1. These terms and conditions of sale (these “Terms”) are the only terms that govern the sale of the goods (“Products”)  by Polyset Company, Inc. (“Polyset”) to any entity or individual (in each case, the “Buyer.”)  Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Products, the terms and conditions of that contract shall prevail to the extent that they are inconsistent with these Terms.
  2. The accompanying Purchase Order, Polyset’s written order confirmation, and these Terms (collectively, the “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties and communications both written and oral.  The terms of the Agreement prevail over any of Buyer’s general terms and conditions of purchase, regardless of whether or when Buyer has submitted the purchase order or such terms to Polyset.  Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
  3. The Products will be delivered within a reasonable a time after the receipt of Buyer’s purchase order, subject to availability of Products and written order confirmation from Polyset.   Polyset shall not be liable for any delays, loss, or damage in transit of the Products.   Polyset may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment shall constitute a separate sale, and Buyer shall pay for the Products shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
  4. Unless otherwise specified and agreed to by Polyset in writing, all domestic shipments will be delivered FOB Polyset’s facility Mechanicville, NY (“Polyset Facility”) as defined in the New York Uniform Commercial Code, and all international shipments will be delivered EXW (Ex Works lncoterm 2020) Polyset Facility. Title, risk of loss and responsibility for the shipment shall pass to the Buyer when the products are placed in custody of the common carrier.
  5. Claims against Polyset for shortages must be made in writing within 10 calendar days after delivery, and any failure by Buyer to provide Polyset with written notice of a claim within 10 days shall constitute a waiver by Buyer of any shortage claim.
  6. Any liability for non-delivery of Products shall be limited to replacing the Products within a reasonable time or adjusting the invoice with respect to such Products to reflect the actual quantity delivered.
  7. Buyer shall purchase the Products from Polyset at the prices (“Prices”) set forth in Polyset’s published price list or on the confirmation of purchase order, as applicable, as of the date that Polyset accepts the applicable purchase order.  If the Price should be increased before delivery of the Products to carrier for shipment to Buyer, then these Terms shall be construed as if the increased price were originally inserted herein, and Buyer shall be invoiced by Polyset on the basis of such increased price.
  8. Buyer shall inspect the Products within 10 days of receipt (the “Inspection Period”).  Buyer will be deemed to have accepted the Products unless it notifies Polyset in writing of any “Non-Conforming Goods” during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Polyset.  “Non-Conforming Goods” means: (1) Products that were shipped are different than identified in Buyer’s purchase order; or (2) the Products’ label or packaging incorrectly identifies its contents.   If Buyer timely notifies Polyset of Non-Confirming Goods, Polyset shall, in its sole discretion, credit or refund such Non-Confirming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith or replace such Non-Conforming Goods.  Buyer acknowledges that these are its sole remedies for Non-Confirming Goods.
  9. Payment for Products shall be due upon the earlier of the following dates (“Payment Due Date”): (a) date of invoice or (b) date of delivery of Product. Payment in full must be received by Polyset on or before the Payment Due Date; provided, however, that Polyset reserves the right, in its sole discretion and without prior notice, to, either generally or with respect to a particular purchase order, require cash payments in advance or security satisfactory to Polyset at the time of delivery. For any amount which is not paid within 30 days of the Payment Due Date, client shall pay to Polyset compound interest at the rate of 1.5% (or the highest rate permitted by law, if less) for every month or portion thereof paid late. Client shall submit to Polyset such statements, documents and evidence of creditworthiness as requested by Polyset. Upon Buyer’s failure to timely pay any amount when due, Polyset expressly reserves the right to thereafter require cash on delivery and/or require further assurances. On demand, Buyer shall pay or reimburse Polyset for all expenses and costs incurred by Polyset in collecting any amount owed to Polyset including, without limitation, attorney’s fees and court costs.
  10. Polyset’s prices do not include any federal, state or local sales, use, excise or similar taxes, and the amount of any present or future sales, use, excise, or other similar tax applicable to sale of product, or to the use of such product, shall be paid by Buyer, or in lieu thereof Buyer shall provide Polyset with a tax exemption certificate acceptable to the tax authorities and to Polyset.
  11. All matters arising out of or relating to the Agreement or the sale of the Products shall be governed by and construed in accordance with the internal laws of the state of New York without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction.
    Any dispute, controversy or claim arising out of or related in any way to the Agreement and/or any sale and purchase of Products hereunder or any transaction contemplated hereby which cannot be amicably resolved by the parties shall be solely and finally settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place before a panel of 3 arbitrators sitting in Albany, New York. The language of the arbitration shall be English. The arbitrators will be bound to adjudicate all disputes in accordance with the laws of the State of New York. The decision of the arbitrators shall be in writing with written findings of fact and shall be final and binding on the parties. The arbitrator shall be empowered to award money damages, but shall not be empowered to award incidental damages, consequential damages, indirect damages, statutory damages, special damages, exemplary damages, punitive damages or specific performance. Each party shall bear its own costs relating to the arbitration proceedings irrespective of its outcome. This section provides the sole recourse for the settlement of any disputes arising out of, in connection with, or related to these Terms, any purchase orders or any product.
  12. OTHER THAN AS EXPRESSLY PROVIDED IN THESE TERMS, POLYSET MAKES NO, AND HEREBY DISCLAIMS, ALL WARRANTIES, WHETHER EXPRESSED OR IMPLIED, OR REPRESENTATIONS OF ANY SORT. WITH RESPECT TO ANY PRODUCT, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. ALL PRODUCTS ARE SOLD AS IS.
  13. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ANY AGREEMENT BETWEEN THE PARTIES, POLYSET SHALL HAVE NO LIABILITY NOR OBLIGATION FOR ANY SPECIAL, CONSEQUENTIAL (INCLUDING WITHOUT LIMITATION, LOST PROFITS), INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES UNDER ANY CONTRACT THEORY, TORT THEORY (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER LEGAL THEORY. IN ALL EVENTS, POLYSET’S TOTAL LIABILITY AND RESPONSIBILITY UNDER ANY LEGAL THEORY WILL BE LIMITED TO A REFUND OF THE PURCHASE PRICE OR A REPLACEMENT OF PRODUCT, IN POLYSET’S DISCRETION. BUYER ACKNOWLEDGES THAT NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE WITH RESPECT TO PRODUCT OTHER THAN THOSE CONTAINED EXPRESSLY HEREIN.
  14. POLYSET WARRANTS TO THE BUYER THAT THE CHEMICAL MAKEUP AND AMOUNT OF PRODUCT AS OF THE DATE OF DELIVERY WILL MATERIALLY CONFORM TO THE WRITTEN PRODUCT LABELING FOR SUCH PRODUCT; PROVIDED, HOWEVER, THAT BUYER MUST PROVIDE POLYSET WITHWRITTEN NOTICE OF ANY CLAIM UNDER SUCH WARRANTY WITHIN ___ DAYS OF WHEN BUYER DISCOVERS OR OUGHT TO HAVE DISCOVERED SUCH DEFECT AND POLYSET IS GIVEN THE OPPORTUNITY AFTER RECEIVING SUCH NOTICE TO INSPECT THE PRODUCTS AND POLYSET REASONABLY VERIFIES BUYER’S CLAIM. THE FOREGOING WARRANTY SHALL EXPIRE ON THE 1ST ANNIVERSARY OF DELIVERY OF SUCH PRODUCT (THE “WARRANTY PERIOD”). SUBJECT TO THE ABOVE, WITH RESPECT TO THE PRODUCTS DURING THE WARRANTY PERIOD, POLYSET SHALL, IN ITS SOLE DISCRETION, EITHER (I) REPLACE THE PRODUCTS (OR THE DEFECTIVE PORTION); OR (II) CREDIT OR REFUND THE PRICE OF SUCH PRODUCTS AT THE PRO-RATA CONTRACT PRICE, PROVIDED THAT, IF POLYSET SO REQUESTS, BUYER SHALL, AT POLYSET’S EXPENSE, RETURN SUCH PRODUCTS TO POLYSET.  THE REMEMDY SET FORTH IN THIS SECTION 14 SHALL BE THE BUYER’S SOLE AND EXCLSUIVE REMEMDY FOR ANY BREACH OF THIS LIMITED WARRANTY.
  15. BUYER ASSUMES ALL RISK WHATSOEVER AS TO THE RESULT OF THE USE OF PRODUCT, WHETHER USED ALONE OR IN COMBINATION WITH OTHER PRODUCTS OR SUBSTANCES.  POLYSET SHALL HAVE NO LIABILITY RELATED TO ANY FAILURE BY BUYER OR A THIRD PARTY TO FOLLOW POLYSET’S  ORAL OR WRITTEN INSTRUCTIONS AS TO THE STORAGE, INSTALLATION, APPLICATION, USE OR MAINTENANCE OF THE PRODUCTS OR IF BUYER ALTERS THE PRODUCTS WITHOUT THE PRIOR WRITTEN CONSENT OF POLYSET.
  16. BUYER SHALL COMPLY WITH ALL APPLICABLE INTERNATIONAL, NATIONAL, STATE, REGIONAL AND LOCAL LAWS AND REGULATIONS, INCLUDING BUT NOT LIMITED TO ALL APPLICABLE EXPORT LAWS AND REGULATIONS WITH RESPECT TO ALL PRODUCTS. UNLESS OTHERWISE EXPRESSLY AGREED IN WRITING, BUYER SHALL BE RESPONSIBLE FOR OBTAINING ANY LICENSES OR AUTHORIZATIONS FROM THE COMMERCE DEPARTMENT’S BUREAU OF INDUSTRY AND SECURITY (BIS), AND THE TREASURY DEPARTMENT’S OFFICE OF FOREIGN ASSETS CONTROL(OFAC), WHICH MAY BE REQUIRED PRIOR TO EXPORT OF PRODUCT FROM THE UNITED STATES, OR RE-EXPORT TO A THIRD COUNTRY. BUYER AGREES TO COMPLY WITH APPLICABLE U.S. EXPORT CONTROL LAWS AND REGULATIONS, INCLUDING BUT NOT LIMITED TO THE REQUIREMENTS OF THE ARMS EXPORT CONTROL ACT,22U.S.C. 2751-2794; THE INTERNATIONAL TRAFFIC IN ARMS REGULATION (ITAR), 22 C.F.R. 120 ET SEQ.; AND THE EXPORT ADMINISTRATION ACT, 50 U.S.C. APP 2401-2420,INCLUDING THE EXPORT ADMINISTRATION REGULATIONS, 15 C.F.R. 730-774. BUYER SHALL IMMEDIATELY NOTIFY POLYSET IF BUYER IS LISTED ON THE BIS DENIED PARTIES LIST OR IF BUYER’S EXPORT PRIVILEGES ARE OTHERWISE DENIED, SUSPENDED OR REVOKED IN WHOLE OR IN PART BY THE U.S. OR.FOREIGN-GOVERNMENT ENTITY OR AGENCY. FAILURE OF THE US GOVERNMENT OR ANY OTHER GOVERNMENT TO ISSUE ANY REQUIRED EXPORT OR IMPORT LICENSE, OR WITHDRAWAL/TERMINATION OF A REQUIRED EXPORT OR IMPORT LICENSE BY THE US GOVERNMENT OR ANY OTHER GOVERNMENT, SHALL NOT RELIEVE BUYER OF ITS OBLIGATIONS HEREUNDER.
  17. Buyer shall have no right of set-off or withholding, and no deduction of any amounts due from Buyer to Polyset shall be made without Polyset’s prior, express written approval.
  18. Polyset shall not be liable nor responsible for any failure to perform or delay in performance resulting from any cause beyond its reasonable control, including, without limitation, acts of God, fires, flood, wars, riots, pandemics, unavailability of raw materials on national or international markets, labor strikes or other labor issues, or due to compliance with regulations, orders, or act of any federal, provincial, state or municipal government, or any department or agency thereof.
  19. The Agreement is the sole and exclusive statement of the parties’ understanding and agreement with respect to transactions contemplated by the Agreement. The Agreement can only be modified or changed in writing and signed by an authorized representative of Polyset. No waiver by Polyset of any of provisions of the Agreement or any breach hereof shall constitute or be deemed to be a waiver of any such term or any such breach in any other case.  Buyer shall not assign any of its rights or delegate any of its obligations pursuant to the Agreement without the prior written consent of Polyset.
  20. In addition to any remedies that may be provided under these Terms, Polyset may terminate the Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due; or (ii) has not otherwise performed or complied with any provision of the Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings related to bankruptcy, receivership, reorganization or assignment of the benefit of creditors.
  21. All non-public, confidential or proprietary information of Polyset, including but not limited to the specifications, samples, formula, designs, plans, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Polyset to Buyer, whether disclosed orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Polyset in writing.  Upon Polyset’s request, Buyer shall promptly return all documents and other materials received from Polyset,  Polyset shall be entitled to injunctive relief for any violations of this section 21. This section does not apply to information that is (a) in the public domain; (b) known to Buyer at the time of disclosure or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
  22. The relationship between the parties is that of independent contractors, and nothing in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have the authority to contract for or bind the other party in any manner whatsoever.
  23. Provisions of the Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of the Terms or any agreement between the parties, including but not limited to sections 6, 9, 11 – 16, and 21 – 23.