TERMS AND CONDITIONS OF SALE
1. ACCEPTANCE
(a) These Terms and Conditions of Sale (“Terms and Conditions“) shall apply to any sale of Canlak Coatings Inc. (“Seller“)’s products (“Products“) to any buyer (“Buyer“) whether pursuant to a supply agreement, purchase order, or any other sales document (collectively “Order“). If these Terms and Conditions differ in any way from the terms and conditions of any Order or if these Terms and Conditions are construed as an acceptance or as a confirmation acting as an acceptance, then acceptance is EXPRESSLY MADE CONDITIONAL ON BUYER’S ASSENT TO ANY TERMS AND CONDITIONS CONTAINED HEREIN THAT ARE DIFFERENT FROM OR ADDITIONAL TO THOSE CONTAINED IN SUCH ORDER. Further, these Terms and Conditions shall be deemed notice of objection to such terms and conditions of Buyer. If these Terms and Conditions are construed as an offer, acceptance hereof is EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS CONTAINED HEREIN. In any event, Buyer’s acceptance of the Products shall manifest Buyer’s assent to these Terms and Conditions. No addition to or modification of these Terms and Conditions will be effective unless agreed to by Seller in writing.
(b) References to the Products include, without limitation, their packaging.
2. DELIVERY
(a) Shipping and delivery dates are approximate but are not guaranteed unless otherwise specifically agreed in writing. Buyer shall be responsible for all storage and other costs relating to Buyer’s failure to accept delivery pursuant hereto.
(b) Unless otherwise expressly agreed, in writing, delivery will be made F.O.B. point of shipping. All risk of loss shall pass to Buyer upon delivery of the Products by Seller to a carrier. The method and agency of transportation, unless otherwise agreed to in writing, will be selected by Seller and Seller reserves the right to ship collect. Seller’s receipt from the carrier shall be conclusive evidence of delivery.
(c) Packaging is included in the price; Product is not returnable unless otherwise specifically agreed to in writing by Seller. Buyer will be charged a fee for returnable product as set forth below, but if returned must be returned clean, securely closed, and in good condition within ninety (90) days after receipt by Buyer. Seller will credit Buyer the amount charged less a fee. Any special packaging, requirements will incur a non-refundable additional charge.
(d) The weight or quantity stated on Seller’s carrier’s receipt shall be conclusive evidence of the amount delivered, except in cases of manifest error.
(e) Each delivery shall be treated as a separate contract, and partial deliveries are permitted, unless otherwise specifically agreed to in writing. Failure to make any delivery, or any breach of contract by Seller relating thereto, shall not affect any remaining deliveries.
(f) Buyer shall promptly supply all information and assistance required for Seller to execute Buyer’s order.
(g) If the Products are sold F.A.S. or F.O.B. vessel (Incoterms 2020), an onboard bill of lading, a mate’s receipt or other document indicating delivery alongside of the vessel or tender the vessel in conclusive evidence of delivery irrespective of whether the person giving the receipt, or the documentation has authority from Buyer to do so.
(h) If the Products are sold C.I.F. (Incoterms 2020), a receipt of bill of lading or waybill is conclusive evidence of delivery.
(i) Product returns for any reason will not be accepted without prior approval and Return Goods Authorization number; contact sales rep and/or customer service and provide proper documentation. All returns are subject to a 25% handling and restocking fee. This fee will be waived for only those shipments which may involve a shipping error (i.e., mis-shipments, mis-labeled product, etc.).
3. TERMS OF PAYMENT; PRICE
(a) All prices are subject to change and orders will be invoiced at Seller’s prices prevailing at the time of shipment. All accounts are payable in U.S. funds, free of exchange, collection, or charges. In cases where price of Products includes delivery costs, any increase in such delivery costs shall be for Buyer’s account and Buyer agrees to pay Seller such increased costs.
(b) All applicable sales or use taxes, excises, or any other taxes or charges (except net income and equity franchise taxes) imposed now or in the future by any federal, state, foreign or local authority upon the production, sale or transportation of the Products shall be for the account of Buyer. Buyer shall reimburse Seller for any such taxes, excises, or charges which Seller may be required to pay in addition to the price payable by Buyer for the Products. Buyer may, at its option and where legally permissible, elect to file a proper exemption certificate with Seller and Buyer shall be fully responsible for paying taxes direct to the taxing authority.
(c) Credit terms, if any, both as to time and amount, may be limited or revoked by Seller at any time without prior notice and thereafter the price of all Products delivered or to be delivered shall be payable in accordance with such limited credit terms or, at Seller’s option, in cash before shipment or on or after acceptance of delivery. In circumstances described in Section 7(a), all unpaid balances owing to Seller from Buyer shall become immediately due and payable, irrespective of whether title to the products has passed to Buyer.
(d) Time of payment of the essence. Seller reserves the right to charge interest at a rate of one and one-half percent (1 1/2%) per month or such lesser rate permissible by applicable law for any amounts not paid in accordance with invoiced terms.
(e) Buyer hereby grants to Seller a security interest in all Products and in all proceeds thereof, until the complete purchase price and all additional costs and charges are paid by Buyer. At the request of Seller, Buyer hereby agrees to execute such documents reasonably required to perfect Seller’s security interest in the Products.
(f) Buyer shall have no right to withhold or offset any amount due Seller because of any claim by Buyer against Seller pursuant to the Order or any other order or agreement.
(g) Standard Terms: Net 30 Days (must be current and credit worthy).
4. SOLE AND EXCLUSIVE WARRANTY
(a) Seller warrants to Buyer that the Products, at the time of delivery to Buyer, shall conform to Seller’s published specifications covering such Products in effect at the time of manufacture (“Seller’s Warranty“). THE WARRANTY SPECIFIED ABOVE IS THE SOLE AND EXCLUSIVE WARRANTY FOR THE PRODUCTS AND ARE IN LIEU OF ANY OTHER WARRANTY WHETHER ORAL, WRITTEN, EXPRESS, OR IMPLIED INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. Certification by Seller by separate writing as to compliance with specifications, blueprints, part numbers, quantity, test or otherwise will not create any warranty by or other obligation of Seller. The warranty does not apply to Products which have been damaged in transit if Buyer is responsible for delivery of the Products to Buyer’s facility. Buyer shall notify Seller of any Product which does not conform to Seller’s warranty within a reasonable time after delivery of such Products, but in no event later than thirty (30) days following such delivery. Failure to notify Seller of such nonconformance shall constitute a waiver by Buyer of any claims with respect to such nonconforming Products.
(b) In the event of breach of the warranty, Buyer’s sole and exclusive remedy, and Seller’s sole and exclusive obligation shall be, at Seller’s option, the replacement by Seller of any nonconforming Product or the refund of the portion of the purchase price paid by the Buyer attributable to such nonconforming Product.
(c) If Products are purchased for resale by Buyer, Buyer shall not make any representations or warranties with respect to the Products inconsistent with these Terms and Conditions and shall include in the terms and conditions of such resale disclaimers of warranties and limitations of liabilities at least as restrictive as contained in these Terms and Conditions.
(d) Seller’s Warranty does not apply to the following Products: (i) Products identified as obsolete or substandard, or which are sold “AS IS, WHERE IS“; or (ii) Products manufactured by anyone other than by Seller (“Third Party Products”). IN SUCH CASES, SELLER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF Trade for Third Party Products, Buyer should contact the manufacturer for the specifics of such warranty, if any, and any other limitations on Buyer’s rights with respect to warranty.
5. LIMITATION OF LIABILITY
(a) IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF USE OF THE PRODUCTS, OR LOSS OF GOODWILL.
(b) NOTWITHSTANDING WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT SHALL SELLER’S LIABILITY FOR ANY PRODUCTS SUPPLIED HEREUNDER EXCEED THE PURCHASE PRICE PAID BY BUYER TO SELLER FOR THE APPLICABLE PRODUCTS, REGARDLESS OF WHETHER THE CLAIM IS BASED ON CONTRACT, TORT, WARRANTY OR ANY OTHER THEORY OF LIABILITY.
6. FORCE MAJEURE
Seller shall not be liable for any loss or damage of any nature whatsoever incurred or suffered as a result of any failures or delays in performance due to any cause or circumstance beyond its control, including but not limited to any failures or delays in performance caused by any strikes, lockouts, labor disputes, fires, natural disasters, epidemics, pandemics, compliance with governmental laws, regulations, or with the orders or policies of any government authority, delays in transit or delivery on the part of transportation companies, or failures of source materials, including price increases of such source materials that affect Seller’s ability to perform. In such event, Seller may, at Seller’s option, be excused from performance or allocate deliveries as Seller, in its sole discretion, deems appropriate. Without limiting the generality of the foregoing, Seller may without liability suspend or terminate (in whole or in part) its obligations under any order from Buyer (“Order”) if Seller’s ability to manufacture, supply, deliver, or acquire materials to produce the Products by Seller’s normal means is materially impaired.
7. TERMINATION AND SUSPENSION
(a) Seller may (without prejudice to its other rights or remedies) terminate or suspend Seller’s performance of the whole or any outstanding part of the Contract while investigating any claim to prior shipments (under any Order) of Products or in the event of any of the following circumstances:
(i) Buyer fails to take delivery of or to pay for the Products as required herein, or breaches any other term of the Order or any other contract between Buyer and Seller;
(i) Buyer fails or refuses to furnish Seller with such information and assurances as Seller may request about Buyer’s financial and operating conditions as affecting Buyer’s ability to purchase Products under this Order and, to the extent permitted by law, in the event of Buyer’s insolvency, the filing of a voluntary or involuntary petition in bankruptcy by or against Buyer, the appointment of a receiver or trustee for Buyer, Buyer’s execution of an assignment for the benefit of creditors, or a comparable event; or
(ii) Reasonable grounds for insecurity arise with respect to the performance by Buyer of its obligations under any Order and Seller so notifies Buyer.
8. INTELLECTUAL PROPERTY
Buyer shall not use in any manner, any trade names or trademarks applied to or used by Seller with respect to the Products, unless otherwise permitted by Seller in writing.
9. CONFIDENTIALITY
Buyer acknowledges and agrees that the terms of this Order, including without limitation any pricing information for the Order, are confidential (“Confidential Terms“). Buyer agrees (i) not to disclose, directly or indirectly, to any third party any portion of the Confidential Terms without the prior written consent of Seller; (ii) to take all reasonably necessary precautions to protect the confidentiality of the Confidential Terms; and (iii) to promptly advise Seller in writing upon learning of any unauthorized use or disclosure of the Confidential Terms.
10. ADVISE OR ASSISTANCE
Recommendations and advice by Seller for the use of Products are furnished gratuitously and are based upon information believed to be reliable. Buyer’s use of or reliance upon the same shall be at Buyer’s risk. SELLER’S SOLE LIABILITY WITH RESPECT TO SALE OF PRODUCTS TO BUYER IS SET FORTH IN SECTION 5 OF THESE TERMS AND CONDITIONS. Any agreement between Buyer and Seller concerning advice, or assistance given to Buyer by Seller for a separate fee shall be contained only in a separate written agreement.
11. HEALTH AND SAFETY AT WORK
(a) Buyer shall ensure that all Products are safely and lawfully received; stored, maintained, used, and applied by Buyer, and that Buyer obtains relevant information in Seller’s possession relating thereto. Seller maintains and makes freely available to Buyer product safety data information, and it is Buyer’s responsibility to request such information if it is not provided by Seller.
(b) Buyer shall insure that all appropriate safety information (whether supplied by Seller, Buyer, or others) is distributed and drawn to the attention of customers and all others (including Buyer’s employees) who require it for safe handling or use of the Products.
12. GENERAL
(a) Buyer may not assign its right under the Order without Seller’s prior written consent.
(b) All notices required or permitted to be given hereunder shall be in writing and shall be deemed to have been duly given (a) on the date of personal delivery, (b) three, (3) days after the date of deposit in United States mail, postage pre-paid, by certified mail, return receipt requested, or (c) on the date of delivery to an internationally recognized courier service, in each case addressed to Buyer’s or Seller’s address as applicable.
(c) Failure by Seller at any time or times to require strict performance of any provision hereof shall not be a waiver of Seller’s rights with respect to such breach or any succeeding breach of such provision or any other provision of these Terms and Conditions.
(d) If any of the Terms and Conditions or the application thereof to any person or circumstance shall be held invalid or unenforceable, the remainder of such Terms and Conditions or the application of such provision to person or circumstance other than those to which it was held to be invalid or unenforceable shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law.
(e) The Order, including without limitation the Terms and Conditions, shall be governed and construed in accordance with laws of New Jersey without regard to its conflict of laws provisions. The United Nations Convention for the International Sale of Goods shall not apply. All suits, actions, or other proceedings arising out of or relating to the Order or the subject matter thereof shall be brought only in Middlesex County, New Jersey, and Buyer consents to the jurisdiction of such courts. Notwithstanding the above, Seller, in its sole discretion, may bring a claim against Buyer in another court of competent jurisdiction.
(f) In the event collection action is necessary; buyer agrees to pay costs of collection, including attorney fees and costs.
(g) Buyer warrants that it is, and will remain, in compliance with all export and re-export requirements, including but not limited to the Export Administration Act and regulations, the Arms Export Control Act and regulations, and any orders and licenses issued there under.
13. ALL SALES INCLUDING INTERNET ARE CONSIDERED FINAL ONCE ORDERS ARE SHIPPED, THERE ARE NO REFUNDS CREDITS OR ADJUSTMENTS GIVEN EXCEPT PURSUANT TO THE PROVISIONS OF SECTIONS 2(c) and 2(i) ABOVE.
CANLAK COATINGS
1999 Elizabeth Street – North Brunswick, NJ 08902 Phone: (732) 821-3200 Fax: (732) 821-8180
REVISED 3/24
TERMS AND CONDITIONS
OF PURCHASE
1. ACCEPTANCE
These Terms and Conditions of Purchase (“Terms and Conditions”) apply to all purchase orders (“Orders”) by Canlak Coatings Inc. or any affiliates of Canlak Coatings Inc. (each a “Buyer”) for products and/or services (“Goods”) supplied by seller (“Seller”). BUYER’S ORDER IS EXPRESSLY CONDITIONED UPON SELLER’S ACCEPTANCE OF ALL TERMS AND CONDITIONS HEREOF. THE TERMS AND CONDITIONS HEREOF SHALL CONSTITUTE THE SOLE AND BINDING CONTRACT BETWEEN SELLER AND BUYER CONCERNING THE PURCHASE AND SALE OF THE GOODS ORDERED HEREUNDER. No changes, additions or deletions to the Terms and Conditions hereof shall be effective unless approved in writing by Buyer. Acceptance of this Order is expressly limited to the Terms and Conditions hereof. Any terms proposed by Seller which add to, vary from or conflict with the Terms and Conditions hereof shall be void, and the Terms and Conditions hereof shall govern. IF THIS ORDER IS DEEMED TO BE AN ACCEPTANCE OF AN OFFER OR COUNTER-OFFER BY SELLER, SUCH ACCEPTANCE IS EXPRESSLY MADE CONDITIONAL UPON SELLER’S AGREEMENT TO THIS ORDER, INCLUDING THE TERMS AND CONDITIONS SET FORTH HEREIN. Commencement of performance by Seller pursuant to this Order constitutes acceptance of all Terms and Conditions hereof by. It is an express condition of this Order that any provisions printed or otherwise contained in any acknowledgement hereof, or in any quote, offer or invoice related hereto, which are inconsistent with or in addition to the Terms and Conditions herein stated, shall have no force or effect, and that the Terms and Conditions hereof will control for all purposes.
2. PAYMENT AND PRICE.
Payment by Buyer for Goods supplied hereunder shall not constitute acceptance if subsequent inspection discloses a breach of Seller’s warranties or other breach of these Terms and Conditions. Except as may be otherwise specified in the Order, the prices specified in this Order include all federal, state, local or foreign taxes, levies, duties or other government charges upon the manufacture, sale, or transportation of the Goods described herein. Invoices will be paid within sixty (60) days of the date of the invoice or the date of receipt and inspection of Goods, whichever is later. Buyer shall receive the benefit of any reduction in Seller’s prices prior to delivery, and in no event shall Buyer be charged a price higher than charged to Seller’s other customers for Goods of like grade and quality. Buyer may withhold or set off from any payment any amount as to which a dispute exists under any Order or against any amount due Buyer or any affiliate of Buyer under any transaction with Seller.
3. PACKAGING.
Seller will package the goods in accordance with good commercial practice so as to ensure that no damage results from weather or transportation, and the cost thereof will be borne by the Seller. No packaging, shipping or handling charges shall be charged to Buyer unless specified on the Order. If Buyer specifies a method of shipment or specific carrier, Seller shall use such method of shipment or specific carrier. All Goods must be suitably packed and classified to assure the lowest transportation rates consistent with full protection against loss or damage in transit and to meet the carrier’s requirements.
4. DELIVERIES.
TIME IS OF THE ESSENCE IN SELLER’S PERFORMANCE OF THIS ORDER. Delivery must be affected within the time stated on this Order or otherwise agreed upon in writing. Any goods delivered thereafter may be rejected or returned at Seller’s risk and expense unless Buyer has authorized such late shipment in writing for each instance. Seller shall promptly notify Buyer of any actual or anticipated delay in delivery and shall take all reasonable steps to avoid or end such delay without additional cost to Buyer, including but not limited to payment of expedited shipping costs. Deliveries shall be made to the location specified by Buyer. If Seller fails to deliver any Goods in accordance with Buyer’s instructions, Buyer may cancel the Order for such Goods and/or purchase substitute goods, in which event Seller will reimburse Buyer for its costs and expenses in procuring substitute goods.
5. TITLE AND RISK OF LOSS.
Title to the Goods shall not pass to Buyer until said Goods have actually been received by Buyer, notwithstanding any agreement to the contrary, including, but not by way of limitation, any agreement to pay transportation or insurance charges. Risk of loss or damage in transit prior to such actual receipt by Buyer shall be borne by Seller unless different delivery terms are specified in the Order. Nothing herein contained shall be construed as depriving Buyer of its interest, or limiting such interest, in the Goods prior to such actual receipt. No packaging, shipping or handling charges shall be charged to Buyer unless agreed to in writing by Buyer.
6. WARRANTIES.
Seller makes the following warranties for the Goods to Buyer and to Buyer’s customers, and all such warranties shall be in addition to any and all other warranties, express or implied, which may be prescribed by law or in equity: (a) Seller shall, at the date of delivery, have full, good and marketable title to the Goods and the Goods shall be free and clear of any and all liens, restrictions and encumbrances; (b) the Goods shall be new, fit and sufficient for their intended uses, and conform to specifications, drawings, and other descriptions supplied by Buyer and shall be free from defects (patent or latent) in materials and workmanship; (c) the Goods will be free from defects in design; (d) Seller has complied with all quality standards and procedures furnished by Buyer or generally applicable in the industry and all applicable laws, regulations, standards, ordinances and orders in performing the Order; (e) the prices charged to Buyer for the Goods are and will remain no less favorable than Seller’s prices to other customers for the same or comparable goods or services and Seller will reduce its prices under this Order if necessary at any time to maintain this warranty; and (f) all services will be performed in a professional manner and consistent with the highest standards in the industry for similar services. Such warranties, including warranties prescribed by law, shall run for a period of two (2) years after delivery unless otherwise stated. In the event of breach of the warranty, Buyer, at its option, may: (i) cancel the Order for such Goods, in which case Seller will refund to Buyer all amounts paid for such Goods within ten (10) days of Buyer’s cancellation; (ii) require Seller to promptly replace such Goods with conforming Goods without additional charge to Buyer; (iii) repair or replace the Goods in which case Seller shall reimburse Buyer for all costs related to such repair or replacement. Goods shall be removed after notification of rejection at Seller’s expense. Seller shall bear all risk of loss of rejected Goods.
7. INSPECTION.
Seller shall maintain inspection or quality control systems to ensure compliance with requirements of this Order. Buyer reserves the right to perform reviews and evaluations of Seller’s quality control and inspection records and processes to confirm adherence to this requirement. Seller shall permit any authorized representative of Buyer to inspect the Goods included in this Order at Seller’s facility upon reasonable advance notice. Materials rejected as not conforming to this Order, or as otherwise defective, may be returned at Seller’s expense, including transportation and handling costs.
8. REJECTION.
Buyer reserves the right to reject any Goods and to cancel all or any part of this Order if Seller fails to deliver all or any part of the Goods in accordance with the terms, conditions, instructions and specifications contained herein or supplied by Buyer. In the event of any nonconformity of the Goods, Buyer, at its option may: (i) cancel this Order as to such rejected Goods, in which case Seller will refund to Buyer all amounts paid for such rejected Goods within ten (10) days of Buyer’s cancellation; or (ii) require Seller to promptly replace such rejected Goods with conforming Goods without any additional charge to Buyer. Rejected Goods shall be removed at the expense of Seller including transportation both ways, promptly after notification of rejection. Seller shall bear all risk of loss of rejected Goods.
9. CHANGES.
Buyer shall have the right to make, from time to time, changes as to packing, destinations, and delivery schedules hereunder. Seller shall immediately notify the Buyer of any increases or decreases in costs caused by such changes and an equitable adjustment in prices or other terms hereof shall be agreed upon in a written amendment to this Order.
10. SUSPENSIONS AND CANCELLATION.
Buyer may in its sole discretion, cancel or suspend all or any portion of this Order without any liability to Seller provided such cancellation or suspension occurs at least 3 days prior to the scheduled delivery date for such Goods. If Buyer suspends delivery of any Goods, Seller shall hold such Goods without cost until written notice from Buyer to resume delivery of suspended Goods. This paragraph shall not limit or affect Buyer’s right to terminate this Order for default of Seller.
11. CONFIDENTIALITY.
Buyer shall at all times have title to all drawings, specifications and other information furnished by Buyer to Seller and intended for use in connection with this Order (together “Buyer’s Information”). Seller shall use Buyer’s Information only in connection with this Order and shall not disclose Buyer’s Information to any third party, other than Seller’s subcontractors, or suppliers who require Buyer’s Information and who agree to be bound by this obligation of confidentiality to Buyer. Upon the Buyer’s request or upon completion of this Order, Seller shall promptly return all Buyer’s Information to Buyer.
12. INDEMNIFICATION.
Seller shall indemnify, defend and hold Buyer, its successors, assigns, customers, affiliates, employees, agents, and users (collectively, the “Indemnified Parties“), harmless from and against any and all claims, liabilities, losses, fines, penalties, damages and expenses (including reasonable attorneys’ fees and court costs) which the Indemnified Parties may sustain or incur as a result of any claim of damage, loss, injury or death to any person or entity or property of any person or entity relating to or resulting from (i) the Goods; (ii) claimed infringement of any patent, trademark, trade secret, copyright, or other proprietary right of any other party arising out of the Goods; or (iii) any other act or omission of Seller or its subcontractors related to the Order. Any settlement of any suit, claim or proceeding which impacts Buyer in any way shall be subject to Buyer’s consent.
13. LIMITATION OF LIABILITY.
IN NO EVENT WILL BUYER BE LIABLE TO SELLER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES REGARDLESS OF THE LEGAL THEORY ON WHICH ANY LIABILITY CLAIM IS MADE. IN NO EVENT WILL BUYER’S LIABILITY TO SELLER EXCEED THE AMOUNT DUE UNDER THE APPLICABLE ORDER FOR THE GOODS.
14. FORCE MAJEURE.
In the event of war, fire, accidents, natural disasters, strikes or other labor disputes, pandemics, epidemics, government acts or restrictions, or other conditions beyond the Buyer’s reasonable control which prevent Buyer’s prompt utilization of the Goods covered by this Order, Buyer may cancel this Order in whole or in part as to Goods not yet shipped by notice to Seller.
15. NO ASSIGNMENT.
Seller shall not assign or delegate this Order, or the contract formed as a result of accepting this Order, in whole or in part without the prior written consent of Buyer. Buyer reserves the right to assign this Order. This Order will bind and inure to the benefit of the parties hereto and their respective successors, permitted transferees, and permitted assigns. Any attempted assignment or delegation by Seller shall be void unless made in conformity with this paragraph.
16. HAZARDOUS MATERIALS.
Seller shall provide written notice to Buyer upon receipt of an Order if the products or services furnished in connection therewith are subject to the laws or regulations relating to hazardous or toxic substances, or when disposed of, to regulations governing hazardous wastes, or to any other environmental or safety and health regulations. Seller shall furnish all appropriate shipping certifications and any notices, forms or other information required to be supplied to a buyer or user of hazardous or toxic substances pursuant to applicable laws or regulations, and instructions for shipping, safety, handling, exposure and disposal in a form sufficiently clear for use by Buyer’s nontechnical personnel and sufficiently specific to identify all action which the user must take concerning the material. The following certification must be made on the bill of lading: “This is to certify that the above‑named articles are properly classified, described, packaged, marked and labeled and are in proper condition for transportation according to any applicable transportation regulations.”
17. TERMINATION.
Buyer may terminate this Order immediately by written notice to Seller without liability or further obligation hereunder if Seller breaches any provision, term or condition of the Order (or Buyer reasonably anticipates such breach) and Seller shall be liable for all damages, losses and liability that Buyer incurs directly or indirectly resulting from Seller’s breach, including, without limitation, attorney’s fees.
18. COMPLIANCE WITH LAW.
Seller shall comply with all applicable state, federal, local, and national laws, rules and regulations in the manufacture, shipment, and delivery of the Goods including but not limited to the export control laws of the United States and the laws of the countries in which Seller operates.
19. INSURANCE.
For a period of two (2) years after delivery of the Goods, Seller 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 product liability) in a sum no less than one million dollars ($1,000,000) with financially sound and reputable insurers. Upon Buyer’s request, Seller shall provide Buyer with a certificate of insurance from Seller’s insurer evidencing the insurance coverage specified in this Order.
20. MISCELLANEOUS.
Buyer’s waiver of any default, breach or failure to enforce any of the terms, conditions, instructions or specifications related to this Order shall not in any way affect, limit or waive Buyer’s right thereafter to enforce and compel strict compliance with every term, condition, instruction and specification hereof or any subsequent default or breach. Seller is an independent contractor and not Buyer’s employee, agent, partner or joint venturer. Buyer’s remedies herein are cumulative and in addition to any other or further remedies available to it at law or equity. In the event any provision of an Order is found to be invalid or unenforceable, the parties hereby agree that the court shall enforce such provision to the extent permitted by law and, to the extent such provision is not enforceable, shall enforce the remainder of an Order as if such provision were not included in the Order. All Orders will be interpreted and enforced under the laws of New Jersey, without regard to its conflicts of law provisions. The state and federal courts in Middlesex County, New Jersey will have exclusive jurisdiction to resolve any dispute related to this Order unless Buyer, in its sole discretion, brings a claim against Seller in another court of competent jurisdiction. Seller consents to the jurisdiction of such courts and agrees to appear in any such action upon written notice thereof. In no event will the provisions of the United Nations Convention on the International Sale of Goods apply to this Order.
REVISED 3/24