This Terms and Conditions Agreement (“Agreement”) governs the purchase and sale of plastic materials between Green Wave Polymers, LLC (“Broker”) and the buyer (“Buyer”).
By engaging in a transaction with Broker, Buyer agrees to the following terms:
Broker will purchase plastic materials (“Material”) from its supplier, LyondellBasell Advanced Polymers, Inc. (“LYB”), and immediately resell them to Buyer. Broker will never take physical possession of the Material, and LYB will ship the Material directly to Buyer on Broker’s behalf.
2.1 Transfer of Title
Upon the release of the Material from LYB’s manufacturing facility (the “Shipping Point”), the title to the Material shall immediately and irrevocably pass from Broker to Buyer. This transfer of title occurs regardless of the final destination of the Material, and Broker shall no longer retain any ownership interest or rights in the Material once it leaves LYB’s premises.
2.2 Risk of Loss
The risk of loss or damage to the Material shall transfer to Buyer at the moment the Material departs LYB’s Shipping Point, irrespective of whether the transportation is arranged by LYB, Broker, or Buyer. Buyer assumes all responsibility for loss, damage, destruction, or deterioration of the Material during transit, including but not limited to damage caused by:
Broker shall bear no responsibility for any incidents occurring after the Material departs the Shipping Point, and Buyer agrees to hold Broker harmless for any and all claims, losses, or liabilities arising from or related to the Material’s transit.
2.3 Third-Party Carriers
If the Material is transported by a third-party carrier (whether arranged by LYB, Broker, or Buyer), Buyer acknowledges that the carrier is acting solely on Buyer’s behalf and that any disputes, delays, or damages caused by the carrier shall be addressed directly between Buyer and the carrier. Broker will provide reasonable cooperation, but Buyer acknowledges that any recovery of losses or damages from the carrier is solely the responsibility of Buyer.
2.4 Liability for Environmental and Safety Incidents
In the event of a transportation incident resulting in environmental contamination, spills, hazardous material leaks, or any safety-related incidents, Buyer agrees to assume full responsibility for the cleanup, remediation, and associated costs. This includes, but is not limited to, any legal or regulatory liabilities imposed by local, state, or federal authorities, as well as any environmental or safety penalties arising from:
2.5 Insurance Requirements
Buyer agrees to maintain appropriate and sufficient insurance coverage to protect against risks related to the transportation, handling, and storage of the Material once it has left the Shipping Point. Such insurance coverage shall include, but not be limited to:
Buyer shall ensure that its insurance policies cover all risks and scenarios, including potential third-party claims for environmental damage, property damage, or personal injury arising from the Material’s transportation. Broker may request proof of insurance coverage at any time, and Buyer agrees to provide certificates of insurance upon request.
2.6 Notification of Damage or Loss
If the Material is lost, damaged, or destroyed during transit, Buyer must notify Broker and LYB immediately, but no later than 48 hours after the incident occurs. This notification must include full details of the incident, the nature of the damage or loss, and any actions taken to mitigate further harm or contamination. Buyer agrees to take all reasonable steps to preserve evidence of the loss or damage and to cooperate with any investigation or claims process involving the carrier, insurance providers, or regulatory authorities.
Failure to provide timely notification may result in the waiver of any rights to claim damages or pursue any remedies against the carrier or other third parties involved in the transit of the Material.
2.7 No Assumption of Liability by Broker
Under no circumstances shall Broker be responsible for the following:
2.8 Recourse for Loss or Damage
Should any loss, damage, or destruction occur during transit, Buyer acknowledges that its sole recourse is against the third-party carrier or its own insurance provider. Buyer agrees to pursue any legal, financial, or insurance claims directly with those entities and not with Broker or LYB.
In no event will Broker be liable for any consequential, incidental, or indirect damages arising from the transit of the Material, including but not limited to loss of profit, loss of business opportunity, or damage to Buyer’s reputation or business operations.
Product quantity will be determined based on LYB’s weights and measures. The quantity of Product hereunder as determined by LYB will be binding on the Parties. Product quality will be determined based on LYB’s test results of samples taken by LYB at the point of shipment, or in the absence of same, based on LYB’s test results of Product samples submitted by Buyer to LYB for analysis.
LYB’s inspection and test methods will determine whether Product specifications have been met and will be conclusively binding, unless Buyer proves to LYB’s reasonable satisfaction by a preponderance of evidence that LYB’s analysis report is erroneous. All measurements and/or tests will be made in accordance with the ASTM, ISO, or other standard test methods or Seller’s internal test methods.
Buyer acknowledges that all Material sold under this Agreement is “off-specification” and is sold on an “AS IS”, “WHERE IS” and “WITH ALL FAULTS” basis. Buyer assumes all risks associated with the use and processing of such Material and agrees that Broker provides no warranty, express or implied, as to the quality, specifications, or performance of the Material.
Buyer further acknowledges that no claims, damages, or remedies will be available for defects or deficiencies in the Material once it has been accepted and delivered.
4.1 Delivery Process
The delivery of the Material will be arranged by Broker through LYB, with LYB shipping the Material directly from its manufacturing facility to Buyer’s designated location. Buyer agrees to provide Broker with accurate delivery information, including but not limited to the destination address, contact details, and any special delivery instructions. It is Buyer’s responsibility to ensure that the delivery location is accessible and equipped to receive the Material upon arrival.
Broker shall not be responsible for any delivery delays or failures caused by incorrect or incomplete information provided by Buyer or any issues at the delivery site.
4.2 Unloading Responsibility
Upon the arrival of the Material at Buyer’s facility or designated unloading location, Buyer assumes full responsibility for the prompt and safe unloading of the Material. Buyer agrees to:
4.3 Timely Return of Railcars
Buyer acknowledges that LYB’s railcars must be returned within a specified timeframe, typically within 30 days from delivery, to avoid demurrage charges. Buyer agrees to ensure that the railcars are fully unloaded and returned to the transportation provider or LYB’s designated return location within this timeframe. The railcars must be:
Failure to meet these conditions may result in demurrage charges, damage fees, or cleaning fees, which will be passed on directly to Buyer.
4.4 Demurrage Charges
Buyer acknowledges that demurrage charges may accrue if the railcars are not unloaded and returned within the designated timeframe. Demurrage charges are calculated based on the number of days that exceed the allowed unloading and return period. Such charges can become significant over time.
Broker shall not be liable for any demurrage charges incurred as a result of Buyer’s delay in unloading or returning the railcars. Buyer agrees to assume full responsibility for these charges and promptly reimburse Broker for any demurrage fees charged by LYB or the transportation provider.
In the event of demurrage charges, Buyer will be invoiced for the total amount, and payment will be due within 30 days of receiving the invoice. Failure to remit payment for demurrage charges in a timely manner may result in additional interest, penalties, or legal action.
4.5 Damages to Railcars
Buyer is responsible for ensuring that the railcars used for delivery of the Material are handled with care and are returned in the same condition as they were received. Any damage to the railcars caused by improper handling, unloading practices, or storage at Buyer’s facility shall be the responsibility of Buyer. Such damages may include, but are not limited to:
All sales are subject to agreed-upon pricing and payment terms. Buyer agrees to make full payment for the Material in accordance with the invoicing and payment schedule provided by Broker. Failure to comply with payment terms may result in additional fees and interest.
Prior to the delivery of any Product, and at any time thereafter upon Seller’s request, Buyer shall promptly provide Seller with, and hereby irrevocably authorizes Seller to obtain from Buyer or any third party, any and all credit information, financial statements, or documentation that Seller may reasonably deem necessary to evaluate Buyer’s creditworthiness. In the event that, at any time and in Seller’s sole and absolute discretion, Buyer’s financial condition or creditworthiness is determined to be impaired, unsatisfactory, or insufficient, or Buyer fails to promptly furnish the requested information, Seller shall have the right, without liability or penalty, to suspend or delay deliveries of the Product.
Seller, at its sole discretion, may also reduce the Annual Maximum quantity obligation by an amount equal to the undelivered quantities or place Buyer on a cash-in-advance status. Such status will remain in effect until satisfactory security arrangements, acceptable to Seller, are made or, at Seller’s sole option, until all outstanding indebtedness owed by Buyer is paid in full
BUYER ACKNOWLEDGES THAT IT IS FAMILIAR WITH PRODUCT AND HAS BEEN ADEQUATELY WARNED BY SELLER OF THE RISKS ASSOCIATED WITH HANDLING, TRANSPORTING, USING, STORING AND DISPOSING OF PRODUCT, INCLUDING, WITHOUT LIMITATION, THOSE SET FORTH IN SELLER’S SAFETY DATA SHEET FOR PRODUCT (“SDS”), INCLUDING END-USE PROHIBITIONS OR RESTRICTIONS. BUYER FURTHER ACKNOWLEDGES ITS SEPARATE AND INDEPENDENT KNOWLEDGE OF SUCH RISKS, WHICH ARE KNOWN IN BUYER’S INDUSTRY. BUYER AFFIRMS IT HAS RECEIVED AND UNDERSTANDS THE CONTENTS OF SAID SDS. Buyer will maintain compliance with all appropriate safe handling and use procedures, and all safety and health-related governmental requirements concerning Product, and will take such steps as necessary to inform its employees, agents, contractors, customers and other third parties of proper use, storage, and disposal of Product. Such steps include, but are not limited to, dissemination of pertinent information contained in the SDS, as appropriate. Buyer will not deliver or consign commercial or sample quantities of Product to any party whom Buyer reasonably believes will handle, transport, use, store or dispose of said Product in a dangerous manner or contrary to law or the advice of Seller. Buyer hereby agrees that Seller will have the right to immediately cease delivery of Product to Buyer, pursuant to this Contract or otherwise, if, in Seller’s reasonable opinion, Buyer fails to take necessary action to prevent or mitigate imminent endangerment to human health, safety, or the environment with regards to Buyer, or Buyer’s representatives or agents’ handling, transportation, use, storage, and disposal of Product.
(a) All references to U.S. FDA, Health Canada, and European Union regulations include another country’s equivalent regulatory classification. Buyer hereby warrants that Product will not, directly or indirectly, by Buyer or by any third party, be used in any of the following applications: (i) U.S. FDA Class III Medical Devices; Health Canada Class IV Medical Devices; European Class III Medical Devices; and (ii) applications involving permanent implantation (placed in natural or surgically-created openings in a body with intent to remain there for a period of greater than thirty (30) days). (b) Buyer hereby warrants that Product will not, directly or indirectly, by Buyer or by any third party, be used in any of the following without the prior written approval by Seller for each specific product or application: (i) U.S. FDA Class I; Health Canada Class I; and European Union Class I; (ii) U.S. FDA Class II Medical Devices; Health Canada Class II or Class III Medical Devices; European Union Class II Medical Devices; (iii) film, overwrap and/or product packaging that is considered a part or component of one of the aforementioned medical devices; and (iv) packaging in direct contact with a pharmaceutical active ingredient and/or dosage form.
Buyer agrees to indemnify, defend, and hold harmless Broker, its affiliates, officers, agents, and employees from any claims, liabilities, damages, costs, and expenses arising from:
Broker’s liability to Buyer is limited to the purchase price of the Material sold. Under no circumstances will Broker be liable for any indirect, consequential, incidental, or punitive damages, including but not limited to loss of profits, loss of use, or loss of business, whether in contract, tort, or otherwise.
Broker provides no warranties of any kind regarding the Material, including but not limited to warranties of merchantability, fitness for a particular purpose, or compliance with any regulatory or quality standards. All Material is sold “AS IS” without any warranty whatsoever.
Buyer is responsible for complying with all applicable laws, regulations, and standards relating to the handling, processing, and use of the Material.
This Agreement constitutes the entire understanding between the parties with respect to the purchase and sale of the Material and supersedes all prior or contemporaneous agreements or representations.
Effective Date: October 10, 2024
© 2024, GREEN WAVE POLYMERS. All Rights Reserved.
