Terms and Conditions
Terms and Conditions
Ensign Chemical, LLC (“Ensign Chemical” or “Seller”) is engaged in the business of distributing chemicals, laboratory consumables, and equipment to its customers. By using the Seller’s products or services, you (the “Customer”) agree to be bound by the below terms and conditions, which together with any purchase order executed by Ensign Chemical and the Customer, comprises the entire agreement (the “Agreement”) between Ensign Chemical and the Customer.
Any provisions contained in any document issued by buyer (the “Buyer”) are expressly rejected and if the terms and conditions in this Agreement differ from the terms of the Buyer, this document shall be construed as a counter offer and shall not be effective as an acceptance of Buyer’s document. Buyer’s receipt of all products provided pursuant to this agreement (“Products”) or Ensign Chemical’s commencement of services provided hereunder shall constitute Buyer’s acceptance of this Agreement. This is the complete and exclusive statement of the contract between Ensign Chemical and Buyer with respect to the purchase of Products. No waiver, consent, modification, amendment, or change of the terms stated herein shall be binding unless in writing and signed by Ensign Chemical and Buyer. Ensign Chemical’s failure to object to terms contained in subsequent communication from Buyer will not be a waiver of modification of the terms contained herein. All orders are subject to acceptance in writing by an authorized representative of Ensign Chemical.
Prices published by Ensign Chemical or quoted by Ensign Chemical’s representatives may be changed at any time without notice. All prices quoted by Ensign Chemical or Ensign Chemical’s representatives are valid for thirty (30) days, unless otherwise stated in writing. All prices for Products will be specified by Ensign Chemical or, if no price has been quoted, the price will be Ensign Chemical’s price at the time of shipment. All prices are subject to change based on specifications, quantity, raw materials, cost of production, shipment arrangements, or other terms and conditions which are not part of Ensign Chemical’s original price quotation.
Product specifications are subject to change without prior notice.
Ensign Chemical may invoice Buyer upon shipment for the price and all other charges payable by Buyer in accordance with the terms herein. If no payment terms are stated, payment shall be net thirty (30) days from the date of invoice. If Buyer fails to pay any amounts when due, Buyer shall pay Ensign Chemical interest thereon at a periodic rate of one percent (1.0%) per month (or the highest rate permitted by law), together with all costs and expenses (including without limitation reasonable attorneys’ fees and costs) incurred by Ensign Chemical in collecting overdue amounts or otherwise enforcing Ensign Chemical’s rights. Ensign Chemical reserves the right to require from Buyer full or partial payment in advance if Ensign Chemical believes in good faith that Buyer’s financial condition does not justify terms of payment specified. All payments shall be made in U.S. Dollars.
Taxes and Other Charges
Prices for all Products exclude all sales, value added, and other taxes and duties imposed with respect to the sale, delivery, or use of any Products, all of which must be paid by the Buyer.
If it becomes necessary to return a product, please contact Customer Service to obtain a Return Materials Authorization (“RMA”) number. Requests to return products must be made within 30 days of receipt of the material and returns to Ensign Chemical must be received within 30 days of RMA authorization. All returns must be authorized by Ensign Chemical and be packed and labeled in accordance with DOT regulations applying to transportation of hazardous materials and in a manner which will preserve the Product from any damage. To insure prompt handling, the RMA number should be placed on the outside of the package with a detailed explanation of the defect. All returns are subject to a restocking fee. The following Products cannot be returned:
- Products which cannot be resold or are not in original packaging
- Products that are perishable or require refrigeration
- Products purchased on special order
- Products not purchased directly from Ensign Chemical
- Products with expired shelf life
Please inspect your shipment from Ensign Chemical upon receipt. If any external damage is noticed, accept the shipment only after the driver has noted the damage on both his and your copies of the delivery receipt and you have requested an inspection by the carrier. Keep all containers and packing material for inspection. If, upon opening a shipment, you find a shortage or damage, you must request inspection by the carrier within fifteen (15) days of delivery or you will relinquish your right to make a claim. Ensign reserves the right to repair a damaged product, where applicable, before replacement or credit is determined.
Product and Service Warranties and Limitation of Liability
- Ensign Chemical warrants to Buyer the following:
- All Products provided to Buyer pursuant to this Agreement will meet the manufacturer’s specifications for a term equal to the warranty period stated in the Product manufacturer’s literature; and
- Services provided, if any, will be of the kind and quality designated and will be performed by qualified personnel
Seller’s warranty shall be limited to Products which are defective or non-conforming, which is defined as a Product which is outside of the manufacturer's defined Product specifications. A defective or non-conforming product does not include Products that fail to meet any fitness of use by Customer or any unique Customer operating conditions or applications.
If you believe a Product falls within our warranty and requires repair or service, please contact Ensign Chemical for instructions on how to proceed. The obligations created by this warranty statement to repair or replace a defective Product shall be the sole remedy of Buyer in the event of a defective Product. ENSIGN CHEMICAL HEREBY DISCLAIMS ALL OTHER WARRANTIES OR GUARANTEES WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER STATUTORY, WRITTEN, ORAL, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABIIITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Any warranties or claims, expressed or implied, by Ensign Chemical for its products are valid only if they are sold directly to the Buyer by Ensign Chemical or sold through one of the US or worldwide distributors authorized by Ensign Chemical.Notwithstanding the foregoing, Products supplied by Ensign Chemical that are obtained by Ensign Chemical from an original manufacturer or third party supplier are not warranted by Ensign Chemical, but Ensign Chemical agrees to assign to Buyer any warranty rights in such Product that Ensign Chemical may have from the original manufacturer or third party supplier, to the extent such assignment is allowed by such original manufacturer or third party supplier.
Limitation of Liability
Notwithstanding anything to the contrary contained herein, the liability of Ensign Chemical under these terms and conditions (whether by reason of breach of contract, tort, indemnification, or otherwise, but excluding liability of Ensign Chemical for breach of warranty (the sole remedy for which shall be as provided under WARRANTY above)) shall not exceed an amount equal to the lesser of (a) the total purchase price theretofore paid by Buyer to Ensign Chemical with respect to the Product(s) giving rise to such liability or (b) one million dollars ($1,000,000). Notwithstanding anything to the contrary contained herein, in no event shall Ensign Chemical be liable for any indirect, special, consequential or incidental damages (including without limitation damages for loss of use of facilities or equipment, loss of revenue, loss of data, loss of profits or loss of goodwill), regardless of whether Ensign Chemical (a) has been informed of the possibility of such damages or (b) is negligent.
Customer shall defend, indemnify and hold Ensign Chemical and its officers, directors, employees, and agents with competent counsel and hold harmless Ensign Chemical from and against any and all claims, actions, liability, expenses, costs, or losses arising (including without limitation reasonable attorneys’ fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in an application or environment for which it was not designed; (iii) modifications of a Product by anyone other than Ensign Chemical without Ensign Chemical’s prior written approval; (iv) Ensign Chemical’s compliance with designs, specifications or instructions supplied to Ensign Chemical by Buyer; (v) any breach by Customer of its obligations here under. This Indemnification Section shall survive termination and cancellation of this Agreement.
Buyer agrees that all pricing, discounts and technical information that Ensign Chemical provides to Buyer are the confidential and proprietary information of Ensign Chemical. Buyer agrees to (1) keep such information confidential and not disclose such information to any third party, and (2) use such information solely for Buyer’s internal purposes and in connection with the Products supplied here under. Nothing herein shall restrict the use of information available to the general public. Buyer shall inform its employees, agents, and representatives of these obligations and shall require them to assume equivalent obligations.
This Agreement may be terminated by either party for convenience at any time upon reasonable written notice delivered to the other party. In the event of any termination or expiration of this Agreement, Customer shall be billed immediately for Products shipped through the effective date of such termination or expiration and all custom Products purchased for Customer in Ensign Chemical's inventories at such date, and Customer shall pay the invoiced amount immediately upon receipt of such invoice.
Delivery, Cancellation and Changes by Buyer
The Products will be shipped to the destination specified by Buyer, F.O.B. Ensign Chemical’s shipping point. Ensign Chemical will have the right, at its election, to make partial shipments of the Products and to invoice each shipment separately. Delivery of all orders will be FCA (INCOTERMS 2000). Shipping and handling fees, special packaging materials, carrier surcharges and hazardous material fees imposed by government regulation will be added separately to the invoice.
Ensign Chemical reserves the right to stop delivery of Products in transit and to withhold shipments in whole or in part if Buyer fails to make any payment to Ensign Chemical when due or otherwise fails to perform its obligations hereunder. All shipping and delivery dates are approximate only, and Ensign Chemical will not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond Ensign Chemical’s reasonable control. In the event of a delay due to any cause beyond Ensign Chemical’s reasonable control, Ensign Chemical reserves the right to terminate the order or to reschedule the shipment within a reasonable period of time, and Buyer will not be entitled to refuse delivery or otherwise be relieved of any obligations as the result of such delay. Orders in process may be canceled only with Ensign Chemical’s written consent and upon payment of Ensign Chemical’s cancellation charges, where applicable. Orders in process may not be changed except with Ensign Chemical’s written consent and upon agreement by the parties as to an appropriate adjustment in the purchase price therefore. Credit will not be allowed for Products returned without the prior written consent of Ensign Chemical.
Title and Risk of Loss
Notwithstanding the trade terms indicated above and subject to Ensign Chemical’s right to stop delivery of Products in transit, title to and risk of loss of the Products will pass to Buyer upon delivery of possession of the Products by Ensign Chemical to the carrier; provided, however, that title to any software incorporated within or forming a part of the Products shall at all times remain with Ensign Chemical or the licensor(s) thereof, as the case may be.
- Severability: If any term or provision of this Agreement or any application thereof shall be held invalid or unenforceable, the remainder of this Agreement and any application of the terms and provisions shall not be affected thereby, but shall remain valid and enforceable.
- Applicable Law: This Agreement is made pursuant to, and shall be construed and enforced exclusively in accordance with, the laws of the State of New Jersey (and United States federal law, to the extent applicable), without giving effect to otherwise applicable principles of conflicts of law. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement against any of the parties shall be brought in the courts of the State of New Jersey.
Time Limitation: Regardless of any contrary statute or law, any suit seeking to enforce any provision of, or based on any right arising out of, this Agreement must be filed within one (1) year from the date that the cause of action arose.
- Enforceability: Ensign Chemical’s failure to enforce, or Ensign Chemical’s waiver of a breach of, any provision contained herein shall not constitute a waiver of any other breach or of such provision.
- Assignment: This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns and designees; provided, however, neither party shall have the right to transfer, assign or delegate its rights or obligations under this Agreement or any portion thereof without the prior written consent of the other party (except that either party may assign this Agreement to a parent, subsidiary or successor corporation without such consent).
Ensign Chemical makes no representation that materials or content on the Ensign Chemical website, www.ensignchemical.com (the "Site") are appropriate for use in locations outside the United States, and accessing them from territories where the Content or materials are illegal is prohibited. If you access this Site from other locations you do so on your own initiative and you are responsible for compliance with local laws. You agree to comply will all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.