Certus Chemical – Terms & Conditions of Sale and Service
Version: 1.0
Effective Date: [08/08/2024]
Applies to: All quotations, sales, and services provided by Certus Chemical, LLC (“Certus”) to any customer (“Customer”).
1) Definitions
Products: Chemicals, blends, packaging, and related goods supplied by Certus.
Services: Blending, tolling, private-labeling, custom manufacturing, lab/testing, logistics, technical support, or other professional services.
Order: Any Customer purchase order, statement of work (SOW), or other request accepted by Certus.
Incoterms: As specified in the Order; if none, Incoterms® 2020 FCA Certus facility.
2) Order Acceptance & Entire Agreement
(a) All Orders are subject to Certus’s written acceptance.
(b) These T&Cs, together with Certus’s quotation and any SOW expressly incorporated by reference, form the entire agreement. Conflicting or additional Customer terms are rejected unless expressly accepted in writing by an officer of Certus.
(c) In the event of conflict, the order of precedence is: (1) a mutually executed master agreement, (2) SOW, (3) quotation, (4) these T&Cs.
3) Pricing, Taxes, and Surcharges
(a) Prices are in U.S. dollars and exclusive of taxes, duties, and fees. Customer is responsible for all sales/use, excise, VAT/GST, import/export, and similar taxes (other than taxes on Certus’s income).
(b) Prices may include market-based surcharges (e.g., energy/fuel, hazardous handling, packaging). Quoted prices are valid for the period stated; absent a stated period, for 30 days.
4) Payment Terms & Credit
(a) Unless otherwise stated, payment is Net 30 from invoice date. Certus may require prepayment or security (including a purchase-money security interest in Products).
(b) Late amounts accrue interest at the lesser of 1.5% per month or the maximum allowed by law, plus reasonable collection costs and attorneys’ fees.
(c) Certus may suspend performance or cancel Orders for nonpayment or change in Customer’s creditworthiness.
5) Delivery, Title & Risk of Loss
(a) Delivery per the applicable Incoterm. If not specified, FCA Certus facility (Incoterms® 2020).
(b) Title and risk of loss transfer at delivery under the Incoterm.
(c) Delivery dates are estimates. Certus is not liable for delays outside its reasonable control (see §16, Force Majeure). Partial shipments may be made and separately invoiced.
6) Packaging, Handling & Safety
(a) Products ship in standard commercial packaging; special packaging/handling requested by Customer is at Customer’s cost.
(b) Customer will handle, store, use, and dispose of Products in compliance with all laws and the Safety Data Sheet (SDS). Customer is responsible for training its personnel and providing appropriate protective measures and equipment.
7) Inspection & Acceptance
(a) Customer must inspect Products upon delivery.
(b) Any claim for nonconformity or shortage must be made in writing with supporting evidence within 10 calendar days of delivery; otherwise, Products are deemed accepted.
(c) For Services, Customer must notify Certus in writing of any material deficiency within 10 calendar days of delivery of the Service output.
8) Returns
No Product may be returned without a Return Material Authorization (RMA). Returns must be unopened, in original packaging, and suitable for resale, subject to restocking and disposal fees where applicable. Custom or made-to-order Products are non-returnable.
9) Specifications; Changes
(a) Products will conform to Certus’s published specs or the mutually agreed spec/SOW.
(b) Certus may make non-material changes that do not adversely affect form, fit, or function. Material changes require mutual written agreement.
10) Regulatory & Compliance
(a) Customer represents it has all permits and approvals to purchase, receive, store, and use the Products.
(b) Products and Services may be subject to chemical control, export control, and hazardous materials laws (e.g., TSCA, REACH, DOT/HAZMAT, OSHA). Customer will not export, re-export, or transfer Products in violation of U.S. or other applicable laws.
(c) Customer will not use Products for prohibited applications (including human ingestion, drug manufacture, weapons, or any unlawful purpose).
11) Warranties
(a) Products. Certus warrants that on delivery, Products will (i) conform to the applicable specifications, and (ii) be free from material defects in materials and workmanship.
(b) Services. Certus warrants Services will be performed in a professional and workmanlike manner consistent with industry standards.
(c) Exclusions. No warranty for (i) misuse, improper storage or handling, alteration, contamination, combination with other substances, or use contrary to the SDS/spec; (ii) normal wear; or (iii) designs, formulas, or instructions supplied by Customer.
(d) Remedies. Customer’s exclusive remedy, at Certus’s option, is repair/reperformance, replacement, or refund of the purchase price for the nonconforming portion.
(e) Disclaimer. EXCEPT AS EXPRESSLY STATED, CERTUS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
12) Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW:
(a) CERTUS IS NOT LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR INDIRECT DAMAGES, INCLUDING LOST PROFITS, LOSS OF USE, OR BUSINESS INTERRUPTION, EVEN IF ADVISED OF THE POSSIBILITY.
(b) CERTUS’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO ANY ORDER IS LIMITED TO THE AMOUNTS PAID BY CUSTOMER FOR THE SPECIFIC PRODUCTS/SERVICES GIVING RISE TO THE CLAIM IN THE 6 MONTHS PRECEDING THE CLAIM.
13) Indemnification
(a) Customer will indemnify, defend, and hold harmless Certus and its affiliates, and their directors, officers, employees, and agents from claims, losses, liabilities, costs, and expenses arising out of or related to: (i) Customer’s handling, storage, use, or disposal of Products; (ii) Customer-provided specifications, formulas, or instructions; (iii) Customer’s breach of these T&Cs or applicable laws; or (iv) exposure or release occurring after delivery under the applicable Incoterm.
(b) Certus will indemnify Customer for third-party claims alleging bodily injury or tangible property damage to the extent caused by Certus’s gross negligence or willful misconduct.
14) Intellectual Property; Confidentiality
(a) IP. All intellectual property rights in Products, formulations, processes, methods, data, and know-how are and remain with Certus or its licensors. No license is granted except as necessary for Customer’s permitted use of Products.
(b) Custom Work. If Services involve custom formulations or blends, ownership will be as stated in the SOW; absent such terms, Certus retains all IP.
(c) Confidentiality. Each party will protect the other’s non-public information for 5 years from disclosure and use it only to perform its obligations.
15) Quality; Audit; Traceability
Certus maintains commercially reasonable quality systems and batch/lot traceability. If required by law or agreed in an SOW, Customer audits must be scheduled with reasonable notice, limited in scope, and subject to confidentiality and facility rules.
16) Force Majeure
Neither party is liable for failure or delay due to events beyond its reasonable control, including raw materials shortages, labor disputes, epidemics, war, terrorism, acts of government, extreme weather, transportation failures, or utility outages. The affected party will notify the other and use commercially reasonable efforts to mitigate.
17) Product Stewardship & Recalls
Customer will cooperate with Certus regarding safety communications, corrective actions, or recalls, including forwarding notices to downstream users, implementing holds, and providing distribution records.
18) Termination & Suspension
(a) Either party may terminate an Order for material breach not cured within 30 days of written notice.
(b) Certus may suspend performance for nonpayment, insolvency, or legal/regulatory concerns.
(c) Upon termination (other than for Certus breach), Customer will pay for all delivered Products/Services, work-in-process, committed raw materials, and reasonable wind-down costs.
19) No Resale or Diversion
Unless expressly permitted in writing, Customer will not resell or divert Products outside the territory or end-use agreed in the quotation or SOW.
20) Insurance
Each party will maintain commercially reasonable insurance (e.g., general liability, product liability) consistent with industry standards. Certificates available upon reasonable request.
21) Governing Law; Dispute Resolution
(a) These T&Cs are governed by the laws of the State of Ohio, without regard to conflict-of-laws rules.
(b) The parties will attempt to resolve disputes through good-faith negotiations. If unresolved, the dispute will be brought exclusively in state or federal courts located in Summit County, Ohio. Each party consents to jurisdiction and venue.
(c) The U.N. Convention on Contracts for the International Sale of Goods (CISG) does not apply.
22) Compliance & Ethics
Customer will comply with applicable anti-bribery, anti-corruption, sanctions, environmental, and labor laws, and maintain policies to ensure compliance (e.g., FCPA, UK Bribery Act, OFAC).
23) Notices
Notices must be in writing and delivered by recognized courier, certified mail, or email with confirmation to the addresses on the quotation or last known business addresses.
24) Assignment; Subcontracting
Customer may not assign an Order without Certus’s prior written consent, except to an affiliate or successor in a merger or sale of substantially all assets. Certus may subcontract performance while remaining responsible for compliance.
25) Miscellaneous
(a) Severability. If any provision is invalid, the remainder remains effective.
(b) No Waiver. A failure to enforce any provision is not a waiver.
(c) Relationship. The parties are independent contractors.
(d) Headings. For convenience only; no substantive effect.
(e) Survival. Provisions that by their nature should survive (including §§ 6, 10–14, 16–17, 21–25) will survive expiration or termination.