Prices and Conditions. 4.1 The Price for Product sold hereunder shall be calculated as set forth in the Side Agreement. The terms of this Agreement and the Side Agreement shall be the exclusive terms and conditions with respect to purchase and supply of Products under this Agreement and take precedence over any additional or different terms and conditions provided by either Party, to which notice of objection by the other Party is hereby given. Neither the commencement of performance, delivery nor receipt of products or payment shall be deemed an acceptance of any additional or different terms and conditions. None of the terms and conditions contained herein may be added to, modified, superseded or otherwise altered except in writing by duly authorized representatives of the parties. 4.2 All Prices are in United States dollars. Prices are exclusive of all charges or levies of any nature, including all applicable federal, state, provincial, municipal or other governmental excise, sales, use, value added, occupational, import duties, or similar taxes or tariffs now in force or enacted in the future (collectively, the “Additional Charges”) and, therefore, are subject to an increase in an amount equal to any such Additional Charges that ASPEN may be required to collect or pay upon sale or delivery of Products purchased. A certificate of exemption or similar document in appropriate form for the jurisdiction of BASF’s place of business and any jurisdiction to which Products are to be directly shipped hereunder is required in order to exempt the sale from sales or use tax liability. BASF shall obtain and furnish evidence of such exemption at the time of placement of order. BASF agrees to indemnify and hold harmless ASPEN and its successors and assigns from and against any liability for tax in connection with the sale or use, as well as the collection or withholding thereof, including penalties and interest. ASPEN will provide a certificate of origin with any shipment of Products. ASPEN and BASF will work together to ensure (including providing any reasonable declaration) the transactions pursuant to this Agreement can benefit from the anticipated Transatlantic Trade and Investment Partnership. 4.3 On request of BASF, ASPEN’s books and records as they relate to annual Price calculations may be audited by an independent third party auditor without a prior business relationship with either BASF or ASPEN. Such audit will be to examine whether Price has been calculated by ASPEN in accordance with the provisions of this Agreement in all material respects. ASPEN will make available or provide access to all relevant documents to the third party auditor. The independent auditor will provide a summary report to BASF and ASPEN on whether ASPEN’s Price calculations are consistent in all material respects with the provisions of this Agreement. The third party auditor will keep all other information of ASPEN strictly confidential and will not disclose such information to BASF or any other third party. ASPEN shall bear the costs of the third party auditor in the event ASPEN’s Price calculations are not consistent in all material respects with the provisions of this Agreement. Otherwise BASF shall bear such audit costs. 4.4 All orders must be placed in writing and verbal orders shall be confirmed in writing. All orders must include requested delivery dates, quantities, shipment destination and complete description of Products being ordered. After receipt of an order, ASPEN will confirm its acceptance in writing and may also inform BASF of an estimated ship date simultaneously or at a later date. Orders accepted or acknowledged by ASPEN cannot be cancelled without the prior written consent of ASPEN. No order can be cancelled after the order is shipped. 4.5 All Products will be shipped [***] (Incoterms 2010) from ASPEN’s applicable facility in the U.S. to [***] (“Delivery Point”) and further to [***] (“Destination Point” which, if not specified in the relevant order, will be [***]), unless agreed otherwise in writing. All shipping, handling, transportation, and insurance costs incurred following the release of Product from ASPEN’s applicable facility in the U.S. to the Destination Point shall, to the extent paid by ASPEN, be either included as a separate item in the invoice for Products, or separately invoiced and payable by BASF. In no event shall ASPEN be liable for any delay in delivery caused between Delivery Point and Destination Point, nor shall the carrier selected by ASPEN for the transport from Delivery Point to Destination Point be deemed an agent of ASPEN. ASPEN may make partial shipments against an order in its sole discretion. Each such shipment shall constitute a separate sale, and BASF shall pay for the units shipped whether such shipment is in whole or partial fulfilment of an order. Title to Products shall pass to BASF upon delivery of Products at the Delivery Point. 4.6 BASF shall examine the Products as soon as possible after their arrival at the BASF’s facility, and in any event not more than [***] following the Product’s arrival at BASF’s designated facility. BASF shall notify ASPEN in writing (i) with respect to missing Products, immediately upon receipt by reference to the accompanying ▇▇▇▇ of lading, and (ii) with respect to Products that do not conform to applicable specifications or are damaged in transit due to inadequate packaging, within [***]. The Products will be deemed to conform to the applicable specifications despite minor discrepancies that are usual in the trade, and BASF will not be entitled to abatement of the Price for such minor discrepancies. Where the Products are materially non-conforming, the remedies provided in the limited warranty set forth herein shall serve as BASF’s exclusive remedy.
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Prices and Conditions. 4.1 The Price for Product sold hereunder shall be calculated as set forth in the Side Agreement. The terms of this Agreement and the Side Agreement shall be the exclusive terms and conditions with respect to purchase and supply of Products under this Agreement and take precedence over any additional or different terms and conditions provided by either Party, to which notice of objection by the other Party is hereby given. Neither the commencement of performance, delivery nor receipt of products or payment shall be deemed an acceptance of any additional or different terms and conditions. None of the terms and conditions contained herein may be added to, modified, superseded or otherwise altered except in writing by duly authorized representatives of the parties.
4.2 All Prices are in United States dollars. Prices are exclusive of all charges or levies of any nature, including all applicable federal, state, provincial, municipal or other governmental excise, sales, use, value added, occupational, import duties, or similar taxes or tariffs now in force or enacted in the future (collectively, the “Additional Charges”) and, therefore, are subject to an increase in an amount equal to any such Additional Charges that ASPEN may be required to collect or pay upon sale or delivery of Products purchased. A certificate of exemption or similar document in appropriate form for the jurisdiction of BASF’s place of business and any jurisdiction to which Products are to be directly shipped hereunder is required in order to exempt the sale from sales or use tax liability. BASF shall obtain and furnish evidence of such exemption at the time of placement of order. BASF agrees to indemnify and hold harmless ASPEN and its successors and assigns from and against any liability for tax in connection with the sale or use, as well as the collection or withholding thereof, including penalties and interest. ASPEN will provide a certificate of origin with any shipment of Products. ASPEN and BASF will work together to ensure (including providing any reasonable declaration) the transactions pursuant to this Agreement can benefit from the anticipated Transatlantic Trade and Investment Partnership.
4.3 On request of BASF, ASPEN’s books and records as they relate to annual Price calculations may be audited by an independent third party auditor without a prior business relationship with either BASF or ASPEN. Such audit will be to examine whether Price has been calculated by ASPEN in accordance with the provisions of this Agreement in all material respects. ASPEN will make available or provide access to all relevant documents to the third party auditor. The independent auditor will provide a summary report to BASF and ASPEN on whether ASPEN’s Price calculations are consistent in all material respects with the provisions of this Agreement. The third party auditor will keep all other information of ASPEN strictly confidential and will not disclose such information to BASF or any other third party. ASPEN shall bear the costs of the third party auditor in the event ASPEN’s Price calculations are not consistent in all material respects with the provisions of this Agreement. Otherwise BASF shall bear such audit costs.
4.4 All orders must be placed in writing and verbal orders shall be confirmed in writing. All orders must include requested delivery dates, quantities, shipment destination and complete description of Products being ordered. After receipt of an order, ASPEN will confirm its acceptance in writing and may also inform BASF of an estimated ship date simultaneously or at a later date. Orders accepted or acknowledged by ASPEN cannot be cancelled without the prior written consent of ASPEN. No order can be cancelled after the order is shipped.
4.5 All Products will be shipped [***] (Incoterms 2010) from ASPEN’s applicable facility in the U.S. to [***] (“Delivery Point”) and further to [***] (“Destination Point” which, if not specified in the relevant order, will be [***]), unless agreed otherwise in writing. All shipping, handling, transportation, and insurance costs incurred following the release of Product from ASPEN’s applicable facility in the U.S. to the Destination Point shall, to the extent paid by ASPEN, be either included as a separate item in the invoice for Products, or separately invoiced and payable by BASF. In no event shall ASPEN be liable for any delay in delivery caused between Delivery Point and Destination Point, nor shall the carrier selected by ASPEN for the transport from Delivery Point to Destination Point be deemed an agent of ASPEN. ASPEN may make partial shipments against an order in its sole discretion. Each such shipment shall constitute a separate sale, and BASF shall pay for the units shipped whether such shipment is in whole or partial fulfilment of an order. Title to Products shall pass to BASF upon delivery of Products at the Delivery Point.
4.6 BASF shall examine the Products as soon as possible after their arrival at the BASF’s facility, and in any event not more than [***] following the Product’s arrival at BASF’s designated facility. BASF shall notify ASPEN in writing (i) with respect to missing Products, immediately upon receipt by reference to the accompanying ▇b▇▇▇ of lading, and (ii) with respect to Products that do not conform to applicable specifications Specifications or are damaged in transit due to inadequate packaging, within [***]. The Products will be deemed to conform to the applicable specifications Specifications despite minor discrepancies that are usual in the trade, and BASF will not be entitled to abatement of the Price for such minor discrepancies. Where the Products are materially non-conforming, the remedies provided in the limited warranty set forth herein shall serve as BASF’s exclusive remedy.
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