TERMS & CONDITIONS
Effective May 15, 2023
These Calcean Standard Terms and Conditions (“Terms and Conditions”) apply to all current and future sale of products, supplies, and/or materials (“Products”) by Calcean Minerals and Materials, LLC (“Calcean”), to you, the customer (“Customer”), unless superseded by the terms of a separate written agreement signed by an authorized representatives of both Calcean and Customer. Calcean and Customer may individually be referred to herein as “party” and collectively as “parties.”
1. Applicability; Conflicting Terms. All transactions with respect to the current or future sale of any and all Products by Calcean to Customer shall be made in accordance with and expressly conditioned upon these Terms and Conditions. In the event of any additional, different or conflicting provision contained in any document of Customer, including, but not limited to, any purchase order, Customer expressly agrees that (i) these Terms and Conditions shall govern and supersede Customer’s terms and conditions, and (ii) Customer's additional, different and/or conflicting provisions shall not become a part of these Terms and Conditions or Calcean's offer to sell the Products to Customer. Neither the sale of any Products or the performance of any work or services, nor any statements, claims or representations made by or on behalf of Calcean shall alter these Terms and Conditions.
2. Purchase Price; Price Adjustments. The price for any Products shall be as set forth in quote, sales orders, other offer documents from Calcean, and, in case of orders placed directly through Calcean’s website, the prices listed on Calcean’s website (“Purchase Price”). Unless otherwise specifically stated, the Purchase Price shall be on the basis of INCOTERMS 2020 EXW Calcean’s place of business. If Customer claims an exemption from taxes, then Customer shall provide to Calcean a tax exemption certificate acceptable to the appropriate taxing authorities. If there is a change in the price of raw materials, energy or process materials, labor, overhead, taxes, duties or other costs relating to the products or any components thereof, or if Calcean incurs additional costs or expenses as a result of delays or cancellations from any third parties (collectively “Additional Prices and Costs”), then Customer expressly agrees that the Purchase Price may, in Calcean’s sole discretion, be increased to reflect such Price Adjustments.
3. Purchases. To purchase the Products, Customer will issue to Calcean a purchase order or other order request (each a “Order Request”) specifying the exact quantity required for each Product and requested delivery dates, which must be at least two (2) weeks after the Order Request is received by Calcean. As soon as is practicable after receipt of the Purchase Request, and in no event more than five (5) days after receipt, Calcean will provide confirmation via email or other method if Calcean can fulfil the Purchase Request (“Order Confirmation”). Calcean will endeavor to meet Customer’s requested delivery dates. However, if the delivery dates or other Order Request details cannot be fulfilled, Calcean will communicate with the Customer to negotiate mutually acceptable delivery date(s) or other details. Customer acknowledges that no quote, sales order, Order Request shall be binding on Calcean until Calcean issues the Order Confirmation. Once Calcean issues an Order Confirmation to Customer, cancellation of any or all of any shipment covered within the Order Confirmation requires Calcean’s written approval, and Customer may still be subject to payment of all costs incurred prior to cancellation and certain cancellation fees, including a restocking fee equal to fifteen percent (15%) of the Order value. Failure to pick up an order within fourteen (14) days of Delivery shall be considered a cancellation.
4. Shipping & Delivery. Delivery of the Products to Customer shall be made per INCOTERMS 2020 EXW (Ex Works) Calcean’s specified facility (“Calcean Facility”) on the confirmed dates set forth or acknowledged in the Order Confirmation (“Delivery”). If a different delivery method is agreed to by Calcean in the Order Confirmation, such delivery shall be made via common carrier or some other reasonable means chosen by Calcean and partial deliveries are permissible. Delivery is conditional on the timely receipt by Calcean of documents necessary for the completion of the order, payment of any down payment or prepayment, and Customer’s compliance with these Terms and Conditions. Delivery schedules represent Calcean’s best estimate and Calcean will use reasonable efforts to meet the Delivery schedule; provided, however, that Calcean shall not be liable for any delay in the Delivery and for any losses suffered by Customer as a result of such delay.
5. Risk of Loss; Title; Inspection and Acceptance. Risk of Loss passes to Customer upon Delivery (as defined in Section 4 – i.e. EXW, Calcean Facility). Title to Products passes to Customer upon payment of the Invoice related to such Products. Customer shall have a right to inspect and reject any non-conforming Products within twenty four (24) hours of receiving the Delivery and shall immediately inform Calcean of such rejection. If Customer fails to reject the Products within such 24-hour period, Customer will be deemed to have accepted the Products.
6. Invoicing. Calcean will issue an invoice for any Products ordered based on the Purchase Price and the details acknowledged in the Order Confirmation, plus any taxes, fees, surcharges, and/or Price Adjustments to Products (each an “Invoice”). Customer shall notify Calcean in writing of any invoice dispute with a reasonably detailed description of the good faith dispute and any supporting documentation within ten (10) days of the invoice date. Calcean, after conducting research concerning the inconsistency, if appropriate, will adjust the invoice and issue a credit or a refund. Customers will be deemed to have accepted all invoices for which Calcean does not receive a timely notification of dispute and shall pay all undisputed amounts due as set forth in Section 7 – Payment Terms.
7. Payment Terms. Payment of an Invoice is due from Customer before shipment, unless Customer has submitted a credit application and been extended credit. Unless specifically agreed to by a separate written and signed agreement between the parties, for any Customer who has been extended credit, payment of any Invoice is due within thirty (30) days of an Invoice date (“Due Date”). Customer has no right of set-off for any amount due to Calcean. Invoices will be promptly issued prior to or upon shipment of Products. In consideration for the Products provided to Customer, Customer shall pay Calcean the invoiced amounts in US Dollars by the Due Date via check, ACH, wire transfer, or credit card. The Purchase Price set forth in an Order Confirmation are exclusive of taxes, and Customer shall be solely responsible for and shall pay for all sales, use, or other such applicable taxes, and any wire transfer fees or credit card authorization fees. Any amount still owing after the Due Date shall bear interest at a monthly rate of one and one-half percent (1.5%) or the maximum rate allowed by law, whichever is lesser. Customer will reimburse Calcean for the costs of collection (including, without limitation, attorneys’ fees) of any overdue amount owed by Customer.
If at any time the financial responsibility or condition of Customer becomes impaired or, in Calcean’s good faith and reasonable opinion, inadequate to meet the obligations hereunder, the terms of credit may, at Calcean’s option, be changed or withdrawn. If the terms of credit are withdrawn, Calcean, at its option, may require full pre-payment, partial payment, or satisfactory security before making shipments or deliveries. To secure Customer’s prompt and complete payment and performance of any and all present and future indebtedness and obligations to Calcean, Customer hereby grants Calcean a first priority security interest in all Products purchased by Customer, wherever located, and whether now existing or hereafter arising or acquired from time to time as well as all proceeds thereof.
8. Disclaimer of Representation and Warranties. ALL PRODUCTS ARE PROVIDED “AS IS” AND NEITHER CALCEAN NOR ANY PERSON ON CALCEAN’S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, EITHER ORAL OR WRITTEN, REGARDING THE PRODUCTS INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND HEREBY DISCLAIMS THE SAME. IN NO EVENT SHALL CALCEAN BE LIABLE TO CUSTOMER, ANY USER OF THE PRODUCTS, OR ANY THIRD PARTY FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER ARISING FROM THE USE OR PERFORMANCE OF THE PRODUCTS, OR FROM THE NON-DELIVERY, DELAYED DELIVERY, DAMAGE OF PRODUCTS OR OTHERWISE. CUSTOMER EXPRESSLY ASSUMES ALL RESPONSIBILITY FOR DETERMINING THE FITNESS OF THE PRODUCTS FOR CUSTOMER’S INTENDED USE. ANY TECHNICAL INFORMATION, PRODUCT LITERATURE, CALCEAN TECHNICAL ASSISTANCE OR OTHER INFORMATION IS GIVEN TO AND ACCEPTED BY CUSTOMER AT ITS OWN RISK AND IS NOT A WARRANTY BY CALCEAN TO CUSTOMER.
9. Exclusive Remedies of Customer. The sole and exclusive remedies of Customer, any user of the Products or any third party are: (a) in the case of any breach by Calcean other than Calcean's delivery of nonconforming Products, to receive a refund of the amount paid by Customer to Calcean, provided that such amount is not in excess of the Purchase Price for such Products; and (b) in the case of Calcean's delivery of nonconforming Products, to return the Products and at Calcean's sole option, to (i) receive repaired or replaced Products or (ii) receive a refund of the amount paid by Customer to Calcean, provided that such amount is not in excess of the Purchase Price for such Products. IN NO EVENT SHALL CALCEAN’S AGGREGATE LIABILITY FOR ALL DAMAGES FROM ANY CLAIM, IN WHATEVER FORM, EXCEED THE TOTAL PRICE PAID BY CUSTOMER TO CALCEAN FOR THE PRODUCTS AT ISSUE. NO CLAIM SHALL BE ALLOWED FOR PRODUCT THAT HAS BEEN PROCESSED OR COMMINGLED IN ANY MANNER.
10. Indemnification and Limitation of Liability. Customer shall indemnify, defend, and hold harmless Calcean and its representatives, officers, directors, employees, agents, affiliates, successors, and assigns (collectively, the “Indemnified Party”) against any loss, judgment, liability, cost, expense, claim, action, judgment, penalty, or settlement of any whatever kind, including reasonable attorney’s fees (collectively, “Losses”) to the extent arising from or related to Customer’s breach of the Terms and Conditions or any applicable terms, negligence, intentional misconduct, or failure to comply with any applicable laws. IN NO EVENT WILL CALCEAN BE LIABLE TO THE CUSTOMER FOR INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THE TERMS AND CONDITIONS. IN NO EVENT SHALL EITHER CALCEAN’S AGGREGATE LIABILITY ARISE, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNTS PAID OR OWED BY CUSTOMER FOR THE PRODUCTS FROM WHICH THE LIABILITY AROSE.
11. Confidentiality and Nondisclosure. Each party agrees that for a period of three (3) years after any Order Request is fulfilled, each party will hold in strict confidence, and will not publish or otherwise disclose, to any person (other than employees, affiliates, legal counsel, consultants, auditors and advisors who are bound in writing by confidentiality and non-use obligations no less onerous than those set forth herein) any Confidential Information (defined below) of the other party. During such period, a party (and its affiliates) will not use for any purpose the Confidential Information of the other party or its affiliates, except as required for each Party to perform its obligations under this Agreement as permitted herein. “Confidential Information” of either Calcean or Customer will mean all non-public information and know-how and any tangible and/or intangible embodiments thereof provided by or on behalf of such party to the other party or observed by the other party in the course of selling and purchasing the Products and/or performing the obligations of these Terms and Conditions. Notwithstanding the foregoing, Calcean shall have the right disclose Confidential Information or the relationship between Calcean and Customer to third parties, to the extent necessary for Calcean to fulfill its obligations under these Terms and Conditions. Each party acknowledges and agrees that breach of any of the terms of this Section 11 would cause irreparable harm and damage to the other party and that monetary damages may be inadequate and that as a result thereof the non-breaching party is entitled, without limiting its other remedies, to seek from a court equitable or injunctive relief restraining any breach or future violation of the terms contained herein.
12. Non-Exclusivity. Unless exclusivity is specifically agreed to by the Customer and Calcean in a separate and signed written agreement, neither the purchase of Products or these Terms and Conditions are intended to or shall impose any obligation of exclusivity on either party hereto, and Calcean shall be free to sell goods, supplies, materials and services, including the Products, to third parties, at its sole discretion.
13. Governing Law. These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Alabama, notwithstanding any choice of laws doctrines of such jurisdiction or any other jurisdiction that would cause the substantive law of another jurisdiction to apply, and expressly excluding the United Nations Convention on Contracts for the International Sale of Goods.
14. Dispute Resolution. Calcean and Customer agree to negotiate in good faith and use reasonable efforts to settle any dispute, controversy or claim arising from or related to any transaction (or any document or instrument delivered in connection herewith) (each, a “Dispute”). If the parties are unable to, within ten (10) days, to reach a resolution, such Dispute will be referred to a designated officer of Calcean and a designated officer of Customer, or their respective successors, who will attempt in good faith to reach a resolution of the Dispute. If the foregoing procedures fail to achieve a mutually satisfactory resolution within ten (10) days, then either party may, by written notice to the other party, elect to have the matter settled by binding arbitration pursuant to the following terms: Any arbitration will be held in Alabama. Any arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules then in effect (the “AAA Rules”). An arbitrator will be appointed in accordance with AAA Rules. The arbitrator will have the authority to grant any legal remedies that would be available in any judicial proceeding instituted to resolve the Dispute submitted to such arbitration; provided, however, that the arbitrator will not have the power to alter, amend or otherwise affect these Terms and Conditions. Judgment upon any award rendered pursuant to this Section may be entered by any court having jurisdiction over the parties’ other assets. Each party will bear its own costs and expenses and attorneys’ fees and an equal share of the arbitrator’s fees and any administrative fees of arbitration. Calcean and Customer each agree that all arbitration awards will be final and binding on the parties and their affiliates. Except to the extent necessary to confirm an award or as may be required by law, neither a Party nor an arbitrator may disclose the existence, content, or results of an arbitration without the prior written consent of both Parties. In no event will an arbitration be initiated after the date when commencement of a legal or equitable proceeding based on the dispute, controversy or claim would be barred by the applicable statute of limitations. Notwithstanding anything herein to the contrary, nothing in this Section 14 will preclude either party from seeking interim or provisional relief, including a temporary restraining order, preliminary injunction or other interim equitable relief concerning a Dispute, either prior to or during any arbitration hereunder, if necessary to protect the interests of such party. For all such interim and provisional relief, the parties agree submit to the exclusive jurisdiction and venue of the federal and state courts of Alabama.
15. Modification. These Terms and Conditions can be revised or modified at any time by Calcean by posting such revised Terms and Conditions on our website or providing a written or printed copy, and such modified Terms and Conditions shall be effective immediately upon posting or providing.
16. Severability. If any provision of these Terms and Conditions is held to be illegal, invalid or unenforceable under any present or future law, (a) such provision will be fully severable, (b) these Terms and Conditions will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof, (c) the remaining provisions of the Terms and Conditions will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom, and (d) the Parties agree to attempt to substitute for any such illegal, invalid or unenforceable provision a legal, valid and enforceable provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and reasonably acceptable to the Parties.
17. Force Majeure; Excuse of Performance. (a) Calcean shall not be held responsible for failure or delay in delivering the Products, if such failure delay is caused by war, fire, sabotage, unavoidable accident, strike, labor trouble or shortages, equipment breakdown, geological conditions, governmental laws, regulations, orders or decrees (including those relating to environmental matters), unavailability of materials, containers, carriers or transportation, or acts of God or other causes beyond Calcean’s reasonable control; (b) if Calcean determines that its ability to deliver the Products or any component thereof is hindered, limited or made impracticable, Calcean may, in its sole discretion (i) suspend, delay, or cancel delivery of or any portion of the Products and/or (ii) allocate its available supply of the Products or any component thereof among itself and its purchasers on such basis as Calcean determines in its sole discretion, all without any liability to Customer any resulting suspension, delay, cancellation, allocation, or failure of performance which may result therefrom; and (c) if Calcean fails by the reason of force majeure event to perform for a period in excess of ninety (90) days, Customer may cancel the order affected by the force majeure event.
18. Waiver. Any term or condition of sale may be waived at any time by the party that is entitled to the benefit thereof, but no such waiver will be effective unless set forth in a written instrument duly executed by or on behalf of the party waiving such term or condition. The waiver by either party of any right hereunder or the failure to exercise, or any delay in exercising a right or remedy provided or by law, or the waiver of a breach by the other party, will not be deemed a waiver of any other right hereunder or of any other breach or failure by such other party whether of a similar nature or otherwise.
19. Independent Contractors. It is expressly agreed that Customer and Calcean will be independent contractors and that the relationship between the parties will not constitute a partnership, joint venture, branch, division, or agency. Neither Customer nor Calcean will have the authority to make any statements, representations, or commitments of any kind, or to take any action, which will be binding on the other, without the prior consent of the other. All persons employed by either Calcean or Customer will be employees of such party and not of the other party and all costs and obligations incurred by reason of any such employment will be for the account and expense of the respective responsible party.
20. Integration, Amendment, Assignment. These Terms and Conditions together with the quote or sales order, and the Order Confirmation, represent the entire agreement between the parties with respect to the matters set forth therein, superseding all prior and contemporaneous agreements and understandings; whether written or oral. In no event shall these Terms and Conditions, the quote or sales order, the Order Confirmation, or any provision thereof be deemed to be amended, modified or changed in any manner whatsoever (including by reason of trade usage or course of dealing) except and unless such amendment, modification, or change is signed by authorized representatives of both Calcean and Customer, specifically references these Terms and Conditions, and clearly states that it is in intended to be an amendment or change to these Terms and Conditions. Calcean may assign any portion or all of these Terms and Conditions, or any quote or sales order to any of its affiliates, successors or assigns. These Terms and Conditions will survive for so long as may be necessary to have their intended effect.