Terms & Conditions of Sale
North American Composites Company (NAC)
1.1. Scope. These terms & conditions of sale (“T&Cs”) shall apply to all goods (“Products”) that the above-named company and its affiliates (“Seller”) sell and/or deliver to you and/or your affiliates (“Buyer”). Buyer hereby accepts these T&Cs as a condition to the purchase of any Products from Seller. Buyer’s acceptance of Products constitutes Buyer’s irrevocable acceptance of these T&Cs. These T&Cs are binding on both Buyer and Seller (the “Parties”).
1.2. No Additional or Different Terms. These T&Cs are intended as a complete and exclusive statement of the terms of the agreement between the Parties. Seller’s offer to sell and deliver Products is expressly limited to these T&Cs. Seller hereby objects to any additional or different terms contained in any Buyer purchase order, order acknowledgement, conditions of purchase, or other Buyer document or communication of any kind (“Contrary Communication”). Every such Contrary Communication shall be of no force or effect, except to the extent otherwise provided in ¶ 1.3 below.
1.3. Modification by Supply Contract. These T&Cs may be modified only by a writing that is signed by Seller’s authorized representative [¶ 9.4] and by Buyer (“Supply Contract”). When a conflict arises between these T&Cs and an existing Supply Contract, the provisions of the existing Supply Contract will control.
2. Contract Formation
2.1. Firm Offers. Either Party may withdraw its offer at any time prior to acceptance by the other Party, unless a “firm offer” is made. In order to be a firm offer, there must be written assurance that the offer itself will be held open. Firm offers remain open for one month from the date of that writing, or if longer, the period stated (but never more than 3 months).
2.2. Acceptance by Seller. An offer by Buyer to purchase Products shall be deemed accepted by Seller if and only if (i) Seller sends Buyer a written acceptance or other written confirmation of any kind; (ii) Seller ships the Products to Buyer or hires a carrier to transport those goods; or (iii) Seller starts to manufacture the Products, orders them from an affiliated or independent manufacturer, or otherwise acts to its detriment in reliance on Buyer’s offer.
2.3. Cancellation by Buyer and Product Returns. No order for Products from Seller may be cancelled or changed by Buyer after acceptance by Seller without the prior written approval of Seller. Under no circumstances may Buyer return any Products to Seller without Seller’s prior written authorization.
3. Price and Terms
3.1. Price. The price shall be Seller’s price in effect at the time of shipment. A different price shall apply only if the other price is contained in a Supply Contract [¶ 1.3], a firm offer [¶ 2.1], a writing provided by Seller’s customer service department, or a writing that is signed by Seller’s authorized representative [¶ 9.4].
3.2. Other Charges. Buyer is responsible for and shall reimburse Seller for all taxes, excises, and other charges that Seller is required to pay to any government or taxing authority upon the sale, production, or transportation of the Products (other than income taxes). If omitted from an invoice, Seller may bill Buyer subsequently. Buyer shall reimburse Seller for all demurrage charges due to Buyer’s failure to unload and return delivery equipment in a timely manner. Seller may also charge Buyer for unusual packaging, special labeling requirements, and other appropriate charges.
3.3. Payment Terms. Except as authorized by Seller in writing, Buyer shall pay the entire amount it then owes Seller with no setoffs or discounts. Payment shall be collect on delivery (“COD”) unless Seller has extended credit in writing.
3.4. Credit Terms. Whenever Seller has extended credit, Buyer’s terms are Net 30, unless a different period is stated in a Supply Contract [¶ 1.3], a firm offer [¶ 2.1], a writing from Seller’s credit department, or a writing signed by Seller’s authorized representative [¶ 9.4].
3.4.1. Due Date for Invoices. An invoice will be sent by Seller to Buyer on the same date Product is shipped. Payment terms are always measured from the invoice date. To be timely, Buyer’s payment must be received by Seller within that time. A payment mailed by the due date, but received afterwards, is a late payment.
3.4.2. Missed or Late Payments. If a payment is missed or late, Seller may (i) accelerate Buyer’s outstanding debt, (ii) decline or suspend deliveries, (iii) change future terms to COD or “COD plus,” (iv) demand credit enhancements, and/or (v) require any other credit requirements Seller in good faith deems appropriate.
3.4.3. Additional Rights. Seller may also exercise the rights in ¶ 3.4.2 above if Buyer fails to provide financial statements or other financial data requested by Seller, or in accordance with UCC § 1-309, when Seller in good faith believes its prospects for obtaining payment or performance from Buyer have been impaired.
3.5. PMSI. Seller may claim a purchase money security interest (“PMSI”) in the Products until Buyer pays for them in full. Seller is hereby authorized by Buyer to notify its other secured creditors of this PMSI, file financing statements, and take any and all other actions required to make this PMSI enforceable by Seller under UCC § 9-312 and other laws.
4.1. Title & Risk of Loss. Unless agreed by Seller in writing, Seller may select the method of shipment and the carrier. Except as provided in ¶ 4.1.1 and ¶ 4.1.2 below or as Seller agrees in writing, all shipments are FOB shipping point, and title & risk of loss pass from Seller to Buyer when Seller delivers the Products to the carrier at the shipping point.
4.1.1. Bulk Shipments. All bulk shipments are FOB shipping point. Title & risk of loss pass from Seller to Buyer when the goods pass the flange of the transportation vehicle.
4.1.2. Seller Motor Vehicles. All shipments on NAC motor vehicles are FOB delivery point. Title & risk of loss pass from Seller to Buyer upon arrival at the dock of Buyer’s facility.
4.2. Transportation Costs. Shipments are freight prepaid & allowed for Product shipped by bulk shipments [¶ 4.1.1], Seller motor vehicles [¶ 4.1.2], or when Seller otherwise agrees in writing. In all other cases, the shipment shall be freight collect. When an independent motor carrier is used, Seller may sign the Section 7 block on the Bill Of Lading.
4.3. Delivery Date. Buyer understands that Seller’s delivery times are only estimates, and are always subject to factory schedules, production limits, and other factors. Under no circumstances shall Seller be liable for a late delivery unless otherwise stated in a Supply Contract [¶ 1.3] or a writing signed by Seller’s authorized representative [¶ 9.4].
4.4. Inspection Requirement. Following receipt, Buyer shall promptly (i) inspect the Products to see if they conform to Buyer’s order, and (ii) perform all quality control tests needed to determine whether the Products delivered to Buyer conform to its order. Weights and quantities within two percent (2%) of the amount ordered shall be deemed to be a conforming shipment (provided, however, that Buyer need only pay for the amount which Seller actually shipped).
4.4.1. Notice Requirement. Buyer must notify Seller in writing of any Product shortage, damage, or nonconformity within 10 days following delivery (or, for defects that cannot reasonably be discovered within such time, within 10 days from when Buyer should reasonably have discovered the defect).
4.4.2. Failure to Give Timely Notice. Notwithstanding anything else in these T&Cs or in the UCC to the contrary, unless Buyer gives timely notice pursuant to ¶ 4.4.1 above, Buyer shall have no claim against Seller for any alleged Product shortage, damage, or nonconformity (and all such claims are deemed to have been waived).
4.5. Carrier Claims. Buyer is solely responsible for filing claims against a carrier for Products shipped FOB shipping point under ¶ 4.1 and ¶ 4.1.1 that Buyer did not receive, were received in damaged condition, or for which Buyer has other claims against the carrier. Seller will provide Buyer with all information that Buyer reasonably requires for its claim.
5.1. In General. Seller shall “pass through” to Buyer all of the express warranties, if any, that the Product manufacturer gives Seller (but subject in all cases to any defenses such manufacturer has against Seller). The preceding warranties do not cover damage to the Product or any other damages of any kind that result from or arise out of (i) improper use of the Product, (ii) storage below 40 degrees F. or above 77 degrees F., and/or (iii) Buyer’s failure to take any other precautions described by Seller in its product literature.* Buyer understands and HEREBY agrees that the following provisions are a material part of the bargain between the parties:
5.1.1. Warranty of Good Title. Seller hereby warrants to Buyer that (i) the title in the Products conveyed from Seller to Buyer is good and its transfer rightful; and (ii) the goods are delivered free of all security interests, liens, and liens (except for any PMSI of Seller and other liens filed of record to which Buyer previously consented).
5.1.3. UCC § 2-313. The Buyer hereby agrees that the basis of the bargain between the Parties does NOT include (i) any affirmation of fact or promise by Seller relating to the Products, (ii) any description of the Products, or (iii) any warranty that the Products shall conform to any model or sample of either Party. Buyer hereby waives all rights to assert anything to the contrary.
5.1.4. Other Express Warranties. Seller makes no other express warranty of any kind. Other express warranties are binding on Seller if and only if they are made in writing and signed by Seller’s authorized representative [¶ 9.4]. No written or oral statement from any other person shall be an express warranty enforceable against Seller. Buyer understands and agrees to the preceding and hereby waives all rights to assert anything to the contrary.
5.2. Implied Warranties. SELLER HEREBY DISCLAIMS ALL OF THE IMPLIED WARRANTIES IN THE UCC AND ANY OTHER APPLICABLE LAW. THIS DISCLAIMER INCLUDES, BUT IS NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY AND ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
5.3. Odd Lot Products. Certain Products— called odd lot in the industry — have wide specifications and are typically sold at low cost as a result (“Odd Lot”). Notwithstanding anything in ¶ 5.1 above to the contrary, all Odd Lot is sold AS IS and with NO warranties. Seller describes its Odd Lot as such to buyers and stamps Odd Lot on the invoices.
6. Claims and Remedies
6.1. Remedies. No monetary award shall ever exceed the purchase price of the Products at issue. Alternatively, Seller may (i) accept return of the goods and credit the Buyer for their price, and/or (ii) repair or replace the nonconforming goods. These remedies are exclusive; under no circumstance shall these remedies be deemed to fail their essential purpose. Buyer understands and agrees to the preceding, and hereby waives all rights to assert anything to the contrary.
6.2. Damages Not Recoverable. EXCEPT AS PROHIBITED BY LAW, NEITHER PARTY SHALL RECOVER ANY (i) CONSEQUENTIAL OR INCIDENTAL DAMAGES, (ii) LOST PROFITS OR DAMAGES FOR LOST BUSINESS OPPORTUNITIES, (iii) WAGES FOR SALARIED PERSONNEL OR OTHERS PAYABLE IN ANY EVENT, (iv) PERSONAL INJURY DAMAGES, (v) DAMAGES TO EQUIPMENT OR ANY OTHER PROPERTY DAMAGES OF ANY KIND, (vi) ENVIRONMENTAL OR NATURAL RESOURCE LOSSES, AND (vii) PUNITIVE OR EXEMPLARY DAMAGES.
6.3. Loser Pays. Plaintiff is the “prevailing party” — and defendant is the “losing party” — whenever plaintiff is awarded (i) at least 67% of plaintiff’s monetary demand, and/or (ii) a substantial portion of plaintiff’s request for injunctive relief. If plaintiff is awarded neither of the preceding, then the “prevailing party” is defendant and the “losing party” is plaintiff.
6.3.1. Costs & Disbursements. In all cases, the losing party must pay all of the prevailing party’s costs and disbursements including, without limitation, fees and expenses of expert witnesses. However, neither Party may recover for time spent by its employees or any of their travel costs, hotel charges, meals, or related items.
6.3.2. Arbitration Expenses. In arbitration proceedings, the losing party must pay directly or provide reimbursement for (i) all AAA filing fees and other AAA charges, and (ii) all of the arbitrator’s fees and expenses.
6.3.3. Attorney Fees. In all cases, the losing party shall pay the prevailing party’s reasonable attorney fees and their expenses. A contingency fee up to one-third (1/3) is reasonable. Legal fees may be charged by outside attorneys and, despite ¶ 6.3.1 above, by in-house counsel (provided there is no double counting).
6.4. Interest. Any claim by Seller against Buyer for a liquidated sum, or by Buyer against Seller for a liquidated sum, shall accrue interest on the unpaid amount at the rate of eighteen percent (18%), or if less, at the maximum legal rate.
6.5. Collection Costs. Until the award is paid in full, interest shall accrue on the unpaid amount at the rate in ¶ 6.4 above. In the event the full payment is not made within 30 days of the award, the prevailing party shall be entitled to recover all of its reasonable collection coasts, including additional attorney fees relating to collection of those unpaid amounts.
7. Dispute Resolution
7.1. In General. These dispute resolution provisions may be modified by the Parties in writing. Nothing herein prevents the Parties from utilizing mediation to the extent they so agree. As used below, the amount of a Party’s requested claim or counterclaim excludes (i) interest; (ii) the monetary value of injunctive relief sought; (iii) any arbitration and arbitrator fees; (iv) all costs, disbursements, and attorney fees; and (v) damages not recoverable hereunder [¶ 6.2].
7.2. Claims of $150,000 or Less — Court. Any controversy or claim arising out of or relating to these T&Cs or the contract between the Parties, or the breach thereof, shall be resolved by a court under the provisions below whenever the Parties’ claims and counterclaims are each $150,000 or less (even if the aggregate exceeds that dollar threshold).
7.2.1. Exclusive Jurisdiction & Venue. The court proceeding must be commenced in a federal or state district court in the Minneapolis-St. Paul Standard Metropolitan Statistical Area, and those courts shall have exclusive jurisdiction and venue to determine all legal and equitable disputes between the Parties.
7.2.2. Buyer Consent to Jurisdiction & Venue. Buyer (i) consents to the jurisdiction and venue of the above courts, (ii) waives any right to contest the same or claim that those courts are inconvenient forums, and (iii) agrees that those courts shall have exclusive jurisdiction and venue.
7.3. Claims Above $150,000 — Arbitration. Except as otherwise provided in ¶ 7.2 above or ¶ 7.3.4 below, any controversy or claim arising out of or relating to these T&Cs or the contract between the Parties, or the breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association (“AAA”) under the AAA’s then existing Commercial Arbitration Rules, and judgment on the arbitrator’s award may be entered in any court having jurisdiction.
7.3.1. AAA Rules. The Expedited Procedures of the AAA shall be used when the Parties’ claims and counterclaims are each less than $500,000 (even if the aggregate equals or exceeds that dollar threshold). The procedures for Large, Complex Commercial Disputes shall be used if either Party’s claim or counterclaim is at least $500,000. In all cases, the Standard Fee Schedule of the AAA shall be used, and there shall be just one arbitrator.
7.3.2. Venue of Proceeding. The arbitration shall be in the Minneapolis-St. Paul Standard Metropolitan Statistical Area in the AAA offices or another location therein selected by the arbitrator (including his or her own offices).
7.3.3. Arbitrator’s Powers. The arbitrator has all powers in the AAA rules, including the ability to grant injunctive relief. All jurisdiction issues shall be decided solely by the arbitrator (not a court). However, the arbitrator has no jurisdiction to hear class actions; proceedings shall be limited to the Buyer, Seller, and any other party they mutually agree to join in the proceeding with that party’s consent to arbitrate hereunder.
7.3.4. Indispensable Parties. Upon motion by either Party, the arbitrator shall dismiss the proceeding without prejudice and costs when (i) the arbitrator cannot accord complete relief between the Buyer and Seller unless another party participates in the proceeding, and (ii) that person refuses to participate in the arbitration proceeding hereunder. If the arbitration gets dismissed, suit may be commenced in accordance with ¶ 7.2.1 and ¶ 7.2.2 above.
7.4. Statute of Limitation. Every action relating to Products governed by these T&Cs must be commenced within one year from the date of the sale. Any action commenced after that time shall be barred.
8.1. Force Majeure. Each Party’s duty to perform hereunder is suspended for the length of time of any (i) Act of God, fire, or explosion; (ii) war, other conflict, or terrorism; (iii) geopolitical disturbance in the Middle East or other regions; (iv) strike, lockout, or other labor trouble; (v) injunction or other legal prohibition; (vi) inability to obtain necessary raw materials or transportation; and/or (vii) other circumstances beyond its control. However, the Buyer must still pay for goods received, Products already in transit, and custom Products of Seller for which Seller already started production.
8.2. Allocation. Whenever Seller in good faith is unable to produce enough Product to fill all its orders, Seller may allocate Product to itself first, and thereafter among its customers in a fair and reasonable manner. In such an event, Seller shall not be liable to Buyer for its failure to fulfill Buyer's full order (or for any other matter related to the allocation).
8.3. Technical Advice. Technical advice from Seller shall not be deemed to change any of the above provisions. Seller shall have no liability for any technical advice provided to Buyer — and all technical advice from Seller is given and accepted at Buyer's risk — unless it is made in writing and signed by Seller’s authorized representative [¶ 9.4]. Buyer understands and agrees to the preceding and hereby waives all rights to assert anything to the contrary.
8.4. Product Hazards. Seller will provide Buyer with Safety Data Sheets (“SDS”) for these Products as required by law. BUYER SHALL USE AND STORE PRODUCT IN A MANNER that PROTECTS ITS EMPLOYEES AND OTHERS. BUYER SHALL WARN ITS EMPLOYEES AND OTHERS OF THE HAZARDS FROM PRODUCT EXPOSURE AND all PRECAUTIONS THEY SHOULD TAKE. If Buyer fails to store and use the Product in accordance with the SDS, or fails to warn an employee or other person of matters contained in the SDS, then Buyer shall indemnify and hold Seller harmless from any and all losses and damages of any kind arising out of that failure (including attorney fees).
8.5. Buyer Obligations. Before accepting the goods, Buyer shall test the Product for its applications to assure it meets Buyer’s needs and can be used safely and as desired by Buyer. Following delivery, Buyer assumes all risks and liabilities of any kind from the transportation, handling, storage, use, and disposal of the Products (whether used alone, in combination with other substances, or in any process). Except as prohibited by law, after Buyer accepts the Products (i) Seller shall not be liable for any claims involving Buyer and the Products, and (ii) Buyer must indemnify and hold Seller harmless from any and all losses and damages of any kind arising out of such claims (including attorney fees).
8.6. Seller Containers. Whenever Seller provides any intermediate bulk container or other container to Buyer for its use, that container remains Seller’s property, must be properly cared for by Buyer while in its possession, and must be promptly returned to Seller upon its demand in the same condition as provided (reasonable wear and tear excepted). Buyer must indemnify Seller for any damages, and if the container is lost or not returned, for the cost of a replacement.
8.7. Economic Hardship. Either Party may require an existing price to be renegotiated (i) if it can show the current price will result in it buying or selling at a loss, (ii) based on events in the Middle East that materially change the benefit of the Parties’ bargain, or (iii) for any other excuse by failure of presupposed conditions described in UCC § 2-615.
8.8. Right to Revise. Seller may revise these T&Cs at any time and in any way. However, no revision may be applied retroactively, and the existing T&Cs shall remain in effect for offers already accepted and for shipments in transit.
9. Rules of Construction
9.1. Waivers. A waiver by Seller of any provision of these T&Cs shall be effective only if, and only if, it is in writing and signed by Seller’s authorized representative [¶ 9.4]. No other alleged waiver by Seller shall be of any force or effect.
9.2. Assignment. Seller may assign its payment rights. Each Party may assign its rights and delegate its duties herein to an acquirer of that Party’s business for these Products. Otherwise, neither Party may assign its rights or delegate its duties hereunder without the other Party’s written consent, and any such action without that consent shall be void.
9.3. Binding Effect. These T&Cs are binding upon and inure to the benefit of each of the Parties, their permitted assigns, an acquirer of that Party’s business for these Products, and their affiliates and legal successors in interest.
9.4. Seller’s Authorized Representatives. In these T&Cs, a person is an authorized representative of Seller only if he or she serves Seller as (i) chairman, CEO, president, or vice president; (ii) chief manager or general manager; or (iii) any other employee of Seller designed as such by name in a writing that has been signed by any of the preceding. Sales Managers and Business Managers may bind the Seller to sales offers and sales contracts (but nothing else).
9.5. Definitions. Whenever any of the following terms is used in these T&Cs, it shall have the meaning given to it below:
9.5.1. “Affiliate” is a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified.
9.5.2. “Signed” includes using any symbol executed or adopted with the intent to adopt or accept a writing.
9.5.3. “UCC” refers the Uniform Commercial Code then in effect in Minnesota (including re-numbered sections).
9.5.4. “Writing” can be on paper, by email, or by any other communication that can be reproduced in tangible form.
9.6 Governing Law. These T&Cs shall be governed by Minnesota law — except its choice of law rules — and not by the United Nations Convention on Contracts for the International Sale of Goods. Minnesota law applies to both court and arbitration proceedings. Minnesota law applies whether the proceeding is held within Minnesota or elsewhere.
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