Terms and Conditions for the Sale of Goods and Services
Applicability.
These terms and conditions of sale (these “Terms“) are the only terms that govern the sale of the goods (“Goods“) and services (“Services“) by All-Lift Systems, Inc. and its subsidiaries (“Seller“) to the buyer named on the reverse side of these Terms (“Buyer“).
The accompanying quotation/service agreement/ purchase order/ order acknowledgement (the “Sales Confirmation“) and these Terms (collectively, this “Agreement“) comprise the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase or other terms and conditions on any purchase order, payment enclosure or other writing regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. Once a Sales Confirmation has been provided, Buyer may not cancel or modify any order without the written consent of Seller.
Notwithstanding anything to the contrary contained in this Agreement, Seller may, from time to time change the Services without the consent of Buyer provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Sales Confirmation.
Delivery of Goods and Performance of Services.
The Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order, and subject to availability of finished Goods. Seller shall not be liable for any delays, loss, or damage in transit of any sort.
Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to the delivery point indicated on the purchase order (the “Delivery Point“) using Seller’s standard methods for packaging and shipping such Goods. Unless otherwise agreed to by the parties in writing, Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods or Services at the Delivery Point and will unload and release all transportation equipment promptly, so Seller incurs no demurrage or other expense. Buyer shall be solely liable for any demurrage or other expenses as a result of delays in the unloading of the Goods or releasing of all transportation equipment.
Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods 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 purchase order.
Seller shall use reasonable efforts to meet any performance dates to render the Services specified in the Sales Confirmation, and any such dates shall be estimates only.
With respect to the Services, Buyer shall (i) cooperate with Seller in all matters relating to the Services and provide such access to Buyer’s premises, and such office accommodation and other facilities as may reasonably be requested by Seller, for the purposes of performing the Services; (ii) respond promptly to any Seller request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Seller to perform Services in accordance with the requirements of this Agreement; (iii) provide such customer materials or information as Seller may reasonably request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
To the extent any of the Services are performed on Buyer’s premises, Buyer shall be responsible for the safety and protection of Seller and its persons and property while providing the Services thereon. Buyer shall notify Seller of any hazardous or dangerous conditions which exist in Customer’s premises immediately upon discovery.
Shipping Terms. Delivery of the Goods shall be made in accordance with the shipping terms on the face of the Sales Confirmation.
Title and Risk of Loss. Title and risk of loss pass to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Delaware Uniform Commercial Code.
Buyer’s Acts or Omissions and Site Conditions. If Seller’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Seller shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay. Buyer warrants that the site where Goods are to be delivered and/or installed and/or where Services are to be performed shall be ready and adequate for Seller’s delivery and/or installation of the Goods and/or performance of Services. Buyer’s obligations in this regard include but are not limited to the removal of all obstructions and institution of adequate safety measures to protect Seller’s property, employees, agents and contractors. Buyer shall be responsible for all costs and expenses associated with Seller’s delay and/or inability to deliver and/or install the Goods or perform any Services related to Buyer’s failure to comply with this Section 5 Seller in no way warrants the sufficiency of the site, in whole or in part, where the Services are performed and/or Goods are to be delivered, installed and/or used.
Inspection and Rejection of Nonconforming Goods or Services.
Buyer shall inspect the Goods or Services within five (5) days receipt and all Services performed within five (5) days of completion (“Inspection Period“). Buyer will be deemed to have accepted the Goods and or the Services unless it notifies Seller in writing of any Nonconforming Goods or Non-Conforming Services during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents. “Nonconforming Services” means that the Services did not comply with any written specifications (if applicable) in the Sales Confirmation.
If Buyer timely notifies Seller of any Nonconforming Goods or Nonconforming Services, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods or repair the Nonconforming Services, or (ii) credit or refund the Price for such Nonconforming Goods or Nonconforming Services, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. In the case of Nonconforming Goods, Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
Buyer acknowledges and agrees that the remedies set forth in Section 6(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods and Nonconforming Services. Except as provided under Section 6(b), all sales of Goods and Services provided to Buyer are made on a one-way basis and Buyer has no right to return Goods or Services purchased under this Agreement to Seller.
Price.
Buyer shall purchase the Goods and Services from Seller at the prices (the “Prices“) set forth in the Sales Confirmation. Prices quoted by Seller shall remain firm for a period of thirty (30) days from the date of a Quotation; provided, however, that Seller reserves the right, at any time prior to the acceptance of a Quotation by Buyer to adjust said prices by providing written notice to Buyer regarding any such adjustment.
Buyer agrees to reimburse Seller for all reasonable travel and out-of-pocket expenses incurred by Seller in connection with the performance of the Services.
All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personal or real property, or other assets.
Payment Terms.
Buyer shall pay all invoiced amounts due to Seller within thirty (30) days from the date of Seller’s invoice, unless deviations to these standard terms have been previously agreed to in writing by the parties.
Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods or performance of any Services and stop Goods in transit if Buyer fails to pay any amounts when due hereunder and such failure continues for fourteen (14) days following written notice thereof.
Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise.
Limited Warranty & Waiver.
Seller warrants to Buyer that for a period of twelve (12) months from the date of shipment (the “Warranty Period”) all Goods will materially conform to Seller’s specifications and will be free from material defects in material and workmanship (the “Goods Warranty”).
The foregoing Goods Warranty shall not apply to: (a) any Goods, or parts or components thereof, that have been used or operated prior to being sold to Buyer (“Used Goods”) or (b) Goods manufactured by a third party, including parts or components thereof (“Third-Party Goods“). Seller will use commercially reasonable efforts to pass through any warranties provided by the manufacturer for such Third- Party Goods to Buyer. For the avoidance of doubt, SELLER MAKES NO REPRESENTATION OR WARRANTIES WITH RESPECT TO ANY USED GOODS OR THIRD-PARTY GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED, BY LAW, COURSE OF DEALING, USAGE, TRADE OR OTHERWISE, AND ALL SUCH REPRESENTATIONS AND WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, ALL GOODS AND SERVICES (INCLUDING BUT NOT LIMITED TO ANY INSPECTION SERVICES) ARE PURCHASED BY BUYER “AS IS” AND “WITH ALL FAULTS.” SELLER MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE GOODS OR THE SERVICES, INCLUDING ANY (a) WARRANTY THAT THE SERVICES WILL BE ACCURATE, COMPLETE OR ERROR FREE OR WILL ACHIEVE ANY PARTICULAR RESULTS; (b) WARRANTY OF MERCHANTABILITY; OR (c) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (d) WARRANTY OF TITLE; OR (e) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. ALL EXPRESS WARRANTIES PROVIDED BY SELLER (IF ANY) ARE LIMITED TO ANY ONLY FOR THE BENEFIT OF BUYER AND ARE NOT TRANSFERABLE OR ASSIGNABLE BY BUYER WITHOUT THE PRIOR WRITTEN CONSENT OF SELLER.
The Seller shall not be liable for a breach of the Goods Warranty unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within ten (10) days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective. Additionally, the Seller shall not be liable for a breach of the Goods Warranty if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.
During the Warranty Period, and subject to the limitations included in this Section 9 and in Section 10 below, with respect to any Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods or (ii) credit or refund the price of such Goods at the contracted rate. THE REMEDIES SET FORTH IN THIS SECTION 9(E) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE GOODS WARRANTY.
Limitation of Liability, Indemnification, Waiver.
To the maximum extent permitted by applicable law:
IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, LIQUIDATED OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND PRODUCT LIABILITY), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND PRODUCT LIABILITY), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS AND SERVICES SOLD HEREUNDER IN THE PREVIOUS SIX (6) MONTHS or $50,000, WHICHEVER IS LESS.BUYER HEREBY EXPRESSLY WAIVES ITS RIGHT TO ASSERT A CLAIM OR DEFENSE FOR RECOUPMENT AND/OR SETOFF, EQUITABLE OR OTHERWISE, WHEN BUYER’S UNDERLYING CLAIM WOULD BE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS PERIOD.
SELLER SHALL NOT BE LIABLE FOR AND BUYER SHALL RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS SELLER AND ANY ENTITY AFFILIATED IN ANY WAY THEREWITH FROM ANY CLAIMS, DEMANDS, DAMAGES (REGARDLESS OF THEIR TYPE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL), LIABILITIES, LOSSES AND EXPENSES (WHETHER KNOWN OR UNKNOWN, PRESENT OR FUTURE), AND ANY AND ALL LIABILITY, OF AND FROM ANY AND ALL MANNER OF SUITS, ACTIONS OR CAUSE(S) OF ACTION (INCLUDING BUT NOT LIMITED TO SUITS FOR CONTRIBUTION AND/OR INDEMNITY AND ALL SUITS IN LAW, IN EQUITY, OR UNDER STATUTE, OF WHATEVER KIND OR NATURE) ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF ACTS OR OMISSIONS OF BUYER, ITS AGENTS, CONTRACTORS, EMPLOYEES OR ANY PERSON UNDER THEIR CONTROL (OTHER THAN SELLER) OR RELATING IN ANY WAY TO GOODS AND SERVICES PROVIDED UNDER A QUOTATION, A PURCHASE ORDER OR ANY OTHER AGREEMENT BETWEEN BUYER AND SELLER OR THE GOODS OR EQUIPMENT RELATED THERETO, INCLUDING, BUT NOT LIMITED TO BUYER’S USE, INSTALLATION, INCORPORATION OR SELECTION THEREOF. BUYER HEREBY WAIVES ANY IMMUNITY OR DEFENSE UNDER APPLICABLE WORKERS’ COMPENSATION LAWS OR OTHER LAWS THAT WOULD OTHERWISE LIMIT BUYER’S OBLIGATIONS HEREUNDER. MOREOVER, BUYER WAIVES ANY REQUIREMENT SET FORTH BY THE STATUE OF FRAUDS OR OTHERWISE, THAT THESE INDEMNIFICATION OBLIGATIONS MUST BE SIGNED BY BUYER AND/OR SELLER AND REPRESENTS THAT BY ISSUING A PURCHASE ORDER, SIGNED OR OTHERWISE, AND/OR ACCEPTING THE GOODS OR SERVICES, BUYER EXPRESSLY CONSENTS TO THE INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN.
Insurance. During the term of this Agreement Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including Products and Completed Operations liability) in a sum no less than $2,000,000 per occurrence with financially sound and reputable insurers, and shall name Seller as an Additional Insured on its commercial general liability policy, including with respect Ongoing and completed Operations. Such coverage shall be written on a primary and non-contributory basis. Upon Seller’s request, Buyer shall provide Seller with a certificate of insurance from Buyer’s insurer evidencing the insurance coverage specified in these Terms. Buyer shall provide Seller with thirty (30) days’ advance written notice in the event of a cancellation or material change in Buyer’s insurance policy. Except where prohibited by law, Buyer shall require its insurer to waive all rights of subrogation against Seller’s insurers and Seller.
Inspection Services Disclaimer. Notwithstanding any representation made by any party to the contrary in any other verbal or written communication, the performance by Seller of any equipment (or component) inspection as all or part of the Services under a Sales Confirmation or any agreement between Buyer and Seller and the preparation of the report derived therefrom are conditioned upon and evidence of Buyer’s acknowledgment and acceptance of the following additional terms, conditions, and disclaimers:
At the request of Buyer, the scope of any equipment (or component) inspection performed by Seller is limited exclusively to a search for readily observable defects apparent on the equipment and on those equipment component parts identified in the inspection scope accompanying a Sales Confirmation or other agreement that are safely and conveniently accessible to the inspecting personnel. Seller shall not dismantle the equipment or the equipment components to be inspected, nor shall it use any other means to inspect and detect latent or non-observable defective conditions in the equipment or its components. Notwithstanding the performance of this inspection and regardless of any representation made in any report to the contrary, including the inspection report prepared by Seller, Buyer acknowledges and agrees that: (i) latent or non-observable defects may exist or develop on or in the subject equipment or its components on or following the moment of inspection and Buyer is hereby notified of the potential existence thereof; and (ii) the use of equipment possessing any defect, including latent or non-observable defects, may result in catastrophic equipment failure potentially causing damage to property or injury or death to persons in, on or around the subject equipment.
The conditions identified during the equipment (or component) inspection and reported by Seller orally or in writing are representative of the condition of the subject equipment and its components as they appeared during the inspection. These conditions can and will change immediately following inspection due to the use or non-use of the subject equipment (and its components). The information provided to Buyer as a result of and following an inspection does not reflect any changes in the condition of the subject equipment and/or its components following inspection by Seller and Buyer retains and/or assumes all risk for such changes in condition. Buyer is hereby notified and acknowledges and agrees that delivery by email or other electronic means of any report prepared by Seller setting forth the results of an inspection or the making available of such report to Buyer in any electronic portal or platform that is accessible to Buyer constitutes delivery to and acknowledgment of receipt by Buyer of such report.
The decision following an inspection concerning whether or not to repair or replace the equipment or any deficient component of the subject equipment lies exclusively with Buyer. By completing the inspection and preparing the inspection report, Seller expressly recommends that Buyer authorize the repair and/or replacement of the equipment or any component identified during the inspection or listed in the report derived therefrom as deficient in any manner or degree prior to operating the subject equipment. Seller hereby notifies Buyer that any inspection report may contain information regarding deficient equipment and/or components thereof that require the immediate attention of Buyer and that any failure to repair and/or replace such deficient equipment and components thereof may result in catastrophic equipment failure causing damage to property or injury or death to persons in, on or around the subject equipment.
SELLER IS NOT LIABLE FOR CLAIMS, DEMANDS, DAMAGES, OR LIABILITY ARISING FROM (I) CAUSES OUTSIDE THE SCOPE OF THE INSPECTION AS IDENTIFIED IN SECTION 12.A., (II) ANY CONDITION THAT OCCURS FOLLOWING THE INSPECTION AS IDENTIFIED IN SECTION 12.B., (III) FAILURE OF BUYER TO REPAIR OR REPLACE ANY EQUIPMENT OR COMPONENT AS IDENTIFIED IN SECTION 12.C., OR (IV) FLAWS THAT ARE NOT DETECTABLE BY OR WHOSE DETECTION IS LIMITED WHEN UTILIZING THE INSPECTION METHODS DESCRIBED IN SECTION 12.
Approval Drawings. Approval drawings, if provided to Buyer by Seller and either signed by a representative of Buyer with apparent authority to do so or not objected to by Buyer in writing within a reasonable time or, if required, the time required by Seller, shall constitute exclusive proof regarding Buyer’s verification and acceptance of the dimensions and other information relating to the goods described therein, and Seller shall be entitled to rely on such approval drawings to provide the Goods and Services referenced therein. Buyer hereby assumes any and all responsibility for any inaccurate or incomplete information contained therein. TO THE EXTENT THAT BUYER PROVIDES THE DESIGN AND/OR SPECIFICATIONS FOR ANY GOODS OR SERVICES TO BE PROVIDED OR PERFORMED BY SELLER, BUYER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS SELLER AGAINST ALL CLAIMS, SUITS, AND CAUSES OF ACTION AND FROM ALL COSTS, EXPENSES, DAMAGES AND LIABILITIES (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ AND CONSULTANTS’ FEES) FROM IMPROPER OR DEFECTIVE DESIGN AND FOR ACTUAL OR ALLEGED INFRINGEMENT OF ANY UNITED STATES OR FOREIGN PATENT, COPYRIGHT, TRADEMARK, INTELLECTUAL PROPERTY RIGHTS, OR PROPRIETARY RIGHTS OF THIRD PARTIES BY REASON OF THE USE, SALE, MANUFACTURE, OR DESIGN OF SUCH GOODS AND/OR SERVICES.
Inherent Defects. To the extent remanufacturing, refurbishment, modernization, and/or modification services are included within the scope of Services identified in a Sales Confirmation or or any agreement between Buyer and Seller, any defect in Buyer’s equipment to which Seller performs such remanufacturing, refurbishment, modernization, and/or modification services that is attributable in whole or in part to engineering, design specifications, latent defects, corrosion, or fatigue that are inherent to and/or present in or on the equipment is not covered by any warranty of Seller, and Seller shall not be liable for any costs, expenses, losses, or damages of any nature whatsoever that are caused in whole or in part by any such defect.
Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights“) in and to the Goods, the Services, and all documents, work product and other materials that are delivered to Buyer under this Agreement or prepared by or on behalf of the Seller in the course of performing the Services, (collectively, the “Deliverables“) shall be owned by Seller or Seller’s licensors. Seller hereby grants Buyer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Buyer to make reasonable use of the Goods, Deliverables and the Services while this Agreement remains in effect.
Compliance with Law. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other duties or penalties on the Goods.
Subcontractors. Buyer acknowledges and agrees that Seller may utilize subcontractors to perform any of its obligations under this Agreement.
Termination. In addition to any remedies that may be provided under these Terms, either party may terminate this Agreement with immediate effect, if such party: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part, and fails to cure such deficient performance within thirty (30) days’ notice from the other party; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Confidential Information. All non-public, confidential, or proprietary information of each party, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by either party to the other, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with this Agreement (“Confidential Information”) is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by an officer of the disclosing party in writing. Upon the disclosing party’s request, the recipient of information shall promptly return all documents and other materials received from the other party. The recipient shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain at the time of the disclosure; (b) known to the recipient at the time of disclosure as substantiated by the recipient’s previously existing written records; or (c) rightfully obtained by the recipient on a non-confidential basis from a third party who was not under an obligation of confidentiality with respect to such information. If the either party is required by applicable law or legal process to disclose any Confidential Information of the other party, it shall, prior to making such disclosure, use commercially reasonable efforts to notify the other party of such requirements to afford such party the opportunity to seek, at such party’s sole cost and expense, a protective order or other remedy.
Force Majeure. No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, pandemics or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions (including voluntary compliance therewith); (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials or other utilities; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within ten (10) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. During any period in which Seller’s supply or capacity is limited for any reason, Seller may allocate its available supply or capacity in any manner deemed reasonable by Seller; and under no circumstances shall Seller have any obligation to ship by expedited or other means or from any particular location, source from any particular location, purchase additional equipment, hire additional employees or operate its business on an over-time basis.
Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto 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 these Terms.
Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware.
Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Delaware in each case located in the City of Wilmington, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Warranty Waiver, Limitation of Liability, Insurance, Intellectual Property, Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction, Waiver of Jury Trial, and Survival.
Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.
