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Terms and Conditions of Sale
COILPLUS, INC. TERMS AND CONDITIONS OF SALE
The following terms and conditions of sale are applicable to all sales of goods (“Goods”) made by Coilplus, Inc. (“Seller”) to buyer (“Buyer”).
- ACCEPTANCE AND MODIFICATION: The terms and conditions set forth herein, together with the applicable invoice for the Goods and any other Seller documents attached hereto or into which these terms and conditions are incorporated by reference (collectively, the “Contract”), constitute an offer or counteroffer by Seller to sell the Goods to Buyer, subject to and in accordance with these terms and conditions. The Contract is not an acceptance of any offer or counteroffer made by Buyer, and this offer and any contract arising out of this offer are expressly conditioned on Buyer’s assent to all of the terms and conditions set forth in the Contract. Seller objects to any additional or different terms or conditions contained in any request for quotation, purchase order, or other document or communication previously or hereafter provided by Buyer to Seller. If a purchase order or other document or communication from Buyer contains any such additional or different terms or conditions, Seller’s acceptance of any 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 Seller. No accepted offer may be terminated or altered by Buyer except upon terms and conditions accepted in a writing signed by an authorized representative of Seller. This offer may be revoked by Seller at any time before it is accepted by Buyer, and shall automatically expire thirty (30) days after its date if Buyer has not accepted it before then. Neither Buyer’s acceptance of this offer nor any conduct by Seller (including, but not limited to, shipment of Goods) shall oblige Seller to sell to Buyer any quantity of Goods in excess of the quantity that Buyer has committed to purchase from Seller at the time of such acceptance or conduct; provided, however, that such quantity of Goods shall be subject to a variation of plus or minus ten percent (10%), at Seller’s option. Seller is only selling Goods to Buyer, and Seller does not provide any services to Buyer.
- 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 Seller.
- LIMITED WARRANTY: Seller warrants only that the Goods conform to the description in the Contract, subject to tolerances and variations described in Section 4 of these Terms and Conditions of Sale. THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER EXPRESS OR IMPLIED WARRANTIES. NO OTHER WARRANTY, EXPRESS OR IMPLIED, IS MADE BY SELLER, AND SELLER SPECIFICALLY DISCLAIMS AND EXCLUDES ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT (OR THE LIKE), AND ANY AND ALL OTHER WARRANTIES ARISING UNDER LAW OR EQUITY OR FROM COURSE OF DEALING OR USAGE OF TRADE (AND BUYER ACKNOWLEDGES SUCH DISCLAIMER).
- TOLERANCES AND VARIATIONS: All Goods shall be subject to tolerances and variations consistent with usual trade practices regarding dimensions, straightness, section, composition and mechanical properties and normal variations in surface and internal conditions and quality, and also shall be subject to deviations from tolerances and variations consistent with practical testing and inspection methods.
- INSPECTION: The Goods must be examined by Buyer immediately upon receipt to determine correctness of a shipment as to quantity, size, length, and condition. Buyer must not cut, fabricate, or otherwise use the Goods without such examination.
- CLAIMS: Any claim of non-conformity with respect to the Goods or their shipment or delivery is waived, unless made in a writing by Buyer that specifically states the details of such non-conformity within a reasonable time not exceeding thirty (30) days after the Goods are delivered by Seller. Any other action by Buyer related to the Contract (e., any claim other than a claim of non-conformity with respect to the Goods or their shipment or delivery) must be commenced within one (1) year after the Goods are delivered by Seller. Notwithstanding anything in the Contract to the contrary, in no event shall Buyer commence any action related to the Contract later than one (1) year after the cause of action has accrued.
- LIMITATION OF REMEDIES: Seller shall be given reasonable and prompt opportunity to examine any claim of defect by Buyer. Buyer agrees that its sole and exclusive remedy against Seller, and Seller’s sole and exclusive obligation, for any deficiency in Goods shall be limited to either repair or replacement of the Goods or a refund of the purchase price, in each case at Seller’s option. This exclusive remedy shall be conditioned upon Buyer’s return of such Goods to Seller. This exclusive remedy shall not be deemed to have failed of its essential purpose so long as Seller is willing to repair or replace the defective Goods or refund the purchase price for such defective Goods.
- LIMITATION OF LIABILITY: Seller’s liability with respect to the Goods sold under the Contract shall be limited as provided in Section 7 of these Terms and Conditions of Sale. IN ANY EVENT, THE MAXIMUM LIABILITY, IF ANY, OF SELLER FOR ANY AND ALL CLAIMS OF BUYER, INCLUDING, WITHOUT LIMITATION, CLAIMS FOR CONTRACT DAMAGES AND DAMAGES FOR INJURIES TO PERSONS OR PROPERTY, WHETHER ARISING FROM SELLER’S BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OTHER TORT, OR ANY OTHER THEORY OF LAW OR EQUITY, IS LIMITED TO AN AMOUNT NOT TO EXCEED THE PURCHASE PRICE OF THE GOODS AT ISSUE IN THE CLAIM. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST REVENUES AND PROFITS AND/OR MONETARY REQUESTS RELATING TO RECALL EXPENSES AND REPAIRS TO PROPERTY, INCLUDING THIRD PARTY CLAIMS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND BUYER WAIVES ALL SUCH CLAIMS REGARDLESS OF THE FORM IN WHICH ANY ACTION IS BROUGHT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE limitation of damages PROVISIONS SET FORTH IN THIS SECTION 8 survive between Buyer and Seller even if the exclusive remedy set forth IN SECTION 7 OF THESE TERMS AND CONDITIONS OF SALE is deemed to fail of its essential purpose.
- PRICE: Unless otherwise quoted by Seller, prices shall be those in effect at the time of shipment. Unless other terms are specified in the attachments to this document, all prices are quoted and payable in U.S. Dollars. The prices quoted do not include any taxes imposed on the sale of the Goods. Any manufacturer’s tax, occupation tax, use tax, sales tax, excise tax, GST, value added tax, duty, custom, inspection or testing fee, or any other tax, fee, interest or charge of any nature whatsoever imposed by any governmental authority (whether domestic or foreign, or federal, state or local) on or measured by the transactions between Seller and Buyer (other than income taxes imposed on Seller) shall be added to the price of Goods, invoiced separately, and paid by Buyer in addition to the prices quoted or invoiced. Buyer agrees to reimburse Seller for any such tax or provide Seller with acceptable tax exemption certificate. Additionally, Seller reserves the right to correct any obvious errors in specifications or prices.
- INCREASED COSTS: Any increase in Seller’s costs of performance after the date stated in the box marked as the “Order Date” on the face of the Contract, including, but not limited to, increased or additional freight surcharges, additional taxes, duties, assessments or other charges imposed or collected by any governmental or taxing authority, increased insurance rates, and all other additional charges relating to the sale, loading, unloading, delivery, storage and transportation of the Goods, shall be the responsibility of Buyer.
- PAYMENT TERMS: Unless otherwise stated on the face of the Contract, payment is due thirty (30) days from the date of each invoice, without discount. Any variance from these payment terms must be specifically approved in a writing signed by an authorized representative of Seller. If Buyer’s failure to make payment or otherwise perform its obligations under the Contract is reasonably anticipated or if, in the judgment of Seller, the financial condition of Buyer at any time prior to shipment does not justify the extension of credit, then Seller may demand adequate assurance, satisfactory to Seller, of the due performance of the Contract by Buyer (including, but not limited to, by requiring payment in advance or otherwise modifying the payment terms upon notice to Buyer) and stop any pending or future shipments. Unless Buyer gives Seller such assurance within forty-eight (48) hours of Seller’s demand, Seller may, without prejudice to any other rights or remedies it may have and without any liability of Seller to Buyer, terminate the portion of the Contract that relates to the undelivered Goods, and all accounts payable by Buyer to Seller for the Goods delivered under the Contract shall, upon Seller’s declaration, become immediately due and payable in cash in full. All delays occasioned by acts of Buyer shall be at the expense of Buyer. Seller reserves the right to assess reasonable charges for its expenses resulting from such delays. All shipments shall be separately invoiced and paid for without regard to subsequent deliveries.
- LATE CHARGES: Without limiting the generality of Seller’s rights and remedies (including, without limitation, those in Section 24 of these Terms and Conditions of Sale), if any of the purchase price is not paid in full when due, Buyer shall pay a late charge on the amount unpaid for each day from the due date until paid in full at a rate per annum at all times equal to six percent (6%) above the prime commercial lending rate announced from time to time by Chase Bank (or its successor) at its principal New York City office; provided, however, that nothing in the Contract shall require the payment of any amount in excess of the maximum amount permitted by law. Late charges shall be payable on demand.
- SETOFF/RECOUPMENT: Buyer acknowledges and agrees that payments owed to Seller for Goods supplied under the Contract are not subject to any setoff, counterclaim, recoupment or other similar rights by Buyer or its subsidiaries or affiliates unless and until Seller specifically agrees to such setoff, counterclaim, recoupment or other similar rights in a writing signed by an authorized representative of Seller, and that Buyer shall not exercise its right to setoff, counterclaim, recoupment or other similar rights in connection with any disputed, contingent or unliquidated claim.
- DELIVERY: All shipment or delivery dates are approximate. The date of the bill of lading shall constitute conclusive evidence of the date of shipment. Partial shipment and/or transshipment shall be permitted. No non-conforming tender, or delay or failure in the shipment or delivery of any one lot shall excuse Buyer from accepting tender of any remaining installments under the Contract. Purchase orders shall be issued at least sixteen (16) weeks in advance of the desired delivery date, and are non-cancellable, irrevocable purchase obligations of Buyer. Delivery schedules shall be issued at least five (5) business days in advance of the desired delivery date, and are non-cancellable, irrevocable purchase obligations of Buyer. Orders are subject to confirmation of longer lead-times. Air freight or alternative inland handling for rush shipments may be available upon Buyer’s request and at Buyer’s sole expense. Unless otherwise specified in the Contract, Buyer shall be responsible for all transportation arrangements and costs from Seller’s specified delivery point or warehouse to Buyer’s destination.
- TRADE TERMS: Unless otherwise provided in the Contract, Goods shall be delivered from Seller’s specified delivery point. Buyer’s receipt of Goods, and delivery of the Goods to Buyer, shall immediately occur when Buyer, Buyer’s bailee or other agent or designee (including, without limitation, any customer or supplier of Buyer to which the Goods are delivered), or the carrier receives either actual or constructive possession of the Goods. Constructive possession shall include, without limitation, receipt by an entity or individual (including, without limitation, Buyer’s customer or supplier) pursuant to a drop ship instruction or other delivery instructions from Buyer. Constructive possession specifically does not require actual possession by Buyer. Regardless of shipping terms or freight payment, Buyer shall bear all risk of loss or damage in transit.
- INSURANCE: Buyer shall provide comprehensive general liability insurance and other insurance customary for transactions of this nature. Any additional insurance shall be provided by Buyer in favor of Seller on Seller’s account upon the specific request of Seller. All such insurance shall be with first class insurance companies satisfactory to Seller and shall name Seller as an additional insured. Upon Seller’s request from time to time, Buyer shall provide Seller with certificates of insurance evidencing the insurance required by this Section 16.
- EXCUSED PERFORMANCE: If the performance by Seller of its obligations under the Contract is prevented by force majeure, being an act, event or circumstance, whether or not reasonably foreseeable, which directly or indirectly affects the activities of Seller or any other person, firm or corporation connected with the sale, manufacture, supply, shipment or delivery of the Goods, including, but not limited to, acts of God, flood, typhoon, earthquake, tidal wave, landslide, severe weather, fire, plague, epidemic, quarantine restriction, perils of the sea; war or threat of the same, civil commotion, blockade, arrest or restraint of government, rulers or people, requisition of vessel or aircraft, acts or threats of terrorism; strike, lockout, slowdown, sabotage, other labor dispute or inability to obtain necessary labor; explosion, accident, breakdown or unavailability, in whole or in part, of machinery, plant transportation or loading facility, contamination by radioactivity or chemical substances; governmental request, guidance, order or regulation; freight embargoes; unavailability of or delay in transportation or loading facility; curtailment, shortage or failure in the supply of fuel, electric current, other public utility, or raw material, including crude oil, petroleum or petroleum products; bankruptcy, insolvency or default of the manufacturer or supplier of the Goods or goods or materials incorporated into the Goods; production schedules of the producing mill; boycotting of goods; substantial change of the present international monetary systems; acts of Buyer; or any other act, event or circumstance whatsoever beyond the reasonable control of Seller, then Seller shall not be liable for loss or damage, or failure or delay in performing its obligations under the Contract and may, at its sole discretion, extend the time of shipment or delivery of the Goods or terminate unconditionally and without liability the unfulfilled portion of the Contract.
- INFRINGEMENT: Seller shall not be liable to Buyer in any way for any losses, liabilities, settlements, costs or expenses (including attorneys’ fees) paid or incurred by Buyer resulting from any claim that the Goods or their sale infringe any patent, trademark, copyright, design or other industrial or intellectual property right of any third party and, if Buyer has furnished the specifications, Buyer shall indemnify and defend Seller against any and all losses, liabilities, settlements, costs and expenses (including attorneys’ fees) paid or incurred by Seller resulting from any such claim.
- THIRD-PARTY CLAIMS: For any third-party claim for which Buyer is liable to Seller under the Contract, Seller shall have the right, in each case at Buyer’s expense, (a) to select and retain counsel of Seller’s choice, (b) to control the defense of any such claim, and (c) to settle or otherwise resolve any such claim.
- CONFIDENTIALITY: All proprietary and confidential information, including, but not limited to, pricing of the Goods and other manufacturing or business information, supplied by Seller (collectively, “Confidential Information”) shall remain Seller’s property. Any sketches, models or samples submitted by Seller shall be treated as Confidential Information unless Seller in writing has indicated a contrary intent. Confidential Information shall not be reproduced, used or disclosed to others by Buyer without Seller’s prior written consent. Confidential Information shall not include information Buyer can demonstrate: (a) is generally available to the public other than as the result of disclosure by Buyer in violation of the Contract or any other confidentiality obligation; (b) is legally in Buyer’s possession at the time of receipt from Seller; or (c) is obtained by Buyer 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 Buyer’s use thereof. Immediately upon termination of the Contract, all Confidential Information, together with any copies thereof, shall be returned to Seller. Buyer’s obligations under this Section 20 shall survive the termination of the Contract.
- CERTAIN BUYER CHANGES AND EVENTS: Buyer shall promptly notify Seller in writing of any changes in Buyer’s legal status (including, but not limited to, any change in name, state of incorporation/formation or type of legal entity, or any dissolution), any change in Buyer’s location or primary mailing address, or any merger, sale, reorganization, restructuring or other similar event involving Buyer.
- BUYER FINANCIAL AND OPERATIONAL CONDITION: (a) Buyer represents and warrants to Seller as of the date of the Contract (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 Event of Default (as defined in Section 24 of these Terms and Conditions of Sale), and Buyer is in compliance with all loan covenants and other obligations; (ii) all financial information provided by Buyer to Seller concerning Buyer is true and accurate; (iii) such financial information fairly represents Buyer’s financial condition; and (iv) all financial statements of Buyer have been prepared in accordance with generally accepted accounting principles, uniformly and consistently applied. (b) Buyer shall promptly provide to Seller such financial information as Seller may request from time to time related to Buyer’s creditworthiness and financial condition. (c) Buyer shall permit Seller and its representatives to review Buyer’s books and records concerning compliance with the Contract and Buyer’s overall financial condition and agrees to provide Seller with full and complete access to all such books and records for such purpose upon Seller’s request. Buyer agrees that, if Seller provides to Buyer any accommodations (financial or otherwise) that are necessary for Buyer to fulfill its obligations under the Contract, Buyer shall reimburse Seller for all costs, including attorneys’ and other professionals’ fees, incurred by Seller in connection with such accommodation. (d) Buyer agrees to provide prompt written notice to Seller of any impending or threatened Event of Default.
- COMPLIANCE WITH LAWS: Buyer 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. Buyer 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, import, sale or disposal of the Goods, required under any applicable law or regulation relating to, among other things, the environment, control of chemical substances and restriction of hazardous substances. Buyer shall not export or re-export, directly or indirectly, any Goods without obtaining the license or approval, if it is required under applicable international or national export control laws.
- DEFAULT: If any one of the following events (each, an “Event of Default”) shall occur:
- failure by Buyer to perform any provision of the Contract or any other agreement with Seller, if any, (except for failure to pay any amount when due) and such failure has not been cured within thirty (30) days after the date of such failure;
- failure by Buyer to pay any amount when due (including the purchase price) under the Contract or any other agreement with Seller;
- Buyer becomes unable to pay its debts generally as they become due or becomes insolvent;
- insolvency, bankruptcy, liquidation or dissolution of Buyer, or the institution of such proceedings by or against Buyer;
- appointment of a trustee, receiver, administrator or liquidator over any of Buyer’s assets or property;
- issuance of an order for the attachment of Buyer’s assets or property;
- general assignment by Buyer for the benefit of its creditors;
- cancellation or reduction of trade credit insurance coverage insured for Seller against risk of Buyer’s failure or inability to make the payment of the Contract price or any other amount payable by Buyer to Seller under the Contract;
- any material change in Buyer’s financial condition or business that may have, in Seller’s opinion, an adverse effect on Buyer’s ability to perform under the Contract; or
- any direct or indirect change in control of Buyer;
then Seller may, at its sole discretion, in addition to, and without prejudice to, the other rights and remedies that may be available to Seller under the Contract, at law or in equity, (i) forthwith terminate the Contract, in whole or in part, by notice in writing to Buyer; (ii) delay or suspend shipment or delivery of the Goods, stop the Goods in transit, resell the Goods, hold the Goods at the risk of Buyer, or change terms of sale (including, without limitation, requiring cash-in-advance or cash before delivery); and/or (iii) forthwith demand immediate payment of all sums payable by Buyer under the Contract or any other agreement with Buyer, whereupon the same shall become immediately due and payable. Buyer shall reimburse Seller for all losses or damages arising directly or indirectly from any of these events. If any Event of Default occurs, then, in addition to the foregoing and any other rights and remedies that may be available to Seller under the Contract, at law or in equity, Buyer shall be liable to Seller for all costs of collection, whether or not litigation is instituted, including reasonable attorneys’ fees and disbursements.
- PURCHASE MONEY SECURITY INTEREST: If the Goods are sold on credit terms, Buyer acknowledges that Seller retains a purchase money security interest in the Goods, and to secure Buyer’s obligations to Seller under the Contract or any other agreement or otherwise, Buyer hereby grants to Seller a security interest in all the Goods sold under the Contract, whether now owned or hereafter acquired, and all products and proceeds thereof, and Buyer acknowledges that Seller may file any financing statements and send any notices necessary or appropriate to perfect or protect such security interest.
- NO ASSIGNMENT: Buyer shall not assign its rights or delegate its duties under the Contract, in whole or in part, without the prior written consent of Seller, and any attempted or purported assignment or delegation 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: The parties hereby (a) irrevocably and unconditionally submit to the non-exclusive jurisdiction of the state and federal courts located in the County of Cook in the State of Illinois with respect to the adjudication of any suit, action or proceeding arising out of or relating to the Contract and (b) irrevocably and unconditionally waive any objection to the laying of venue in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. EACH PARTY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE RIGHT TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR FORUM TO WHICH THEY MAY BOTH BE PARTIES, ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THE CONTRACT, THE BREACH THEREOF, OR WITH RESPECT TO ANY MATTER OR DISPUTE BETWEEN THEM. In the alternative, at Seller’s option, 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, Buyer shall comply with any method of electronic communication specified by Seller, including requirements for electronic funds transfer, order transmission, production orders, electronic signature, and communication.
- MISCELLANEOUS: (a) Seller’s failure to exercise a right or remedy or Seller’s acceptance of a partial or delinquent payment shall not be deemed to be a waiver of any of Seller’s rights or Buyer’s obligations under the Contract, and shall not constitute a waiver of Seller’s right to declare an immediate or a subsequent default. (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 Seller’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 Seller to Buyer. (c) In the event of Seller’s enforcement of any term or condition in the Contract, Buyer shall be liable to Seller for all costs, including attorneys’ fees, incurred by Seller in enforcing the Contract and in collecting any sums owed by Buyer to Seller. (d) In its relationship with Seller, Buyer is an independent contractor, and nothing in the Contract shall be construed such that Buyer shall be considered an employee, agent or partner of Seller. (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 Sale, 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.