Applicability. These Terms and Conditions (“Terms”) shall apply to all present and future sales of product by Helmitin Inc., a Canada corporation (“Helmitin Canada”) and/or Helmitin Inc., a Mississippi corporation (“Helmitin US”, and together with Helmitin Canada, “Helmitin”). All purchases of product are expressly limited to and conditioned upon acceptance of these Terms, regardless of the manner in which purchases are made or documented. Unless expressly agreed to by Helmitin in a writing and signed by Helmitin, any additional or conflicting terms and conditions contained on, attached to or referenced by any of Helmitin’s customer’s (“Buyer”) purchase related documentation, or other prior or later communication from Buyer to Helmitin, shall have no effect on the purchase of any such product by Buyer from Helmitin and are expressly rejected by Helmitin. Buyer’s commencement of performance (including ordering, purchasing or taking delivery of product) shall in all cases constitute Buyer’s unqualified and unconditional acceptance of these Terms.
Order Acceptance. No sales representative or agent is authorized to bind Helmitin. Orders placed with a sales representative or agent will not be binding on Helmitin until confirmed in writing by Helmitin’s authorized representative at Helmitin’s Headquarters. An order is accepted when acknowledged in writing or when shipped, whichever occurs first. All orders placed on credit are subject to the review and approval of Helmitin’s Credit Department. Credit is granted at the sole discretion of Helmitin, and may be withdrawn or re-evaluated from time to time by Helmitin. If in Helmitin’s judgment, Buyer’s financial condition at any time does not justify the terms of payment specified, Helmitin reserves the right to require full payment in cash before order entry, manufacture, shipment or delivery. For Buyers whom credit is not established and approved by Helmitin, Helmitin may require payment in cash before order entry, manufacture, shipment or delivery of goods. Helmitin reserves the right to reject any order if at any time Helmitin deems the financial responsibility or condition of Buyer placing any order to be unsatisfactory.
Price, Payment and Credit. All products are sold at Helmitin’s standard prices as in effect at the time of order acceptance by Helmitin. Quantity to be shipped and price shall be specified on Helmitin’s invoice and shall be subject to such terms and applicable discounts as may be specified therein. Unless otherwise agreed in writing, all product prices are exclusive of taxes, customs, duties, transportation and insurance. Payments for orders are due by the due date indicated in the invoice issued by Helmitin. In the event of nonpayment, Buyer shall be liable for interest on the unpaid purchase price at the maximum rate allowable by law, plus reasonable attorney’s fees and court costs incurred by Helmitin in collecting payment. In addition to all other remedies available under these Terms or at law (which Helmitin does not waive by the exercise of any rights hereunder), Helmitin shall be entitled to suspend the delivery of any products if Buyer fails to pay any amounts when due hereunder and such failure continues for ten (10) days following written notice thereof. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Helmitin, whether relating to Helmitin’s breach, bankruptcy or otherwise.
Shipment, Title and Risk of Loss. Helmitin and Buyer shall mutually agree on the method and costs associated with shipping. All shipping dates are approximate and not guaranteed. Buyer shall pay all insurance costs associated with delivery, and shall be responsible for filing and pursuing claims with carriers for loss or damage in transit, unless Helmitin assumes these obligations in writing. Buyer shall be responsible for payment of all invoices regardless of lost, damaged or late shipments. Title to the products and all risk of loss in shipment and delivery of the products shall pass to Buyer upon delivery of the products to the carrier.
Inspection. Immediately upon product receipt, Buyer shall, at its sole cost and expense inspect, test and evaluate the product to ensure that it is suitable for all of Buyer’s purposes and that it has received all required quantities. No later than five (5) days after Buyer’s receipt of product and before the use, disposition, processing, or other change from the original condition of any part of the product, Buyer shall notify Helmitin in writing of product found deficient, defective or short in any respect. Buyer’s failure to give timely written notice to Helmitin of any deficiency, defect or shortage within such five (5) day period shall constitute an unqualified acceptance of the product and a waiver by Buyer of all claims with respect hereto. Any return of products for credit under provisions of this Section shall only be upon prior approval of Helmitin and upon terms acceptable to Helmitin.
Compliance with Law. Buyer will be responsible for compliance with all applicable laws, rules and regulations applicable to product once the product has been delivered in accordance with this Agreement. Failure to do so will entitle Helmitin to withhold or delay shipment. Except as permitted under applicable United States or Canadian laws, rules and regulations, as the case may be, product will not be sold, supplied or delivered by Buyer directly or indirectly to any party or destination that, at the time of such sale, supply or delivery, is declared an embargoed/restricted party or destination by the government of the United States of America, the government of Canada or by the United Nations. Within two (2) days after Helmitin’s request, Buyer will provide Helmitin with appropriate documentation to verify the final destination of any product delivered hereunder.
Limited Warranty. Helmitin warrants only, at the time of delivery, that the product shall conform to the specification agreed in writing by Helmitin and Buyer, or if no written agreement as to specification, Helmitin’s then current published specifications for the specific product sold hereunder. Buyer assumes all risk and liability for the results obtained by the use of any products in the practice of any process, whether in terms of operating costs, general effectiveness, success or failure, and regardless of any oral or written statements made by Helmitin, by way of technical advice or otherwise, related to the use of the products. Except for the express limited warranty set forth in this Section, Helmitin makes no warranty whatsoever with respect to the products, including any (a) warranty of merchantability; b) warranty of fitness for a particular purpose; (c) warranty of title; or (d) warranty against infringement of intellectual property rights of a third party; whether arising by law, course of dealing, course of performance, usage of trade, or otherwise. Buyer acknowledges that it has not relied upon any representation or warranty made by Helmitin, or any other person on Helmitin’s behalf, except as specifically provided in this Section. Any determination of the suitability of the product for the use contemplated by Buyer is Buyer’s sole responsibility.
Further Handling and Use. Helmitin shall not be liable for, and Buyer shall indemnify, defend and hold harmless Helmitin, its affiliates and their respective officers, directors, employees, representatives and agents (“Indemnitees”) from and against, any and all claims, losses, liabilities, judgments, settlements, costs and expenses of any kind (including attorneys’ fees) (“Claims”) arising out of or resulting from, directly or indirectly, the handling, use, manufacture, processing, alteration, distribution, sale or marketing of product, or any other action or inaction with regard to the product, in each case after the delivery thereof to Buyer; provided, however, that Buyer shall not be liable to Helmitin for damages directly and solely caused by the sole negligence of Helmitin. Buyer’s obligations under this Section shall survive the termination, cancellation or expiration of all orders delivered under these Terms and the cessation of any business transactions between Helmitin and Buyer.
Limitation of Liability. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, NEITHER HELMITIN NOR ITS REPRESENTATIVES IS LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT HELMITIN WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, (A) BUYER’S EXCLUSIVE REMEDY VIS-À-VIS HELMITIN FOR ANY CAUSE OF ACTION UNDER THESE TERMS INCLUDING FOR FAILURE TO DELIVER OR LATE DELIVERY, IS, AT HELMITIN’S OPTION LIMITED TO (I) REPLACEMENT OF THE NON-CONFORMING PRODUCT; OR (II) REFUND TO BUYER OF THE PRICE ATTRIBUTABLE TO SUCH NON-CONFORMING PRODUCT AND (B) HELMITIN’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE PRICE OF PRODUCT SOLD WHICH WAS THE DIRECT CAUSE OF THE ALLEGED LOSS, DAMAGE OR INJURY. IN ANY EVENT, BUYER AGREES THAT THE RETURN OF THE FULL SALES PRICE FOR THAT PRODUCT SOLD WHICH WAS THE CAUSE OF THE ALLEGED LOSS, DAMAGE OR INJURY WILL PREVENT THE FOREGOING REMEDIES FROM FAILING OF THEIR ESSENTIAL PURPOSE, AND THAT SUCH REMEDY IS FAIR AND ADEQUATE.
Use and Intellectual Property. Helmitin’s products are intended for professional and industrial use only and shall not be sold or resold to consumers. The observance of all legal regulations and patents in connection with the use of the products supplied is the responsibility of Buyer. Buyer acknowledges and agrees that: (a) any and all Helmitin’s intellectual property rights are the sole and exclusive property of Helmitin or its licensors; (b) Buyer shall not acquire any ownership interest in any of Helmitin’s intellectual property rights under these Terms; (c) any goodwill derived from the use by Buyer of Helmitin’s intellectual property rights inures to the benefit of Helmitin or its licensors, as the case may be; and (d) Buyer shall use Helmitin’s intellectual property rights solely for purposes of using the products under these Terms and only in accordance with these Terms and the instructions of Helmitin.
Confidential Information. All non-public, confidential or proprietary information of Helmitin, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Helmitin to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with these Terms is confidential, solely for the use of performing these Terms and may not be disclosed or copied unless authorized in advance by Helmitin in writing. Upon Helmitin’s request, Buyer shall promptly return all documents and other materials received from Helmitin. Helmitin shall be entitled to injunctive relief for any violation of this Section. 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.
Advice. Upon request, Helmitin will endeavor to furnish such technical advice or assistance as it deems appropriate in reference to the use of its products by Buyer; it being expressly understood, however, that all such technical advice or assistance is given without compensation, and Helmitin assumes no obligation or liability for the advice given or results obtained, all such advice being given and accepted by Buyer at Buyer’s risk.
Entire Agreement. Except for terms and conditions contained on Helmitin’s Confirmation and Invoice, this writing constitutes the complete, entire and exclusive statement of the contract between Buyer and Helmitin and no negotiation, understanding, agreement, term, condition or trade custom at variance with or contradictory to the terms and conditions herein set forth shall be binding upon Helmitin unless in writing and signed by an officer of Helmitin.
Force Majeure. In the event of war, fire, flood, strike, labor trouble, accident, riot, epidemic, pandemic, active government authority, shortage of raw materials essential to Helmitin’s production, failure of Helmitin’s raw materials suppliers to fulfill supply commitments to Helmitin, act of God or other contingencies beyond the control of Helmitin, interfering directly or indirectly with the production, supply or transportation of product ordered, or with the supply of raw material used in connection therewith, quantities so affected shall be eliminated from the contract without the liability to Helmitin, but the contract shall otherwise remain unaffected. Helmitin may without liability during any period of shortage due to any of said causes, prorate its product supply amount itself and its Buyer’s in such manner as Helmitin may deem fair and practical.
Governing Law and Jury Waiver. The rights and obligations of the parties hereto and the interpretation, construction and effect of any provision hereof or any contract formed pursuant hereto shall be governed by and construed in accordance with (i) the laws of Ontario, Canada, if Helmitin Canada was the selling party or (ii) the laws of the State of Mississippi, USA, if Helmitin US was the selling party, without reference to any conflict of law rules. Helmitin and Buyer hereby knowingly and intentionally waive, to the fullest extent permitted by applicable law, any right they may have to a trial by jury in any legal proceeding directly or indirectly arising out of or relating to these Terms or the transactions contemplated hereby (whether based on breach of contract, tort or any other theory of liability).
Dispute Resolution. Any controversy or claim arising out of or relating to these Terms or any actual or alleged breach thereof, which cannot be resolved amicably between the parties, shall be finally settled by arbitration in (i) Toronto, Canada, if Helmitin Canada is the selling party or (ii) Mississippi, USA, if Helmitin US is the selling party, under the then-existing commercial arbitration rules of the American Arbitration Association or the Canadian Arbitration Association, as the case may be, and any judgment upon an award rendered by the arbitrator(s) may be entered in any court having jurisdiction.
Miscellaneous. (a) Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under these Terms. Buyer shall comply with all export and import laws of all countries involved in the sale of the products or any resale of the products by Buyer. Buyer assumes all responsibility for shipments of products requiring any government import clearance. (b) Every purchase of products, including all quotations, orders and invoices, shall be governed by and be deemed to include the provisions of these Terms. In the event of any inconsistency between these Terms and a quotation, order or invoice, these Terms shall prevail, unless otherwise agreed to by the parties in a written agreement executed by Buyer and an officer of Helmitin. These Terms represent the entire agreement between the parties concerning the matters addressed in these Terms and all oral discussions/representations/agreements and prior agreements are merged herein. Notwithstanding the foregoing, these Terms shall not serve to supersede, void or otherwise reduce any obligations of Buyer or Buyer’s guarantor under any written credit application, promissory note, guaranty, security agreement, or other written agreement duly executed. (c) The remedies reserved herein shall be cumulative and in addition to any other remedies provided in law or equity. (d) Buyer may not assign its rights and obligations under these Terms except with the written consent of Helmitin. (e) To be binding and effective, any waiver of any rights by Helmitin must be in a writing executed by an officer of Helmitin. No waiver of any breach or of any term or provision of this writing in any instance shall be deemed or construed as a waiver of any other or any succeeding breach of the same or any other term. (f) If any provision of these Terms is or becomes void or unenforceable by force or operation of law, the other provisions shall remain valid and enforceable and the unenforceable provision shall be modified to the minimum extent necessary to make such provision valid and enforceable, in keeping with the intent and spirit behind such provision. (g) These Terms may be modified by Helmitin from time to time in the future. If the Terms are modified by Helmitin, the modified Terms will be posted by Helmitin on its website. To the extent that Buyer places any orders after the effective date of the modified Terms, Buyer shall be deemed to have accepted and agreed to be bound by the Terms as modified. It is hereby understood that these Terms may not be modified by any oral statement or representation by any Helmitin staff. 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.