Terms and Conditions
Effective Date: January 1, 2024
These Terms and Conditions of Sale (“Terms”) govern all quotations, order acknowledgments, invoices, sales, and deliveries by Neptune Chemical Corporation LLC (“Neptune,” “Seller,” “we,” “us,” or “our”) of products and any related services. Buyer’s acceptance of any quote, proposal, order acknowledgment, invoice, shipment, delivery, or product from Neptune constitutes acceptance of these Terms.
1. Applicability; Entire Agreement
These Terms apply to all sales by Neptune and supersede any inconsistent or additional terms contained in any purchase order, vendor portal, acknowledgment, confirmation, or other document issued by Buyer, unless Neptune expressly agrees in a writing signed by an authorized representative of Neptune.
Any terms proposed by Buyer that are different from or in addition to these Terms are rejected and shall be of no force or effect unless expressly accepted in writing by Neptune. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms.
The agreement between Neptune and Buyer consists only of:
(a) Neptune’s written quotation or proposal, if any;
(b) Neptune’s order acknowledgment, if any;
(c) the applicable invoice; and
(d) these Terms.
In the event of a conflict, the following order of precedence applies:
-
Neptune’s order acknowledgment
-
Neptune’s quotation or proposal
-
Neptune’s invoice
-
these Terms
2. Quotations; Orders
All quotations are subject to change or withdrawal without notice unless they expressly state otherwise. Any quotation not stating an expiration date shall expire thirty (30) days from issuance.
No order shall be binding on Neptune until accepted by Neptune in writing or by shipment of the applicable products. Neptune may accept or reject any order, in whole or in part, in its sole discretion.
Buyer may not cancel, modify, suspend, or reschedule any order without Neptune’s prior written consent. If Neptune agrees to a cancellation or change, Buyer shall be responsible for all resulting costs, losses, restocking charges, raw material commitments, work-in-process, transportation costs, and other reasonable expenses incurred by Neptune.
3. Prices; Taxes; Surcharges
Unless otherwise stated in writing by Neptune, all prices are stated in U.S. dollars and are exclusive of freight, insurance, duties, tariffs, customs charges, brokerage, taxes, and other governmental charges.
Buyer shall pay all sales, use, excise, value-added, gross receipts, import, export, or similar taxes or charges arising from the sale, shipment, delivery, or use of the products, excluding taxes based solely on Neptune’s net income.
Neptune may adjust pricing before shipment in the event of increases in raw material costs, packaging costs, freight costs, energy costs, regulatory costs, tariffs, duties, or other cost inputs beyond Neptune’s reasonable control, unless Neptune has expressly agreed in writing to fixed pricing for a defined period.
4. Payment Terms; Credit; Late Payment
Payment terms are net thirty (30) days from invoice date unless otherwise stated in writing by Neptune. Neptune may require full or partial prepayment, cash in advance, or other credit support at any time.
All sales are subject to Neptune’s credit approval. Neptune may establish, reduce, modify, or withdraw credit limits or terms at any time in its sole discretion.
Past due amounts shall accrue a late charge at the lesser of:
(a) one and one-half percent (1.5%) per month; or
(b) the maximum rate permitted by applicable law,
from the due date until paid in full.
Buyer shall reimburse Neptune for all reasonable costs of collection, including attorneys’ fees, court costs, agency fees, and expenses.
If Buyer fails to pay any amount when due, Neptune may, without liability and in addition to any other available rights or remedies:
(a) suspend performance;
(b) withhold future shipments;
(c) require advance payment for future shipments;
(d) reclaim products in transit where legally permitted; and/or
(e) cancel any unshipped portion of any order.
5. Delivery; Shipment; Risk of Loss; Title
Unless otherwise agreed in writing, delivery terms are EXW Neptune’s facility (Incoterms 2020).
All delivery dates are estimates only and are not guaranteed. Neptune shall not be liable for any loss, damage, penalty, or expense resulting from delay in delivery or failure to give notice of delay.
Risk of loss and damage to the products passes to Buyer upon tender of the products at Neptune’s shipping point. Title to products passes to Buyer upon the earlier of full payment or delivery, except that Neptune retains a purchase money security interest in the products, and proceeds thereof, until all amounts owed to Neptune are paid in full.
If Neptune prepays and adds freight, arranges shipping, or assists with logistics, such actions are solely for Buyer’s convenience and do not alter the transfer of risk unless Neptune expressly agrees otherwise in writing.
Buyer is responsible for unloading, storage, handling, use, and disposal of all products after delivery.
6. Inspection; Shortages; Claims
Buyer shall inspect all products immediately upon receipt.
Any claim for shortage, shipping damage, incorrect shipment, or visible nonconformity must be made in writing to Neptune within three (3) business days after delivery. Any claim for latent defect reasonably discoverable only after use of reasonable inspection must be made in writing within ten (10) business days after discovery, but in no event later than thirty (30) days after delivery.
Failure to give timely written notice shall constitute irrevocable acceptance of the products and waiver of the claim.
Buyer shall not return any products without Neptune’s prior written return authorization. Returned products must be in original, unopened packaging and in condition suitable for resale, unless Neptune agrees otherwise in writing.
Custom products, made-to-order products, special-order products, opened containers, temperature-sensitive products, and hazardous materials are non-returnable except in the case of Neptune’s proven shipping error or proven nonconformance.
7. Limited Remedy
If Neptune determines, in its reasonable judgment, that any product was not in conformity with the parties’ agreed specifications at the time risk of loss passed to Buyer, Neptune’s sole obligation, and Buyer’s exclusive remedy, shall be, at Neptune’s option, to:
(a) replace the nonconforming product;
(b) refund the purchase price paid for the nonconforming product; or
(c) issue a credit for the nonconforming product.
Buyer shall not deduct, offset, back charge, or withhold payment without Neptune’s prior written consent.
8. DISCLAIMER OF WARRANTIES
EXCEPT AS EXPRESSLY SET FORTH IN A WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF NEPTUNE, ALL PRODUCTS AND ANY RELATED SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” NEPTUNE MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, PERFORMANCE, OR RESULTS OBTAINED FROM USE.
NO STATEMENT, RECOMMENDATION, SAMPLE, COURSE OF DEALING, TRADE USAGE, TECHNICAL ASSISTANCE, OR PRODUCT INFORMATION PROVIDED BY NEPTUNE SHALL CREATE ANY WARRANTY OR MODIFY THIS DISCLAIMER UNLESS EXPRESSLY SET FORTH IN A WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF NEPTUNE.
Buyer acknowledges that products sold by Neptune may be used in varying applications and conditions beyond Neptune’s control, and Buyer is solely responsible for determining the suitability of the products for Buyer’s intended use.
9. Limitation of Liability
To the fullest extent permitted by law, Neptune’s total cumulative liability arising out of or related to any quotation, order, product, service, or these Terms, whether in contract, tort, strict liability, warranty, indemnity, or otherwise, shall not exceed the amount actually paid by Buyer to Neptune for the specific product giving rise to the claim.
In no event shall Neptune be liable for any indirect, incidental, special, exemplary, punitive, or consequential damages, or for any loss of profits, loss of revenue, loss of production, loss of use, downtime, replacement costs, cleanup costs, disposal costs, environmental response costs, claims of Buyer’s customers, or diminution in value, even if advised of the possibility of such damages.
These limitations apply regardless of the failure of any exclusive or limited remedy.
10. Buyer Responsibilities; Handling; Compliance
Buyer is solely responsible for:
(a) selecting the products for Buyer’s intended application;
(b) conducting any testing or qualification necessary for Buyer’s use;
(c) proper transportation, storage, handling, mixing, dilution, labeling, resale, and disposal;
(d) use of appropriate safety procedures and personal protective equipment; and
(e) compliance with all applicable laws, regulations, permits, and industry standards relating to the products and Buyer’s operations.
Buyer shall review and comply with all applicable Safety Data Sheets, technical data, handling guidance, and warnings associated with the products.
Buyer shall not use, resell, relabel, blend, or repack any product in a manner that is unlawful, misleading, unsafe, or inconsistent with Neptune’s written instructions.
11. Regulatory Matters
Buyer acknowledges that Neptune does not warrant that any product is suitable for Buyer’s particular regulatory, environmental, export, end-use, food-contact, potable-water, pharmaceutical, or other compliance requirements unless Neptune expressly agrees in writing.
Buyer is solely responsible for obtaining all approvals, permits, registrations, and clearances required for Buyer’s intended use, transport, storage, resale, export, or disposal of the products.
12. Indemnification
Buyer shall defend, indemnify, and hold harmless Neptune, its affiliates, managers, members, officers, employees, agents, successors, and assigns from and against any and all claims, demands, actions, liabilities, damages, losses, fines, penalties, costs, and expenses, including reasonable attorneys’ fees, arising out of or relating to:
(a) Buyer’s handling, storage, transportation, resale, labeling, repackaging, disposal, or use of the products;
(b) Buyer’s negligence, willful misconduct, or breach of these Terms;
(c) Buyer’s failure to comply with applicable laws, regulations, or safety requirements;
(d) Buyer’s modification, blending, dilution, or incorporation of the products into any other product or process; or
(e) claims by Buyer’s customers or third parties arising from the foregoing.
13. Force Majeure
Neptune shall not be liable for any delay, nonperformance, or inability to perform caused in whole or in part by events beyond its reasonable control, including acts of God, fire, flood, severe weather, pandemic, epidemic, war, terrorism, civil unrest, labor disputes, transportation shortages, carrier delay, cyber incidents, utility interruption, raw material shortage, supplier failure, governmental action, regulation, embargo, import or export restriction, or other similar cause.
During any such event, Neptune may allocate available inventory and production capacity among its customers in its sole discretion. If the force majeure event continues for a commercially unreasonable period, Neptune may cancel the affected portion of the order without liability.
14. Intellectual Property
No sale of products grants Buyer any license or right under any patent, trademark, trade name, copyright, trade secret, or other intellectual property of Neptune, except the limited right to use the purchased products for their intended purpose.
Buyer shall not use Neptune’s name, trademarks, logos, product names, literature, or other intellectual property without Neptune’s prior written consent.
15. Confidentiality
Any non-public pricing, product information, formulation information, specifications, test data, commercial terms, or other confidential information disclosed by Neptune to Buyer shall be treated as confidential and shall not be disclosed to any third party or used for any purpose other than the evaluation, purchase, and authorized use of Neptune’s products.
16. Default; Suspension; Termination
If Buyer breaches these Terms or becomes insolvent, ceases business operations, makes an assignment for the benefit of creditors, has a receiver appointed, or becomes subject to bankruptcy or similar proceedings, Neptune may terminate or suspend any quotation, order, shipment, or credit arrangement immediately upon written notice.
Termination or suspension shall not affect any rights or obligations accrued prior to the effective date of termination.
17. Governing Law; Venue
These Terms and any dispute arising out of or relating to any sale by Neptune shall be governed by and construed under the laws of the State of Texas, without regard to conflict of laws principles.
The state courts located in Fort Bend County, Texas, and, where applicable, the federal courts having jurisdiction over Fort Bend County, Texas, shall have exclusive jurisdiction and venue over any dispute arising out of or relating to these Terms or any sale by Neptune, and Buyer irrevocably consents to such jurisdiction and venue.
18. No Waiver
No waiver by Neptune of any breach or default shall be effective unless in writing and signed by Neptune. A waiver of any breach or default shall not constitute a waiver of any other or subsequent breach or default.
19. Severability
If any provision of these Terms is held invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect, and the invalid provision shall be enforced to the maximum extent permitted by law.
20. Assignment
Buyer may not assign any order or any rights or obligations under these Terms without Neptune’s prior written consent. Any attempted assignment without consent is void.
21. Changes to Terms
Neptune may revise these Terms from time to time. The version in effect on the date of Neptune’s quotation, order acknowledgment, or invoice for the applicable transaction shall govern that transaction unless Neptune expressly agrees otherwise in writing.
22. Notices
Any notice required under these Terms must be in writing and delivered by personal delivery, nationally recognized overnight courier, certified mail, or email to the addresses designated by the parties in the applicable transaction documents.
23. Contact Information
Neptune Chemical Corporation LLC
Suite 150-57
9722 Gaston Rd.
Katy, Texas 77494
Admin@NeptuneChemCorp.com