Solutia (SELLER)
________________________________________________________________
00000 Xxxxx Xxxxxxxxx
X.X. Xxx 00000
Xx. Xxxxx, Xxxxxxxx 00000-0000
(000) 000-0000
SALES CONTRACT
SOLD TO El Dorado Chemical (BUYER)
X.X. Xxx 0000
Xxxxxxxx Xxxx, XX 00000
THE FOLLOWING GOODS, SUBJECT TO TERMS AND CONDITIONS AS STATED
BELOW AND ON THE REVERSE SIDE HEREOF.
PERIOD January 1, 1999 through December 31, 2000 and
continuing calendar year to calendar year
thereafter unless canceled, in writing, by
either party prior to the preceding
October 1st.
GOODS Anhydrous Ammonia
QUANTITY minimum of 5,000 tons per month
additional quantities available provided such
quantities are mutually agreed to by both
parties.
PRICE ***
***
***
***
***
***
PAYMENT TERMS Net 15 days from date of invoice, with end of
month billing
F.O.B. Seller's *** plant
ADDITIONAL TERMS
AND CONDITIONS A pipeline freight allowance (PA) of $*** is
included to match the current competitive
freight position for delivery into El Dorado
Chemical's plant. The pipeline freight
allowance will reduced by the amount that the
freight can be reduced below $***.
This contract shall not be binding on Seller unless executed by
Buyer and an authorized representative of Seller and delivered to
Seller within thirty days from the date below.
EXECUTED BY Dated
________________________
EL DORADO CHEMICAL COMPANY, BUYER SOLUTIA, INC., SELLER
_________________________________
By By
______________________________ ___________________________
Title Title
____________________________ _________________________
***INDICATES INFORMATION IN THIS DOCUMENT WHICH HAS BEEN OMITTED
FROM THIS PUBLIC FILING PURSUANT TO A REQUEST BY THE COMPANY FOR
CONFIDENTIAL TREATMENT BY THE SECURITIES AND EXCHANGE COMMISSION
HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND
EXCHANGE COMMISSION FOR PURPOSES OF SUCH REQUEST.
1. EXCUSE OF PERFORMANCE. (a) Deliveries may be suspended
by either party in the event of: Act of God, war, riot, fire,
explosion, accident, flood, sabotage; lack of adequate fuel, power,
raw materials, labor, containers or transportation facilities;
compliance with governmental requests, laws, regulations, orders or
actions; breakage or failure of machinery or apparatus; national
defense requirements or any other event, whether or not of the
class or kind enumerated herein, beyond the reasonable control of
such party; or in the event of labor trouble, strike, lockout or
injunction (provided that neither party shall be required to settle
a labor dispute against its own best judgment); which event makes
impracticable the manufacture, transportation, acceptance or use of
a shipment of the goods or of a material upon which the manufacture
of the goods is dependent.
(b) If Seller determines that its ability to supply the total
demand for the goods, or obtain any or a sufficient quantity of any
material used directly or indirectly in the manufacture of the
goods, is hindered, limited or made impracticable, Seller may
allocate its available supply of the goods or such material
(without obligation to acquire other supplies of any such goods or
material) among itself and its purchasers on such basis as Seller
determines to be equitable without liability for any failure of
performance which may result therefrom.
(c) Deliveries suspended or not made by reason of this
section shall be canceled without liability, but this contract
shall otherwise remain unaffected.
2. BUYER'S CREDIT. Seller reserves the right, among other
remedies, either to terminate this contract or to suspend further
deliveries under it in the event Buyer fails to pay for any one
shipment when same becomes due. Should Buyer's financial
responsibility become unsatisfactory to Seller, cash payments or
security satisfactory to Seller may be required by Seller for
future deliveries and for the goods theretofore delivered.
3. WEIGHTS AND CONTAINERS. In the case of bulk carload,
tank car, tank truck or barge shipments, Seller's weights shall
govern unless proved to be in error. Where returnable containers
are used in shipment, title to such containers shall remain in
Seller, and a deposit in the amount required by Seller must be made
at the time payment is tendered for the goods. Such containers
must be kept in good condition, must not be used for any material
other than the good shipped therein and must be returned within
sixty (60) days from date of shipment. On such containers being so
returned in good condition, a refund of the deposit will be made.
4. SHIPMENTS. The quantity shipped in any contract month
may be limited by Seller to either (a) the average of the monthly
quantities purchased by Buyer for the preceding contract months or
(b) the maximum quantity covered by this contract divided by the
number of months in the period of this contract (provided, however,
that if different quantities apply to different time periods within
the period of this contract, Seller may limit shipments based upon
the current maximum quantity for the applicable time period under
this contract divided by the number of months in such time period).
Any quantity not shipped as a result of any such limitation shall
be deducted from the total quantity of this contract. Seller shall
not be bound to tender delivery of any quantities for which Buyer
has not given shipping instructions.
5. LIMITED WARRANTY. Subject to Section 6 and unless
otherwise expressly provided herein, Seller warrants title and that
the goods shall conform to Seller's standard specifications or to
the attached specifications, if any. Subject to the preceding
sentence and except as otherwise expressly provided herein, SELLER
MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR
IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR
ANY OTHER MATTER WITH RESPECT TO THE GOODS, whether used alone or
in combination with any other material.
6. LIMITATION OF LIABILITY. (a) Within thirty (30) days
after receipt of each shipment of the goods, Buyer shall examine
such goods for any damage, defect or shortage. All claims for any
cause whatsoever (whether such cause be based on contract,
negligence, strict liability, other tort or otherwise) shall be
deemed waived unless made in writing and received by Seller within
sixty (60) days after Buyer's receipt of the goods, in respect to
which such claim is made, or, if such claim is for non-delivery of
such goods, within sixty (60) days after the date upon which such
goods were to be delivered, provided that as to any such cause not
reasonably discoverable within such sixty (60) day period
(including that discoverable only in processing, further
manufacture, other use or resale) any claim shall be made in
writing and received by Seller within one hundred eighty (180) days
after Buyer's receipt of the goods, in respect to which such claim
is made, or within thirty (30) days after Buyer learns of the facts
giving rise to such claim, whichever shall first occur. Failure of
Seller to receive written notice of any such claim within the
applicable time period shall be deemed an absolute and
unconditional waiver by Buyer of such claim irrespective of whether
the facts giving rise to such claim shall have then been discovered
or of whether processing, further manufacture, other use or resale
of the goods shall have then taken place.
(b) BUYER'S EXCLUSIVE REMEDY SHALL BE FOR DAMAGES, AND
SELLER'S TOTAL LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES ARISING
OUT OF ANY CAUSE WHATSOEVER (WHETHER SUCH CAUSE BE BASED IN
CONTRACT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE)
SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE GOODS IN RESPECT
TO WHICH SUCH CAUSE ARISES OR, AT SELLER'S OPTION, THE REPAIR OR
REPLACEMENT OF SUCH GOODS, AND IN NO EVENT SHALL SELLER BE LIABLE
FOR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES RESULTING FROM
ANY SUCH CAUSE. Seller shall not be liable for, and Buyer assumes
liability for, all personal injury and property damage connected
with the handling, transportation, possession, processing, further
manufacture, other use or resale of the goods, whether the goods
are used alone or in combination with any other material.
Transportation charges for the return of the goods shall not be
paid unless authorized in advance by Seller.
(c) If Seller furnishes technical or other advice to Buyer,
whether or not at Buyer's request, with respect to processing,
further manufacture, other use or resale of the goods, Seller shall
not be liable for, and Buyer assumes all risk of, such advice and
the results thereof.
7. PATENTS. Subject to Section 6 and unless otherwise
expressly provided herein, Seller warrants that the goods sold
pursuant to this contract, except for those made for Buyer
according to Buyer's specifications, do not infringe any valid U.S.
patent. This warranty is given upon condition that Buyer promptly
notify Seller of any claim or suit involving Buyer in which such
infringement is alleged and that, if Seller is affected, Buyer
permit Seller to control completely the defense or compromise of
any such allegation of infringement. Seller does not warrant that
the use of the goods or any material made therefrom, whether the
goods are used alone or in combination with any other material,
will not infringe a patent. Seller reserves the right to terminate
Seller's warranty under this Section 7 at any time with respect to
any undelivered goods, it being agreed that in the event of such
termination Buyer may, without penalty, thereafter refuse
acceptance of such undelivered goods.
8. FREIGHT AND TAXES. Any increase in freight rates paid by
Seller on shipments covered by this contract and hereafter becoming
effective and any tax or governmental charge or increase in same
(excluding any franchise or income tax or other tax or charge based
on income) (a) increasing the cost to Seller of producing, selling
or delivering the goods or of procuring materials used therein or
(b) payable by Seller because of the production, sale or delivery
of the goods, such as Sales Tax, Use Tax, Retailer's Occupational
Tax, Gross Receipts Tax, Value Added Tax, may, at Seller's option,
be added to the price herein specified.
9. PRICE REVISION.
10. Price Protection.
11. COMPLIANCE WITH CERTAIN LAWS. Subject to Section 6 and
unless otherwise expressly provided herein, the goods shall be
produced in compliance with the requirements of the Fair Labor
Standards Act of 1938, as amended, and Executive Order 11246.
12. ASSIGNMENT. Buyer shall not (by operation of law or
otherwise) assign its rights or delegate its performance hereunder
without the prior written consent of Seller, and any attempted
assignment or delegation without such consent shall be void.
13. MISCELLANEOUS. THE VALIDITY, INTERPRETATION AND
PERFORMANCE OF THIS CONTRACT AND ANY DISPUTE CONNECTED HEREWITH
SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF MISSOURI. This contract constitutes the full
understanding of the parties, a complete allocation of risks
between them and a complete and exclusive statement of the terms
and condition of their agreement. Except as provided in Sections 9
and 10 hereof, no conditions, usage of trade, course of dealing or
performance, understanding or agreement purporting to modify, vary,
explain or supplement the terms or conditions of this contract
shall be binding unless hereafter made in writing and signed by the
party to be bound, and no modification shall be effected by the
acknowledgment or acceptance of purchase order or shipping
instruction forms containing terms or conditions at variance with
or in addition to those set forth herein. No waiver by either
Seller or Buyer with respect to any breach or default or of any
right or remedy and no course of dealing, shall be deemed to
constitute a continuing waiver of any other breach or default or of
any other right or remedy, unless such waiver be expressed in
writing signed by the party to be bound.
