanding amounts under the Account are immediately due and payable; (iv) terminate this Agreement with immediate effect; and (v) C bring suit and exercise all rights and remedies available under applicable law which may include the payment of all reasonable costs of collection.
9. PERMITS, FEES, AND TAXES
Seller and Buyer, respectively, shall procure all permits, licenses, and other authorizations that may be required in order to perform its respective obligations under this Agreement. Any tax, license fee, inspection fee, or other charges imposed by any agency or governmental authority and required to be paid on, or measured by gross receipts from, any Product sold pursuant to this Agreement or on the production, manufacture, sale, use, delivery, or other handling of such Product or any component thereof, existing at the time of any delivery or transfer hereunder, shall be added to the price specified on the face hereof and shall be paid by Buyer or reimbursed to Seller by Buyer. In the event Seller is required by law to collect and/or pay such items, Buyer shall promptly reimburse Seller for the same upon receipt of Seller’s invoice. Buyer shall furnish Seller with tax exemption certificates where it claims an exemption is due.
Neither party may transfer, sublease or assign, by operation of law or otherwise, all or any part of this Agreement without the prior written consent of the other party, which consent may be unreasonably withheld or delayed.
11. FORCE MAJEURE
Neither party shall be liable for any delay or failure in performing its obligations hereunder, other than the payment of money, to the extent that such delay or failure is caused by any event or condition beyond the reasonable control of such party, including, but not limited to, an Act of God; strike; lockout; riot; civil commotion; combination of workers; breakdown or other mechanical difficulties of vessels used in the deliveries of Product; fire; shortage of facilities, fuel, materials, or labor; governmental restriction or prohibition of exports or imports; governmental blockade or hostility; governmental seizure or expropriation; war or revolution; or the closure of international trade routes. The affected party shall notify the other party as soon as possible after Force Majeure occurs. If, due to Force Majeure or any other cause, Seller is unable to obtain or to produce sufficient Product to meet its internal needs and the requirements of its Buyers, Seller will in its reasonable discretion allocate its Product in a manner it deems to be fair and reasonable considering its internal needs, needs of its affiliates, and its regular Buyers; and such allocation shall be binding on all parties.
All notices shall be considered properly given if in writing and sent by certified U.S. mail, return receipt requested, recognized overnight carrier, or personal delivery and addressed to the party for whom intended at the addresses listed above. In addition, both parties agree to immediately notify the other party of any issues through the electronic messaging addresses set forth in the Agreement; provided however, email shall not be considered formal written notice. The date of service of the notice, when served by mail, shall be (i) three (3) days after date on which said notice is deposited in the US Mail, properly addressed with postage prepaid and duly certified with return receipt requested; (ii) if by overnight courier service, the next business day; or (iii) if by personal delivery, the day of personal delivery. Either party may change the address to which notice may be sent by written notice to the other.
13. AMENDMENTS, HEADINGS AND SEVERABILITY
All additions and amendments to this Agreement shall be in writing and signed by both parties. All headings contained in this Agreement are for reference purposes only and shall not be deemed to form a part of the Agreement nor affect the interpretation thereof. If any provision of this Agreement is or becomes illegal, void, or invalid, that provision shall not affect the legality of the other provisions.
Except as may be agreed to in writing by the other Party, as may be necessary to perform its obligations herein, or as may be required by law, each party shall maintain in confidence all information concerning costs and price to be disclosed in connection with the Agreement, shall not use such information other than as necessary to perform its obligations or exercise its rights under this Agreement, and shall not disclose such information other than to its employees and professional advisors with a need to know such information, and such employees and professional advisors shall be advised of the confidential nature of such information. Notwithstanding the foregoing, nothing in this section or this Agreement prohibits Seller from providing any information to its affiliates or third-party servicers in connection with Buyer’s account or other programs or services to be offered by Seller or its affiliates, and Buyer expressly agrees to these disclosures and use of information. From time to time, such information will be shared by and between Seller and other third parties in accordance with normal business practices including, but not limited to, to approve or decline Buyer’s application, servicing and/or maintaining Buyer’s account(s), the exchange of trade credit information, evaluating Buyer’s transactions and payment experiences, opening and/or closing account(s), credit decisions, and to market additional Seller products and services to Buyer, unless Buyer desires to opt out of the sharing of its information by providing written notice of such intent to Seller.
15. NO WAIVER
The failure or delay of a Party to enforce any power or right under the Agreement shall not be deemed a waiver of that power or right or operate as a bar to the exercise or enforcement of such power or right at any time or times thereafter, nor shall any single or partial enforcement of any such power or right preclude any other or further exercise of that power or right or the exercise of any other power or right under the Agreement. No waiver by either Party of any default or breach of any agreement, covenant, condition, or stipulation herein by the other Party shall be treated as a waiver of any subsequent default or breach of the same or another agreement, covenant, condition, or stipulation hereof.
16. NO IMPLIED RELATIONSHIP
Nothing contained in or done pursuant to the Agreement shall be deemed or construed by the Parties, or by any third party, to create the relationship of principal and agent, partnership, joint venture, or any association whatsoever between the Buyer and the Seller.
17. MISUSE OF PRODUCTS
Except as expressly agreed in writing between the Parties, the Product shall not be used in (i) the production or processing of livestock feed, food products for human consumption (other than as fertilizers), or pharmaceutical products; or (ii) the use as feed by livestock, food products for direct human consumption, or pharmaceutical products. Any such use shall be deemed a misuse of the Product. Buyer acknowledges that the bulk nature of the Product makes it impractical for Seller to include labels or warnings regarding the misuse of the Product, and Buyer represents that following its purchase of the Product it will include such warnings and labels as are necessary and practical.
18. WAIVER OF JURY TRIAL AND CLASS ACTION RIGHTS
EACH PARTY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER THEORY). ANY CLAIM BROUGHT BY BUYER AGAINST SELLER MUST BE BROUGHT IN THE BUYER’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, REPRESENTATIVE, MULTIPLE PLAINTIFF, OR SIMILAR PROCEEDING (“CLASS ACTION”). BUYER EXPRESSLY WAIVES ANY ABILITY TO MAINTAIN OR PARTICIPATE IN ANY CLASS ACTION IN ANY FORUM.
19. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with Delaware law, without regard to any conflicts of law.
20. ATTORNEYS’ FEES & COSTS
Buyer shall be liable to Seller for any and all attorneys’ fees and costs incurred by Seller to enforce this Agreement.
21.1. The parties represent and warrant that this Agreement constitutes the legal, valid, binding, and enforceable agreement of each party, and its execution and performance of this Agreement: (i) does not constitute a breach of any agreement of either party with any other party, or of any duty arising in law or equity; (ii) does not violate any law, rule or regulation applicable to it; (iii) is within the party's corporate powers; and (iv) has been authorized by all necessary corporate action of the parties. Buyer agrees to provide any evidence of corporate (or other organizational) existence and authorization that Seller may reasonably request, in its sole discretion. Failure of Seller to request evidence of corporate (or organizational) existence may not be used against Seller.
21.2. For Seller’s continued compliance with banking and credit underwriting standards, Buyer will provide Seller with advance written notice of: (i) any change in Seller’s legal structure or legal name; (ii) any consolidation, merger or sale of a substantial part of Seller’s assets; or (iii) any change of control of Seller as well as if an employee of Seller that has provided a guaranty of payment has terminated their relationship with Buyer. Seller reserves the right to make any necessary modifications to the Account terms based upon changes made by Buyer as referenced above.