Terms & Conditions
TERMS & CONDITIONS OF SALE
SECTION 1: THE TERMS
All orders are accepted, and Products supplied subject to these Terms and Conditions. These Terms and Conditions of Sale including any documents, drawings, product specifications, et. al incorporated herein by reference shall form the whole of the contract between the Seller or Norchem Corporation and the Buyer or Customer. The Seller does not contract other than under these conditions, which shall prevail over any other terms or conditions put forward by the Buyer (whether orally or by Buyer’s Quotation or any other documents) that are inconsistent and/or at variance with them. No amendment or variation to the terms and conditions hereto shall take precedence unless expressly agreed to and executed in writing by the Seller’s executive agents.
SECTION 2: PRICE
2.1 Unless expressly stated in the Quotation or Proposal, prices do not include the following: packing for storage, freight charges, insurance, taxes (federal, local, state, or otherwise imposed on manufacturers, such as customs duties and import/export fees). Such tax or taxes not included in Seller’s prices will be added to the related invoices as a separate charge and payment of those charges will be, and will remain, the exclusive responsibility of Buyer.
2.2 Any item not specified in the Quotation or included, as part of the price quoted shall be an additional item payable by Buyer.
2.3 All prices are valid for 10 days from the quotation date.
SECTION 3: PAYMENT TERMS
3.1 Payment terms are NET 30 with approved credit. All payments and deposits are non-refundable unless a product claim is submitted in writing within 3 days after receipt of goods. This claim will be reviewed by an authorized Seller representative to determine whether a refund is required in accordance with the terms of the applicable warranty. The Seller reserves the right to deliver and invoice the Products comprising the whole or any part of the order. All payments shall be made in U.S dollars.
3.2 Unless otherwise expressly agreed by the Seller in writing or under the provisions of a supply or purchase agreement, the prices for the goods and services provided by the Seller, including but not limited to Parts and Labor will be billed at our customary rates.
LABOR RATE. Labor rates will be billed for service visits, installation, start-up, and off-site technical support. Labor rates are subject to change annually and case by case. Current labor rates are as follows:
1) Labor time will be billed at $165.00 per hour per technician & $195.00 per hour per engineer.
2) Technical Support labor time will be billed at $105.00 per hour per technician & $125.00 per hour per engineer.
TRAVEL. Travel and Lodging expenses will be billed at cost.
3.3 If the Buyer fails to pay promptly when due any invoice owed to the Seller or to perform any obligation hereunder or under any order placed with the Seller, the Seller in addition to exercising any or all other rights it may have, may require immediate payment of all amounts owing in respect of the Products. The Seller reserves the right to charge interest on any invoice that is 60 days past due at the rate of the lower of 1.5% per month and the highest rate of interest permitted by applicable law until the date on which payment is received by the Seller. If payment for past due invoices is not resolved by Buyer within 5 days of being past due, other Purchase Orders placed by the Buyer to Seller shall be subject to hold or prepayment before being released.
SECTION 4: DELIVERY AND INSURANCE
4.1 All Products included in sale or license, including all equipment, parts, manuals, SDS sheets, product labels, and related materials required for installation and/or use thereof, shall be origin Seller unless otherwise agreed to in writing in the proposal. All repair or replacement may, at the Seller’s option, be Seller origin. International deliveries shall be EXW (ex-works) unless specified otherwise at the time of written Quotation and is included in the written Quotation/Purchase Order amount.
4.2 Seller shall use its best efforts to meet quoted delivery dates, which are estimated based on conditions known at the time of Quotation. Same day and next day deliveries made with a Norchem truck will incur a surcharge of $300.00.
4.3 The Seller shall arrange at Buyer’s expense for shipment and routing as the Seller deems appropriate. Shipping dates are approximate and are based upon the prompt receipt of all necessary information from Buyer.
4.4 Buyer may postpone delivery only with the Seller’s prior written consent, which shall in no event be given unless Buyer’s request for postponement is received at least (1) day prior to the scheduled shipping date and Buyer furnishes the Seller such assurances as the Seller may request, including without limitation, payment of storage charges of $100.00/day, the purchase price and interest thereon. Notwithstanding the foregoing, any such requested postponement is subject to Seller’s agreement, in Seller’s discretion.
4.5 In the event of a loss or destruction of the products, personal injury, or damage to the products occurs after shipment of the products, the risk of such loss or damage is borne by Buyer & does not relieve Buyer of its obligation to pay Seller for the Products.
4.6 Seller shall not be liable for any nonperformance, loss, damage, or delay due to war, riots, fire, flood, strikes, governmental actions, pandemics, acts of God, acts of the Buyer or its customer, delays in transportation, inability to obtain necessary labor or materials from usual sources, or other causes beyond the reasonable control of Seller. Seller shall not be liable for any loss, damages, or expense to Buyer, including without limitation, or otherwise incurred or suffered by Buyer or Buyer’s customers if Seller fails to meet any specified performance or delivery obligations.
4.7 The Buyer shall accept the proportion of Products that Seller is able to deliver at the time fixed for delivery at the price quoted. Seller shall be the sole judge whether it is able to deliver any and if so, what part of the order. During the continuance of an event of force majeure each party’s obligations hereunder shall be suspended and will resume as soon as possible after the cause of circumstance has ceased to have an effect; provided that a party’s obligation to make a payment shall not be subject to a force majeure defense.
SECTION 5: PATENT, TITLE, INVENTION, OR TRADEMARK INFORMATION
5.1 If the Product sold hereunder is to be prepared or manufactured according to Buyer’s specifications, Buyer shall indemnify Seller and hold it harmless from any claims or liability for patent or trademark or other intellectual property infringement on account of the sale of such Products.
5.2 The Buyer expressly acknowledges that the terms of any Quotation and any pricing information disclosed to Buyer in connection with any Quotation shall remain confidential and shall not be disclosed to any third party without the prior written consent of authorized officer or representative of the Seller. The Seller holds certain intellectual property rights in the component technology and/or other proprietary technology in the Products. Nothing in this Agreement shall be deemed a transfer or grant of a license or any other rights of any existing intellectual property rights from Seller to the Buyer, or to allow the Buyer to incorporate Seller’s component technology and/or other proprietary technology into future products or services purchased by Buyer from other vendors, or from transferring, assigning, or selling Seller’s component technology and/or other proprietary technology to any third party.
5.3 Title to individual items covered by this agreement shall pass to BUYER upon formal acceptance and full payment of each such item regardless of when or where the BUYER takes physical possession. The title transferred under this Agreement shall be limited to the title of the product line items described in the proposal. The Seller shall retain its title and interest in the design, patent, copyrights, registrations, and all other intellectual property rights associated with said Equipment. The design, patents, copyrights, registrations, and all other intellectual property rights associated with said Equipment shall not be made part of any subsequent patents by BUYER.
5.4 All documentation the Seller provides to the BUYER is confidential property of the Seller and it is to be used only by authorized personnel and in the interest of the Seller’s business. It must be accounted for, shall not be reproduced in whole or part without prior written permission from the Seller’s management. The recipient agrees to keep confidential, and to require all employees to keep confidential, the information within the documentation. Disclosure of the information contained in the documentation shall be made only to those persons who require such information to their work on the Seller’s projects. This includes pricing, drawings, descriptions, designs and the like, shall be deemed provided to Buyer on a confidential basis, shall remain Seller’s exclusive property, shall not be provided in any way to third parties, and shall only be used by Buyer for purposes of installation, operation, and maintenance.
5.5 All software utilized on any Norchem products will remain the sole property of the Seller and is licensed strictly to the BUYER for use only in the PLC / Computer installed on the equipment and is non-transferable by BUYER. Copy, reproduction, or dissemination of any software provided with Seller’s equipment is strictly forbidden.
SECTION 6: ACCEPTANCE, INSPECTION, REJECTION
6.1 All claims for errors, defects, shortages or any other non-conformity in any shipment discoverable upon inspection of the product must be made in writing to Seller within three (3) days after Buyer’s receipt of the product or such claim shall be barred. Such claim must show the product serial number, or item number and describe the defect or nonconformity and the date on which it occurred. No product may be rejected, or its acceptance revoked without affording Seller at least 10 business days to cure. No product shall be returned without prior authorization from Seller. A minimum 25% restocking charge and/or additional handling charges will apply to non-defective returned products as well as any charges necessary to restore items to a resalable condition.
SECTION 7: CHANGES
7.1 Buyer may request, in writing, changes in the design, drawings, specifications, shipping instructions, and shipment schedules of the equipment.
7.2 Seller will advise Buyer what amendments to the Contract, if any, may be necessitated by such requested changes, including but not limited to the amendment of the Purchase Price, specifications, shipment schedule, additions to the scope of the work, or date of delivery.
7.3 Any changes agreed upon by both parties shall be evidenced by a signed Change Order.
SECTION 8: CANCELLATION OR TERMINATION
8.1 The Buyer may cancel a service agreement term or capital equipment purchase order in writing, subject to the payment of the termination fee as provided for herein. Upon Seller’s receipt of Buyer’s cancellation notice (“Cancellation Date”), Buyer shall pay forthwith a termination fee of 25% of total Purchase Price. The termination fee is payable within 10 days of Seller’s invoice. Upon Buyer’s request, Seller shall preserve, protect and deliver to Buyer, at Buyer’s expense, materials on hand, work in progress, and complete work. Buyer agrees that the Seller’s damages in the event of early termination will be difficult or impossible to ascertain, and that the charges identified herewith are intended to establish liquidated damages in the event of termination and are not intended as a penalty.
SECTION 9: SERVICE
9.1 Seller’s normal office hours are 8:00 a.m. – 5:00 p.m. Pacific Standard Time. Service calls may be made at the main office during the standard business hours. If a qualified technician is not available at the time of the call a qualified technician will return a call within 3 hours.
9.2 Service calls may be made to a service rep via cell phone 24 hours per day upon which they can address any questions regarding the operation of Seller’s equipment. If the pending issue cannot be resolved via phone support or remote Ethernet access, NORCHEM and the customer will agree that next day service is required. The Seller reserves the right to charge for next day on-site service.
SECTION 10: LIMITATION OF LIABILITY
10.1 Unless otherwise expressly provided in these Terms and Conditions, all terms, conditions, warranties, undertakings or representations whether express, implied or otherwise relating in any way to the Products supplied or to these Terms and Conditions are excluded or limited to the fullest extent by law.
10.2 Seller’s maximum liability under this Contract shall not exceed the replacement costs of the Product or the equipment or portion thereof upon which such liability is based. All such liability of Seller shall terminate upon the expiration of the warranty period, if not sooner terminated as determined by the provisions herein.
10.3 The Buyer warrants and acknowledges that it has not relied on any representation made by Seller not stated expressly in these Terms and Conditions or upon any descriptions or illustrations or specifications contained in any documents of any nature including any catalogue, list or brochure produced by Seller or supplied to the Buyer in relation to the supply of any Products unless specifically incorporated or stated in the Quotation.
10.4 Seller shall in no event be liable for any consequential, incidental, indirect, special or punitive damages arising out of the Contract, or out of any breach of any of its obligations hereunder, or out of any defect in, or failure of, or malfunction of the Product/equipment, including but not limited to, claims based upon loss of use, lost profits or revenue, regulatory compliance, interest, lost goodwill, work stoppage, impairment of other equipment, environmental damage, nuclear incident, loss by reason of shutdown or non-operation, increased expenses of operation, cost of purchase of replacement power or claims of Buyer or customers of Buyer for service interruption whether or not such loss or damage is based on contract, tort (including negligence and strict liability) or otherwise.
SECTION 11: LAW AND ARBITRATION
11.1 The Contract shall be governed by the law of the State of California. Any disputes arising out of this Contract shall be resolved by informal mediation in any manner that the parties may agree within 45 days of written request for mediation by one party to the other. Any dispute that cannot be resolved through mediation shall be resolved by binding arbitration conducted in English in the USA in the County of Los Angeles, State of California (a neutral party) via Judicial Arbitration Mediation Service (JAMS). The Buyer is not entitled to damages more than original Purchase Order price as said above in Section 10.
SECTION 12. CHEMICAL SUPPLY
12.1 The Seller agrees to charge Customer the sale price of each chemical provided in proposal. The pricing set forth does not include sales tax. Accordingly, sales tax will be added as a separate charge on each invoice when applicable. Additional charges for services supplied by Norchem that fall outside of the scope of services set out in the proposal will be incurred by the Buyer. The prices will remain fixed for the first 12 months of this Agreement. After that, an annual assessment will be made based on the Consumer Price Index. Norchem may adjust those prices by the higher of: (i) 3% or (ii) a percentage equal to no less than the average annual rate of change in the previous 12 months in the Consumer Price Index for all Urban Consumers (CPI-U) U.S. City Average, All Items, as published by the U.S. Department of Labor, Bureau of Labor Statistics. Notwithstanding the foregoing, if at any time, and from time to time, during the term of this Agreement there is a significant shortage of critical raw materials used to produce some or all of the Products or if there is an extraordinary or significant increase in Seller’s cost of certain of those critical raw materials, then Seller will make reasonable adjustment to the prices to help Seller offset the effect of any such shortage or cost increase, including, but not limited to, price increases above the percentages mentioned above.
12.2 In order for Seller to effectively control product usage cost and meet customer quality standards, the Buyer acknowledges that it is responsible for machine loading with properly sorted textiles and selecting the correct formula. Seller shall assist the customer in connection with the foregoing, and Norchem’s tests and reports shall be designed and used to meet the standards set forth in this section. Buyer is responsible for the following operational considerations: (i) proper maintenance and operation of equipment (i.e., press hydraulic fluid leaks, inconsistent water levels, leaking valves & drains), (ii) maintenance of water temperatures per Norchem instructions, (iii) maintenance of water hardness, not to exceed 1-grain hardness (iv) underloading/overloading of washers, & (v) incorrect washer formula selection. If these operational considerations are not complied with by the Buyer, then the Seller is released from all supplier performance obligations to the Buyer.
12.3 All dispensing equipment delivered, as part of our chemical program, will remain the sole property of Seller. Seller reserves its lien rights to the equipment while it is commissioned at the Customer’s site Norchem will provide the dispensing equipment at its own cost to Buyer as part of its chemical program. The Buyer shall provide adequate insurance to protect the Systems while situated at the Buyer's Facility. Seller further requires the Customer issue a certificate of insurance, naming the Seller, including its parents, affiliates, and subsidiaries, and their respective agents, officers, members, managers, directors, employees, successors and assigns, as additional insureds and loss payees for equipment owned by Seller and put in service on the premises of the Buyer. The coverage for Additional Insureds and Loss Payees shall apply on a primary basis and to the full limits of liability purchased by Buyer. Buyer shall provide Seller with a certificate of insurance evidencing the foregoing requirements upon request by Seller. The Seller shall, at its sole cost, promptly and properly maintain and repair (and replace when necessary or appropriate) all portions of the Systems. Buyer shall not disclose, alter, modify, give access to a 3rd party, and/or change in any manner the software and mechanical configuration of the System without express written authorization from an Executive Norchem Officer. Moreover, at no point in time shall Buyer disconnect, dismantle, and/or decommission the System or give such authority to any 3rd party, without the written consent of a Norchem company officer. Upon termination or expiration of this agreement, Norchem shall be responsible for the removal of equipment from the Customer site at the Seller’s sole cost. The time frame for removal shall not exceed thirty (30) days from the term’s date of expiration, or termination. If the Customer prohibits or inhibits Norchem from removing its equipment within this timeframe, then Norchem will be entitled to liquidated damages billed at the rate of $300 dollars per day from the date of such prohibition until Norchem is able to remove the equipment. At Seller’s request, Landlord shall execute and deliver, a landlord waiver or consent document in favor of Seller in a commercially reasonable form acceptable to Landlord which shall include Landlord’s waived interest rights to the personal property of Seller and grant access for the removal of Seller’s Property.
12.4 In the event the pricing under this agreement is based on a negotiated price per gallon, Buyer shall own the inventory shipped by Seller and shall be entitled to retain the inventory upon the expiration or termination of this Agreement. In the event the pricing under this Agreement is based on a cost per hundred weight basis (CWT), then the inventory shipped by Seller shall be held by Buyer on a consignment basis only during the Term and, upon expiration or termination of this Agreement, Seller shall arrange to pick up the remaining inventory.
12.5 Tote deposits of $50.00 per tote will be charged for all deliveries made with totes. The deposit will be credited to the customer at the end of each month for all totes that are returned.
SECTION 13: GENERAL
13.1 Any provision of this agreement, which is or may be void or unenforceable shall to the extent of such invalidity or unenforceability be deemed severable and shall not affect any other provision of these Terms and Conditions.
13.2 No failure or delay on the part of Seller to exercise any of its rights under this Agreement shall operate as a waiver thereof. Nor shall any single or partial exercise of any such right preclude any other or further exercise thereof. Any waiver by Seller of any breach by the Buyer of any of the Buyer’s obligations under this agreement shall not affect the rights of Seller in the event of any further or additional breach or breaches.
13.3 No Party may assign its rights or delegate its duties under this Agreement without the express written consent of the other Party.
13.4 In any lawsuit to interpret or enforce this Agreement, the prevailing party shall be entitled to recover its reasonable court costs and reasonable attorneys’ fees from the opposing party.
13.5 Each person signing this Agreement represents and warrants that he or she has full power and authority to do so and that no other authorizations or approvals of any kind are necessary.
13.6 In the event of any default or delinquency, the Buyer agrees to pay the Seller’s costs of collection including reasonable attorney’s fees and costs, all other costs and fees incurred in litigation, mediation, bankruptcy and administrative proceedings and all appeals and all other costs and expenses incurred in the collection of the amounts due under this agreement.