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Terms and Conditions of Purchase
COILPLUS, INC. TERMS AND CONDITIONS OF PURCHASE
The following terms and conditions of purchase are applicable to every purchase order (“Order”) issued by Coilplus, Inc. (“Buyer”) to seller (“Seller”) for goods and/or services (collectively, “Goods”).
- OFFER/MODIFICATION: The terms and conditions set forth herein, together with the applicable Order and any other Buyer documents attached hereto or into which these terms and conditions are incorporated by reference (collectively, the “Contract”), constitute an offer or counteroffer by Buyer to purchase the Goods from Seller, subject to and in accordance with these terms and conditions. The Contract is not an acceptance of any offer or counteroffer made by Seller, and this offer and any contract arising out of this offer are expressly conditioned on Seller’s assent to all of the terms and conditions set forth in the Contract. Buyer objects to any additional or different terms or conditions contained in any quotation, or other document or communication previously or hereafter provided by Seller to Buyer. If a quotation or other document or communication from Seller contains any such additional or different terms or conditions, Buyer’s issuance of an Order shall not be construed as assent to any such terms or conditions, and no such terms or conditions will be of any force or effect unless specifically agreed to in a writing signed by an authorized representative of Buyer.
- ACCEPTANCE: The Contract shall be deemed accepted upon the terms and conditions of such Contract by Seller’s shipment of goods, performance of services, commencement of work on goods, written acknowledgement, or any other conduct of Seller that recognizes the existence of a contract pertaining to the subject matter of the Contract. Additionally, the Contract shall be deemed accepted ten (10) business days after Buyer delivers the Contract to Seller, if Seller fails to object to the Contract.
- ENTIRE AGREEMENT: The Contract constitutes the entire understanding between the parties with respect to the subject matter of the Contract, and supersedes all prior or contemporaneous discussions, negotiations, agreements, and understandings. No waiver, amendment, or modification to the Contract shall be effective unless specifically made in a writing signed by an authorized representative of Buyer.
- QUANTITY AND DURATION: The quantity of Goods applicable to each Order, and the duration applicable to each Order, are specified on the face of the Order.
- COST: Prices charged for the Goods listed on the Contract are not subject to increase, including, specifically, any increase based upon changes in currency fluctuations, raw material or component pricing, labor or overhead, unless specifically agreed to by Buyer on the face of the Contract or in a writing signed by an authorized representative of Buyer. Seller represents that all prices comply with all applicable governmental laws and regulations in effect at the time of quotation, sale and delivery. Seller shall ensure that the price charged to Buyer for Goods remains competitive with the price for similar goods or services available to Buyer from other sellers. Buyer shall also receive the full benefit of all discounts, premiums and other favorable terms of payment customarily offered by Seller to its customers. If Seller reduces its price for similar goods or services during the term of the Contract, Seller agrees to reduce the prices of the Goods to Buyer correspondingly. Seller warrants that the prices in the Contract shall be complete, and no additional charges of any type shall be added without Buyer’s express written consent.
- TAXES: Unless prohibited by law, Seller shall pay all federal, state or local taxes, transportation taxes, or other taxes, including, but not limited to, customs, duties, tariffs, fees, charges for certificates of origin, consular invoices, and any other documents, that are required to be imposed upon the Goods ordered, or by reason of their sale or delivery. All Contract prices shall be deemed to have included all such taxes.
- WARRANTY: Seller warrants that (a) the Goods strictly conform to all specifications, performance characteristics, drawings, statements on containers or labels, descriptions, and samples furnished to Buyer, as well as all industry standards, laws, and regulations in force in countries in which the Goods are manufactured or sold; (b) Seller has complied with QS 9000, ISO 14001, TS 16949, PPAP, APQP, and applicable reporting and other requirements; (c) the Goods shall be merchantable and fit and suitable for the particular purpose(s) intended by Buyer and Buyer’s customers and all other purposes for which such Goods are sold and used; (d) the Goods shall be free from defects in materials and workmanship; (e) the Goods shall be free and clear of all liens and encumbrances, good and merchantable title thereto being in Seller; (f) the Goods shall be new, and not used, refurbished or reconstituted; and (g) the price charged to Buyer for Goods remains competitive with the price for similar goods or services available to Buyer from other sellers. These warranties shall survive inspection, test, delivery, acceptance, use and payment by Buyer and shall inure to the benefit of Buyer, its successors, assigns, customers, and the users of Buyer’s goods and services. These warranties may not be limited or disclaimed. If Buyer experiences any breaches of any of the foregoing warranties, Buyer shall have the right, in addition to exercising all other rights Buyer may have under the Uniform Commercial Code and any other applicable statutes or law, to take the following actions, at Buyer’s option: (i) retain the defective Goods in whole or in part with an appropriate adjustment in the price for the Goods; (ii) require Seller to repair or replace the defective Goods in whole or in part at Seller’s sole expense, including all shipping, transportation and installation costs; (iii) correct or replace the defective Goods with similar items and recover the total cost relating thereto from Seller, including the cost of product recalls; or (iv) reject the defective Goods (and receive a full refund of the purchase price). Buyer shall not lose its right to claim for any loss and damage, including damage caused to any direct or indirect customer purchasing the Goods from Buyer, caused thereby in spite of such replacement, repair and/or compensation. Seller shall defend and hold Buyer harmless from any liability and claim arising from any alleged defect in the Goods or any other similar claim arising from the sale and/or use of the Goods.
- INSPECTION AND REJECTIONS: Buyer shall have the right (but not the obligation) to inspect, to review work progress, and to test all Goods, special tooling, materials and workmanship to the extent practicable at all times and places during the period of manufacture. If any inspection or test is to be made on the premises of Seller, Seller, without additional charge, shall provide all reasonable facilities and assistance for the safety and convenience of the inspectors in the performance of their duties. Notwithstanding the foregoing, however, any inspection of or payment for Goods by Buyer shall not constitute a waiver of Buyer’s remedies for any breach by Seller of any warranty, whether express or implied.
- SHIPMENT: (a) Deliveries shall be made both in quantities and at times specified in the Contract or in other similar documents furnished by Buyer. Time and quantity of delivery are of the essence. Unless otherwise specifically agreed to in a writing signed by an authorized representative of Buyer, partial shipments of the Goods shall not be permitted. In the event of delay in shipment or delivery due to any cause not attributable to Buyer, Buyer shall have the option either to terminate the Contract in whole or in part or to extend the period for shipment or delivery, and if shipment or delivery is further delayed due to any cause not attributable to Buyer beyond the period so extended by Buyer, Buyer may terminate the Contract in whole or in part at any time thereafter. In any event, any such extension or termination or partial termination shall be without prejudice to any other rights and remedies available to Buyer. Goods received in advance of Buyer’s delivery schedule may, at Buyer’s option, be returned at Seller’s expense or be accepted and payment made in accordance with the scheduled delivery date. (b) When Seller shall secure the vessel or vessel’s space, Seller shall, unless otherwise agreed in the Contract, ship the Goods on a first-class vessel classified Lloyd’s 100A1 or equivalent, owned and/or operated by a carrier of good reputation and standing, and of the type normally used for the transport of such type of goods. In such event, before loading of the Goods, Seller shall, at its expense, inspect the vessel’s hold for cleanliness and suitability for loading and inspect the vessel for suitability for the transport of the Goods to the port of destination. (c) If the Contract is on a C&F (or CFR) or CPT basis, unless otherwise agreed in the Contract, Seller shall compensate and reimburse Buyer for any additional insurance premiums incurred by Buyer as a result of charges made by Buyer’s insurance company for insurance of the Goods by reason of unclassed vessel, overage vessel, broken-up vessel or any other characteristic of the vessel or vessel’s space secured for the transport of the Goods. (d) In the event Buyer shall charter a vessel for ocean transportation of the Goods, all charges and expenses for loading of the Goods, including costs and other claims (including, but not limited to, demurrage) that are to be for the account of the charterer against the shipowner or the chartered owner under the relevant charter party, shall be borne and paid by Seller. (e) Promptly upon completion of the loading of the Goods (in case the Goods are to be transported by ship or aircraft) or promptly after the Goods are dispatched (in case the Goods are to be transported by other means), Seller shall cable or fax to Buyer notice of shipment or delivery specifying the contract number, invoice amount, description of the Goods and packaging, quantity loaded or dispatched, transportation route(s), mode(s) of transportation, vessel name(s), flight number(s) and/or corresponding details for other carriage, date, time and place of shipment or delivery, expected or estimated time of arrival of the Goods at the specified destination and other information relative to the Contract requested by Buyer. Such notice shall be in addition to and not in substitution for any other notice Seller may be obliged to give to Buyer under applicable law or otherwise. The giving of any such notice shall not affect any claim by Buyer in respect of late or defective delivery. (f) Buyer shall not be required to make payment for Goods delivered to Buyer that are in excess of firm quantities and delivery schedules specified by Buyer. Premium shipping expenses and/or other related expenses necessary to meet delivery schedules set forth in the Contract shall be Seller’s sole responsibility, unless the delay or expense was solely the result of Buyer’s negligence and Seller provides Buyer with notice of any claim against Buyer within ten (10) days after the occurrence of the alleged negligent action of Buyer giving rise to such claim. Notwithstanding any agreement concerning payment of freight expenses, except where shipment is by Buyer’s vehicle, delivery shall not have occurred and the risk of loss shall not have shifted to Buyer until the Goods have been delivered to Buyer’s facility and have been accepted at that facility. (g) For each Good that is shipped, Seller shall include a tag containing such information regarding such Good as is required by Buyer (including specifications such as, for example, the chemical composition and mechanical properties of such Good).
- EXCUSED PERFORMANCE: Any delay or failure by either party to perform its obligations shall be excused if (a) caused by an extraordinary and unforeseeable event beyond the control of the nonperforming party and without the nonperforming party’s fault or negligence, such as acts of God, fires, floods, windstorms, explosions, riots, natural disasters, wars and sabotage, and (b) such event could not have been prevented by the nonperforming party’s reasonable precautions or commercially accepted processes, or could not reasonably be circumvented by the nonperforming party through the use of substitute services (such as substitute transportation services), alternate sources, work-around plans or other means by which the requirements of the Contract could be satisfied. Events meeting both of the criteria set forth in clauses (a) and (b) above are referred to individually and collectively as “Force Majeure Events.” Upon the occurrence of a Force Majeure Event, the nonperforming party shall be excused from any further performance or observance of the affected obligation(s) for as long as such circumstances prevail and such party continues to attempt to recommence performance or observance to the greatest extent possible without delay. Written notice of any delay caused by a Force Majeure Event, including the anticipated duration of the delay, must be given by the nonperforming party as soon as reasonably practicable, in any event not to exceed seven (7) days following the Force Majeure Event. During the period of any delay or failure to perform by Seller, Buyer, at its option, may purchase Goods from other sources and reduce its schedules to Seller by such quantities, without liability to Buyer, or cause Seller to provide the Goods from other sources in quantities and at times requested by Buyer and at the price set forth in the Contract. If requested by Buyer, Seller shall, within five (5) days of such request, provide adequate assurance that the delay will not exceed such period of time as Buyer deems appropriate. If a Force Majeure Event continues for longer than thirty (30) days, then Buyer, at its sole option, may terminate any Order affected thereby or the Contract in whole or in part without any obligation or liability except that Buyer is still responsible for payment for Goods that have been delivered to and accepted by Buyer prior to receipt of the notice of the Force Majeure Event. Seller acknowledges and agrees that, without limitation, the following will not constitute Force Majeure Events and will not excuse performance by Seller under theories of force majeure, commercial impracticability or otherwise, and Seller expressly assumes these risks: (i) change in cost or availability of materials, components or services based on market conditions, supplier actions or contract disputes; (ii) failure of Seller’s internal business systems related to the proper processing of data or other information that results in any defect or failure in products or services, deliveries, or any other aspect of performance by Seller or its subcontractors; (iii) vandalism; (iv) the regulatory acts of governmental agencies; (v) labor strikes; or (vi) the non-performance of third parties or subcontractors relied on for the delivery of the Goods, except to the extent that such failure or non-performance by a third party or subcontractor is itself caused by a Force Majeure Event.
- INSURANCE: Seller shall provide comprehensive general liability insurance and insurance for an amount equivalent to one hundred ten percent (110%) of invoice amount, covering marine insurance of “All Risks” and “War and S.R.C.C. Risks,” unless otherwise agreed. Any additional insurance shall be provided by Seller in favor of Buyer on Buyer’s account upon the specific request of Buyer. All such insurance shall be with first class insurance companies satisfactory to Buyer and shall name Buyer as an additional insured. Upon Buyer’s request from time to time, Seller shall provide Buyer with certificates of insurance evidencing the insurance required by this Section 11. If Buyer is required to provide insurance, Seller shall timely and accurately advise Buyer of shipping particulars so as to enable Buyer to provide necessary insurance. Should Seller fail to perform as stipulated above, Seller shall, notwithstanding the terms of shipment to the contrary, bear all risks on the Goods until delivery at destination stipulated on the face of the Contract.
- INTELLECTUAL PROPERTY: Seller shall be liable for any infringement or claim with regard to industrial or intellectual property rights on or in relation to the Goods or containers, such as patents, utility models, trademarks, tradenames, designs, copyright, and patterns, whether in Buyer’s country or any other place. If any dispute or claim arises out of or in relation to any of the above industrial or intellectual property rights, Buyer shall have the right to terminate forthwith all or any part of the Contract by giving written notice of termination to Seller, and Seller shall hold Buyer harmless from any liability arising therefrom and shall be liable to Buyer for all losses and damages, including costs, expenses and charges for defensive actions by Buyer.
- BUYER’S PROPERTY; TOOLS, DESIGN WORK, DRAWINGS, SPECIFICATIONS AND TECHNICAL INFORMATION: Buyer shall have no obligation to furnish or pay for any design work, drawings, tools or other equipment required for the performance of any Order; provided, however, that Buyer may, at its option, purchase any such items especially required by Seller for any Order at the current value thereof on Seller’s books for income tax purposes and any item so purchased shall be deemed furnished to Buyer under the Contract. Any design, drawing, specification, photograph, tool or other equipment or material or part or engineering and manufacturing information heretofore or hereafter furnished to Seller by Buyer, or the cost of which shall have been paid by Buyer or included in the aggregate price of any Order, whether or not separately itemized in the Contract, shall be and remain Buyer’s property, shall be conspicuously identified as such in Seller’s records and by physical marking thereon, shall be promptly delivered to Buyer upon request, shall be treated as Confidential Information (as defined in Section 24 of these Terms and Conditions of Purchase), shall not be used in processing or manufacturing goods for anyone other than Buyer and, while in the possession of Seller, shall be Seller’s responsibility and shall be adequately insured at Seller’s expense for the benefit of Buyer against loss or damage by fire or other hazard. No change shall be made in any design, drawing, specification, tool or other equipment furnished by Buyer without Buyer’s express written consent. Any information that Seller may disclose to Buyer with respect to the design, manufacture or sale or use of the items covered by any Order shall be deemed to have been disclosed as part of the consideration for that Order, and Seller shall not assert any claim against Buyer by reason of Buyer’s use thereof.
- INDEMNIFICATION BY SELLER: Seller shall indemnify Buyer, its successors, assigns, and customers (whether direct or indirect) against any and all losses, damages and expenses (including attorneys’ fees and other costs of defending any action) that they, or any of them, may sustain or incur as a result of any claim of negligence, breach of warranty, personal injury or death, patent or trademark infringement, product liability, strict liability in tort, or based on any other theory of law or equity in connection with the Goods furnished by Seller under the Contract, or as a result of any claim that the Goods furnished by Seller fail to conform to or comply with any federal, state, local or foreign laws, regulations or standards, or based upon or arising out of any construction, installation, services or facilities furnished by Seller under or in connection with any Order.
- REMEDIES: (a) The rights and remedies reserved to Buyer shall be cumulative with, and additional to, all other or further remedies provided in law or equity. Without limiting the generality of the foregoing, should any Goods fail to conform to the warranties set forth in the Contract, if requested by Buyer, Seller shall reimburse Buyer for any special, incidental and consequential damages caused by nonconforming Goods, including, but not limited to, costs, expenses and losses incurred by Buyer (i) in inspecting, sorting, testing, repairing or replacing such nonconforming Goods, (ii) resulting from production interruptions, and (iii) in connection with claims for personal injury (including death) or property damage caused by such nonconforming Goods. (b) If Seller breaches the Contract in any way, Buyer shall (without prejudice to any other right or remedy that it may have) have the right (i) to terminate forthwith any or all of the Contract and/or any other contract with Seller by giving notice of termination to Seller, (ii) to stop and/or suspend the performance of any or all of its obligations under the Contract and/or any other contract with Seller without giving any notice, (iii) to reject all or any part of the delivered or undelivered Goods, (iv) forthwith to demand immediate delivery of the Goods, (v) to dispose of the Goods, if delivered, for the account of Seller in such manner as Buyer deems reasonable and to allocate the proceeds thereof towards satisfaction of any or all of the losses and damages incurred by Buyer or any sums due to Buyer, and/or (vi) to return to Seller, at Seller’s risk and expense, any of the Goods, if delivered. (c) In any such event as is specified in this Section 15, Seller shall pay to Buyer compensation in respect of all such loss and damage as may result therefrom, including, but not limited to, compensation for loss of profit that Buyer would otherwise have made on subsequent resale of the Goods, compensation for any additional expenditure reasonably incurred by Buyer in obtaining any other goods in replacement of those in respect of which the Contract has been determined and compensation for all losses and damages caused by reason of occurrence of any of above-mentioned events. (d) Buyer may terminate or suspend the performance of all or any part of the Contract in the event of closing of the foreign exchange, prohibition of import, refusal of issue of import licenses, or restriction by laws, regulations, ordinances, rules, governmental orders or directions, or administrative guidance, without any liability whatsoever. (e) In addition to any other rights of Buyer to terminate the Contract, Buyer may immediately terminate all or any part of the Contract, at any time without cause, by notifying Seller in writing at least seven (7) days prior to the termination, and Buyer’s sole liability for such termination shall be limited to Seller’s out-of-pocket cost for work and materials applicable solely to the terminated order that shall have been expended when notice of termination shall be received by Seller, reduced by the fair market resale value of such work-in-process.
- SETOFF/RECOUPMENT: (a) In addition to any right of setoff or recoupment allowed by law, all amounts due Seller, or any of its subsidiaries or affiliates shall be considered net of indebtedness or obligations of Seller, or any of its subsidiaries or affiliates to Buyer or any of its subsidiaries or affiliates, and Buyer may set off against or recoup from any amounts due or to become due from Seller, or any of its subsidiaries or affiliates to Buyer or any of its subsidiaries or affiliates, however and whenever arising, including, but not limited to, Buyer’s attorneys’ fees and costs of enforcement. In the event that Buyer or any of its subsidiaries or affiliates reasonably feels at risk, Buyer may withhold and recoup a corresponding amount due Seller or any of its subsidiaries or affiliates to protect against such risk. (b) If an obligation of Seller or any of its subsidiaries or affiliates to Buyer or any of its subsidiaries or affiliates is disputed, contingent or unliquidated, Buyer or any of its subsidiaries or affiliates may defer payment of all or any portion of the amount due until such obligation is resolved. Without limiting the generality of the foregoing and by way of example only, in the event of a bankruptcy of Seller, if all of the Contract and Orders between Buyer and Seller have not been assumed, then Buyer may defer payment to Seller, via an administrative hold or otherwise, for Goods against potential rejection and other damages. In the event of a Seller insolvency, Buyer also may set off, recoup, and/or withhold from amounts due Seller or any of its subsidiaries or affiliates any amounts that Seller is obligated to indemnify Buyer pursuant to the Contract, regardless of whether such amounts become due before or after the filing of a petition for bankruptcy protection by Seller.
- THIRD-PARTY CLAIMS: For any third-party claim for which Seller is liable to Buyer under the Contract, Buyer shall have the right, in each case at Seller’s expense, (a) to select and retain counsel of Buyer’s choice, (b) to control the defense of any such claim, and (c) to settle or otherwise resolve any such claim.
- SURVIVAL: Any provision of the Contract that by its nature or terms is intended to extend beyond the termination or expiration of the Contract (including this Section 18 and Sections 7, 12, 14, 15, 24, 26, 27 and 30 of these Terms and Conditions of Purchase) shall survive the termination or expiration of the Contract.
- SELLER FINANCIAL AND OPERATIONAL CONDITION: (a) Seller represents and warrants to Buyer as of the date of each Order (which representations and warranties shall be deemed repeated as of the date of Seller’s acceptance of each Order for Goods and at the time of each delivery under the Order) that: (i) there is no Seller Insolvency (as defined in Section 21 of these Terms and Conditions of Purchase), and Seller is in compliance with all loan covenants and other obligations; (ii) all financial information provided by Seller to Buyer concerning Seller is true and accurate; (iii) such financial information fairly represents Seller’s financial condition; and (iv) all financial statements of Seller have been prepared in accordance with generally accepted accounting principles, uniformly and consistently applied. (b) Seller shall permit Buyer and its representatives to review Seller’s books and records concerning compliance with the Contract and Seller’s overall financial condition and agrees to provide Buyer with full and complete access to all such books and records for such purpose upon Buyer’s request. Seller agrees that, if Seller experiences any delivery or operational problems, Buyer may, but is not required to, designate a representative to be present in Seller’s applicable facility to observe Seller’s operations. Seller agrees that, if Buyer provides to Seller any accommodations (financial or otherwise, including providing designated representatives as set forth above) that are necessary for Seller to fulfill its obligations under the Contract, Seller shall reimburse Buyer for all costs, including attorneys’ and other professionals’ fees, incurred by Buyer in connection with such accommodation and shall grant a right of access to Buyer to use Seller’s premises, machinery, equipment and other property necessary for the production of Goods covered by the Contract (and a lien to secure the access right) under an access and security agreement. (c) Seller agrees to provide prompt written notice to Buyer of any impending or threatened Seller Insolvency.
- COMPLIANCE WITH LAWS; INFORMATION ON GOODS: Seller shall conduct its business in strict compliance with all laws and regulations, including, but not limited to, any anti-corruption laws, such as the Foreign Corrupt Practices Act of the United States. Seller shall timely obtain, effectuate and maintain in force any required permit, license, exemption, filing, registration and other authorization in respect of the use, handling, transportation, storage, export, sale or disposal of the Goods, required under any applicable laws or regulations relating to, among other things, the environment, control of chemical substances and restriction of hazardous substances. Upon request from Buyer, Seller shall provide Buyer with information on, evidence of or certificate of the Goods to discharge any obligation Buyer may have under any applicable law or regulation in respect of the Goods, in a form and substance fully satisfactory to Buyer.
- SELLER INSOLVENCY: Buyer may immediately terminate the Contract without any liability of Buyer to Seller upon the occurrence of any of the following or any other similar or comparable event (each, a “Seller Insolvency”): (a) insolvency of Seller; (b) Seller’s inability to promptly provide Buyer with adequate and reasonable assurance of Seller’s financial capability to perform timely any of Seller’s obligations under the Contract; (c) filing of a voluntary petition in bankruptcy by Seller; (d) filing of an involuntary petition in bankruptcy against Seller; (e) appointment of a receiver or trustee for Seller; or (f) execution of an assignment for the benefit of creditors of Seller. Seller shall reimburse Buyer for all costs incurred by Buyer in connection with a Seller Insolvency, including, but not limited to, all attorneys’ fees and other professional fees.
- LIMITATIONS ON BUYER’S LIABILITY: IN NO EVENT SHALL BUYER BE LIABLE TO SELLER FOR ANTICIPATED PROFITS OR FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES. The parties further agree that, with respect to a claim arising out of or in connection with the termination of the Contract or any breach thereof by Buyer, Buyer’s liability, if any, shall be limited to the value of the Goods delivered to Buyer by Seller in the three (3) months immediately preceding the alleged termination or breach.
- TIME FOR BRINGING ACTION: Any action by Seller related to the Contract must be commenced within one (1) year after the cause of action has accrued.
- CONFIDENTIALITY: All proprietary and confidential information, including, but not limited to, the identity and quantity of the Goods ordered and other manufacturing or business information, supplied by Buyer (collectively, “Confidential Information”) shall remain Buyer’s property. Confidential Information shall not be reproduced, used or disclosed to others by Seller without Buyer’s prior written consent. Confidential Information shall not include information Seller can demonstrate: (a) is generally available to the public other than as the result of disclosure by Seller in violation of the Contract or any other confidentiality obligation; (b) is legally in Seller’s possession at the time of receipt from Buyer; or (c) is obtained by Seller from a third party that is in lawful possession of the information and that has the right to make disclosure thereof, but only if the third party has authorized Seller’s use thereof. Immediately upon termination of the Contract, all Confidential Information, together with any copies thereof, shall be returned to Buyer.
- NO ASSIGNMENT: Seller shall not assign its rights or delegate (or subcontract/sublet) its duties under the Contract, in whole or in part, without the prior written consent of Buyer, and any attempted or purported assignment or delegation (or subcontracting/subletting) without such consent shall be null and void.
- GOVERNING LAW: The construction, interpretation and performance of the Contract and all transactions thereunder shall be governed by the law of the State of Illinois, without regard to principles of conflicts of law. The 1980 United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
- RESOLUTION OF DISPUTES: Seller and Buyer agree that any dispute, controversy or claim arising out of or relating to the Contract, including the formation, interpretation, breach or termination thereof, including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the JAMS International Arbitration Rules. The tribunal will consist of three arbitrators. The place of arbitration will be the City of Chicago, Illinois. The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Buyer and Seller will bear equally the costs and expenses of JAMS and the arbitrators.
- EQUAL EMPLOYMENT OPPORTUNITY: The Equal Opportunity Clause set forth in Executive Order 11246, as amended (30 F.R. 12319), and the Affirmative Action Clauses set forth in the relevant federal government regulations pertaining to government contractors and subcontractors (41 C.F.R. §60-250.4 (Vietnam Veterans and Disabled Veterans) and 41 C.F.R. §60-741.4 (Handicapped)), are incorporated by reference herein.
- ELECTRONIC COMMUNICATIONS AND ELECTRONIC SIGNATURES: The Contract and any written document issued or delivered pursuant to or in connection with the Contract may be executed by facsimile signature or by scanned electronic image files attached to email and any such facsimile signature or electronic image file shall constitute an original for all purposes. In addition, Seller shall comply with any method of electronic communication specified by Buyer, including requirements for electronic funds transfer, order transmission, production orders, electronic signature, and communication.
- MISCELLANEOUS: (a) The failure of Buyer at any time to require full performance by Seller of the terms of the Contract shall not affect the right of Buyer to enforce the same. The waiver by Buyer of any breach of any provision of the Contract shall not be construed as a waiver of any succeeding breach of such provision or waiver of the provision itself. (b) If any term(s) of the Contract is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, then, at Buyer’s option, either (i) such term(s) shall be deemed reformed or deleted, as the case may be, but only to the extent necessary to comply with such statute, regulation, ordinance, order or rule, and the remaining provisions of the Contract shall remain in full force and effect, or (ii) the Contract shall be terminated without any liability of Buyer to Seller. (c) Seller agrees to pay any and all attorneys’ fees and other costs and expenses that may be incurred by Buyer to enforce any of the terms and conditions of the Contract or due to the breach by Seller of any of the terms and conditions of the Contract. (d) Seller and Buyer are independent contracting parties and nothing in the Contract shall make either party the agent or legal representative of the other for any purpose whatsoever, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other party. (e) The Contract shall not confer any rights or remedies upon any other person or entity, other than the parties to the Contract and their respective successors and permitted assigns. (f) The headings used in the Contract are for the purpose of reference and convenience only, and shall not limit or affect the meaning of provisions to which they refer. (g) As used in these Terms and Conditions of Purchase, the term “termination” (and any variations of such term) shall include the meaning of the term “cancellation” (and any variations of such term), as defined under Section 2-106 of the Illinois Uniform Commercial Code (810 ILCS 5/2-106), as applicable, and shall be without prejudice to any rights and remedies available to the terminating party.