TERMS AND CONDITIONS OF SALE
1. Acceptance: THESE TERMS AND CONDITIONS SHALL BE INCORPORATED INTO AND MADE PART OF SELLER’S CONFIRMATION ISSUED FROM ITS CORPORATE HEADQUARTERS IN NEW JERSEY (“CONFIRMATION”) AND SHALL APPLY TO THE EXCLUSION OF ANY TERMS AND CONDITIONS OF BUYER. THE TERMS AND CONDITIONS OF THE CONFIRMATION GOVERN THE PURCHASE AND SALE OF THE PRODUCT DESCRIBED ON THE CONFIRMATION (“PRODUCT”). SELLER AGREES TO SUPPLY THE PRODUCT ONLY UPON THE TERMS AND CONDITIONS OF THE CONFIRMATION. SELLER’S ACCEPTANCE OF BUYER’S ORDER AND AGREEMENT TO DELIVER THE PRODUCT IS EXPRESSLY LIMITED TO, AND EXPRESSLY MADE CONDITIONAL ON, BUYER’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THE CONFIRMATION. THE CONFIRMATION OF BUYER’S PURCHASE ORDER IS NOT SUBJECT TO ANY OTHER TERMS AND CONDITIONS UNLESS SUCH TERMS AND CONDITIONS ARE SET FORTH IN AN AGREEMENT SIGNED BY BOTH SELLER AND BUYER THAT REFERENCES AND SPECIFICALLY AMENDS THESE TERMS AND CONDITIONS. IN THE EVENT BUYER'S PURCHASE ORDER OR ANY OTHER DOCUMENT SUBMITTED BY BUYER INCLUDES TERMS AND CONDITIONS THAT DIFFER FROM OR ARE IN ADDITION TO THE TERMS AND CONDITIONS OF THE CONFIRMATION, (A) SUCH TERMS AND CONDITIONS ARE EXPRESSLY REJECTED BY SELLER AND ARE NULL AND VOID AND (B) SELLER SHALL NOT BE DEEMED TO HAVE WAIVED THE TERMS AND CONDITIONS OF THE CONFIRMATION IF IT FAILS TO OBJECT TO SUCH TERMS AND CONDITIONS. EITHER OF (Y) BUYER’S FAILURE TO SUBMIT A WRITTEN OBJECTION TO THESE TERMS AND CONDITIONS TO SELLER WITHIN FIVE (5) DAYS OF BUYER’S RECEIPT OF THE CONFIRMATION OR (Z) SELLER’S COMMENCEMENT OF THE DELIVERY OF THE PRODUCT AND BUYER’S ACCEPTANCE OF SUCH DELIVERIES SHALL CONSTITUTE A FIRM CONTRACT ON THE TERMS AND CONDITIONS OF THE CONFIRMATION.
2. General Definitions: As used herein, “Buyer” means the party who submits a Purchase Order, which is confirmed by the Confirmation and made subject to the terms and conditions of the Confirmation, “Seller” means HiCube Coating, a subsidiary of Lamart Corporation and “Purchase Order” means the purchase order, electronic order or any other order submitted by Buyer. Unless the context otherwise clearly requires, references to the plural include the singular and the singular the plural, and “or” has the inclusive meaning represented by the phrase “and/or” and “including” and its variants has the meaning represented by the phrase “including, without limitation”.
3. Prices: Prices are based on labor and material costs prevailing on the date of the Confirmation. Buyer is responsible for all costs of delivery, and Buyer is responsible for any costs of packaging other than Seller's standard packaging and commercial container. Unless the Confirmation expressly states otherwise, Buyer shall pay all taxes, including sales, use, excise or any other taxes, assessments, duties or charges imposed by federal, state, local or foreign governments on the manufacture, sale, shipment, import, export, or use of the Product (other than income taxes). Unless the Confirmation expressly states otherwise, payment of Seller’s invoice is due within thirty (30) days of the invoice date. No discounts are allowed or earned if, at the time of receipt of a payment claiming a discount, the account is past due. If a payment is delayed due to a late delivery or discrepancy on an invoice, then it is Buyer’s responsibility to notify Seller prior to the payment date in order to still qualify for the discount. If a discount is taken outside the discount terms without justification, then Seller may, at its option, ask Buyer to repay the discount. Seller may, at its option, impose a late payment charge on any past due invoice equal to the lesser of 1.5% per month or any portion thereof or the maximum rate allowed by law on the entire outstanding balance, until the outstanding balance is paid in full. If Seller deems itself insecure with Buyer’s ability to pay any invoice, Seller reserves the right to either withhold shipments or impose or revise Buyer’s credit limits. Buyer shall not set off or recoup invoiced amounts or any portion thereof against sums that are due or may become due from Seller or its subsidiaries or affiliates.
4. Delivery; Title; Risk of Loss: Unless the Confirmation expressly states otherwise, (a) all deliveries of the Product from Seller’s location (in the United States) to a United States location are F.O.B., Seller’s facility, and (b) all deliveries of the Product from Seller’s location (in the United States) to an international location are EX Works, Seller’s facility. Buyer is responsible for all duties, taxes and other charges payable upon export. Title shall pass to Buyer at Seller’s point of shipment. Buyer is responsible for compliance with all import and export control laws and regulation. Buyer must obtain, at its sole cost and expense, all import, export and re-export approvals, licenses and clearances required for the Product and shall retain documentation evidencing compliance with said laws and regulations. All delivery dates are approximate and Seller shall not be responsible for any damages of any kind resulting from any delay. Buyer agrees to accept partial or pro rata deliveries as full performance in the event Seller cannot fulfill an entire order. Seller shall not be liable for any default or delay in performance if caused directly or indirectly, by acts of God; war; force of arms; fire; flood; the elements; riot; labor disputes; picketing or other labor controversies; sabotage; civil commotion; accidents; any governmental action, prohibition or regulation; delay in transportation facilities; shortage or breakdown of or inability to obtain or non-arrival of any labor, material or equipment used in the manufacture of the Product; failure of any party to perform any contract with Seller relative to the production of the Product; or from any cause whatsoever beyond Seller’s control. Orders below Seller’s minimum order requirement may be subject to additional shipping and handling charges.
5. Buyer Caused Delay: Seller is not liable for any delays or increased costs arising out of, by reason of, or in any way connected with any breach by Buyer of any of its obligations hereunder, or any other act, omission or negligence of Buyer or any of Buyer's employees, workers, servants, agents, subcontractors or suppliers. If Buyer-caused delay occurs, then the price and other affected items shall be adjusted to reflect increased costs, delay and other adverse impact suffered by Seller. If delivery of the Product is delayed due to conduct of Buyer or any of Buyer's employees, workers, servants, agents, subcontractors or suppliers, then Seller may store the Product at Buyer’s sole cost, expense and risk.
6. Inspection: Product is presumed accepted unless Seller receives written notice of rejection from Buyer explaining the basis for rejection within thirty (30) days from the date of shipment and Buyer dispositions the Product to Seller in accordance with Seller’s written instructions. Seller shall have a reasonable opportunity to repair or replace, at Seller’s election, the rejected Product. If Seller reasonably determines that rejection was improper, Buyer shall be responsible for all expenses caused by the improper rejection.
7. Guaranty: Seller warrants that the Product shall materially comply with Seller’s specifications therefore, unless Buyer and Seller agree upon other specifications and such other specifications are attached to or incorporated into the Confirmation, for sixty (60) days from the date of shipment, unless the Confirmation expressly states otherwise. Seller’s obligation and Buyer’s sole remedy under this warranty is repair or replacement, at Seller’s election, of the nonconforming Product. THIS WARRANTY IS SELLER'S SOLE OBLIGATION AND IS EXCLUSIVE AND IN LIEU OF ALL OTHER REMEDIES OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTY OF PERFORMANCE, MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND SUPERSEDES AND EXCLUDES ANY ORAL OR WRITTEN WARRANTIES OR REPRESENTATIONS, MADE OR IMPLIED IN ANY MANUAL, LITERATURE, ADVERTISING BROCHURE OR OTHER MATERIALS. SELLER FURTHER DISCLAIMS ANY AND ALL RESPONSIBILITY TO BUYER OR TO ANY OTHER PERSON FOR INJURY OR DAMAGE TO OR LOSS OF PROPERTY OR VALUE CAUSED BY (A) ANY PRODUCT WHICH HAS BEEN SUBJECTED TO MISUSE, NEGLIGENCE, OR ACCIDENT, OR HAS BEEN MISAPPLIED, MODIFIED, OR REPAIRED BY A PERSON OR PERSONS NOT AUTHORIZED BY SELLER, OR HAS BEEN IMPROPERLY INSTALLED OR (B) ANY PRODUCT WHICH HAS BEEN MANUFACTURED FROM BUYER’S PATTERNS, PLANS, DRAWINGS OR SPECIFICATIONS, OR HAS BEEN MANUFACTURED WITH BUYER’S RAW MATERIALS. ANY ACTION FOR ANY LOSS OR DAMAGE WITH RESPECT TO THE PRODUCT MUST BE COMMENCED BY BUYER WITHIN ONE (1) YEAR FROM THE DATE OF INVOICE.
8. Limitation of Liability: SELLER’S LIABILITY TO BUYER ON ANY CLAIM OF ANY KIND, INCLUDING NEGLIGENCE, WITH RESPECT TO THE PRODUCT, SHALL IN NO CASE EXCEED THE PURCHASE PRICE OF THE PRODUCT OR ANY PART THEREOF WHICH GIVES RISE TO THE CLAIM. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF THESE DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, ARISING OUT OF, OR AS A RESULT OF, THE SALE, DELIVERY, NON-DELIVERY, SERVICING, USE OR LOSS OF USE OF THE PRODUCT OR ANY PART THEREOF, OR FOR ANY CHARGES OR EXPENSES OF ANY NATURE INCURRED RELATED THERETO.
9. Indemnification: To the maximum extent allowed by law, Buyer shall indemnify, defend and hold harmless Seller and its subsidiaries, affiliates and agents, and their respective employees, officers, directors and shareholders (collectively, “Indemnities”) from and against all sums, costs, liabilities, losses, obligations, suits, actions, damages, penalties, fines, interest and other expenses (including investigation expenses and attorneys' fees) that an Indemnitee may incur or be obligated to pay arising out of, or as a result of, (i) Buyer's negligence or willful misconduct, (ii) use, ownership, modification, maintenance, transfer, transportation or disposal of the Product; or (iii) Buyer's violation or alleged violation of any federal, state, county or local laws or regulation, including the laws and regulations governing product safety, labeling, packaging and labor practices. Buyer hereby waives and releases Seller from all rights of contribution or indemnity to which it may otherwise be entitled.
10. Cancellation; Returns: After confirmation by Seller, the Purchase Order may not be cancelled by Buyer except with Seller’s express written consent. Returns must be approved by Seller in writing, and shall only be approved by Seller though the issuance of a Return Goods Authorization. Seller shall only issue a Return Goods Authorization if Buyer provides Seller with information which Seller, in its sole discretion, deems sufficient to demonstrate that the return is appropriate. Returns are subject to restocking and transportation fees, and returned Product must be in resalable condition, unopened and with the sale receipt or invoice. Custom orders or specialty products cannot be returned.
11. Manufacturing Hardship: If for any reason Seller’s production or purchase costs for the Product (including costs of energy, equipment, labor, regulation, transportation or raw materials) increase by more than 10% over Seller’s production or purchase costs for the Product on the date of the Confirmation, then Seller may, by written notice to Buyer of such increased costs, request a renegotiation of the price of the Product. In the event Buyer and Seller are not able to agree upon a revised price for the Product within ten (10) days after a request for renegotiation is given, then Seller may terminate its confirmation and these Terms and Conditions upon ten (10) days written notice to Buyer.
12. Technical Advice or Assistance: Upon request, Seller in its sole discretion may furnish as an accommodation to Buyer technical advice or assistance regarding the Product. Seller assumes no obligation or liability for the advice or assistance given or results obtained, which shall be at Buyer’s sole risk.
13. Buyer’s Tooling, Goods and Other Property: In the event that Seller requires any of Buyer’s tooling, goods and other property, all of such materials in Seller’s possession shall be fully insured by Buyer, and Buyer releases Seller from all liability for loss or damage to such materials caused by Seller’s negligence or otherwise. After one (1) year upon completion of any order requiring the use of such materials, Seller may use or dispose of such materials without liability to Buyer.
14. Intellectual Property: Buyer agrees it shall not, and shall not attempt to, copy, disassemble or reverse engineer nor permit anyone else to, or attempt to, copy, disassemble or reverse engineer any of the Product or any part thereof, or any pattern, plan, drawing, specification, instruction or depiction thereof, without written approval of Seller, and that it shall not knowingly, directly or indirectly, violate or infringe upon or contest the validity of any patent, license or other right of Seller pertaining to any of said Product. Where any of the Product is manufactured from patterns, plans, drawings or specifications furnished by Buyer (including Buyer's trademarks and brand names), Buyer shall indemnify, defend and hold harmless the Indemnities from and against all sums, costs, liabilities, losses, obligations, suits, actions, damages, penalties, fines, interest and other expenses (including investigation expenses and attorneys' fees) that an Indemnitee may incur or be obligated to pay arising out of, or as a result of any infringement or alleged infringement of any patent, trademark, copyright or other right because of Seller’s manufacture of such Product or because of the use or sale of such Product by any person.
15. Security Interest: To secure payment of all sums due hereunder or otherwise, Seller shall retain a security interest in the Product and the Confirmation shall be deemed a Security Agreement under the Uniform Commercial Code. Buyer authorizes Seller as its attorney-in-fact to execute and file on Buyer's behalf all documents Seller deems necessary to perfect such security interest. Seller is relying upon Buyer's representation of solvency and if Seller at any time reasonably believes that Buyer is insolvent or that Buyer's credit is impaired, or if Buyer shall fail to make payment when due which payment is not cured within ten (10) days after receipt of notice of the same from Seller, Buyer shall be in material breach hereof and Seller may, without liability to Buyer, withhold performance hereunder, change the payment terms or repossess the Product theretofore delivered. In extending any credit hereunder, Seller may charge Buyer finance, service or late charges in an amount not greater than allowed by law, and if Buyer fails to pay according to the terms of this agreement, Seller may make such charges and may also collect the amount unpaid with Buyer being liable to Seller for all costs of collection including attorney's fees.
16. Confidentiality. Publicity: Buyer understands and agrees that the Confirmation shall be kept confidential and, in particular, it shall take all reasonable measures to insure that specific or technical data, specifications, engineering, drawings, blueprints and like information and data identified by Seller as, or known, or reasonably should be known, by Buyer to be, proprietary or trade secret information shall be so kept confidential and disclosed within Buyer’s organization only on a need-to-know basis. Buyer shall not issue any press release or make any public announcement relating to the subject matter of the Confirmation, including the Product, without Seller’s prior written consent.
17. Insurance: Upon Seller’s request, which Seller may make in its sole discretion, Buyer shall furnish Seller with certificates from its insurance carriers showing that Buyer carries Worker’s Compensation, Commercial General Liability, including Products Liability (at a minimum of $5,000,000 or the equivalent in other currency), Completed Operations and Contractual Liability, All Risks Property (including coverage for tooling and material maintained by Buyer and owned by Seller), and Comprehensive Automobile insurance coverage. Certificates must show the amount of coverage, number of policy, and date of expiration, and with respect to Product Liability coverage, must name Seller as an additional named insured. Buyer may not terminate or modify insurance coverage without informing Seller in advance and showing new equivalent coverage. The amount of insurance carried in compliance with the above requirements is not to be construed as either a limitation on or satisfaction of Buyer’s obligations hereunder.
18. Assignment: Neither the Confirmation in its entirety nor any rights or interest therein may be assigned by Buyer without the written agreement of Seller. Any such attempted assignment shall be void.
19. Miscellaneous: The Confirmation constitutes the entire agreement between Buyer and Seller relating to the purchase and sale of the Product. No modification of the Confirmation shall be binding upon Seller unless in writing signed by Seller’s duly authorized representative. No modification of the Confirmation shall be effected by the acknowledgment or acceptance of the Purchase Order or any other document containing terms and conditions at variance with or in addition to the Confirmation, all such varying or additional terms being deemed invalid. Seller’s exercise or failure to exercise or enforce any right or remedy granted or provided by the Confirmation or its acceptance of payment for the Product shall not be deemed as or construed to be a waiver of any right or remedy it may have for Buyer’s then existing or subsequent default, breach or compliance thereunder. No waiver by Seller of default or breach by Buyer shall be deemed a waiver of any subsequent default or breach. The invalidity, illegality, or unenforceability of any one or more provisions the Confirmation shall in no way affect or impair the validity, legality, or enforceability of the remaining provisions thereof, which shall remain in full force and effect. The construction, interpretation and performance of the Confirmation and Buyer’s acceptance thereof and all transactions thereunder shall be governed by the laws of the State of New Jersey without regard to conflicts of law principles. Buyer and Seller agree that the proper venue for all actions arising in connection the Confirmation shall be deemed exclusively proper in state court in Passaic County, New Jersey or in the federal court for the District of New Jersey in Newark, New Jersey, and the parties agree to submit to such jurisdiction and to waive any claim that such courts are an inconvenient forum. Further, the United Nations Convention on the International Sale of Goods (1980) (as amended from time to time) shall not apply to the Confirmation or any transactions thereunder.