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Unless otherwise expressly specified on the face hereof, the following terms and conditions of sale (the “Terms”) shall apply to the sale by Golden Argosy LLC and/or any of its subsidiaries (collectively “ARGOSY”) to the purchaser named on the face hereof (the “Customer”), of the products specified on the face hereof (the “Products”) and any related services provided by ARGOSY.
Acceptance of any order by ARGOSY is EXPRESSLY CONDITIONED on Customer’s assent to the Terms and the waiver by Customer of any terms and conditions set forth in any order form, purchase order, confirmation, or any other communication of Customer, whether previously or hereafter delivered to ARGOSY, which either add to, differ from, modify, conflict with or are otherwise inconsistent with any term or condition set forth herein (collectively the “Conflicting Terms”). ARGOSY hereby gives notice of its objection to any Conflicting Terms. Customer’s failure to object in writing to the Terms set forth herein prior to the earlier of i) Customer’s acceptance of the Products, or ii) fifteen (15) days after delivery of these Terms to Customer shall constitute agreement by Customer to these Terms. For the avoidance of doubt, in the event of any Conflicting Terms, the terms and conditions of these Terms shall prevail and govern.
ARGOSY will supply products’ shelf life per specification requirement or unless otherwise agreed to. Shipping tolerance +/-10% is allowed for all products. Argosy will not be responsible for any additional costs or charges incurred as a result of a delay in shipment caused by the customer, customer’s shipping agent, forwarder, etc., including but not limited to credit hold, and such costs or charges will be billed to the customer.
Per the supplier’s recommendation and guidelines, shipments with dry ice should be re-iced within 72 hours or earlier depending on external environmental factors that can affect the dissipation rate of the dry ice. Shipments should be transported in refrigerated trucks and, if needed, stored in cold storage at/or below required temperatures (minus (-10) F Deg/minus (-24) C Deg) to ensure that shipments are not exposed to unqualified temperatures at any time during transit. Please keep the shipment at the temperature of at or below minus (-10) F Deg /minus (-24) C Deg at all times during transportation. Note that any damage caused by failure to comply is Customer’s
liability.
Unless otherwise mutually agreed, Argosy’s Terms of Delivery are F.O.B. point of shipment (or Ex Works Shipping Point per ICC INCOTERMS 2020). Risk of loss and title shall pass to Customer when the product is picked up by carrier or forwarder or any other person acting on behalf of Customer or any such carrier or forwarder. Unless specifically otherwise set forth, all prices do not include the cost of freight or handling, or costs or charges for insurance or any production, sales, use, transfer, transportation, excise or other tax, tariffs, or customs duties, and Customer shall pay directly or be charged by ARGOSY for all such costs and/or charges in addition to the price(s) of the product supplied hereunder and Customer shall be obligated to pay such charges and costs on the same terms as apply to payment of the price(s) hereunder.
If the full payment of the purchase is not received when due as specified on the ARGOSY Sales Order Acknowledgement or, if not so specified, within 30 days after the shipment date, ARGOSY reserves the right to charge interest on any unpaid balance at a rate of up to 1 1/2% per month (or the highest rate permitted by applicable laws, if lower) from the due date. ARGOSY may suspend or cancel deliveries of ordered Products if Customer fails to pay when due any amount owed by it to ARGOSY for any goods or services. ARGOSY reserves the right to require from Customer, at any time, satisfactory assurance of the performance of Customer’s payment obligations to ARGOSY, and refusal or failure promptly to furnish such assurance will entitle ARGOSY to suspend or cancel further deliveries to Customer.
Any order by Customer may be canceled or changed only with the prior written consent of ARGOSY and/or ARGOSY’s vendor. Any cancellation of product that ARGOSY’s vendor has begun to manufacture or process will include cancellation charges or reimbursement of costs incurred prior to the request for cancellation. In this case, the Customer agrees to pay ARGOSY for any and all charges imposed by ARGOSY’s vendor as a condition of providing the cancellation of the order. No Product (whether or not it is defective or nonconforming) may be returned to ARGOSY without the Customer’s written request and ARGOSY’s prior written consent. If a Product is returned with such consent, it shall thereupon become the property of ARGOSY. Any assignment of Customer’s rights or obligations hereunder will be void without ARGOSY’s prior written consent.
All products ordered are subject to compliance with export control laws and regulations of the United States and/or other applicable government authorities. The products may not be used for any military, nuclear, chemical, or biological weapons or missile and rocket delivery systems applications; they may not be re-exported or otherwise transferred to Cuba, Iran, North Korea, Sudan, Syria, or other U.S.-sanctioned countries. Argosy will ask the end-user to sign a certification acknowledging these restrictions in some cases. All orders are screened for applicable export compliance laws. The customer agrees to allow Argosy to conduct a site visit to verify products have been used for the provided end use (s), if necessary.
UNLESS ARGOSY HAS SUPPLIED AN EXPRESS WRITTEN WARRANTY SPECIFICALLY MADE AND ADDRESSED TO THE CUSTOMER ALONG WITH THESE TERMS, THE PRODUCTS SPECIFIED ON THE FACE HEREOF ARE SOLD BY ARGOSY WITHPOUT ANY GUARANTY OR WARRANTY WHATSOEVER, WRITTEN OR ORAL, AND ARGOSY MAKES NO WARRANTIES OF ANY KIND OR NATURE, EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES WITH RESPECT TO SHELF LIFE, USE, HANDLING, TOXICITY, PERFORMANCE OR STRENGTH OF THE PRODUCTS.
IN NO EVENT SHALL ARGOSY BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, COVER DAMAGES, LOST SALES, DAMAGES FROM DELAYED SHIPMENTS OR PRODUCT FAILURE, OR THIRD PARTY CLAIMS OF ANY KINDS OR NATURES) WHETHER BASED ON BREACH OF WARRANTY OR CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR ANY OTHER LEGAL THEORY. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY UNCURED MATERIAL DEFECT OR SUBSTANTIAL AND MATERIAL NONCONFORMITY IN ANY PRODUCT SHALL BE REFUND OF ANY PURCHASE PRICE ACTUALLY RECEIVED BY ARGOSY FOR SUCH PRODUCTS FOR WHICH NOTICE OF SUCH MATERIAL DEFECT HAS BEEN PROVIDED TO ARGOSY WITHIN THIRTY DAYS OF DELIVERY OF SUCH PRODUCTS TO CUSTOMER. CUSTOMER’S FAILURE TO PROVIDE SPECIFIC WRITTEN NOTICE OF ANY CLAIMED DEFECT OR NON-CONFORMITY WITHIN THIRTY DAYS AFTER DELIVERY OF THE PRODUCTS SHALL CONSTITUTE A WAIVER OF ANY CLAIM BY CUSTOMER THAT ANY PORTION OF THE PRODUCTS WAS DEFECTIVE OR NONCONFORMING IN ANY RESPECT.
ARGOSY will not be liable for loss or damage of any kind resulting from any delay in delivery or failure to supply ordered Products or otherwise carry out its obligations under the agreement with Customer due to causes beyond its reasonable control including, but not limited to, any acts of God, wars, riots, pandemic or acts of terrorism, fires, floods, accidents, labor disputes, logistics issues, shortages, governmental action or equipment failures, and no such event will relieve Customer of its obligations to make payments for other deliveries of Products to Customer. ARGOSY also reserves the right to cancel without recourse or liability any order or agreement with Customer in the event of any material adverse change in the cost of or availability of materials or other unforeseen circumstances.
Customer agrees to indemnify and hold harmless ARGOSY and its affiliates, subsidiaries, employees, directors, officers, owners, members, shareholders, managers, members and agents (collectively the “Indemnities”) from and against any and all actions, claims, causes of action, damages, losses, liabilities and expenses (including reasonable attorney’s fees and disbursements of counsel) which may be incurred by or asserted against any Indemnities and which arise from or relate to the use of the Products by Customer or any third party, or which may arise from or relate to a breach or violation under Section 7 above and Section 13 below.
No amendment, change, alteration, waiver, or modification of the Terms shall be binding upon ARGOSY unless made in writing and signed by ARGOSY. In the event the Customer fails to pay any amount due to ARGOSY on or before its due date, then the Customer shall be in default hereunder, all amounts then owed to ARGOSY under all outstanding orders shall become immediately due and payable without notice and, in addition to all amounts owed to ARGOSY, the Customer shall pay to ARGOSY all of ARGOSY’s costs and expenses of collection including reasonable attorneys’ fees and disbursements (whether or not litigation is initiated). This Agreement and all matters pertaining to the business relationship between the Customer and ARGOSY shall be governed by and construed under the internal laws of the State of New York without regard for its choice of law principles. Any lawsuit concerning any dispute arising under or relating to this Agreement or to the business relationship between the Customer and ARGOSY shall be initiated and litigated in a state court located within New York County in the State of New York, which courts shall have exclusive jurisdiction over any such proceedings. The Customer agrees to submit to the personal jurisdiction of the state courts located within the State of New York and waive any objection to personal jurisdiction in such courts for the purposes of such proceedings. Any legal action by Customer against ARGOSY, whether arising under these Terms, the parties’ business relationship, or otherwise, shall be initiated within one year from the date such cause of action has accrued, or it shall be forever time-barred, notwithstanding any statutory limitation period to the contrary under applicable state law.
Customer expressly assumes all risk of patent, trademark, copyright, or know-how infringement by reason of its use of products provided hereunder, use in combination with other products, or in operation of any process. All uses and applications made of the products are solely at Customer’s risk, and Customer assumes all risk and liability resulting from the use of the product delivered hereunder, whether used singly or in combination with other products.
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