Buck Chemical Terms and Conditions of Sale
Effective 2/27/24
1. GOVERNING PROVISIONS
Buck Chemical LLC or its affiliates(s) (“BC”) as identified on the Quotation, Acknowledgment, Invoice, online order form or other commercial document provided by BC (“Commercial Document”) offers to provide the goods and/or services described in such Commercial Document (the “Products”) to the buyer to which this offer is addressed (“Buyer”), subject to the terms and conditions set forth herein and in such Commercial Document (together, the “Agreement”). BC’s agreement to provide to Buyer the Products, and Buyer’s purchase of the Products, is expressly limited to the terms of this Agreement. Buyer may not amend, modify or replace the terms of this Agreement with any conflicting, different or additional terms previously or hereafter received by BC, even if such terms recite that any action or inaction by BC constitutes agreement or consent by BC to such amendment, modification or replacement. If this document is deemed an acceptance of a prior offer by Buyer, such acceptance is limited to the express terms contained herein including, without limitation, all additional terms contained herein. BC objects to and rejects any additional, different or varying terms proposed by Buyer, unless an authorized officer of BC expressly accepts such terms in a signed writing. Any proposal of additional, different or varying terms by Buyer shall not operate as a rejection of BC’s offer, and BC’s offer shall be deemed accepted without such additional, different or varying terms. BC shall reserve the right to update and modify this Agreement in the future. The governing version of this Agreement shall be the version publicly available on BC’s website (www.buckchemical.com/tc/) upon the date of Buyer’s Acceptance, as defined below.
2. ACCEPTANCE
Buyer shall be deemed to have made an unqualified acceptance of this Agreement, and the terms and conditions herein, on the earliest to occur of the following (a) Buyer’s order of Products after receiving notice of this Agreement by reference in the Commercial Document; (b) Buyer’s payment of any amounts due under this Agreement; (c) Buyer’s delivery to BC of any material to be furnished by Buyer; (d) BC’s delivery of the Products; (e) Buyer’s failure to notify BC to the contrary prior to Buyer’s order of Products; or (g) any other event constituting acceptance under applicable law. All written or verbal quotations are void unless confirmed by BC after receipt of Buyer’s purchase order. Other BC publications are maintained as sources of general information and are not quotations or offers to sell.
3. ORDERS; CANCELLATION OR MODIFICATION; RETURNS
(a) Orders. BC shall have the right to accept or reject Buyer’s purchase orders in its sole discretion. Buyer’s orders or mutually agreed change orders shall be subject to all provisions of this Agreement, whether or not the order or change order so states. Minimum order quantity is $1000 per order. BC shall use commercially reasonable efforts to provide Buyer with reasonable notice if a Product for which BC has accepted an order has or becomes obsolete, discontinued, physically unavailable, or economically unavailable or, in BC’s reasonable determination, materially modified (whether by BC or its vendor). Buyer agrees that BC is not obligated to provide any specific amount of notice and BC shall have no liability for such obsolescence, discontinuation, unavailability, modification or resulting order cancellation by BC, other than to refund to Buyer any amounts received by BC from Buyer with respect to such Products that are not delivered to Buyer.
(b) Cancellation, Modification. Buyer may not cancel or modify its order except upon terms accepted by BC in writing, including without limitation requests for delayed delivery of Products. In the event BC accepts Buyer’s cancellation or modification requests, Buyer shall compensate BC for all costs and damages resulting there from, including, but not limited to, out-of-pocket expenses and lost profits and the fees and charges imposed by BC’s suppliers. BC shall, at its sole discretion, determine the Buyer’s cancellation or modification fee, and BC is not required to furnish Buyer with any level of detail regarding its cancellation or modification fee assessment. In the event BC does not accept Buyer’s request for cancellation or modification, Buyer agrees to withdraw such request and proceed with BC’s fulfillment of the order. Buyer must pay the Seller all amounts due in connection with the order (including cancellation charges) prior to transporting or receiving any materials and/or goods in connection with a cancelled order.
(c) Returns. No Products may be returned to BC without its prior, written authorization and Products may be returned only on the terms or conditions specified in such authorization. Returned Products must be of current manufacture, unused, in resalable condition, and securely packed to reach BC without damage. Any cost incurred by BC to put Products in first class condition will be charged to Buyer. All Product accepted for return to BC shall be subject to no less than a minimum of a 25% restocking charge with a minimum restocking charge of $1000.00, plus the costs of freight, packaging, insurance and any import or export costs. BC shall, at its sole discretion, determine the Buyer’s restocking charge, and BC is not required to furnish Buyer with any level of detail regarding its restocking charge assessment. No returns will be accepted on special order products. BC shall, at its sole discretion, determine if an order is considered a special order product. Special order items and deposits are non-refundable. Additionally, special orders cannot be canceled or modified once placed.
4. DELIVERY
(a) Unless previously agreed by BC and Buyer in writing, for shipments within the Continental United States, BC shall deliver the Products FOB Buyer’s delivery point (the “Delivery Point”). “FOB” shall be interpreted in accordance with Texas Business and Commerce Code. Buyer shall pay BC for all costs of shipping that will include a handling fee based on 10% of BC’s cost of shipping. BC shall designate in the Commercial Document if the shipping costs are included in the price of the Products or if they are quoted as a separate line item on a Pre-Pad and Add (“PPA”) basis. All risk of loss, damage or delay, and title to Products, shall pass from BC to Buyer upon BC’s on-board delivery at the Delivery Point. Buyer shall be fully responsible for unloading of delivered Products. Partial shipments shall be permitted and Buyer shall pay for them pro rata. Buyer shall accept overrun and/or under runs not exceeding 10% of quantity ordered, to be paid for or allowed pro rata. Buyer shall fully insure all Products from time of BC delivery hereunder until BC is paid in full therefor.
(b) Delivery Dates. All delivery dates are approximate. Delivery dates given by BC are based on prompt receipt of all necessary information regarding the order. BC will use reasonable efforts to meet such delivery dates, but does not guarantee to meet such dates. Failure by BC to meet any delivery date does not constitute a cause for cancellation and/or for damages or penalties of any kind.
(c) Delivery Delays. Any delay in delivery due to causes beyond BC’s reasonable control, or due to any priorities or allocations necessitated by governmental orders or regulations, or due to any causes specified in the following sentence, shall extend the term of delivery by a period equal to the length of such delay. In the event of delay in delivery requested by Buyer or caused by Buyer’s (a) failure to supply adequate instructions; (b) failure to arrange for delivery; (c) failure to supply or approve necessary data in a timely manner; (d) requested changes; or (e) failure to provide information required for BC to effect delivery, BC will store all Products at Buyer’s risk and expense for a period not to exceed (30) days. Buyer shall pay all storage costs and expenses upon BC’ demand. In the event that the Buyer fails to arrange for delivery after (30) days of storage, BC may dispose or repurpose the Products as it deems fit, with all amounts Buyer owes in connection with the order (including storage charges) still due in the full amount.
(d) Claims. Claims for shortages, overages, or packaging damage must be made in writing to BC within 24 hours after BC’s delivery. Claims for shortages, overages, and packaging damage must also be documented at the time of delivery on the signed bill of lading. Buyer shall, promptly upon delivery, open, inspect and test all Products and report any compositional discrepancies or other quality concerns in writing to BC. Claims relating to compositional discrepancies or quality concerns must be made within (10) business days following delivery and before any of the Product has been used for purposes other than testing. Buyer shall promptly furnish BC with all information it requests for consideration of Buyer’s claim. Buyer’s 1) failure to give notice of claims within the time periods allotted or 2) failure to furnish BC with all information it requests for consideration of a claim shall constitute unqualified acceptance and a waiver of all such claims by Buyer.
5. PRICES; TAXES
Unless prices are stated in BC’s Commercial Document, prices shall be the higher of BC’s most recent quote to Buyer, prevailing market price, BC’s list price, or the last price charged by BC to Buyer for the Products. BC may from time to time increase prices for the Products, effective on notice to Buyer, in response to increases in the prices of raw or other supplied products or materials. Without limiting the foregoing, for a purchase order which contemplates delivery of Products (either in whole or in part) more than (30) days after the date of such purchase order, BC reserves the right to increase prices for Products delivered more than (30) days after the date of the purchase order. BC shall give Buyer verbal or written notice of any price increase at the time that BC is made aware of such increase and its effective date. Unless otherwise stated in BC’s Commercial Document, prices are in U.S. Dollars. Buyer shall pay or reimburse BC for any tax (including sales tax but not including taxes on BC’s income), duty, inspection or testing fee or any other fee or charge imposed on, in connection with or measured by the transaction between BC and Buyer in addition to the prices quoted or invoiced.
6. TERMS OF PAYMENT
Unless otherwise stated in BC’ Commercial Document, payment terms are as follows. Buyer’s payment terms are net (30) days from BC’s invoice date if BC approves credit. A 1% discount on the price of Products will be applied for an ACH payment that can be verified to have been received by BC within net (15) days. Credit terms are subject to the approval BC’s credit department and may be changed at any time and from time to time by BC in its sole discretion. Payment does not constitute BC’s acceptance of the order. BC’s declination of an order shall be deemed remedied by a refund of payment to Buyer within (30) days. Buyer agrees to reimburse BC for all costs and fees including, (but not limited to attorneys’ fees and repossession fees, incurred by BC in collecting any sums owed by Buyer to BC. Buyer agrees to pay a late payment charge of 1-1/2% per month (or, if less, the maximum amount allowable by law) on all amounts not paid in full when due, payable on BC’s demand. Buyer shall not set off amounts due to BC against claims or other amounts.
7. LIMITED WARRANTIES AND REMEDY; DISCLAIMER OF OTHER WARRANTIES AND LIMITATION OF DAMAGES; BUYER’S OBLIGATIONS
(a) UNLESS OTHERWISE STATED BY BC IN WRITING, BC MAKES NO WARRANTIES, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE). Buyer assumes all liability with respect to the delivered Product, including, without limitation, use, misuse, storage and disposal.
Limitations and Remedies. There is NO WARRANTY in cases of Buyer omissions, negligence, abuse, abnormal usage, misuse, accidents, normal wear and tear, damage due to environmental or natural elements, failure to follow BC instructions or improper installation, storage or maintenance. BC makes NO WARRANTY regarding Product compliance with Buyer’s or its representative’s needs, specifications, instructions or requirements outside of a limited warranty of conformance for scope of supplied Products. The scope of supplied Products shall be exclusively defined and limited to the written descriptions used in BC’s Commercial Document. Buyer must make claims in writing in accordance with section 4(d) of this Agreement. Buyer’s failure to make a valid claim shall constitute Buyer’s irrevocable acceptance of the Products and Buyer’s acknowledgement that the Products fully comply with the terms and conditions of this Agreement. BC, at its sole discretion, may require Buyer to return to BC all Products subject to the claim. BC shall repair or replace, at its expense, any covered Products proved to BC’s reasonable satisfaction to be non-conforming with the scope of Product supply defined by BC’s Commercial Document. Such satisfaction shall be available only if: (i) BC is notified in writing of a Claim in accordance with the restrictions in section 4(d) of this Agreement; (ii) the claim has not been caused by Buyer’s misuse, neglect or alteration or by physical environment; and (iii) the shelf life of the Product (as indicated on the Product packaging) has not expired when the alleged defect is discovered. BC’S SOLE OBLIGATION AND BUYER’S EXCLUSIVE REMEDY HEREUNDER SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF DEFECTIVE PRODUCTS DETERMINED BY BC IN ITS REASONABLE DISCRETION TO BE COVERED BY THIS LIMITED WARRANTY OF PRODUCT SCOPE OF SUPPY CONFORMANCE. Notice of warranty claim or request for warranty service should be sent to BC at the following email address: sales@buckchemical.com with a request as part of the email for BC to confirm receipt of said claim email. BC’s confirming receipt of a claim request does not in any way constitute BC’s acceptance of claim. Any assistance BC provides to or procures for Buyer outside the terms, limitations or exclusions of this warranty will not constitute a waiver of the terms, limitations or exclusions of this limited warranty, nor will such assistance extend or revive the warranty or the period for making a valid claim. BC will not reimburse Buyer for any expenses incurred by Buyer in repairing, correcting or replacing any defective Products, except for those incurred with BC’s prior written permission.
This warranty gives Buyer specific legal rights, and Buyer may also have other rights which vary from state to state.
(c) NO LIABILITY FOR OTHER OBLIGATIONS OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. BC SHALL NOT BE LIABLE TO BUYER, OR TO ANYONE CLAIMING UNDER BUYER, FOR ANY OTHER OBLIGATIONS OR LIABILITIES, INCLUDING, BUT NOT LIMITED TO, OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORT OR STATUTE OR ANY THEORY OF STRICT LIABILITY, WITH RESPECT TO THE PRODUCTS OR THEIR USE (WHETHER THE PRODUCTS ARE IN ORIGINAL PACKAGING OR OTHERWISE) OR BC’S UNDERTAKINGS, ACTS OR OMISSIONS. BC WILL NOT, TO ITS KNOWLEDGE, SELL PRODUCTS OR PARTS TO BUYER THAT ARE COUNTERFEIT, BUT BC IS NOT OBLIGATED TO TAKE SPECIFIC STEPS TO ASCERTAIN THE AUTHENTICITY OF PRODUCTS OR PARTS IT PROCURES FROM SUPPLIERS OR VENDORS. IN NO EVENT SHALL BC BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR LOST PROFITS (WHETHER DIRECTLY OR INDIRECTLY INCURRED) EVEN IF BC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF THE LIMITED REMEDY OR ANY OTHER REMEDY IN THIS AGREEMENT. BC’S AGGREGATE LIABILITY WITH RESPECT TO A CLAIM AND THIS AGREEMENT SHALL BE LIMITED TO THE MONIES PAID TO BC FOR THE RELEVANT PRODUCT(S), EXCEPT WITH RESPECT TO (i) LIABILITY RESULTING FROM BC’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND (ii) DEATH OR BODILY INJURY RESULTING FROM BC’S ACTS OR OMISSIONS IN BREACH OF THIS AGREEMENT OR IN VIOLATION OF APPLICABLE LAW. Buyer agrees that BC has no post-sale duty to warn Buyer or any other party about any matter or, if such duty exists, BC satisfies that duty by providing any required warnings only to Buyer. Buyer assumes all post-sale duty to warn its customers and indemnifies BC against any Damages (as defined in section 11) in connection with such duty or failure to warn.
(d) Retains. BC has no obligation to retain Product samples and Buyer accepts all responsibility for obtaining and retaining any required or desired retains or samples. If Buyer requests in writing that BC obtain and maintain a sample, and if BC agrees to do so, Buyer will pay BC’s associated costs.
(e) Buyer’s Obligations. Prior to using or permitting use of the Products, Buyer shall determine the suitability of the Products for the intended use and under Buyer’s operating conditions, and Buyer shall assume all risk and liability whatsoever in connection therewith. Buyer agrees to test and evaluate samples to ensure compliance with all specifications, quality requirements and other requirements of Buyer’s application. BC does not guaranty the accuracy of information given and recommendations made as to suitability of Products for Buyer’s application or operating conditions. Nothing shall be construed to imply the nonexistence of any relevant patents or to constitute a permission, inducement or recommendation to practice any invention covered by any patent without authority from the patent owner. Buyer agrees to familiarize itself with and comply with all laws and regulations now or hereafter in effect and applicable to the purchase, transport, use, supply, storage, sale, offer for sale, lease and/or disposal of the Products (“Laws”) including, without limitation, to the extent applicable, the U.S. Foreign Corrupt Practices Act and all other antibribery laws, all U.S. antiboycott laws, the U.S. Export Administration Act and all regulations thereunder and all laws relating to exports or re-exports of Products. If Buyer or its affiliates, agents or representatives engages a freight forwarder or similar service provider, Buyer shall provide BC with copies of freight forwarder (or similar) records regarding Product exports promptly upon request. Buyer shall promptly notify BC in writing if Buyer receives notice of or otherwise has reason to believe that a violation of U.S. export law has occurred or is likely to occur. Buyer assumes all risk with respect to Product compliance with applicable Laws (including without limitation all Environmental Laws in any jurisdiction). Buyer acknowledges that certain Products have restrictions on who can purchase, transport, use, supply, store, sell, offer for sale, lease and/or dispose of (the “Actions”) the Product and on how and where such Actions may take place. Buyer agrees to be responsible for determining who may take such Actions and how and where such Actions may take place after BC’s delivery hereunder, and further agrees to ensure that its customers comply with such requirements. Buyer shall maintain records pertaining to the Product’s sale and use and Buyer’s and its customers’ compliance with applicable Environmental Laws, and Buyer shall make such records available to BC on demand. “Environmental Laws” means all applicable federal, state and local laws including rules of common law, statutes, rules, regulations, codes, ordinances, binding determinations, orders, permits, licenses, injunctions, writs, decrees or rulings of any governmental authority, and other governmental restrictions and requirements relative to or that govern or purport to govern air quality, soil quality, water quality, sub-slab vapor and indoor air quality, wetlands, natural resources, solid waste, hazardous waste, hazardous or toxic substances, pollution or the protection of employee health and safety, public health, human health or the environment, including, but not limited to, the Comprehensive Environmental Response Compensation and Liability Act, the Hazardous Materials Transportation Act, the Clean Water Act, the Resource Conservation and Recovery Act, the Clean Air Act, the Emergency Planning and Community Right-to-Know Act, and the Toxic Substances Control Act, as each of these laws have been amended from time to time, and any analogous or related statutes and regulations, regulations of the U.S. Environmental Protection Agency, and regulations of any state department of natural resources, state environmental protection agency, and air quality management district or consortium now or at any time hereafter in effect.
(f) Patent Infringement and Defects in Buyer’s Specifications for special orders. Special orders manufactured to specifications, drawings, designs or descriptions provided by or for Buyer are executed only with the understanding that Buyer hereby agrees to indemnify and hold harmless BC from any and all Damages (as defined in section 11) sustained by BC, resulting from any action or threatened action against BC for (a) infringement of the patents or proprietary right of any other person, or (b) injury to person or property, including death, relating to defects in specifications, drawings, designs or descriptions provided by or for Buyer.
8. DISCLAIMER OR LIMITATION OF OTHER WARRANTIES
BC AND BUYER AGREE THAT THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS WARRANTIES. BC HEREBY DISCLAIMS ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED. Any oral or written description of the Products is for the sole purpose of identifying the Products and shall not be construed as an express warranty.
9. CONFIDENTIAL INFORMATION; TRADEMARKS
(a) Confidential Information. Buyer acknowledges that all trade secrets and Confidential Information (as defined below) which may be disclosed to it by BC or its affiliates shall at all times, both during and after expiration or termination of this Agreement for any reason, remain the exclusive property of BC or its affiliates or Suppliers and that Buyer shall not acquire any proprietary interest whatsoever therein. “Confidential Information” means all knowledge and information disclosed by BC or its affiliates to Buyer orally or in writing, or acquired by Buyer through observation, regarding BC’s or its affiliates’ or suppliers’ products, technology, inventions, formulas, know-how, services, forecasts, sales methods, customer lists, customer usages and requirements, financial information, business plans, strategies and future business relationships, engineering data, design information and engineering and shop drawings, with the exception of such information which Buyer can demonstrate by competent written evidence: (i) was already part of the public domain at the time of the disclosure by BC or its affiliates; (ii) becomes part of the public domain through no fault of Buyer (but only after and only to the extent that it is published or otherwise becomes part of the public domain); or (iii) is received (after the disclosure by BC or its affiliates) by Buyer from a third party who did not require Buyer to hold it in confidence and did not acquire it directly or indirectly from BC or its affiliates under a continuing obligation of confidence. Except as necessary to perform its duties under this Agreement, Buyer shall not use or disclose any of such Confidential Information or BC’s or its affiliates’ trade secrets, but shall care for such confidential information and trade secrets using at least the same degree of care given its own confidential information and trade secrets. Upon expiration or termination of this Agreement for any reason, Buyer shall, within (15) days, surrender to BC all plans, drawings, specifications, sketches, pictures, films, tapes, computer disks, literature, samples, documents, other tangible and intangible objects and all copies thereof relating to trade secrets and other Confidential Information and all of BC’s or its affiliates’ or suppliers’ property. Buyer shall be permitted to destroy rather than return all analyses, extracts, and summaries prepared by Buyer which contain Confidential Information, and such destruction shall be certified in writing to BC by an authorized officer of Buyer who has supervised such destruction. Buyer’s obligations of non-use and non-disclosure of BC’s and its affiliates’ trade secrets will survive for so long as such trade secret constitutes a trade secret or for five years, whichever is longer. Nothing in this Agreement shall be construed to limit or negate the common or statutory law of torts or trade secrets where it provides BC with broader protection than that provided herein.
(b) Trademarks. Any use of BC’s or its affiliates’ or suppliers’ trademarks or other intellectual property shall be subject to BC’s prior written approval in each instance and such restrictions as BC may, in its sole discretion, impose from time to time. Buyer agrees that neither it nor its affiliates will seek to register any trademark, service mark, or trade dress owned by BC or its affiliates or suppliers, and if Buyer or any of its affiliates does obtain such a registration, Buyer or its affiliate shall immediately assign and do hereby assign the same to BC or its designee. Buyer acknowledges and agrees that BC or its affiliates or suppliers own all right, title, and interest in and to its trademarks. Except as otherwise agreed by BC, Products sold by Buyer shall bear BC’s or its affiliate’s or supplier’s trademark, and Buyer shall not remove or efface such trademark. Buyer shall not sell Products unless BC has granted Buyer the right to do so. Buyer will not repackage the Products or resell Products without BC’s prior written consent, which consent may be withheld by BC in its sole discretion. Any use of BC’s or its affiliates’ or suppliers’ trademarks in advertisements or promotion must be preapproved in writing by BC. Buyer and its affiliates agree to take all steps which BC may from time to time consider to be necessary to perfect or protect BC’s or its affiliates’ or suppliers’ rights in its trademarks including, without limitation, executing all necessary assignments, declarations, and other documents requested by BC from time to time. Upon expiration or termination of this Agreement for any reason, Buyer and its affiliates shall take such steps and execute such documents as BC requests to cause BC or its affiliates or suppliers to own all rights in its trademarks and to terminate any rights Buyer may have to use such trademarks. Buyer shall inform BC promptly of any potential or actual infringement of any of BC’s or its affiliates’ or suppliers’ trademarks and shall provide all assistance and information required by BC, at BC’s expense, in connection with any such infringement.
10. INDEMNIFICATION
Buyer hereby releases and agrees to indemnify, defend and hold harmless BC, its shareholders, officers, agents, employees, affiliates, successors, assigns and third-party suppliers (“BC’s Indemnified Parties”) from and against any and all direct and indirect claims, debts, actions, causes of action, liabilities, loss, suits, demands, fines, penalties, judgments, omissions, damages or expenses whatsoever, including, without limitation, attorneys’ fees and costs of proceedings (“Damages”) incurred by or against BC or any of BC Indemnified Parties due to or arising out of, in connection with, resulting from or relating to (i) misrepresentations, breach of the limited warranty, representations, covenants or agreement contained in this Agreement or any law by Buyer or any of Buyer’s shareholders, directors, officers, employees, affiliates, representatives, agents, successors or assigns (“Buyer’s Parties”), or (ii) any damage to or destruction of property, or injury to or death of persons caused, or alleged to have been caused, in whole or in part, by any intentional, reckless, negligent or other act (or failure to act) of Buyer or any of Buyer’s Parties, or (iii) losses, damages or injuries caused by Buyer’s products, Buyer’s specifications, designs, approvals or instructions provided to BC, or due to improper application or use of the Products or otherwise. Prior to settling any claim, Buyer will give BC an opportunity to participate in the defense and/or settlement of such claim. Buyer shall not settle any claim without BC’s written consent. In the event of any form of recall affecting or relating to the Products, BC shall have the right to control the recall process and Buyer shall fully cooperate with BC in connection with the recall.
11. ADDITIONAL PROVISIONS
(a) General Provisions. The failure of BC to insist, in any one or more instances, upon performance of any of the terms, covenants and conditions of this Agreement shall not be construed as a waiver or relinquishment of any rights granted hereunder or the future performance of any such term, covenant or condition. The invalidity of any provision or clause of this Agreement shall not affect the validity of any other provision or clause hereof. Buyer is an independent contractor and neither Buyer nor any of its employees or agents shall be considered an employee or agent of BC. Neither Buyer nor any of its employees or agents is authorized to incur any obligations or make any promises or representations on BC’s behalf. The provisions found in sections 3(c), 4(d), 6, 7, 8(e), 8(f), 10, 11 and 12 and the warranty and damage limitations in sections 8 and 9, and any other provision the performance or effectiveness of which naturally survives, shall survive expiration or termination of the parties’ agreement for any reason. All of BC’s remedies herein are cumulative and not exclusive of any other remedies available to BC at law, by contract or in equity.
(b) Entire Agreement. THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF. ANY NEGOTIATIONS OR UNDERSTANDINGS BETWEEN BC AND BUYER WHICH ARE NOT CONTAINED IN THIS AGREEMENT (INCLUDING WITHOUT LIMITATION, PURCHASE ORDERS, CORRESPONDENCE OR STATEMENTS THAT CONFLICT WITH, DIFFER FROM OR MODIFY THIS AGREEMENT) SHALL HAVE NO FORCE OF EFFECT, UNLESS IN WRITING AND SIGNED BY AUTHORIZED OFFICERS OF BC AND BUYER. BC’s sales representatives are without authority to change the terms of this Agreement.
(c) Assignment. Neither party may assign this Agreement or any rights or obligations hereunder without the prior written consent of the other party; provided, however, BC may assign, without Buyer’s consent, this Agreement or its interest herein to any affiliate or to any assignee or successor of BC’s business. BC reserves the right to use subcontractors in order to fulfill the scope of supply defined by the Commercial document, including without limitation BC labeled Products that have been sourced by BC from other suppliers or manufacturers. Subject to the foregoing, this Agreement shall bind and inure to the benefit of BC and Buyer and their successors and assigns.
(d) Governing Law; Dispute Resolution. The internal laws of the State of Texas, without regard to conflict of law provisions, shall govern the rights and obligations of BC and Buyer under this Agreement and any disputes hereunder. Any cause of action, claim, suit or demand by Buyer allegedly arising from or related to the terms of this Agreement or the relationship of the parties shall be brought in a Court situated in the State of Texas. Both parties hereby irrevocably admit themselves to and consent to the jurisdiction of said Court. Upon expiration or termination of this Agreement for any reason, BC shall have all of the rights and remedies provided by law, including, without limitation, the rights of a secured party under Texas law statute or similar statute in the jurisdiction where Buyer is located or stores the Products. BC shall be entitled to temporary and/or permanent injunctive relief and/or other equitable remedies to protect its (or its affiliates’ or suppliers’) Confidential Information or intellectual property.
(e) Force Majeure. BC shall not be responsible for delay in delivery or failure to fill orders or other default or damage where such has been caused by an act of God, war, pandemic, major disaster, terrorism, third-party criminal acts, insurrection, riot, flood, earthquake, fire, strike, lockout or other labor disturbance, delay by carriers, shortage of fuel, power, materials or supplies, operation of statutes, laws, rules or rulings of any court or government, demand for goods exceeding BC’s available supply or any other cause beyond BC’s control. In the event of any delay in delivery, failure to fill orders or other default or damage caused by any of the foregoing, BC may, at its option and without incurring liability, prorate its deliveries, cancel all or any portion of the Agreement and/or extend any date upon which performance is due hereunder.
(f) Termination. In addition to any remedies that may be provided herein, BC may terminate this Agreement with immediate effect upon written notice to Buyer if Buyer (i) fails to pay any amount when due hereunder, (ii) has not otherwise performed or complied with this Agreement in whole or in part, or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
(g) No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement, except as may be set forth in section 11 with respect to BC’s Indemnified Parties.