Terms and Conditions of Sale

These general terms and conditions shall apply to all products (the “Products”) sold by AOC, LLC (“AOC”) to your company (“Buyer”). Any sales of Products pursuant to a stand-alone purchase agreement between AOC and Buyer shall be governed by the terms and conditions thereof, which may provide that these general terms and conditions be incorporated by reference. All Products shall be ordered pursuant to a written purchase order (a “Purchase Order”). Products may be ordered on Buyer’s standard form Purchase Order or other documents; provided, that no terms from those documents contrary to these general terms and conditions shall apply to the purchase of the Products.

Acceptance of Purchase Orders. All Purchase Orders are subject to acknowledgment and acceptance by AOC and are not binding on AOC unless and until acknowledged and accepted in a written Order Acknowledgment. Acceptance of a Purchase Order is expressly conditioned upon Buyer’s assent to these general terms and conditions and any modifications to the order proposed by AOC in any Order Acknowledgement.

Prices. Prices shall be determined by specific contracts, price sheets or quotations by an authorized AOC representative only. All prices are subject to change without notice unless price changes are governed by a specific timeframe in an agreement signed by an authorized representative of AOC. All shipments after the date of a price change will be billed at the new price. In the case of a price decrease, adjustments will not be allowed on goods in transit or in Buyer’s inventory. Freight to Buyer's facility indicated on the Purchase Order is included in purchase price unless otherwise agreed in writing by AOC and Buyer or unless otherwise indicated on the Order Acknowledgement.

Payment. If and to the extent, at its sole discretion, AOC elects to extend credit to Buyer, payment terms for the Products shall be net 30 days from the date of invoice unless otherwise agreed in writing by AOC. If Buyer fails to pay an invoice when due, AOC shall be entitled to recover the purchase price, maximum interest permitted by law and any costs of collection, including reasonable attorneys’ fees.  Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute of any type with AOC.

Delivery; Title and Risk of Loss. Unless otherwise expressly agreed in writing between Buyer and AOC, the Products will be delivered within a reasonable time after AOC’s receipt of Buyer’s Purchase Order and issuance of an order acknowledgment, and time shall not be of the essence. AOC shall not be liable for any delays, loss, or damage in transit, and delay in delivery of any Products shall not relieve Buyer of its obligation to accept delivery thereof. Title to, and risk of loss of, the Product shall pass to Buyer at AOC’s facility when a shipment of the Product is passed to the first carrier. When AOC arranges transport of the Product, AOC shall deliver the Product Carriage and Insurance Paid to Buyer's ship-to addresses (CIP, Incoterms 2020). When Buyer arranges transport of the Product, AOC shall deliver the Product Ex-Works AOC’s facility (EXW, Incoterms 2020). In either event, claims against the carrier shall be filed by Buyer, and AOC shall have no liability in respect thereof. AOC may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s order. Products for which delivery is suspended pending payment by Buyer, as well as Products of which delivery is wrongfully rejected or not accepted by Buyer, shall be held and stored by AOC at the risk and expense of Buyer. 

Non-Delivery.  The quantity of any installment of Products as recorded by AOC on dispatch from AOC's facility of business is conclusive evidence of the quantity received by Buyer on delivery.  AOC facilities utilize equipment that is periodically calibrated using industry standard best practices.  AOC shall not be liable for any non-delivery of Products (even if caused by AOC's negligence) unless Buyer gives written notice to AOC of the non-delivery within three (3) days of the date when the Products would in the ordinary course of events have been received.  Any liability of AOC for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered.

Inspection.  Buyer shall inspect the Products within two (2) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Products unless it notifies AOC in writing during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by AOC. A determination of whether or not delivered Products conform to the agreed specifications for the Products as stated in AOC’s Order Acknowledgement or, in the absence of agreed specifications, to the most recent specifications held by AOC at the time of delivery of the Products (the “Specifications”), shall be done solely by analyzing the samples or records retained by AOC and taken from the batches or production runs in which the Products were produced in accordance with the methods of analysis used by AOC. Products that AOC consents or directs in writing to be returned shall be returned to AOC at the risk of Buyer, to the destination directed by AOC.  AOC may, after receiving Buyer’s shipment of nonconforming Products, ship to Buyer the replaced Products to the delivery point.  Buyer acknowledges and agrees that these remedies are Buyer’s exclusive remedies for the delivery of nonconforming Products.

Quantity.  Buyer and AOC acknowledge and agree that, due to the nature of the Product and AOC’s methods of shipment, the quantity of Product shipped and invoiced will not always correspond exactly with the quantity of Product ordered. AOC will use commercially reasonable efforts to minimize the amount and frequency of such discrepancies.  Deviations in quantity of Products delivered from that stated in AOC’s Order Acknowledgement shall not give Buyer the right not to accept the Products. A delivery tolerance of +/- 3% of the ordered quantity confirmed by AOC is possible and shall be accepted by Buyer. Buyer shall be obliged to pay the rate specified in AOC’s Order Acknowledgement for the quantity of Products delivered.

Taxes. Any tax, duty or other governmental charges now or hereafter levied upon the production, sale, transportation, export and/or import or delivery of the Products including, without limitation, United States state sales and use taxes, Canadian Harmonized Sales Tax and other value added taxes, where applicable, and any customs duty, excise taxes, special import measures or other duties or charges imposed by a customs authority on the export and/or import of a Product from AOC to Buyer, may, at AOC’s sole discretion, be added to the purchase price. Buyer shall be responsible for all such tax, duty or other governmental charges; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, AOC’s income, revenues, gross receipts, personnel or real or personal property or other assets.

Limited Warranty and Limitation of Liability. AOC warrants only that at the time of delivery (a) the Product will conform to AOC's written description of the Product and to AOC's written specifications, if any; (b) AOC will convey good title to the Product; and (c) the Product will be delivered free from any lawful security interest or lien or encumbrance. NO OTHER WARRANTY, WHETHER EXPRESS OR ARISING BY OPERATION OF LAW (INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE), OR FROM ANY COURSE OF DEALING OR TRADE USE, OR OTHERWISE IMPLIED, WILL EXIST IN CONNECTION WITH THE SALE BY AOC OR PURCHASE OR USE BY BUYER OF PRODUCTS. The foregoing warranties shall be null and void if the Products are stored in storage tanks used for other products or materials.

Buyer's exclusive remedy for Product proven to be other than as warranted shall be replacement of the affected Product without charge. AOC’s liability (including any indemnification obligation) for any and all loss or damage to Buyer resulting from any cause whatsoever (including AOC’s negligence or gross negligence), or damaged or defective goods, irrespective of whether such defects are discoverable or latent, shall in no event exceed the purchase price of the Product with respect to which losses or damages are claimed. THE FOREGOING IS THE ENTIRE OBLIGATION OF AOC, AND AOC DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES EXPLICITLY SET FORTH HEREIN. IN NO EVENT, INCLUDING A CLAIM OF NEGLIGENCE OR SHOULD AOC’S WARRANTY FAIL OF ITS ESSENTIAL PURPOSE, SHALL AOC BE LIABLE TO BUYER FOR LOST PROFITS, USE OR GOODWILL, DIMINUTION IN VALUE, FOR INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR FOR LOST PROFITS, WORK STOPPAGE, PRODUCTION FAILURE, IMPAIRMENT OF OTHER GOODS OR OTHERWISE, HOWEVER ARISING, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

No statement or recommendation made or assistance given by AOC or its representatives, verbal or written, to Buyer or its representatives, in connection with the use by Buyer of any Product sold hereunder, shall constitute a waiver by AOC of any right or affect AOC’s liability as agreed herein whatsoever.

AOC shall not be liable for a breach of warranty unless: (a) Buyer gives written notice of the defect, reasonably described, to AOC within seven (7) days of the time when Buyer discovers or ought to have discovered the defect; (b) AOC is given a reasonable opportunity after receiving the notice to examine such Products and Buyer (if requested to do so by AOC) returns such Products to AOC’s place of business at AOC’s cost for the examination to take place there; and (c) AOC reasonably verifies Buyer’s claim that the Products are defective. 

AOC shall not be liable for a breach of warranty if: (a) Buyer makes any further use of such Products after giving such notice; (b) the defect arises because Buyer failed to follow AOC’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products; or (c) Buyer alters such Products without the prior written consent of AOC.

Limitation of Action. A CAUSE OF ACTION FOR BREACH OF THE TERMS AND CONDITIONS STATED HEREIN AS TO PRICE, QUALITY OR OTHER DEFICIENCY OF THE PRODUCT OF ANY KIND MUST BE COMMENCED BY BUYER WITHIN 12 MONTHS FROM THE DATE OF SALE.

Excused Performance; Hardship. AOC shall not be liable for any delay or failure to perform due to causes beyond its reasonable control, including, without limitation, acts of God, laws, statutes, ordinances, or other regulations, war or other hostilities, acts of terrorism, public disorder, severe weather or storm, flood, governmental action, disruption of shipping, public health crisis, labor dispute, shortages or unavailability of raw materials or transportation, equipment failure or other similar event. If, due to any such circumstances, AOC determines that it is unable to produce sufficient products to meet the requirements of its customers, including Buyer, AOC shall be permitted to allocate its capacity to its other customers on such basis as AOC shall determine in its sole discretion. In the event of any such delay, the obligation to deliver shall be suspended for a period equal to the time lost by reason of such circumstances. 

Suitability for Use. The determination of the suitability of the Products for the uses and applications contemplated by Buyer and Buyer’s customers shall be the sole responsibility of Buyer. Prior to use of any Products, it shall be the sole responsibility of Buyer to confirm that delivered Products conform to the specifications and usage requirements of Buyer and its customers. Buyer assumes all risks and liabilities for results obtained by the use of the Products whether used singly or in combination with other materials.

Compliance with Laws.  Buyer shall at all times comply with all applicable laws, regulations and ordinances applicable to the operation of its business, this Agreement, and its performance hereunder. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this agreement and any Purchase Order to which these Terms and Conditions relate. Buyer represents and warrants that it and its officers, directors, employees, agents, and anyone acting on its behalf are in compliance with all applicable anti-bribery and anti-corruption laws, including the US Foreign Corrupt Practices Act, and that it has adopted and maintains adequate policies, procedures and controls to ensure that Buyer is in compliance with all anti-bribery and anti-corruption laws.  AOC may terminate the Purchase Order to which these Terms and Conditions relate if any governmental authority imposes antidumping or countervailing duties or any other penalties on the Products.

Returns.  All returns require written authorization by AOC, in the form of an RMA (Return Material Authorization).  Re-handling fees, freight charges, and other charges may apply for the account of the Buyer.

Cancellation.  Buyer’s wrongful non-acceptance or rejection of Products or cancellation or repudiation of AOC’s Order Confirmation shall entitle AOC to recover, in addition to any other damages caused by such action: (a) in the case of Products which reasonably cannot be resold by Seller to a third party, the price of such Products; or (b) in the case of Products which can be resold by AOC or where an action for the price is not otherwise permitted by law, damages equal to fifty percent (50%) of the price for the Products as liquidated damages.

Product Hazards; Health and Safety Communications. Buyer acknowledges that it is familiar with the Products and has independent knowledge of the risks associated with the shipping, handling, storage, use and disposal of the Products including those set forth in AOC’s Material Safety Data Sheet. Buyer shall comply with all safety and health related governmental requirements concerning use, storage, handling, and disposal of the Products and shall take all reasonable steps to inform, warn and familiarize its employees, agents, contractors and customers with all hazards associated with the Products.

Indemnification. Buyer shall protect, indemnify, defend (at its own cost) with counsel reasonably acceptable to AOC and its insurers, and hold harmless AOC and its directors, members, managers, employees, affiliates, insurers, agents and subcontractors (the “Related Parties”) to the full extent allowed by law or equity, from and against any and all actual or threatened claims, demands, causes of action, appeals, investigations, arbitrations, mediations, liabilities, damages, penalties, and costs of any kind (including reasonable attorneys’ fees) (collectively, “Damages”), asserted by any persons or entities (including third party claims), which in any way relate to, arise out of, or are in connection with (a) Buyer's shipping, handling, storage, use and disposal of the Products, or Buyer’s combination of the Products with other materials or products, (b) any failure by Buyer to disseminate safety and health information as required by these general terms and conditions or by applicable law from time to time in effect, including without limitation California’s Proposition 65 and any other applicable federal, state, or local law requirements, (c) any actual injury to or death of any person, damage to any property, or any other damage or loss, claimed to result in whole or in part from Buyer’s negligence with respect to the Products, Buyer’s use or misuse of the Products, or from any products formulated using the Products, (d) any actual violation of any law, statute rule, regulation or order relating to Buyer’s use or misuse of the Products or any products formulated using the Products, (e) any actual or alleged misrepresentation or omission made by, or on behalf of, or at the direction or approval of, Buyer or its employees, agents, or contractors relating to the Products or any products formulated using the Products, or (f) any claim that Buyer’s use of the Product infringes on a third party’s intellectual property right; provided, however, in no event shall Buyer be required to provide indemnity hereunder for any such claims to the extent arising out of or caused by any negligence, gross negligence or willful misconduct of AOC. AOC agrees to promptly notify Buyer in writing of any claim for indemnification and will render to Buyer at Buyer’s expense whatever information and assistance Buyer may reasonably require in connection with such claim.  AOC reserves the right, without being required to do so and without waiver of any indemnity hereunder, to defend any claim, action, suit or proceeding coming within the scope of this indemnity provision.  The provisions of this indemnity shall be in addition to any rights that the indemnified parties may have at common law or otherwise, and shall survive in full force and effect regardless of cessation or termination of the parties’ relationship.  Buyer’s obligations hereunder shall be binding upon its successors and assigns and shall inure to the benefit of AOC, the Related Parties, and their respective successors and assigns.

Confidentiality. The existence and terms of any Purchase Order, the content of these general terms and conditions, and any other non-public, confidential or proprietary information of AOC shall be kept confidential by the parties. If AOC discloses to Buyer any research, development, technical, pricing, financial or other business information of a confidential nature, whether reduced to writing or not, Buyer agrees, as a condition of receiving such information, that Buyer will not use or disclose any such information to any other person at any time, except in accordance herewith and with the applicable Purchase Order, without AOC’s prior written consent. Upon AOC’s request, Buyer shall promptly return all documents and other materials received from AOC. AOC shall be entitled to injunctive relief for any violation of this Section and shall not be required to post any bond in connection therewith. Buyer shall not analyze for composition or reverse engineer any Products or product samples.

Independent Contractor. AOC is an independent contractor. The purchase of the Products by Buyer shall not be construed as constituting AOC and Buyer as partners or to create any other form of legal association, including any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship.

No Third-Party Beneficiaries.  The Purchase Order, and contract or agreement to which these terms and conditions are attached, and these terms and conditions are for the sole benefit of AOC and Buyer and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Purchase Order, contract, agreement, or these terms and conditions.

Export and Trade Controls Compliance. The Products may be subject to United States export control laws and regulations.  Buyer shall not, and shall not permit any third parties to, directly or indirectly, export, re-export, or release Products, or products derived therefrom or information delivered by Seller under this Agreement, except and to the extent authorized by United States Export Administration laws and regulations, the International Traffic in Arms Regulations and, if the Buyer’s place of business is outside the United States, the laws and regulations applicable in Buyer’s place of business.  Buyer shall comply with all applicable laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, reexporting, or releasing any Products and shall provide prior written notice of the need to comply with such laws and regulations to any person or entity which it has reason to believe is obtaining any such Products from Buyer with the intent to export or reexport. In addition, Buyer represents and warrants that at all times during the term of this Agreement (i) Buyer shall be in compliance with all laws administered by the United States Office of Foreign Asset Control (“OFAC”) or any other governmental entity imposing economic sanctions and trade embargoes against designate countries, regimes, entities, and persons, and (ii) no director, officer, manager, or employee of Buyer or any of its entities under common control is a person who (a) is directly or indirectly owned or controlled by any Person currently included on the Specially Designated Nationals and Blocked Persons List or the Consolidated Sanctions List maintained by OFAC or other similar list maintained by any governmental entity, or (b) is directly or indirectly owned or controlled by any Person who is located, organized, or resident in a country or territory that is, or whose government is, the target of sanctions imposed by OFAC or any other Governmental Entity.No Reselling of Products. Buyer shall not resell or otherwise transfer any Product to any third party not under common control of Buyer without the prior written consent of AOC (which may be withheld at AOC’s sole discretion).

Governing Law. Each Purchase Order and these general terms and conditions shall be governed by and interpreted under the laws and regulations of the State of Tennessee without giving effect to the choice of law principles thereof. The rights and obligations of the parties hereunder shall not be governed by the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods or the related Convention on the Limitation Period in the International Sale of Goods.

Severability.  If any term or provision of any Purchase Order, Order Acknowledgment, Order Policy, these terms and conditions, or any contract or agreement to which these terms and conditions are attached is determined to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the applicable Purchase Order, order acknowledgment, terms and conditions, contract, or agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

Successors and Assigns. The successors and permitted assigns of the parties shall be bound hereby. Neither party may assign a Purchase Order without the written consent of the other party, except that either party shall have the right to make such an assignment without such consent to (a) a wholly-owned subsidiary of the assigning party; or (b) a lender, financing source or indenture trustee in connection with any financing arrangements entered into by the assigning party. Any purported assignment in violation of this provision shall be void.

Survival.  In the event of the expiration or termination of any agreement to which these terms and conditions are attached, these terms and conditions shall continue to be in effect and binding upon AOC and Buyer with regard to all matters relating to Products for which orders were placed by Buyer and accepted by AOC prior to such expiration or early termination.  The sections entitled “Limited Warranty and Limitation of Liability”, “Limitation of Action”, “Survival”, “Confidentiality”, “Suitability for Use”, “Returns”, “Indemnification”, “Export Compliance”, “Severability”, and “Governing Law” shall survive the expiration or early termination of this Agreement.

Electronic Signatures; Oral Communications.  AOC and Buyer agree that valid, enforceable and binding obligations may result from electronic means of communications. Any electronic communication between AOC and Buyer shall be considered to be a “writing” and/or “in writing,” but such electronic communications, to the extent they vary from this Agreement, shall not be deemed to amend or modify this Agreement unless signed by an authorized representative of both parties.  Oral statements and agreements made by AOC’s employees, officers, representatives and/or agents are not binding upon AOC unless and only to the extent that such oral statements are confirmed or made in writing by duly authorized representative(s) of AOC.

Samples.  Any samples supplied to Buyer are supplied solely for information purposes and in no way imply any express or implied conditions or warranties of any kind, including as to quality, description, merchantability, suitability or fitness for any purpose and Buyer shall be deemed to have satisfied itself as to such matters prior to ordering the Products. 

Intellectual Property.  AOC has not verified the possible existence of third party intellectual property rights which might be infringed as a consequence of the sale and/or delivery of the Products or their incorporation by Buyer into Buyer’s goods or products, and AOC cannot be held liable for any loss or damages in that respect. The sale of Products shall not, by implication or otherwise, convey any license under any  intellectual property right relating to the compositions and/or applications of the Products, and Buyer expressly assumes all risks of any intellectual property infringement by reason of its importation, use of the Products, whether singly or in combination with other materials or in any processing operation.

AOC Order Policy.  To the extent not in conflict with these terms and conditions or any mutually-executed purchase agreement between AOC and Buyer, the additional terms and conditions set forth in the most recent AOC Order Policy from time to time in effect (the “Order Policy”) are incorporated herein by reference.

Modification and Waiver. AOC may prospectively modify these general terms and conditions and/or the Order Policy from time to time by providing prior written notice to Buyer or posting the modifications on its website at aocresins.com/en-amr/home/  prior to AOC acceptance of a Purchase Order. No modifications to any Purchase Order or retroactive modifications to these general terms and conditions or the Order Policy will be recognized unless specifically agreed to in writing by AOC and Buyer. Neither party's failure to require performance of any term hereof shall affect its right to require full performance of all terms hereof at any time thereafter, and its waiver of a breach of any term shall not constitute a waiver of a similar future breach. Failure by AOC to object to any provisions in conflict with these general terms and conditions or the Order Policy in any Purchase Order or other communication from Buyer shall not be construed as a waiver of these general terms and conditions or the Order Policy or as acceptance of any such provision. If these general terms and conditions or the Order Policy conflict with the provisions of the applicable Purchase Order or other communication from Buyer, these general terms and conditions and the Order Policy shall prevail.

Entire Agreement. These general terms and conditions, including the applicable Purchase Order and order acknowledgment and any contract or agreement to which these terms and conditions are attached, as well as the Order Policy, contain the entire agreement between AOC and Buyer with respect to the sale of the Products and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. No course of prior dealings and no usage of the trade shall contradict, supplement or explain these general terms and conditions or the Order Policy.

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