These Customer Terms and Conditions (these “Terms”) govern the sale and delivery by PDX Chemical, LLC, a Texas limited liability company, as seller (“PDX”), of chemicals, raw materials, blends, intermediates, additives, solvents, industrial products, packaging, equipment, and any other goods or materials sold by PDX (collectively, the “Products”) to the purchaser identified in the applicable order, acknowledgment, or invoice (“Customer”), and apply to all quotations, order acknowledgments, orders accepted by PDX, sales, shipments, and related transactions between PDX and Customer unless otherwise expressly agreed in a written agreement signed by both parties.
These Terms supplement, and where applicable control over, any purchase order, acknowledgment, quotation, invoice, or other document exchanged between the parties, except to the extent a separate written agreement executed by both parties expressly states that it supersedes these Terms in whole or in part.
By submitting an order to PDX, accepting delivery of Products, paying any invoice, or otherwise engaging in any transaction with PDX, Customer acknowledges and agrees that these Terms shall govern such transaction. ANY TERMS OR CONDITIONS CONTAINED IN CUSTOMER’S PURCHASE ORDER, ACKNOWLEDGMENT, QUOTATION REQUEST, CONFIRMATION, OR OTHER DOCUMENT THAT ARE ADDITIONAL TO, DIFFERENT FROM, OR INCONSISTENT WITH THE TERMS ARE HEREBY REJECTED AND SHALL BE OF NO FORCE OR EFFECT UNLESS EXPRESSLY ACCEPTED BY PDX IN A SEPARATE WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF PDX.
These Terms shall be interpreted and enforced under Texas law, without regard to conflict-of-laws principles and consistent with applicable law governing commercial sales transactions.
Any quotation issued by PDX is non-binding unless expressly stated otherwise and will remain open only for the period stated in the quotation, or if no period is stated, for thirty (30) days from its date. Quotations are subject to correction of clerical errors, changes in raw material costs, transportation costs, duties, tariffs, surcharges, taxes, and product availability.
Customer may request to purchase Products by submitting purchase orders or other written order instructions to PDX, including electronically. Each order shall specify, to the extent applicable, the Products ordered, quantities, delivery location, requested delivery date, pricing, and any other commercially reasonable information or specifications requested by PDX.
No order shall bind PDX unless accepted by an authorized representative of PDX in writing or by shipment of the applicable Products. PDX may accept or reject any order in whole or in part in its sole discretion. Any order accepted by PDX under this paragraph is an “Accepted Order.”
Customer may not modify or cancel an Accepted Order without PDX’s prior written consent. If PDX agrees, Customer shall be responsible for all resulting costs, expenses, and losses incurred by PDX, including costs of materials, work in process, finished goods, rescheduling, restocking, and transportation. PDX may make partial shipments and reasonable quantity variations consistent with customary commercial practice unless the Accepted Order expressly states otherwise.
PDX may rely on the specifications, forecasts, intended use information, and other information provided by Customer, and PDX shall not be responsible for any nonconformity, delay, or other issue arising from inaccurate, incomplete, or untimely information supplied by Customer. Acceptance of any order by PDX shall not limit PDX’s rights or remedies with respect to Customer’s breach of the Terms.
PDX will use commercially reasonable efforts to supply Products conforming to each Accepted Order, subject to permitted tolerances, normal manufacturing variations, test-method variations, and industry practice. Product descriptions in catalogs, brochures, websites, technical literature, samples, or marketing materials are for general informational purposes only unless PDXexpressly states in writing that such materials are contractual specifications.
Unless expressly agreed in writing:
(i) Product weights, dimensions, volumes, concentrations, and performance data are approximate;
(ii) samples are illustrative only and do not create an express warranty;
(iii) PDX does not warrant suitability of any Product for Customer’s particular process, formulation, application, customer program, or end use; and
(iv) Customer is solely responsible for validating that each Product is suitable for Customer’s intended and downstream uses.
Upon Customer’s reasonable request, and to the extent customarily available for the applicable Products, PDX shall provide certificates of analysis, safety data sheets, or other product documentation required by applicable law or expressly identified in the Accepted Order.
Customer shall inspect the Products promptly upon receipt and shall notify PDX in writing of any alleged shortage, damage, or nonconformity within ten (10) days after delivery. Failure to provide such notice within that period shall constitute irrevocable acceptance of the Products to the fullest extent permitted by applicable law, except for latent defects not reasonably discoverable upon inspection. If PDX determines that any Products failed to conform to the applicable limited warranty, PDX shall, at its option, replace the nonconforming Products, repair them, or credit or refund the purchase price paid for such Products, and such remedy shall be Customer’s exclusive remedy for any nonconforming Products.
PDX reserves the right to make changes to the design, materials, manufacturing process, source of supply, packaging, labeling, or place of manufacture of any Product that do not materially adversely affect the form, fit, or function of the Product. PDX shall promptly notify Customer of any material quality issue, defect, safety concern, regulatory issue, or recall affecting the Products to the extent required by applicable law or reasonably necessary under the circumstances, and the parties shall cooperate in good faith regarding any appropriate corrective action.
To the extent any Product is subject to a warranty period under the Terms, the warranties in this clause are subject to the limitations, disclaimers, and exclusive remedies set forth in these Terms. Except to the extent included within PDX’s express indemnification obligations or prohibited by applicable law, PDX shall not be responsible for Customer’s downstream, incidental, consequential, or special costs arising from any alleged nonconformity.
All prices for Products shall be as set forth in the applicable Accepted Order, quotation issued by PDX, or otherwise agreed in writing by PDX. Unless expressly stated otherwise in writing by PDX, quoted prices may be changed by PDX at any time before PDX accepts Customer’s order, and accepted prices apply only to the specific Accepted Order.
PDX may invoice Customer upon shipment, delivery, or at any other time permitted by the Accepted Order. Customer shall pay all undisputed invoiced amounts in accordance with the payment terms stated in the invoice or Accepted Order. Customer shall have no right to withhold, set off, recoup, or deduct amounts allegedly owed by PDX unless PDX has agreed in writing or such right is non-waivable under applicable law.
Unless prohibited by applicable law or otherwise expressly stated in the applicable Accepted Order, prices do not include any sales, use, excise, value-added, goods and services, withholding, gross receipts, or similar taxes, duties, levies, or governmental charges of any kind imposed on the sale, purchase, delivery, or use of the Products (collectively, “Taxes”). Customer shall be responsible for all Taxes arising from the sale or delivery of the Products, except for taxes based on PDX’s net income. PDX may separately state Taxes on its invoice to the extent required or permitted by applicable law.
Customer shall be solely responsible for and shall pay when due all Taxes for which Customer is liable under applicable law or these Terms. If Customer is required by applicable law to withhold or deduct any Taxes from any payment to PDX, Customer shall timely remit the withheld amount to the appropriate governmental authority and, unless such withholding is required on account of PDX’s tax status, shall pay such additional amounts as may be necessary so that PDX receives the full amount it would have received absent such withholding. Customer shall provide PDX with reasonable evidence of such withholding upon request.
If Customer claims an exemption from, or reduced rate of, any Taxes, Customer shall provide PDX with all necessary exemption certificates or other supporting documentation before shipment or invoicing. If PDX pays any Taxes that Customer was obligated to pay, Customer shall reimburse PDX promptly upon demand. Any tax credits, refunds, or similar benefits attributable to Taxes borne by PDX shall belong to PDX to the extent permitted by applicable law.
PDX shall submit invoices in accordance with its customary practices and include, at a minimum, the applicable Accepted Order number, item description, quantity, unit price, extended price, and any separately stated Taxes. If Customer fails to pay when due, PDX may charge interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, and Customer shall reimburse PDX for reasonable collection costs, including attorneys’ fees and court costs, to the extent permitted by applicable law.
All shipments are subject to PDX’s approval of Customer’s credit. PDX may establish, modify, reduce, suspend, or revoke credit terms at any time in its sole discretion. PDXmay require advance payment, cash in advance, letter of credit, guaranty, security, or other credit support as a condition to acceptance, manufacture, or shipment.
If Customer becomes insolvent, fails to pay when due, breaches these Terms, or if PDX in good faith determines that Customer’s ability or willingness to perform is impaired, PDX may, in addition to all other remedies:
(i) suspend performance;
(ii) withhold shipments;
(iii) require cash payment in advance;
(iv) reclaim Products to the extent permitted by law;
(v) cancel unshipped orders; and
(vi) declare all outstanding amounts immediately due and payable.
PDX shall package, mark, and ship Products in accordance with the applicable Accepted Order, these Terms, and applicable law. Delivery dates are estimates only unless PDX expressly agrees otherwise in writing, and PDX shall not be liable for delays that do not result from its gross negligence or willful misconduct.
Unless the applicable Accepted Order expressly provides otherwise, Products shall be delivered F.O.B. PDX’s shipping point or other facility designated by PDX, and Customer shall be responsible for all transportation, freight, insurance, handling, loading, unloading, customs clearance, duties, and other charges after tender by PDX. If the Accepted Order specifies a different delivery term, that term shall control.
Title to and risk of loss or damage to the Products shall pass to Customer upon PDX’s tender of the Products to the carrier at PDX’s shipping point or other designated delivery point, except to the extent a different transfer point is expressly stated in the applicable Accepted Order. Customer shall be responsible for filing and pursuing any claims with the carrier for loss or damage in transit, except to the extent caused by PDX’s failure to comply with the agreed delivery terms.
Unless otherwise expressly stated in the applicable Accepted Order, PDX shall have no obligation to obtain cargo, transit, or other insurance for the Products after title and risk of loss pass to Customer. If Customer requests that PDX procure transportation or insurance on Customer’s behalf, such services shall be at Customer’s expense and risk unless otherwise agreed in writing.
PDX shall use commercially reasonable efforts to comply with any mutually agreed shipping instructions, but PDX may make substitutions, partial shipments, and reasonable changes in routing or carrier selection if reasonably necessary. PDX shall use commercially reasonable efforts to notify Customer of any material actual or anticipated delay, shortage, shipment discrepancy, or other event that may materially affect delivery of the Products.
Customer may reject a shipment only to the extent the Products materially fail to conform to the applicable Accepted Order or PDX’s applicable express warranty and Customer provides timely notice in accordance with these Terms. Any rejection not made in accordance with these Terms shall be ineffective, and Customer shall remain responsible for the purchase price and related charges.
Customer shall be responsible for all Taxes arising out of or relating to the sale, shipment, delivery, or use of the Products, except for taxes based on PDX’s net income, and shall promptly cooperate with PDX regarding any tax exemption, resale, direct pay, or similar claim.
Customer acknowledges that any delivery schedule, shipping accommodation, or other act by PDX does not constitute a waiver of PDX’s rights under these Terms, including rights relating to payment, acceptance, and risk of loss.
Customer may inspect the Products promptly after delivery to determine whether they conform in all material respects to the applicable Accepted Order and PDX’s applicable express warranty. Any inspection, testing, review, payment, or use by Customer shall not expand PDX’s warranties or obligations beyond these Terms.
Unless otherwise specified in the applicable Accepted Order, Customer may reject only materially nonconforming, defective, or damaged Products, provided Customer gives PDX written notice describing the basis for rejection in reasonable detail as follows:
(i) Claims for visible damage, shortage, or nonconformity reasonably discoverable upon receipt must be made in writing to PDXwithin five (5) business days after delivery.
(ii) Claims for latent nonconformity not reasonably discoverable upon receipt must be made in writing within thirty (30) days after delivery, and in all events before any substantial use, blending, commingling, repackaging, or resale of the Products.
Failure to timely notify PDX of a rejection constitutes irrevocable acceptance of the Products and waiver of the claim to the fullest extent permitted by law. Customer will preserve the allegedly nonconforming Products and packaging for PDX’s inspection and will not return, dispose of, alter, or destroy the Products without PDX’s written authorization. No rejection shall be effective after the Products have been used, processed, commingled, resold, or altered.
If Customer validly rejects any Products, PDX may, at its option and as Customer’s exclusive remedy, (a) replace the rejected Products with conforming Products; (b) repair the rejected Products; or (c) credit or refund the purchase price paid for the rejected Products. Customer shall hold any rejected Products for PDX’s reasonable disposition instructions and shall use commercially reasonable efforts to mitigate further loss or damage.
Products corrected, repaired, or replaced by PDX shall be subject to the same inspection and acceptance procedures as the original Products, and any applicable warranty period for the repaired or replaced portion shall continue for the remainder of the original warranty period or ninety (90) days after delivery, whichever is longer. PDX may credit or refund amounts previously paid for validly rejected Products in lieu of replacement or repair.
PDX’s rights and Customer’s remedies under this clause are subject to the limitations, exclusions, disclaimers, and exclusive remedy provisions set forth elsewhere in the Terms. No course of dealing, usage of trade, prior acceptance, or payment shall expand PDX’s obligations beyond those expressly stated in the Terms.
Products delivered under an Accepted Order may be returned or rejected only as expressly permitted by these Terms or otherwise agreed in writing by PDX. Customer may not return Products without PDX’s prior written return authorization, and any permitted return shall be subject to PDX’s packaging, handling, and shipment instructions.
Customer may inspect Products within the period specified in these Terms, and no rejection, return, or claim shall be effective unless made in accordance with the notice and procedure requirements of these Terms. Products not timely rejected in accordance with these Terms shall be deemed accepted.
If Customer establishes a valid claim for nonconforming Products, PDX shall, at its election and as Customer’s sole and exclusive remedy: (a) replace the affected Products with conforming Products; (b) repair them; or (c) credit or refund the purchase price paid for them. Customer shall not recover incidental, consequential, special, exemplary, punitive, or other indirect damages except to the extent such limitation is prohibited by applicable law.
Customer shall bear all risk of loss and expense associated with returned Products until received by PDX at its designated return location, except that PDX shall bear commercially reasonable return freight for affected Products resulting from a valid warranty claim confirmed by PDX. Customer shall comply with PDX’s instructions regarding pickup, return freight, and related documentation.
If Customer wrongfully rejects Products, fails to pay for Products when due, or otherwise breaches these Terms, PDX may, without prejudice to any other rights or remedies, suspend performance, cancel the applicable Accepted Order in whole or in part, recover the purchase price and any other damages available under applicable law, and/or reclaim or stop Products in transit to the extent permitted by applicable law.
PDX may impose restocking fees, cancellation charges, minimum return quantities, and other commercially reasonable conditions on any return, replacement, repair, refund, or other accommodation that is not required by PDX’s express warranty or applicable law. If any allegedly nonconforming Products have been incorporated into Customer’s products, mixed with other goods, or otherwise used before PDX has had a reasonable opportunity to inspect them, PDX shall have no liability except to the extent prohibited by applicable law.
To the extent any Taxes are imposed in connection with a rejected return, replacement, refund, or remedial shipment, Customer shall be responsible for such Taxes unless applicable law requires otherwise, in which case the parties shall cooperate in good faith to minimize such Taxes and to obtain any available exemption, credit, or refund.
PDX may provide safety data sheets, labels, technical sheets, handling guidance, and other hazard communication materials for Products (each, an “SDS”). Customer acknowledges that many Products are industrial or commercial chemicals requiring specialized knowledge, training, equipment, and handling controls.
Customer is solely responsible for:
(i) reviewing and understanding all SDSs, labels, and safety information before receipt and use;
(ii) communicating hazard information to its employees, contractors, transporters, customers, and downstream users;
(iii) maintaining compliant workplace labeling and hazard communication programs;
(iv) ensuring that all persons handling the Products are appropriately trained and equipped; and
(v) using the Products only in facilities and processes designed for the associated hazards.
PDX’s provision of SDSs or technical information does not relieve Customer of its obligations to assess risks and comply with Applicable Law.
Customer will store, transport, handle, process, formulate, package, relabel, market, distribute, and use Products safely and in accordance with:
(i) the applicable SDS and labels;
(ii) PDX’s written instructions, if any;
(iii) good industry practice; and
(iv) all Applicable Laws concerning occupational safety, environmental protection, product stewardship, transportation, waste management, and consumer or industrial use restrictions.
Customer will not:
(i) use the Products in any unsafe manner;
(ii) alter or remove labels, warnings, or hazard information except as permitted by law;
(iii) blend or commingle Products without appropriate validation;
(iv) use the Products for any prohibited, restricted, medical, pharmaceutical, food, feed, personal care, or consumer application unless PDX expressly approves such use in writing; or
(v) represent that any Product is fit for a particular purpose, compliant with a specific regulatory framework, or suitable for a downstream application unless Customer has independently verified that conclusion.
PDX warrants only that, at delivery, the Products will materially conform to PDX’s applicable written specifications or, if none apply, to the description expressly stated by PDX in the applicable Accepted Order.
If Customer establishes a valid warranty claim under these Terms, PDX’s sole obligation, at PDX’s option, will be to:
(i) replace the nonconforming Products;
(ii) repair the nonconformity, if practicable; or
(iii) credit or refund the purchase price paid for the nonconforming Products.
This limited warranty is conditioned upon Customer’s timely notice of claim, proper storage and handling, and Customer’s full compliance with these Terms.
EXCEPT FOR THE EXPRESS LIMITED WARRANTY IN THIS SECTION, THE PRODUCTS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, PDX DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, COURSE OF DEALING, USAGE OF TRADE, OR ARISING FROM TECHNICAL ADVICE, TESTING SUPPORT, OR PRODUCT RECOMMENDATIONS.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, PDX’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO ANY ORDER, PRODUCT, OR THESE TERMS, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, STATUTE, OR OTHERWISE, WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE SPECIFIC PRODUCT GIVING RISE TO THE CLAIM.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, OR FOR LOSS OF PROFITS, REVENUE, BUSINESS, GOODWILL, ANTICIPATED SAVINGS, DATA, OR BUSINESS INTERRUPTION, ARISING OUT OF OR RELATING TO THE TERMS, ANY ACCEPTED ORDER, OR THE PRODUCTS, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, WARRANTY, INDEMNITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
PDX’s liability is limited to the remedies expressly stated in these Terms, which are Customer’s exclusive remedies.
Customer shall defend, indemnify, and hold harmless PDX and its affiliates, and each of their respective directors, officers, employees, agents, successors, and assigns, from and against any and all claims, demands, actions, suits, proceedings, investigations, liabilities, damages, losses, judgments, settlements, penalties, fines, costs, and expenses (including reasonable attorneys’ fees and court costs) arising out of or relating to any third-party claim to the extent resulting from or alleged to result from:
(i) Customer’s handling, storage, transport, processing, marketing, distribution, resale, or use of any Product, except to the extent caused by a defect for which PDX is expressly responsible under these Terms;
(ii) any actual or alleged failure by Customer to comply with the Terms, any Accepted Order, any applicable law, or any instructions, warnings, specifications, or usage limitations provided by PDX;
(iii) any bodily injury, death, or damage to tangible property caused by Customer’s acts or omissions, or by Customer’s combination, modification, repackaging, relabeling, or misuse of any Product;
(iv) any actual or alleged violation by Customer of these Terms or applicable law, including any failure to pay Taxes for which Customer is responsible or to obtain permits, licenses, approvals, or other authorizations required for Customer’s use, transport, export, import, or resale of the Products;
(v) any claim that any specification, design, material, instruction, or other item supplied by Customer to PDX infringes, misappropriates, or otherwise violates any intellectual property or proprietary right of any third party; and
(vi) any act or omission of Customer, its contractors, customers, agents, employees, or representatives in connection with the sale, handling, transport, storage, processing, or use of the Products.
Customer’s obligations under this clause apply regardless of whether the claim is based in contract, tort, strict liability, negligence, or any other theory, but only to the extent caused by Customer or persons for whom Customer is responsible. Customer shall not settle any indemnified claim without PDX’s prior written consent if the settlement (a) imposes any obligation or admission on PDX, (b) does not include a full and unconditional release of PDX, or (c) does not contain an express denial of liability by PDX. PDX shall promptly notify Customer of any indemnity claim; failure to do so shall not relieve Customer except to the extent Customer is materially prejudiced. Notwithstanding the foregoing, PDX shall defend, indemnify, and hold harmless Customer from any third-party claim to the extent arising directly from (i) PDX’s breach of its express non-infringement warranty in these Terms or (ii) bodily injury, death, or damage to tangible property directly caused by a defect in a Product as delivered by PDX, in each case subject to the limitations of liability and exclusions set forth in these Terms. This clause shall survive expiration or termination of the Terms and any Accepted Order.
Each party acknowledges that, in connection with the Terms and any Accepted Order, it may receive or access non-public, proprietary, technical, commercial, financial, operational, or other information of the other party, whether disclosed orally, visually, in writing, electronically, or otherwise, and whether or not marked confidential, that a reasonable person would understand to be confidential (“Confidential Information”). Confidential Information includes the existence and terms of the Terms and any Accepted Order, pricing, specifications, drawings, samples, forecasts, business plans, customer information, product designs, software, processes, know-how, and information derived from or reflecting such information.
Each receiving party shall: (a) keep the disclosing party’s Confidential Information strictly confidential and protect it using at least the same degree of care it uses to protect its own confidential information of like importance, but in no event less than a commercially reasonable degree of care; (b) use the disclosing party’s Confidential Information solely as necessary to perform or receive performance under the Terms and any applicable Accepted Order; and (c) not disclose the disclosing party’s Confidential Information to any person except to its employees, officers, directors, agents, contractors, professional advisors, and affiliates who have a need to know for the permitted purpose and who are bound by confidentiality obligations at least as protective as those set forth herein.
Neither party shall reverse engineer, decompile, disassemble, or otherwise attempt to derive the composition, structure, or underlying ideas of any samples, software, prototypes, or other materials received from the other party, except to the extent expressly permitted in writing by the disclosing party or prohibited by applicable law from being restricted.
The obligations in this clause shall not apply to information that the receiving party can demonstrate by contemporaneous written records: (a) is or becomes publicly available through no breach of the Terms by the receiving party or any person acting on its behalf; (b) was lawfully known to the receiving party without restriction before disclosure by the disclosing party; (c) is lawfully received from a third party without breach of any confidentiality obligation owed to the disclosing party; or (d) was independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
If the receiving party is required by applicable law, subpoena, court order, or other legal process to disclose Confidential Information, it may do so only to the extent legally required, provided that, to the extent legally permitted, it gives the disclosing party prompt written notice and reasonably cooperates, at the disclosing party’s expense, with lawful efforts to seek protective treatment or limit disclosure. If disclosure is required, the receiving party shall disclose only the legally required portion.
Upon the earlier of the disclosing party’s request or termination or expiration of the Terms, the receiving party shall promptly return or destroy all Confidential Information in its possession or control, including copies, extracts, summaries, and derivatives, except that it may retain one archival copy solely to the extent required by applicable law, bona fide document retention policies, or automated backup systems, provided any retained Confidential Information remains subject to this clause and is not accessed except for legal, regulatory, or compliance purposes.
Each party acknowledges that unauthorized use or disclosure of Confidential Information may cause irreparable harm for which monetary damages may be an insufficient remedy. Accordingly, the disclosing party shall be entitled to seek injunctive or other equitable relief, without the necessity of posting bond or proving actual damages, in addition to any other rights and remedies available at law or in equity.
The obligations under this clause shall survive expiration or termination of the Terms for a period of five (5) years; provided, however, that with respect to any Confidential Information that constitutes a trade secret under applicable law, such obligations shall survive for so long as such information remains a trade secret.
Nothing in this clause shall be construed to limit either party’s ability to disclose the Terms or any Accepted Order to its legal, financial, or tax advisors, insurers, lenders, or prospective assignees or successors, provided such persons are bound by confidentiality obligations or professional duties of confidentiality, or to disclose information to the extent necessary to enforce its rights under the Terms.
PDX retains all right, title, and interest in its intellectual property, including all formulations, compositions, methods, know-how, specifications, trade secrets, trademarks, and technical information. No sale of Products grants Customer any license or other rights under any patent, trademark, copyright, trade secret, or other PDX intellectual property right except the limited, non-transferable right to use Products purchased from PDX for Customer’s internal business purposes and lawful resale in unaltered form, subject to these Terms.
Customer will not reverse engineer, decompile, analyze, or otherwise attempt to determine the composition or manufacture of any Product except to the extent expressly permitted by Applicable Law and not waivable by contract.
The rights and obligations in this clause shall survive expiration or termination of the Terms and any applicable Accepted Order.
In addition to any other remedies, PDX may terminate any order, suspend performance, or cancel any unshipped portion of an order immediately upon notice to Customer if:
(i) Customer fails to timely pay any amount due;
(ii) Customer breaches these Terms;
(iii) Buyer becomes insolvent, files or has filed against it a bankruptcy or similar proceeding, makes an assignment for the benefit of creditors, or ceases doing business in the ordinary course;
(iv) PDXreasonably determines that shipment, sale, or performance may violate Applicable Law; or
(v) Customer fails to provide adequate assurances of performance after request by PDX.
Termination or suspension will not affect rights or obligations accrued before the effective date of termination, including payment obligations, indemnity obligations, and remedies for breach.
PDX will not be liable, and will be excused from performance, to the extent its performance is delayed, hindered, or prevented by events beyond its reasonable control, including acts of God, weather, natural disaster, epidemic, pandemic, war, terrorism, civil unrest, cyber incident, labor shortage, utility interruption, equipment breakdown, governmental action, embargo, sanctions, raw material shortage, transportation disruption, or supplier failure.
During any force majeure event, PDX may allocate available inventory, production, and transportation capacity among its customers, internal requirements, and contractual commitments in a manner PDX deems reasonable. If a force majeure event continues for an extended period, PDX may cancel the affected order without liability other than refund of any prepaid amount for undelivered Products.
Except as otherwise provided in these Terms, the parties shall first attempt in good faith to resolve any dispute, controversy, or claim arising out of or relating to these Terms, any Accepted Order, the Products, or the breach, termination, or validity thereof through informal negotiations between representatives authorized to settle the dispute. Either party may initiate negotiations by written notice describing the dispute in reasonable detail. If unresolved within thirty (30) days after delivery of the notice, either party may pursue any remedy available in accordance with this clause.
Any suit, action, or proceeding arising out of or relating to these Terms, any Accepted Order, the Products, or the transactions contemplated hereby shall be brought exclusively in the state courts located in Harris County, Texas or, if federal jurisdiction exists, the United States District Court for the Southern District of Texas, Houston Division. Each party irrevocably submits to the exclusive jurisdiction and venue of such courts and waives any objection based on inconvenient forum, lack of personal jurisdiction, or improper venue. Notwithstanding the foregoing, PDX may seek temporary, preliminary, or injunctive relief, or pursue collection, repossession, or similar creditor remedies, in any court of competent jurisdiction.
These Terms, each Accepted Order, and any dispute, claim, or controversy arising out of or relating to any of the foregoing shall be governed by and construed in accordance with the laws of the State of Texas, without giving effect to any conflict of laws principles that would require the application of the laws of another jurisdiction; provided, however, that the United Nations Convention on Contracts for the International Sale of Goods shall not apply.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS, ANY ACCEPTED ORDER, THE PRODUCTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Any claim seeking to enforce or challenge the validity of this clause shall be brought only in the courts specified above, unless the parties otherwise agree in writing.
All notices, requests, consents, claims, demands, waivers, and other communications under the Terms or any Accepted Order must be in writing and will be deemed duly given only if delivered by hand, sent by nationally recognized overnight courier, mailed by certified or registered mail (return receipt requested, postage prepaid), or sent by email to the applicable notice address or email address last designated in writing by the receiving party.
Notices to PDX must be sent to the person or department designated by PDX in the applicable Accepted Order, quotation, invoice, customer onboarding materials, or other written notice, or if none, to PDX at its principal place of business and any email address PDX designates for notices. Notices to Customer must be sent to Customer at the address, email address, or other contact information provided by Customer in its most recent written communication to PDX, or if none, to Customer at its principal place of business.
Unless this clause expressly provides otherwise, notices will be effective upon the earliest of: (a) actual receipt; (b) if delivered by hand, on the date of delivery; (c) if sent by nationally recognized overnight courier, on the next business day after deposit with the courier; (d) if mailed, on the third business day after mailing; or (e) if sent by email, when sent, provided that no bounce-back, undeliverable, or other automated failure notice is received by the sender, and if sent after 5:00 p.m. local time at the recipient’s location or on a non-business day, on the next business day. A party may change its notice address or email address by giving notice in accordance with this clause.
Notwithstanding the foregoing, notices of breach, default, termination, suspension, indemnity claims, or any notice materially affecting legal rights or obligations must also be sent by one of the non-email methods above unless the receiving party has expressly agreed in writing that email alone is sufficient. Email alone will not be sufficient for service of process, subpoenas, or other formal legal process, which must be served in accordance with applicable law.
Each party is responsible for ensuring that its notice information remains current and for promptly notifying the other party of any change. A notice sent in accordance with this clause will be deemed received even if the addressee refuses delivery, fails to claim the notice, or otherwise does not open or read the notice, so long as the notice was sent in compliance with this clause.
Customer shall not assign, transfer, delegate, or otherwise dispose of any of its rights or obligations under the Terms or any Accepted Order, whether voluntarily, by operation of law, in connection with a merger, consolidation, reorganization, sale of assets, change of control, or otherwise, without PDX’s prior written consent. Any prohibited assignment, transfer, or delegation shall be null and void and of no force or effect.
PDX may assign, transfer, delegate, or otherwise dispose of any or all of its rights or obligations under the Terms or any Accepted Order without Customer’s consent, including to any affiliate or in connection with any merger, consolidation, reorganization, sale of assets, or other business combination.
The relationship between PDX and Customer is that of independent contracting parties. Nothing in the Terms or any Accepted Order shall create any partnership, joint venture, fiduciary relationship, agency, franchise, employment, or other relationship between the parties other than seller and independent customer.
Customer is an independent contracting party and has no authority to bind PDX, incur obligations on PDX’s behalf, or make representations, warranties, or commitments on behalf of PDX unless expressly authorized in writing by PDX. Customer shall be solely responsible for the means, methods, manner, and details of its use, resale, and handling of the Products, subject to PDX’s specifications, requirements, and applicable instructions.
Neither party shall have any right or authority to act for, represent, or bind the other party except as expressly provided in the Terms or in a written instrument signed by the party to be bound. Customer shall not hold itself out as an agent, employee, partner, or representative of PDX, or permit its personnel, subcontractors, or delegates to do so.
Customer acknowledges that it is solely responsible for all taxes, withholdings, insurance, permits, licenses, labor, employment, and similar obligations arising from its business operations and use, distribution, or resale of the Products, except to the extent expressly stated otherwise in the Terms or required by applicable law.
Nothing in the Terms shall be construed to limit or affect any rights or obligations that arise under any Accepted Order, any express written authorization, or any provision of the Terms that by its nature survives or operates independently of the parties’ relationship described in this clause.
The Terms, together with each Accepted Order, constitute the entire agreement between PDX and Customer with respect to the subject matter hereof and supersede all prior and contemporaneous understandings, negotiations, representations, warranties, communications, proposals, quotations, and agreements, whether oral or written, relating thereto.
In the event of any conflict among the documents comprising the parties’ agreement, the following order of precedence shall apply, unless the applicable document expressly states that it controls over a higher-ranking document:
Notwithstanding the foregoing, any terms or conditions in any purchase order, acknowledgment, confirmation, portal term, click-through, quotation request, proposal, or other Customer document shall be rejected and have no force or effect, whether or not PDX objects, unless PDX expressly agrees in a writing signed by an authorized representative of PDX that specifically references the document or provision being modified.
No waiver, modification, amendment, supplement, or discharge of any provision of the Terms shall be effective unless set forth in a written instrument signed by an authorized representative of PDX, except that PDX may issue revised Accepted Orders in accordance with the Terms. Customer acknowledges that PDX has not relied on any statement, promise, representation, warranty, or course of dealing not expressly set forth above.
If Customer’s offer, purchase order, or other communication is conditioned on any additional or different terms, such purported acceptance shall be deemed a counteroffer that PDX rejects unless PDX expressly accepts it in writing. PDX’s commencement of performance, shipment of Products, or acceptance of payment shall constitute acceptance of the applicable Accepted Order and the Terms only, and not of any additional or different terms proposed by Customer.
To the extent the Terms or any Accepted Order require compliance with applicable law, such requirement is cumulative and not exclusive of any greater legal obligation. In the event of a conflict between the Terms and applicable law, applicable law shall control only to the minimum extent necessary to resolve the conflict.
The parties agree that the Terms and each Accepted Order are a single integrated agreement and, to the extent permitted by applicable law, any ambiguity shall not be construed against the drafter solely by reason of such drafting.
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