SWITCH SITEIncitec Pivot Limited Dyno Nobel Incitec Pivot Fertilisers

Terms & Conditions

Dyno Nobel’s Standard Terms and Conditions of Sale (“Terms”) exclusively apply to all transactions for the supply of products and services.

Any and all other terms and conditions purporting to govern this transaction, whether written or oral, including those contained on any purchase order, but excluding any written agreement to the contrary signed by both parties, are hereby expressly rejected. Buyer agrees that by accepting products or services hereunder from Dyno Nobel that these Terms apply to the exclusion of all others.

Terms & Conditions Americas, Excluding Canada

Acceptance by the Buyer of each delivery shall constitute a separate contract with respect to the amount thereof. All amounts payable hereunder shall be paid in cash, or in negotiable paper collectible at its face value in United States funds at location indicated on Seller’s invoice, without deduction of exchange fluctuations, customs or other charges which are imposed upon the transaction by or on behalf of or at the instigation of Buyer’s government or its agencies. In the event Seller is forced to initiate legal action to recover any sums due here under, Buyers shall be responsible for Seller’s reasonable attorneys fees.
Unless provided otherwise, Buyer shall pay the amount of any tax or other charge now or hereafter imposed by law, upon, with respect to or measured by the sale, shipment, use or price of any material sold hereunder.
In the event the Buyer requests Seller to accept merchandise returns in lieu of payment therefore, Buyer shall, upon approval of Seller, return merchandise to such location as Seller designates, freight prepaid, and agrees to pay current restocking charges.
In the event the Buyer fails to fulfill the terms of payment or in case Seller shall have any doubt at any time as to Buyer’s financial responsibility, Seller may decline to make further deliveries except upon receipt of cash or satisfactory security.
Seller warrants that the materials sold hereunder shall be of Seller’s standard quality, but Buyer assumes all risk and liability whatsoever resulting from the possession, use or disposition of such materials, whether used singly or in combination with other substances. Liability of the Seller to Buyer, if any hereunder, for breach of contract, negligence or otherwise, shall in no event exceed in amount the purchase price of the materials sold with respect to which any damages are claimed. Within thirty (30 days after any shipment reaches its destination (but in no event later than ninety (90) days after shipment leaves Seller’s plant) the materials shall be examined and tested and promptly thereafter and before the materials are used, Seller shall be notified in writing or by cable in case materials are found defective or short in any respect. Failure to so notify Seller shall constitute a waiver of all claims with respect to the materials, and in any event the use of the materials shall be deemed to mean that the Seller has satisfactorily performed. Seller’s specifications are subject to change without notice. SELLER’S WARRANTY OF STANDARD QUALITY IS EXPRESSLY IN LIEU OF ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SELLER NEITHER ASSUMES NOR AUTHORIZES ANY PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OR USE OF THE MATERIALS SOLD HEREUNDER, AND THERE ARE NO AGREEMENTS OR WARRANTIES, EITHER ORAL OR WRITTEN, COLLATERAL TO OR AFFECTING THIS AGREEMENT. In no event shall Seller be liable for consequential damages or lost profits.
Seller shall not be liable for any failure to deliver or for any delay in delivery, and Buyer shall not be liable for any failure to request delivery or for any delay in requesting delivery, when any such failure or delay shall be caused (directly or indirectly) by fires, floods, accidents, explosions, equipment or machinery breakdown, sabotage, strikes or other labor disturbances, civil commotions, riots, invasions, wars, acts, restraints, requisitions, regulations or directions of Government, voluntary or mandatory compliance by Buyer or Seller with any request of the United States Government for purposes of national defense, inability to obtain or delays of transportation facilities, any act of God, or any cause (whether similar or dissimilar to the foregoing) beyond the reasonable control of Buyer or Seller. If by reason of any such causes the Seller’s supply of any such materials shall be limited, Seller shall have the exclusive right (without liability) to satisfy its own needs and thereafter to distribute any remaining available supply among all its customers in such manner as shall be determined by Seller. If any such disability shall continue for more than thirty (30) days, the undelivered quantities during such period of disability may be cancelled (without liability) at the option of either party to be exercised by giving written notice to the other party at any time during the period of this Agreement.
Each domestic rail shipment shall be inspected at the time of delivery by the carrier; in the event of loss or damage, a statement describing the loss or damage shall be secured from the carrier’s agent. Title to and risk of loss on all material sold hereunder shall pass to Buyer upon Seller’s delivery to common carrier at point of shipment whether or not Seller pays all or any part of the freight. If Seller provides delivery via its own transportation, title and risk of loss shall pass
upon unloading of material at destination.
If any law shall fix a maximum price for any material covered by this Agreement below the then current price hereunder, Seller, without liability, may, upon written notice, terminate this Agreement with respect to further shipments of the material affected.
Returnable containers shall be returned by Buyer within 3 months from date of shipment. Title to all such containers shall remain in Seller or Seller’s supplier if material is not manufactured by Seller. Buyer, in accordance with Seller’s container schedule, shall make a deposit for each returnable container, and the amount of such deposit shall be paid by Buyer at the time of payment of the invoice for the material shipped in the container. Each deposit shall be refunded by Seller to Buyer promptly after the container is returned, provided the container is in good condition and has been used only for the storage and delivery of the material sold hereunder.
With respect to U.S. sales, seller certifies that the material sold is produced in compliance with the Fair Labor Standards Act of 1938, as amended, and that the prices charged are not in excess of maximum prices permitted by law.
Upon request, the Seller will furnish such technical advice or assistance as it deems appropriate in reference to the use of its products by Buyer; it is expressly understood, however, that all such technical advice or assistance is rendered without compensation and the Seller assumes no obligation or liability for such advice or assistance given or results obtained. Dyno Nobel Inc. TERMS AND CONDITIONSRevised: February 2006 Page 2 of 2
On export orders Seller reserves the right to claim any drawback that may apply to this order, and Buyer shall supply Seller with a certified copy of the onboard bill of lading as evidence of exportation from the United States. Unless otherwise expressly provided on the reverse side, if material is sold in CIF terms, Seller shall take out war risk insurance if obtainable as defined by the American Institute of Marine Underwriter and/or the American Cargo War Risk Re-Insurance Exchange, and the entire amount of the premium shall be included in the CIP price set out on the reverse side. Any increase in War Risk Insurance rate over that included in the CIP price shall be charged to Buyer at Seller’s option. In addition, any charge in ocean freight from that included in the CIP or C&F price shall be for Buyer’s account at Seller’s option.
If at any time any condition shall arise which shall impede or restrict free exchange of money or goods between the country and/or territory covered by this order and the United States of America, then deliveries hereunder may be suspended during the continuance of any such condition, or this order may be forthwith terminated by either party.
If this document covers a free sample, this clause applies in lieu of Seller’s warranty of standard quality. ALL FREE SAMPLES ARE FURNISHED “AS IS” and the recipient agrees to assume all risk and liability whatsoever for injury or damage to persons or property or otherwise resulting from the handling or use of the sample. By accepting the sample, the recipient agrees that he will not purchase the material for commercial use until he has first determined that the material is merchantable and fit for the particular purpose for which the material is purchased and that the proposed use is satisfactory within the requirements of all applicable laws.
Seller’s or Buyer’s waiver of any breach or failure to enforce any of the terms or conditions of this contract shall not in any way affect, limit or waive such party’s right at any future time to enforce strict compliance with every term and condition hereof.
If this order contains a notation that it is placed under a U.S. Government contract or subcontract, then there are also incorporated herein such current Government contract provisions as are required by reason of statute and Executive Order.
Sale of goods made subject to the terms and conditions above. Interest shall be charged on past due accounts at the rate of 1½% per month or allowable rate.
Seller reserves the right to adjust prices if its costs increase materially, such as due to a new or amended law or regulation that results in an increase in the cost of providing services or products.

Terms & Conditions Canada

DEFINITIONS, PROPOSAL, AND PURCHASE ORDER
1. Definitions. “Dyno Nobel Group” means Dyno Nobel Canada Inc. (“Dyno Nobel”), Dyno Nobel Affiliates, subcontractors or vendors of any tier, and shareholders, officers, directors, employees, temporary workers (including agency personnel), agents, joint venturers, consultants and insurers of foregoing. “Affiliate” means any legal entity which controls, is controlled by, or is under common control with, another legal entity. An entity is deemed to “control” another if it owns directly or indirectly 50% or more of the voting interest and has the ability to elect a majority of directors or managing authority or otherwise direct the affairs or management of other entity. “Buyer” means Dyno Nobel’s customer, whether a buyer, consignee, lessee or licensee. “Parties” mean Dyno Nobel and Buyer. “Work” means Products, and Services supplied in the Order.
2. Proposal Validity. Unless otherwise stated, all Dyno Nobel proposals are valid and may be accepted by Buyer for 60 days from the date proposal is issued by Dyno Nobel. Buyer’s attempted acceptance of the proposal after this period does not create any obligation on Dyno Nobel unless subsequently accepted by Dyno Nobel in writing. “Order” means a Buyer purchase order or other contract form (“Purchase Order”) accepted by Dyno Nobel in writing.
3. Terms and Conditions. All Dyno Nobel proposals are conditioned upon Buyer acceptance of these terms and conditions (including all Exhibits, this “Agreement”), unless otherwise expressly agreed in writing by Dyno Nobel and Buyer. Any Buyer terms and conditions on the Purchase Order are deemed excluded. Dyno Nobel acknowledgment of receipt of a Purchase Order does not constitute acceptance by Dyno Nobel. Dyno Nobel acceptance of a Purchase Order is subject exclusively to Buyer’s acceptance of this Agreement.
4. Purchase Order Requirements. Purchase Orders must be in writing and specify: (a) Purchase Order number; (b) Dyno Nobel proposal number; and (c) that the Purchase Order is governed exclusively by the terms and conditions of the Dyno Nobel proposal and this Agreement.
DELIVERY Delivery terms of the tangible items, including explosives, accessories, chemicals, hardware, parts and components, provided by Dyno Nobel in the Order (“Product”) are provided, unless otherwise agreed to in writing by the Parties, Free On Board (F.O.B.), to the agreed upon Buyer site from the nearest or most convenient Dyno Nobel facility as determined by Dyno Nobel (“Facility”). Dyno Nobel will schedule delivery in accordance with its standard lead time unless the Order states a later delivery date. Title to Product will pass to Buyer and delivery will occur when Dyno Nobel places Product at the disposal of Buyer. Dyno Nobel reserves the right to quote additional charges for any special routing, packing, labelling, storage, handling or insurance requested by Buyer.
PAYMENT Payment is due 30 calendar days from date of invoice. Payment must be made in Canadian currency unless agreed otherwise in writing. If Buyer is delinquent in payment to Dyno Nobel, Dyno Nobel may immediately stop shipment of Product and provision of services under the Order (“Services”), and future shipments and Services until all delinquent amounts and late interest are paid. Additionally, Dyno Nobel may at its option: (a) repossess Products for which payment has not been made; (b) charge interest on delinquent amounts at the lower of 1.5% per month or partial month (18% per year) during which amount was due, or the highest rate allowed by law, from due date to payment date; (c) recover all costs of collection, including without limitation reasonable attorneys’ fees; or (d) combine any of the above rights and remedies under applicable law. These remedies are in addition to those available at law or equity. Dyno Nobel may re-evaluate Buyer’s credit standing at all times, and modify or withdraw credit. Buyer may not set off or recoup invoiced amounts or any portion thereof against sums that are due or may become due from any member of Dyno Nobel Group.
TAXES
1. Exclusion. Dyno Nobel pricing excludes all taxes, duties and charges, regardless of when imposed, levied, collected, withheld or assessed. If Dyno Nobel must impose, levy, collect, withhold or assess any taxes, duties or charges on any transaction as to the Order, then in addition to the purchase price, Dyno Nobel will invoice Buyer for those taxes, duties, and charges unless at the time Buyer places the Purchase Order Buyer furnishes Dyno Nobel with an exemption certificate or other documentation sufficient to verify exemption from the taxes, duties or charges.
2. Withholding. If any taxes must be withheld by Buyer from amounts paid or payable to Dyno Nobel, (a) the amount Dyno Nobel is entitled to receive net of taxes withheld will equal the amount Dyno Nobel would have received had no taxes been withheld, (b) Buyer will withhold the required amount of taxes and pay those taxes on behalf of Dyno Nobel to the relevant taxing authority in accordance with applicable law, and (c) Buyer will forward to Dyno Nobel within 60 days of payment proof of the withholding sufficient to establish the withholding amount and recipient. In no event is Dyno Nobel liable for taxes paid or payable by Buyer.
FORCE MAJEURE AND BUYER CAUSED DELAY
1. Force Majeure. Except for payment obligations, neither Party will be liable to the other for any failure to meet its obligations due to any Force Majeure event. If the inability to perform continues for longer than 90 days, either Party may terminate the Order and this Agreement by providing written notice to the other Party and Buyer will pay Dyno Nobel for Products delivered and Services performed prior to termination. Force Majeure is an event beyond the reasonable control of the non-performing Party and may include but is not limited to: (a) delays or refusals to grant an export license or the suspension or revocation thereof, (b) any other acts of any government that would limit a Party’s ability to perform the Order or this Agreement, (c) fires, earthquakes, floods, tropical storms, hurricanes, tornadoes, severe weather conditions, or any other acts of God, (d) quarantines or regional medical crises, (e) labor strikes or lockouts, (f) riots, strife, insurrection, civil disobedience, landowner disturbances, armed conflict, terrorism or war, declared or not (or impending threat of any of the foregoing, if such threat might reasonably be expected to cause injury to people or property), and (g) shortages or inability to obtain materials or components. If a Force Majeure event causes a delay, then the date of performance will be extended by the period of time that the non-performing Party is actually delayed or for any other period as the Parties may agree in writing.
2. Buyer Delays. Dyno Nobel is not liable for any project delays or increased costs caused by delays in obtaining products, or services from Buyer-designated supplier or Buyer’s failure to timely provide information required for the Work. If Buyer-caused delay occurs, and the delay is not Force Majeure related, then the price and other affected terms will be adjusted to reflect increased cost, delay and other adverse impact suffered by Dyno Nobel. If delivery of Products, Services, manuals, or other information necessary for performance of the Work is delayed due to conduct of Buyer or Buyer-designated supplier, then Dyno Nobel may store Products at Buyer risk and expense and may charge Buyer for the delay.
ACCEPTANCE Unless other acceptance criteria have been agreed in the Order, Buyer must inspect Products within 30 days of delivery. If Buyer does not provide Dyno Nobel with a written notice of rejection explaining the basis for rejection within the 30-day period, then the Products are deemed accepted. Buyer will give Dyno Nobel a reasonable opportunity to repair or replace properly rejected Products. Dyno Nobel assumes shipping costs in an amount not to exceed normal surface shipping charges to the Dyno Nobel-designated facility for the return of properly rejected Products. Following initial delivery, the shipping Party will bear the risk of loss or damage to Products in transit. If Dyno Nobel reasonably determines that rejection was improper, Buyer must reimburse Dyno Nobel for all expenses incurred by Dyno Nobel as a result.
GOVERNMENT CONTRACT If the Proposal or Order is subject to or placed under a valid federal or provincial government contract or subcontract (“Government Contract”), then the relevant current Government Contract provisions as are required by reason of applicable laws and regulations are incorporated herein.
WARRANTIES
1. Product. Dyno Nobel warrants that at time of shipment to Buyer, Products will materially comply with applicable Dyno Nobel specifications and will be free from material defects in workmanship and material. This warranty runs to Buyer, its successors, and permitted assigns, and customers. This warranty is valid for thirty (30) days from date of delivery, but in no event shall validity of this warranty exceed ninety (90) days from date of shipment from Dyno Nobel Facility. This warranty is conditioned on Buyer paying the full purchase price for the Products and Services. a. Buyer must notify Dyno Nobel in writing during the warranty period of: (1) any failure of a Product to materially comply with the applicable Dyno Nobel specifications; and (2) any material defects in workmanship or material of the Product (collectively “Nonconformance”). Normal wear and tear, consumable items and the need for regular overhaul and periodic maintenance do not constitute Nonconformance. Buyer must return the Product to Dyno Nobel’s designated facility within 30 calendar days of discovery of the Nonconformance. b. Dyno Nobel’s obligation and Buyer’s sole remedy under this warranty with respect to any Nonconformance is repair or replacement of the Product, at the option of Dyno Nobel. All Products repaired or replaced are warranted only for the remainder of the original warranty period. c. Dyno Nobel assumes round trip shipping costs for Nonconforming Products up to normal surface shipping charges to and from Dyno Nobel’s nearest warranty repair facility for Products. The shipping Party will bear the risk of loss or damage to Products in transit. If Dyno Nobel reasonably determines after analysis that a Nonconformance does not exist, then Buyer must pay all expenses incurred by Dyno Nobel related to the improper return including, without limitation, analysis and shipping charges.
2. Services. Dyno Nobel warrants that Services will comply with the requirements stated in the Order. This warranty is valid for 30 days from date Services are performed. Dyno Nobel’s obligation and Buyer’s sole remedy under this warranty is to correct or re-perform defective Services, at Dyno Nobel’s election, if Buyer notifies Dyno Nobel of defective Services within the warranty period. All Services corrected or re-performed are warranted only for remainder of the original warranty period.
3. Exclusion from Coverage. Dyno Nobel is not liable under these warranties if the Product or Service has been exposed or subjected to any: a. maintenance, repair, installation, handling, packaging, transportation, storage, operation or use which is improper or otherwise not in compliance with Dyno Nobel’s instructions; b. alteration, modification or repair by a third party not specifically authorized by Dyno Nobel; c. accident, contamination, foreign object damage, abuse, or negligence after shipment or performance; d. damage caused by failure of any item or service not supplied by Dyno Nobel as part of the Order; or e. use of counterfeit or replacement parts that are neither manufactured nor approved by Dyno Nobel for use in Dyno Nobel manufactured Products.
4. Records. Dyno Nobel has no obligation under these warranties unless Buyer maintains records that accurately document warranty coverage requirements for the Product or Services. Upon Dyno Nobel request, Buyer must give Dyno Nobel access to these records for substantiating warranty claims.
5. Exclusivity. These warranties are exclusive and in lieu of all other warranties, whether written, express, implied, statutory or otherwise, including without limitation, implied warranties of quality, merchantability and fitness for particular purpose. No warranty extension will be binding on Dyno Nobel unless signed by an authorized Dyno Nobel representative.
LIMITATION OF LIABILITY Dyno Nobel Group shall not be liable or responsible for and Buyer does hereby release and discharge Dyno Nobel Group from any Consequential Loss arising from breach of any obligation or warranty of Dyno Nobel Group under this Agreement. Consequential Loss shall mean for the purpose of this Section 9 any and all indirect or consequential loss howsoever caused or arising, including but not limited to (i) loss or damage arising out of any delay, postponement, interruption or loss of production, any inability to produce, deliver or process any product or substance or any loss of or anticipated loss of use, profit, or revenue; (ii) loss or damage incurred or liquidated or pre-estimated damages of any kind whatsoever borne or payable, under any contract for the sale, exchange, transportation, processing, storage or other disposal of any product or substance; (iii) losses associated with business interruption including the cost of overheads incurred during business interruption; (iv) loss of bargain, contract, expectation or opportunity; (v) loss of goodwill or business reputation; and (vi) any other loss or anticipated loss or damage whatsoever in the nature of or consequential upon any of the foregoing. This limitation of liability shall apply even if the express warranty set out in Section 8 shall fail of its essential purpose. The liability of Dyno Nobel Group for any breach of obligation or warranty shall be limited to the direct cost to remedy such breach, and in any event the total liability of the Dyno Nobel Group for any breach of obligation or warranty shall not exceed 25% of initial price.
INVENTIONS AND INTELLECTUAL PROPERTY Any inventions, discoveries, innovations, documents, materials, infor- mation and deliverables (whether or not copyrightable or patentable) conceived or developed by any member of Dyno Nobel Group in connection with the Work is the sole property of Dyno Nobel and may not be copied, reproduced or otherwise used by Buyer or its Affiliates except as permitted in the Order or in writing by Dyno Nobel. At the request and expense of Dyno Nobel, Buyer will execute the documents and take any other steps as Dyno Nobel deems necessary or appropriate to obtain, vest, confirm or record ownership of all right, title and interest in the foregoing in the name of Dyno Nobel or its Affiliate, including without limitation patent, trademark and copyright ownership. If Buyer fails to execute the documents or take any other steps deemed necessary by Dyno Nobel in a timely manner, then Buyer irrevocably nominate Dyno Nobel as its agent and Dyno Nobel shall be entitled to execute and undertake those necessary documents and steps in the name of Buyer in order to give full effect to this Section 10. Nothing in this Agreement will be construed to restrict, impair or deprive Dyno Nobel of any of its right, title or proprietary interest in Intellectual Property, technology, know-how or products which existed prior to and independent of the performance of the Order.
CONFIDENTIAL AND PROPRIETARY INFORMATION AND PUBLICITY
1. Confidentiality. Receiving Party must hold confidential until 5 years after completion of the Work or termination of the Order, all technical information, technical data or know-how in whatever form, including without limitation: (a) documented information, machine readable or interpreted information, information contained in physical components, mask works and artwork, clearly identified as “confidential” or “proprietary”; (b) business-related information including pricing, manufacturing or marketing information; (c) terms and conditions of any proposal or agreement between the Parties or their Affiliates; (d) either Party’s or its Affiliate’s business policies or practices; and (e) third-party information disclosed to receiving Party (collectively, “Confidential Information”). Receiving Party must not disclose or use Confidential Information, except as permitted in this Agreement. Receiving Party must protect Confidential Information using the same degree of care as it uses to protect its own confidential information, but in no event less than a reasonable degree of care. Neither Party will be liable for inadvertent disclosure nor use, if on discovery of the inadvertent disclosure or use, receiving Party notifies disclosing Party immediately, and endeavors to prevent further disclosure or use.
2. Exclusions. Receiving Party has no duty to protect information that is: a. developed by receiving Party independently of and without reference to disclosing Party’s Confidential Information; b. rightfully obtained without restriction by receiving Party from a third party who had no obligation of confidentiality, either directly or indirectly with respect to the information; c. publicly available other than through negligence of receiving Party; d. released without restriction by disclosing Party; e. known to receiving Party at time of disclosure, without an existing duty to protect information; or f. disclosed by receiving Party with prior written approval of disclosing Party. The Receiving Party may disclose Confidential Information required to be disclosed as a matter of law, provided the Receiving Party notifies disclosing Party and, upon the disclosing Party’s request, agrees to cooperate in all reasonable respects to contest the disclosure or obtain a protective order or other remedy.
3. Disclosure to Personnel. Receiving Party may disclose Confidential Information only to its employees and temporary workers including agency personnel) having a “need to know”. Receiving Party must ensure that each employee or temporary worker is aware of this Agreement and has signed a contract making the employee or temporary worker subject to confidentiality obligations no less stringent than those imposed under this Agreement. If authorized in writing by disclosing Party, receiving Party may disclose Confidential Information to a third party if: a. receiving Party requires third party to sign a confidentiality agreement with terms and conditions no less stringent than those imposed under this Agreement; and b. the signed agreement is delivered to disclosing Party prior to disclosure of any Confidential Information; and, c. receiving Party remains responsible to disclosing Party for any disclosure by the third party in violation of this Agreement or the confidentiality agreement signed by third party.
4. Confidential Use Restriction. Dyno Nobel may use Confidential Information of Buyer only to perform Work for Buyer. Buyer may not use or disclose Dyno Nobel Confidential Information for any purpose other than purchase or use of Products, or Services.
5. Return of Information. Upon written request of disclosing Party, receiving Party must return, destroy or delete from its system disclosed Confidential Information and all copies, as directed by disclosing Party; and provide a written certificate of disposition to disclosing Party.
6. Copies. Dyno Nobel may make a limited number of copies of Buyer Confidential Information as necessary to perform the Work. All copies made must reproduce any restrictive legends of the original.
7. Public Announcement. Neither Party may issue any public announcement on subject matter of the Order without prior written approval of other Party, which approval may not be unreasonably withheld. Either Party may issue any public disclosure it believes in good faith is required by law or regulatory agency with jurisdiction over publicly-traded securities of the Party or its Affiliate.
8. Ownership. Each Party retains ownership of its Confidential Information and all of its copyrights, trademarks, trade secrets, patents, know-how, mask works and other Intellectual Property rights recognized in any jurisdiction worldwide, including all applications and registrations (collectively “Proprietary Information”). Unless otherwise stated, no right or license is granted to either Party or its customers, employees, temporary workers or agents, expressly or by implication, with respect to Proprietary Information or any patent, patent application or other proprietary right of other Party, even in the event of termination of the confidentiality and use restrictions in this Ownership clause.
EXPORT AND COMPLIANCE
1. Responsibility. Buyer is responsible for compliance with all import and export control laws and regulations. Buyer must obtain at its sole cost and expense all import and re-export approvals and licenses required for Products, Services, transfers and technical data delivered and will retain documentation evidencing compliance with those laws and regulations. If Buyer designates the freight forwarder for export shipments from Canada, then Buyer’s freight forwarder will export on Buyer’s behalf and Buyer will be responsible for any failure of Buyer’s freight forwarder to comply with all applicable export requirements. Dyno Nobel will provide Buyer’s designated freight forwarder with required commodity information.
2. Disclaimer. Dyno Nobel is not liable for any failure to provide Products, Services, transfers or technical data as a result of government actions that impact Dyno Nobel’s ability to perform, including: (a) failure to provide or cancellation of export or re-export licenses, (b) any subsequent interpretation of applicable import, transfer, export or re-export law or regulation after effective date of the Order, or (c) delays due to Buyer failure to follow applicable import, export, transfer, or re-export laws and regulations.
3. Prohibited Uses. Buyer may not sell, transfer, export or re-export any Dyno Nobel Products, Services, or technical data for use in activities that involve the design, development, production, use or stockpiling of nuclear, chemical or biological weapons or missiles, nor use Dyno Nobel Products, Services, or technical data in any facility that engages in activities relating to weapons or missiles. In addition, Dyno Nobel Products, Services, or technical data may not be used in connection with any activity involving nuclear fission or fusion, or any use or handling of any nuclear material. Dyno Nobel may approve the uses restricted in this Export Compliance clause if Buyer, at Buyer expense, provides Dyno Nobel with insurance coverage, indemnities, and waivers of liability, recourse and subrogation acceptable to Dyno Nobel.
4. Compliance with Laws. In addition to the foregoing, Buyer recognizes and acknowledges that the Products contain explosives and explosives accessories that are governed by specific laws and regulations of Canada and the individual provinces and Buyer covenants and agrees to transport, use, and store the Products only in strict compliance with those laws and regulations. Buyer must defend, indemnify and hold Dyno Nobel Group harmless from any costs, damages or liabilities (including attorneys’ fees and related costs) arising from Buyer’s failure to comply with those laws and regulations.
CHANGE ORDERS AND PRODUCT CHANGES
1. Change Order. Buyer may issue a written change order to request changes within the scope of the Order, subject to acceptance by Dyno Nobel. Dyno Nobel will inform Buyer if the change will cause an increase in Dyno Nobel costs or time required to perform. The change will be effective and Dyno Nobel may begin Work, upon signature of a change order by authorized representatives of both Parties. Dyno Nobel may charge Buyer for the costs of any Work for the change even if performed prior to signature of the change order. The change order must include at minimum: (a) description of each change and cost; (b) related Order number; (c) effective date; (d) Dyno Nobel and Buyer entity name and address; (e) reference to Order section affected; (f) any revised project milestones; and (g) signature of Buyer, or agent or representative.
2. Product Changes. Dyno Nobel may make changes to Products that do not alter the form, fit, or function of the Products delivered to Buyer.
TERMINATION Either Party may terminate this Agreement and unperformed Order by giving written notice to the other Party on the following events: a. material breach of this Agreement or the Order and failure to remedy breach within 60 calendar days after receipt of written notice specifying the grounds of the breach; b. failure of other Party to make any payment required under the Order when due, and failure to remedy the breach within 30 calendar days after receipt of written notice of non-payment; or, c. insolvency or suspension of other Party’s operations or any petition filed or proceeding made by or against other Party under any provincial, state, federal or other applicable law relating to bankruptcy, arrangement, reorganization, receivership or assignment for benefit of creditors or other similar proceedings.
SERVICES PERFORMED AT BUYER SITE
1. Work on Live Systems. If performance of an Order requires that Dyno Nobel or subcontractor personnel perform Services on Buyer equipment, products, or systems while on-line or operating in a live process, Buyer must defend, indemnify and hold Dyno Nobel Group harmless from any costs, damages or liabilities (including attorneys’ fees and related costs) arising from any injury or death to persons or damage to or loss of property (of Buyer or third party) arising from the Services performed, including without limitation hot cutover work as defined in the proposal or Order.
2. Employee Access. If Services are to be performed at a Buyer site located outside Canada, Buyer will assist Dyno Nobel in obtaining all applicable permits, visas or other governmental approvals necessary for Dyno Nobel to perform the Services.
3. Plant and Facility Drawings. Prior to starting Services, Buyer must supply Dyno Nobel with current drawings of the facility or plant where Dyno Nobel will perform any Services at Buyer site. Buyer warrants that all drawings will accurately reflect the current design, layout and equipment in the facility or plant, including any pending changes, at the time the Services are performed.
4. Hazard-Free Environment. Buyer will provide a hazard-free environment for performance of the Services. Dyno Nobel may not perform Services at Buyer site if Dyno Nobel determines at its sole discretion that performance of Services may compromise the safety of Dyno Nobel or subcontractor personnel. Injury or death to persons or damage to or loss of property due to hazardous environmental conditions is the sole responsibility of Buyer. Buyer must defend, indemnify and hold Dyno Nobel Group harmless from any liabilities (including attorneys’ fees and related costs) arising from hazardous environmental conditions. These conditions include without limitation, presence of hazardous substances, mold, asbestos, lead, mercury, corrosive atmospheres, electrical spikes, noise, severe ambient temperature changes, or the proximity of exposed equipment, structures or itinerant machines at Buyer site or immediate vicinity. If Dyno Nobel discovers any unsafe conditions at Buyer site, Dyno Nobel may at its sole discretion suspend Services until corrected by Buyer. Buyer must investigate and correct any unsafe conditions reported by Dyno Nobel. All costs incurred by Dyno Nobel as a result of any suspension must be paid by Buyer.
SEVERABILITY If any provision of this Agreement or the Order is determined to be illegal, invalid, or unenforceable, the validity of the remaining provisions will not be affected and, in lieu of an illegal, invalid, or unenforceable provision, there are deemed added provisions as similar in terms as may be legal, valid and enforceable under applicable law.
WAIVER The failure of either Party to enforce at any time any provision of this Agreement or the Order may not be construed to be a continuing waiver of any provision of the Agreement or Order. Nor will any failure to enforce prejudice the right of the Party to take any action in the future to enforce any provisions of the Agreement or Order.
SUCCESSORS This Agreement and all rights, entitlements, duties and obligations arising from it shall enure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns
DISPUTE RESOLUTION AND CHOICE OF LAW
1. Executives. Before either Party may initiate any dispute resolution process other than injunctive relief, the Parties must schedule a mandatory executive resolution conference in a mutually agreeable neutral location to be held within 30 days of receipt of a Party’s written request. The conference must be attended by at least one (1) executive from each Party. At the conference, each Party must present its view of the dispute in detail and the executives must enter into good faith negotiations in an attempt to resolve the dispute. If the dispute is not resolved within 30 days of the beginning date of the conference, then either Party may pursue resolution of the dispute under this Dispute Resolution and Choice of Law clause.
2. Governing Law. This Agreement and the Order are governed by the laws of the province of Ontario and the federal laws of Canada, as applicable, without regard to conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods, 1980, and any successor law will not apply. The courts within the province of Ontario have exclusive jurisdiction to adjudicate any dispute under this Agreement or the Order.
3. Jury Waiver. The Parties waive any right to a trial by jury for disputes.
ASSIGNMENT Neither Party may assign any rights or obligations under the Order or this Agreement to a third party other than an Affiliate without the prior written consent of other Party, which consent may not be unreasonably withheld. Either Party may assign the Order and this Agreement in connection with the sale or transfer of all or substantially all assets of the product line or business to which it pertains. Any attempt to assign or delegate in violation of this Assignment clause is void.
ENTIRETY, AMENDMENT, AND SURVIVAL This Agreement and the Order contain the entire agreement between the Parties as to the subject matter and supersede any prior representations or agreements, oral or written, and all other communications between the Parties relating to the subject matter. Neither this Agreement nor the Order may be varied except by an instrument signed by authorized representatives of each Party. If there is any inconsistency between this Agreement and the Order, this Agreement prevails. All provisions of this Agreement which by their nature should continue in force beyond the term of this Agreement or the Order will remain in force after termination of this Agreement or the Order.
RELATIONSHIP OF PARTIES The Parties acknowledge that they are independent contractors and no other relationship, including partnership, joint venture, employment, franchise, master/servant or principal/agent is intended by this Agreement or the Order. Neither Party has the right to bind the other.
SUBCONTRACTING Dyno Nobel may subcontract its obligations under the Order. Use of subcontractors does not release Dyno Nobel from obligations for performance of subcontracted obligations.
NOTICES Each notice between the Parties relating to the Order and this Agreement must be made in writing to the authorized representative of the Party at the address stated in the Order. Notices under this Agreement will be deemed received either: a. two calendar days after mailing by certified mail, return receipt requested and postage prepaid; or, b. one business day after deposit for next-day delivery with a commercial overnight carrier if carrier obtains written verification of receipt from receiving Party.

AGRICULTURE AND INDUSTRIAL TERMS AND CONDITIONS OF SALE

These Terms and Conditions constitute a binding contract between Buyer and Seller and are referred to herein as either "Terms and Conditions" or this "Agreement." Buyer accepts these Terms and Conditions by making a purchase from or placing an order with Seller These Terms and Conditions are subject to change without prior notice, except that the Terms and Conditions posted on a Site at the time Customer places an order or signs a Statement of Work will govern the order in question, unless otherwise agreed in writing by Seller and Buyer.

1. PAYMENT

Buyer agrees to pay for all Product purchased from Seller when due and at the quoted price. Buyer will pay net 30 days from the invoice date. Interest shall be charged on past due accounts at the rate of 1½% per month or allowable rate. In the event Seller is forced to initiate legal action to recover any sums due here under, Buyer shall be responsible for Seller’s reasonable attorney’s fees.
Unless provided otherwise, Buyer shall pay the amount of any tax or other charge now or hereafter imposed by law, upon, with respect to or measured by the sale, shipment, use or price of any material sold hereunder.
Nothing herein shall be construed as obligating Seller to extend credit to Buyer. Seller, in its sole discretion, may at any time refuse to grant credit to Buyer and may condition the extension of credit upon such terms as Seller requires.
In the event the Buyer fails to fulfill the terms of payment or in case Seller shall have any doubt at any time as to Buyer’s financial responsibility, Seller may decline to make further deliveries except upon receipt of cash or satisfactory security.
Warranties. Buyer represents that it is familiar with the composition, qualities, and uses of the product(s) and that Buyer is not relying on the Seller's skill or judgment to select or furnish Product suitable for any particular purpose. Seller warrants only that the materials sold hereunder shall be of Seller’s standard quality and conforms to Seller’s specifications. Buyer assumes all risk and liability whatsoever resulting from the possession, use or disposition of such materials, whether used singly or in combination with other substances. THE WARRANTIES SET FORTH IN THIS PARAGRAPH ARE IN LIEU OF ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Seller’s specifications are subject to change without notice.
Limitation on Liability/Indemnities.
1. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, BUSINESS INTERRUPTIONS, OR FAILURE OF SUPPLY) RESULTING FROM ANY BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT. Liability of the Seller to Buyer, if any hereunder, for breach of contract, negligence or otherwise, shall in no event exceed in amount the purchase price of materials sold with respect to which any damages are claimed. BUYER'S REMEDY AND SELLER'S LIABILITY SHALL BE LIMITED SOLELY TO REPLACEMENT OF THE PRODUCT AT THE ORIGINAL POINT OF DELIVERY OR REFUNDING THE PRICE OF ANY PRODUCT NOT MEETING THE SPECIFICATIONS, AT SELLER'S OPTION.
2. No claim may be asserted by Buyer for breach of warranty unless made in writing within thirty 30 days after the Product has been received by Buyer or Buyer’s consignee. Buyer’s failure to so notify Seller shall constitute a waiver of all claims with respect to the materials.
3. Buyer shall indemnify and hold harmless Seller from and against all claims, loss, liability and expense (including reasonable attorney's fees) in any way arising out of any damage to property or injury or death of persons (including Buyer's employees) arising out of Buyer's transportation, storage, handling, use, or disposal of the Product or any other occurrence arising out of Buyer's business
4. CANCELLATION AND CHANGES An order for Product cannot be cancelled or modified after Seller’s acceptance of Buyer’s order except upon Seller’s written consent.
5. FORCE MAJEURE. Seller shall not be liable for any failure to deliver or for any delay in delivery, and Buyer shall not be liable for any failure to request delivery or for any delay in requesting delivery, when any such failure or delay is be caused (directly or indirectly) by fires, floods, accidents, explosions, plaint or equipment breakdown or outage, sabotage, strikes or other labor disturbances, civil commotions, riots, invasions, wars, acts, restraints, requisitions, regulations or directions of Government, voluntary or mandatory compliance by Buyer or Seller with any request of the United States Government for purposes of national defense, inability to obtain or delays of transportation facilities, any act of God, or any cause (whether similar or dissimilar to the foregoing) beyond the reasonable control of Buyer or Seller. If by reason of any such causes the Seller’s supply of any such materials shall be limited, Seller shall have the exclusive right (without liability) to satisfy its own needs and thereafter to allocate any remaining available supply among all its customers in such manner as shall be determined by Seller. If any such disability shall continue for more than thirty (30) days, the undelivered quantities during such period of disability may be cancelled (without liability) at the option of either party to be exercised by giving written notice to the other party at any time during the period of this Agreement.
6. TITLE AND RISK OF LOSS Title to and risk of loss on the Product(s) hereunder shall pass to Buyer upon Seller’s delivery to common carrier at point of shipment whether or not Seller pays all or any part of the freight. If Seller provides delivery via its own transportation, title and risk of loss shall pass upon unloading of material at destination.
7. Territorial Restrictions If at any time any condition shall arise which shall impede or restrict free exchange of money or goods between the country and/or territory covered by this order and the United States of America, then deliveries hereunder may be suspended during the continuance of any such condition, or this order may be forthwith terminated by either party.
8. NO WAIVER Seller’s or Buyer’s waiver of any breach or failure to enforce any of the terms or conditions of this contract shall not in any way affect, limit or waive such party’s right at any future time to enforce strict compliance with every term and condition hereof.
9. GOVERNING LAW This Agreement and any and all issues arising hereunder shall be governed by and construed under the law of the State of Utah, without regard to any choice of law rule or principle that would direct the application of the laws of an alternative jurisdiction.
10. TERMINATION AND SUSPENSION Seller may immediately and without notice suspend or terminate the shipment of Product hereunder if Buyer (a) becomes insolvent or bankrupt; (b) materially breaches any term hereof including, without limitation, the payment terms hereof.
11. BUYER’S TERMS AND CONDITIONS By accepting shipment of and making payment for the Product supplied hereunder, Buyer accepts these terms and conditions. Notwithstanding any provision in any Buyer's confirmation of order or any other document provided by the Buyer to the contrary, no terms of any sales or purchase order, acknowledgement form, or other document, including but not limited to Buyer's terms of procurement, shall be binding on Seller unless accepted by Seller in writing.
12. REGULATORY PRICE INCREASE Seller reserves the right to adjust prices if its costs increase materially, such as due to a new or amended law or regulation that results in an increase in the cost of providing services or products.
13. NO IMPLIED RELATIONSHIP Nothing contained herein shall be deemed or construed by the Parties, or by any third party, to create the relationship of principal and agent, partnership, joint venture or any association whatsoever between the Buyer and the Seller.
14. ASSIGNMENT This agreement is not assignable or transferable by Buyer, in whole or in part, except with the prior written consent of Seller. Seller reserves the right to sell, assign, or otherwise transfer its right to receive payment under this agreement.