Terms & Conditions of Sale
Updated October 29, 2019
ARTICLE 1. Duraco Specialty Tapes LLC (the “Supplier”)
1.1 These Terms and Conditions shall apply to the sale and supply of Products by the Supplier to the Customer.
1.2 The contract governing the sale and supply of Products by the Supplier to the Customer shall in each instance consist of (i) these Terms and Conditions, (ii) the Sales Sheet (if applicable), (iii) the Confirmation (if applicable) issued by the Supplier to the Customer, and (iv) for all orders placed by a Customer via the Supplier’s website, any applicable terms and conditions specified on the Supplier’s website. Any additional or different terms submitted by the Customer (including any Customer terms and conditions) are expressly rejected and shall not apply to the Contract. These Terms and Conditions may not be supplemented by any course of performance, course of dealing, or trade usage between the parties.
1.3 The Supplier reserves the right to modify these Terms and Conditions at any time and from time to time to reflect changes in how the Supplier accepts payment from the Customer, changes in relevant laws and regulatory requirements and any other circumstances which are reasonable in the Supplier’s opinion. If the Supplier modifies these Terms and Conditions, the Supplier will post the modification on its website and/or notify the Customer of the modified Terms and Conditions. The Supplier will also update the “last updated” date in these Terms and Conditions. Every time the Customer orders Products from the Supplier, the Terms and Conditions published on the Supplier’s website at that time or previously notified by the Supplier to the Customer will apply to the applicable Contract.
2. DEFINITIONS AND INTERPRETATIONS
2.1 In these Terms and Conditions:
“Confirmation” has the meaning given in clause 3.4.2;
“Contract” means each individual contract formed pursuant
to clause 3.4 and which consists of those documents specified in clause 1.2;
“Customer” the person purchasing Products pursuant to orders placed in accordance with clause 3;
“Delivery” means the delivery of the Products in accordance with clause 8.1 or 8.2 (as applicable);
“Export Controls” means all laws, regulations, codes and controls on the import and export of goods, technology, payment, and services in and out of a country or relevant administrative area or applied by reason of the country of origin of the Products or part of them, including the United States’ Export Administration Regulations, the International Traffic in Arms Regulations, the country sanctions and lists of sanctioned individuals and entities maintained by the United States Department of Treasury, and other similar lists and laws maintained in other countries where the Supplier and the Customer do business, each as amended, supplemented or substituted from time to time;
2.2 In these Terms and Conditions: (i) a “party” means the Supplier or the Customer (as applicable) and “parties” means both of them, (ii) headings are for convenience only and shall not affect its interpretation, (iii) references to a “person” include any individual, company, corporation, firm, partnership, association, organization, institution, trust or agency, whether or not having a separate legal personality, (iv) words in the singular shall include the plural and vice versa as the context admits or requires, (v) any reference to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced, (vi) the word “including” shall, unless the context otherwise requires, mean “including without limitation”, and (vii) “in writing” includes by email or other written Permitted Method.
3. ORDER AND CONFIRMATION
3.1 The Supplier shall supply Products ordered by the Customer from time to time in accordance with these Terms and Conditions.
3.2 Each order placed by the Customer shall be deemed to be a separate offer to purchase Products under these Terms and Conditions which the Supplier shall be free to accept or decline at its absolute discretion. The parties agree and acknowledge that the Supplier is under no obligation to accept any order from the Customer and that the Customer has no right to the supply of any particular amount of Products except as defined by the terms of particular contracts agreed as between the parties from time to time.
3.3 Orders may be placed by the Customer as follows:
3.3.1 by completing a Sales Sheet which includes specific details of the Products the Customer desires to purchase and which is signed by both the Customer and the Supplier;
3.3.2 by placing an order from time to time by a Permitted Method, where the order is governed by (and is made under) a previously agreed Sales Sheet; or
3.3.3 by placing an order from time to time by a Permitted Method, but where a Sales Sheet has not been completed or agreed.
3.4 An order placed in the manner described in:
3.4.1 clause 3.3.1 shall be deemed accepted by the Supplier on execution by both parties of the Sales Sheet; and
3.4.2 clauses 3.3.2 or 3.3.3 shall be deemed accepted by the Supplier upon the sending by the Supplier of an order acknowledgement and confirmation by a written Permitted Method and which shall confirm the commercial terms of the order (a “Confirmation”), and in each case a separate Contract will be formed upon such acceptance, except that there shall be deemed to be no acceptance where the price of the Product has been incorrectly quoted or stated by the Supplier in a Sales Sheet or Confirmation.
3.5 The Customer shall act in good faith and with accuracy if it forecasts its requirements for Products. Unless otherwise set out in a Sales Sheet, a product forecast shall be binding on the Customer and shall constitute an order for Products in accordance with clause 3.3.
3.6 In accordance with the provisions of clause 1.2, each Contract shall consist of these Terms and Conditions and (to the extent applicable) each of the Sales Sheet and the Confirmation, to the exclusion of any terms and conditions the Customer may seek to impose.
3.7 The Supplier reserves the right to decline to accept or to cancel any order for Products or to impose reasonable conditions prior to accepting any order (including an acceptable letter of credit or prepayment from the Customer) including where the Supplier considers it reasonably necessary for security or fraud prevention purposes or to comply with any applicable laws or regulations in the country of sale, distribution or use.
3.8 All orders placed by the Customer via the Supplier’s website shall be subject to the terms and conditions specified on that website, which terms and conditions shall apply in addition to these Terms and Conditions.
3.9 If a price quotation is provided by the Supplier in respect of any Products, the quotation shall remain valid for 30 days from the date it is given (unless otherwise specified by the Supplier) but shall not bind the Supplier until the applicable order is accepted by the Supplier in accordance with clause 3.4.
3.10 Once an order has been accepted by the Supplier it cannot be cancelled, varied or suspended by the Customer without the written agreement of the Supplier.
3.11 In the event of any conflict between the following, the order of priority between them shall be as follows: (i) the Confirmation, (ii) the Sales Sheet, (iii) these Terms and Conditions, and (iv) to the extent they conflict or are inconsistent with these Terms and Conditions, the terms and conditions set forth on the Supplier’s website.
4. DESCRIPTIONS, SAMPLES AND LITERATURE
4.1 Unless otherwise confirmed by the Supplier in writing, nothing in any materials produced by or on behalf of the Supplier which includes images and/or descriptions of the Products (including website content, CAD files, technical drawings, product measurements and specifications, catalogue content or any other Product-specific imagery and information) (“Materials”) is to be considered a representation of the source of origin, manufacturer or production of Products or any part of them.
4.2 All information contained in the Materials are published for the sole purpose of giving the Customer an approximate idea of the Products described in them and shall not be relied on by the Customer or form part of the Contract except as otherwise expressly provided in the Sales Sheet and/or the Confirmation.
4.3 Any typographical, clerical or other manifestly obvious error or omission in any quote, price list, Confirmation, label, packaging, invoice or other document or information issued by the Supplier may be corrected by the Supplier, without liability to the Customer, at any time either by correcting any such matter in public by publishing the correction on the Supplier’s website or by notifying the Customer in writing and such correction shall be immediately binding upon the Customer.
5. SUITABILITY OF PRODUCTS; SPECIFICATIONS
5.1 The Customer must independently determine the suitability of Products for their intended use, and the Customer assumes all risks in connection with the Customer’s use of Products. Any statements, technical information, specifications, test results, and recommendations contained in the Materials provided or made accessible by Supplier are believed to be reliable, but the Supplier does not warrant or guarantee the accuracy thereof. The Customer expressly acknowledges that in determining whether a Product will be fit for the Customer’s purposes, the Customer is not relying on (i) the Supplier’s skill and judgment, or (ii) any Materials which are provided or made accessible by the Supplier to the Customer.
5.2 A Specification with respect to a Product shall only take effect and form part of a Contract where specified in the Sales Sheet and/or the Confirmation (and in each case this may be facilitated by way of a cross-reference to a pre-agreed specification document). The parties may agree on a process for producing and agreeing on a Specification, which shall be set out in the Sales Sheet. A Specification may include details of the Products measurements, tolerances, quantitative performance requirements, and packaging.
6.1 The price of Products shall be the price specified in the Sales Sheet or as otherwise agreed and specified in the Confirmation (as applicable). Prices specified in a Sales Sheet will be subject to review and possibly change from time to time in accordance with the mechanism specified in that Sales Sheet.
6.2 The Supplier will use its reasonable endeavors to ensure that prices are accurately specified in any quote and in the Materials.
6.3 The Supplier reserves the right to invoice sums in addition to the agreed price to reflect any increase in the cost to the Supplier of supplying any Products which is due to: (i) any increase in the cost of labor or materials (including any storage costs) as a consequence of Delivery of the Products not being in accordance with clause 8.1, (ii) any variation requested by the Customer to delivery dates, quantities, or the Specification, (iii) any delay or additional work or materials caused by any erroneous instructions, neglect or default of the Customer, or (iv) any failure of the Customer to provide the Supplier with adequate and timely information, instructions, or specifications. Subject to the foregoing, prices charged will be those prevailing when an order is accepted.
6.4 Unless set out in the Sales Sheet or Confirmation, any reference to the price for Products is in U.S. Dollars and is exclusive of any VAT or other taxes or duties and of all costs and charges in relation to non-standard packaging, loading, unloading, carriage and insurance or similar costs, which (if any) shall be paid in addition by the Customer at the time it is due to pay for the Products. Where carriage or other costs to be borne by the Customer are paid by the Supplier, the Supplier shall be entitled to immediately render an invoice in respect of such costs.
7.1 The Supplier shall at its discretion be entitled to invoice the Customer for payment of the price of any Products or any other amounts in advance. The Supplier reserves the right, where the Customer is required to pay for an order in advance, to suspend Delivery of any Products pending receipt of payment.
7.2 Unless otherwise set out in a Sales Sheet or Confirmation, payment of the Supplier’s invoice is due by the Customer (without deduction, discount, abatement or set-off) within 30 days of the date of the invoice, notwithstanding that Delivery may not have taken place or that property in the Products has not passed to the Customer. Time for payment of sums due from the Customer shall be of the essence. No payment will be deemed received until received by the Supplier in cash or cleared funds.
7.3 Payment is to be made by the Customer via the payment method stipulated in the Sales Sheet or Confirmation (as applicable).
7.4 If any sums are not paid on or before the due date for payment, interest will accrue on the amount unpaid at the rate of six percent per annum above the base rate of the bank specified in the Sales Sheet, or if no such bank is specified, the Wall Street Journal (or any successor) prime rate. Such interest shall accrue on a daily basis from the due date until payment is made in full (both before and after any judgment).
7.5 If the Customer fails to make any payment when due pursuant to a Contract then, without prejudice to any other right or remedy available to the Supplier (including the right to charge interest pursuant to clause 7.5), the Supplier shall be entitled to: (i) deduct outstanding sums from any sums owed by the Supplier to the Customer under the Contract or otherwise, (ii) require the Customer to pay any costs of storage of the Products, (iii) suspend any further deliveries to the Customer under the Contract or any other contract between the parties until paid, (iv) resell any Products not yet delivered to the Customer, and/or (v) retain any sums paid as deposit for the Products.
8.1 Unless otherwise agreed in writing between the Supplier and the Customer, and subject to anything specified to the contrary in the Sales Sheet or otherwise agreed and specified in the Confirmation, the Contract shall be Ex Works (Incoterms 2010) at the Supplier’s premises and Delivery of the Products shall be effected accordingly. Additional details regarding the physical Delivery of the Products (including the date of collection by the Customer) may be agreed between the parties and set out in the Sales Sheet and/or Confirmation.
8.2 Unless otherwise set out in the Sales Sheet or Confirmation, any periods of time or dates quoted for Delivery of the Products are estimates only. The Supplier will use its reasonable endeavors to deliver the Products by the delivery date set out in the Sales Sheet or Confirmation (as applicable). If the Supplier is unable to meet the delivery date because of an event outside the Supplier’s control, the Supplier will contact the Customer with a revised delivery date.
8.6 Where the Products are to be delivered in installments, each Delivery shall constitute a separate obligation and neither any failure by the Supplier to deliver nor any claim in respect of any one or more installments by the Customer shall entitle the Customer to treat the Contract as a whole as repudiated.
8.7 If, upon Delivery of the Products, the Customer discovers that it has incorrectly ordered those Products, the Supplier’s standard handling charge from time to time will be payable by the Customer if the Supplier agrees (at its sole discretion) to accept return of those Products (at the Customer’s risk).
8.8 No returned Products from any source will be accepted by Supplier, without written approval, together with shipping instructions, from Supplier. If permission is granted by Supplier, the returned Goods will be subject to a 25 percent re-stock handling charge plus freight cost. Non-standard Products or fabricated items are returnable only in Supplier’s sole discretion. Unless otherwise agreed by Supplier, Products returned must be in their original, smallest, unopened packaging, or undamaged and in the same condition as when the Products were delivered to Customer.
9. RISK AND PROPERTY IN THE PRODUCTS; CUSTOM PRODUCTS
9.1 Products supplied by the Supplier shall be at the Customer’s risk when the Products are unloaded from the Supplier’s carrier at the Customer’s premise or, where the Products are collected by the Customer from the Supplier’s premise (or any other location agreed between the parties), immediately upon being made available for collection. The Customer acknowledges that it is responsible for arranging appropriate insurance for the Products from the point at which it assumes risk.
9.2 Title in all Products supplied shall be retained by the Supplier until the Supplier has received in either cash or cleared funds all sums due in respect of the Products.
9.3 Following risk in the Products passing to the Customer pursuant to clause 9.1, until such time as title in the Products passes to the Customer, the Customer must: (i) hold such Products as the Supplier’s bailee and act in good faith to protect the Supplier’s interests in the Products, (ii) store such Products (at no cost to the Supplier) separately from all other goods of the Customer in such a way that such Products remain identifiable as property of the Supplier and shall not mix them with any other goods, (iii) not pledge or allow any lien, charge, or other interest to arise over the Products or their documents of title, (iv) not destroy or deface any identifying marks on such Products or relevant packaging and maintain such Products in satisfactory condition, and (v) keep such Products insured on the Supplier’s behalf and in the event of any claim resulting from loss, theft or damage hold the proceeds of such insurance on trust for the Supplier.
9.4 In the event that the Customer fails to pay the price of the Products by the due date, the Supplier shall be entitled at any time to require the Customer to deliver up the Products to the Supplier prior to title in the Products passing to the Customer. The Customer grants the Supplier and its agents the right at any such time to enter any premises where the Products are stored to inspect or, if the Customer has failed to deliver up possession when requested by the Supplier, to repossess the Products.
9.5 The following provisions apply to all sales of custom die cut Products. In the event the Supplier fabricates, or manufactures any dies, forms or patterns (collectively called "Dies") necessary for the manufacture of custom die cut Products for a Customer, the Customer shall reimburse the Supplier for the full cost of making such Dies and such Dies shall remain the property of the Supplier until the Supplier receives full payment from the Customer. If the Supplier is required to re-design, repair or replace any Dies, the Customer shall reimburse the Supplier for all such costs, including tooling and re-tooling costs. The Customer acknowledges that such Dies will be based on technical information and drawings provided by the Customer to the Supplier, and the Customer agrees not to assert any claim against the Supplier with respect to any such technical information or drawings that the Customer may have disclosed to the Supplier. The Supplier shall comply with all specifications, drawings, quality requirements and procedures specified by the Customer, but once the Customer has agreed in writing to the design for a Die, the Customer shall be solely responsible for the proper form, fit and function of the Products manufactured using the Die. The Supplier shall have no liability to the Customer for, and without limiting the Customer's obligations as stated elsewhere herein, the Customer shall indemnify and hold the Supplier harmless from any and all claims, including but not limited to claims of third parties, arising out of or relating in any way to the Dies or the Products manufactured using such Dies, whether based on patent, trademark, copyright, defective design, product liability, and whether arising out of contract, tort or strict liability, except to the extent such claim arises out of the negligence or willful misconduct of the Supplier or its employees. If the Customer provides Dies to the Supplier, the Supplier shall have no liability to the Customer for any loss or damage to such Dies during transportation from the Customer to the Supplier or during the Supplier's possession and control of such Dies, unless such loss or damage is due solely to the gross negligence or intentional misconduct of the Supplier or its employees. The Customer shall be solely responsible for obtaining and paying for any insurance on such Dies. To the fullest extent permitted by applicable law, the Supplier shall retain a security interest in the Dies (whether created by the Supplier or provided by the Customer) in an amount equal to the total of (i) any unpaid amount due the Supplier hereunder for cost of fabrication, casting, manufacturing, repairing or re-tooling of such Dies, plus (ii) any unpaid amount due the Supplier for any Products manufactured by the Supplier using the Dies. The Customer shall, at the Customer's sole cost and expense, promptly remove the Dies from the Supplier's facility after the last production run using such Dies, provided the Customer has fully paid for such Dies and re-tooling costs, if any. If the Customer fails to do so within 24 months after the last production run using such Dies, the Supplier shall have the right to dispose of such Dies and shall have no liability to the Customer for the Dies or the disposal thereof.
10. LIMITED WARRANTY
10.1 The Supplier warrants that on Delivery all Products will be free from defects in material and workmanship and (if applicable) will conform to the Specification. This express limited warranty is the only warranty provided by the Supplier with respect to the Products.
10.2 The remedies described in clause 10.5 for the limited warranty contained in clause 10.1 shall not be available to the Customer unless:
10.2.1 with respect to defects that are apparent on inspection of the Products, the Customer notifies the Supplier in writing, setting out in reasonable detail the nature of the breach of limited warranty within 14 days after Delivery;
10.2.2 with respect to latent defects, the Customer notifies the Supplier in writing setting out in reasonable detail the nature of the breach of limited warranty within 14 days after the defect became apparent or ought to have become apparent to the Customer, and in any event not later than 180 days after the date of Delivery;
10.2.3 after receiving such notice of the defect, the Supplier shall be given reasonable opportunity to inspect the Products after they have been returned to the Supplier’s place of business (at the Customer’s risk and cost) for the purpose of such inspection;
10.2.4 the total price for the Products has been paid by the Customer; and 10.2.5 none of the events listed in clause 10.3 apply. 10.3 The Supplier shall not be liable for any breach of the limited warranty in clause 10.1 if:
10.3.1 the Customer makes any further use of the Products after giving notice in accordance with clause 10.2;
10.3.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Products or (if there are none) good trade practice regarding the same;
10.3.3 the defect arises as a result of the Supplier following any drawing, design or specific requirement or instructions supplied or approved by the Customer (including any such thing which may constitute (or form part of) the Specification);
10.3.4 the Customer alters or repairs the Products without the written consent of the Supplier;
10.3.5 the Customer makes further use of or resells a Product after the Supplier gives notice of a defect or the Customer fails to comply with the Supplier’s reasonable instructions in relation to a Product hold or recall;
10.3.6 the defect arises as a result of reasonable wear and tear, willful damage, negligence, or abnormal storage or working conditions; or
10.3.7 the Products differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
10.4 If the Customer fails to give notice of rejection in accordance with clause 10.2, it shall be deemed to have accepted the Products.
10.5 If the Customer rightfully rejects Products under clause 10.2 then the Customer shall be entitled to, at the Supplier’s sole option, a refund of the price paid for the rejected Products or replacement of the rejected Products.
10.6 The terms of the Contract shall apply to any replacement Products supplied by the Supplier. All Products which have been replaced pursuant to clause 10.5 shall belong the Supplier.
10.7 To the fullest extent permitted by law and subject to clause 11.5, the requirement to provide the remedy contained in clause 10.5 shall be the sole extent of the Supplier’s liability arising out of or in connection with any breach of clause 10.1 or any other claim relating to the quality the Products.
10.8 The Customer shall comply with all reasonable instructions of the Supplier in relation to any Product hold or Product recall campaign organized in respect of any Products or any other corrective action reasonably taken by or on behalf of Supplier in respect of the Products after Delivery to Customer. Unless required by law, the Customer may not undertake any Product recall or withdrawal without the written permission of the Supplier and only then in strict compliance with the Supplier’s instructions as to the process of implementing the withdrawal.
11. LIMITATION OF LIABILITY
11.1 For the purposes of this clause 11, a “Claim” means a claim arising out of or in connection with the supply of any Products to the Customer or as a result of breach of a Contract or of any duty of any nature whatsoever by the Supplier or pursuant to any use made by the Customer or resale by the Customer of any Products (or of any product incorporating any of the Products) or as a result of any representation, statement, act or omission including negligence or breach of statutory duty arising under or in connection with a Contract.
11.2 SUBJECT TO CLAUSE 11.5, THE SUPPLIER’S AGGREGATE LIABILITY (INCLUDING ANY LIABILITY FOR THE ACTS OR OMISSIONS OF ITS EMPLOYEES, AGENTS, SUB-CONTRACTORS OR OTHER MEMBERS OF ITS GROUP) TO THE CUSTOMER FOR ALL CLAIMS SHALL BE LIMITED AS FOLLOWS:
11.2.1 THE SUPPLIER’S AGGREGATE LIABILITY FOR A CLAIM IN RELATION TO ANY SINGLE ITEM OF PRODUCT SHALL BE LIMITED TO THE PRICE PAYABLE BY THE CUSTOMER FOR THAT ITEM; AND
11.2.2 THE SUPPLIER’S AGGREGATE LIABILITY TO THE CUSTOMER FOR ALL OTHER CLAIMS BROUGHT IN ANY CALENDAR YEAR SHALL BE LIMITED TO THE TOTAL AMOUNT PAID BY THE CUSTOMER TO THE SUPPLIER FOR PRODUCTS DURING THAT CALENDAR YEAR.
11.3 SUBJECT TO CLAUSE 11.5, THE SUPPLIER SHALL NOT BE LIABLE TO THE CUSTOMER FOR ANY (A) INDIRECT LOSSES, (B) ECONOMIC LOSS, (C) LOSS OF PROFITS OR ANTICIPATED PROFITS, (D) LOSS OF ANTICIPATED SAVINGS, (E) LOSS OF BUSINESS OR OF EXPECTED FUTURE BUSINESS, (F) DAMAGE TO REPUTATION OR GOODWILL, OR (G) PUNITIVE, EXEMPLARY, TREBLE, SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS, WHICH IN EACH CASE ARISES UNDER OR IN CONNECTION WITH A CONTRACT.
11.4 DISCLAIMER OF IMPLIED WARRANTIES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY LAW, ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS OR SUITABILITY FOR ANY PARTICULAR PURPOSE OR USE, ARE EXCLUDED FROM A CONTRACT AND, SUBJECT TO CLAUSE
11.5 THE SUPPLIER WILL NOT BE LIABLE TO THE CUSTOMER FOR ANY LOSS OF ANY KIND WHATSOEVER WHICH ARISES OUT OF THE BREACH OF IMPLIED WARRANTIES, TERMS OR CONDITIONS, OR BREACH OF ANY DUTY OF ANY KIND IMPOSED ON THE SUPPLIER BY OPERATION OF LAW.
11.6 Nothing in these Terms and Conditions shall exclude or limit the Supplier’s liability in respect of (i) any death or personal injury caused by its gross negligence, (ii) any fraud or fraudulent misrepresentation, or (iii) any other liability to the extent that it may not be so excluded or limited by law.
11.7 If the Customer becomes aware that any third party has made or appears likely to make any claim against the Customer in respect of the Products (including as to defects in them or rights infringed by them) it shall: (i) promptly notify the Supplier of such claim or circumstance, (ii) promptly take such action as the Supplier may reasonably request to avoid, dispute, defend, mitigate, resist, appeal or compromise such claim or circumstance including to allow the Supplier to take full control of any proceedings or negotiations in connection with the claim, and (iii) not settle or compromise, make any admissions, nor agree any matter in the conduct of any dispute, without the prior written approval of the Supplier.
11.8 The Customer acknowledges that the limitations of liability set out in these Terms and Conditions are reasonable and reflect the commercial intentions of the parties in the context of the anticipated earnings of the Supplier under a Contract and the ability of the Customer to protect itself through insurance.
12. FORCE MAJEURE EVENTS
12.1 The Supplier shall not be in breach of the terms of a Contract for any delay in performing, or failure to perform, its obligations under the Contract if that failure or delay was due to any cause or circumstance beyond the Supplier’s reasonable control, which shall, without limiting the generality of the term, include war or other action of military forces, terrorism, riot, civil commotion, sabotage, vandalism, accident, break down or damage to machinery or equipment, fire, flood, severe adverse weather, acts of God, strike, lock-out or other industrial disputes or shortage of materials at the market rates existing when the Contract is made, legislative or administrative interference (including, for example, Sanctions, embargos and Export Controls) or was due to any failure, neglect or delay on the part of the Customer or its agents or representatives.
12.2 The Supplier reserves the right to defer the date of Delivery or to terminate the Contract or reduce the volume of the Products ordered by the Customer (with an appropriate reduction in the price payable by the Customer) if it is prevented from or delayed in the carrying on of its business due to an event referred to in clause 12.1 occurring, and where the event in question continues for a continuous period in excess of 30 days either party shall be entitled to give notice in writing to the other to terminate the Contract with no liability due to or by either party.
13.1 Without affecting any other rights and remedies, the Supplier may immediately terminate a Contract if: (i) the Customer fails to pay any sum due under the Contract by the due date for payment and remains in default for more than 14 days after being notified in writing by the Supplier to make such payment, (ii) the Customer materially breaches any term of the Contract, (iii) subject to applicable bankruptcy or similar law, the Customer becomes insolvent, makes any assignment for the benefit of its creditors, is subject to the appointment of a receiver, or if bankruptcy proceedings are instituted by oragainst the Customer (or, if the Customer is located in Canada, if the Customer proposed a compromise or arrangement under the Companies’ Creditors Arrangement Act (Canada)), or (v) the Supplier possesses bona fide and justifiable reason to believe that any of the events specified in (iii) above is likely to occur and notifies the Customer accordingly.
13.2 Where the Supplier terminates the Contract in accordance with clause 13.1, without prejudice to clauses 9.3 or 9.4 or to any other right or remedy available to the Supplier: (i) the Supplier shall be entitled to terminate any other contract or suspend any further deliveries under any other contract between the parties, (ii) where the Products have been delivered, but not paid for, the Customer’s right to possession shall terminate and the Supplier may dispose or use any of the Products as it wishes, and (iii) the price for the Products shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
13.3 Termination of the Contract, for whatever reason, shall not affect any of its provisions which are expressed or are intended to survive any such termination.
14.1 Without prejudice to the Supplier’s other rights and remedies and to the fullest extent permitted by law, the Customer shall indemnify and keep indemnified the Supplier, its Group and its employees and agents on demand in full against any and all actual or threatened loss, liability, damage, costs, claims and expenses (including but not limited to reasonable attorney’s fees, expert’s fees and expenses of litigation) incurred or suffered as a result of: (i) any claim brought by any third party in respect of losses, injury or damage caused by any Products which, following Delivery, have been subjected to any use other than the authorized use for the Products (being the use for which the Products are commonly supplied) or modified or repaired by a person other than the Supplier, (ii) any allegation or claim made against the Supplier by a third party in relation to the actual or purported infringement of that third party’s Intellectual Property Rights due to the incorporation into a Product design of any requirements, designs, specifications or other materials (including third party components) stipulated or provided by the Customer, (iii) the negligence of Customer, and (iv) the breach by Customer of any of the terms and conditions of this Contract.
15. INTELLECTUAL PROPERTY
15.1 Except as otherwise agreed in a Sales Sheet and/or Confirmation, the Supplier and/or the Supplier’s licensors shall own all Intellectual Property Rights in the Products, catalogue and any Materials.
15.2 The Customer is not granted any rights or license in respect of the Products, other than the right to use or resell the Products in the Customer’s ordinary course of business and otherwise inaccordance with the terms and conditions of the Contract.
15.3 The Supplier grants to the Customer a limited, non-exclusive, non-transferable license, without the right to sublicense, to access and view and (unless shown as not permitted) download and print the Materials in each case solely for the Customer’s internal purposes.
15.4 The Customer shall not use, copy, adapt, transmit, distribute, modify, publish, reverse engineer, create derivative works based upon, distribute, license, sell, transfer, publically perform, broadcast, communicate to the public or otherwise exploit the Materials except as expressly permitted in these Terms and Conditions or otherwise without the Supplier’s prior written consent.
16. EXPORT CONTROLS AND SANCTIONS
16.1 The Customer warrants and represents that neither it, nor any of its Group, nor any directors, officers or employees of any of its Group: (i) is a Restricted Party or is engaging in or has engaged in any transaction or conduct that could result in it becoming a Restricted Party, (ii) has engaged or is engaging, directly or indirectly, in any trade, business or other activities with, for the benefit of, or on behalf of, any Restricted Party, (iii) has violated or is violating applicable laws, statutes, regulations and codes relating to Export Controls or Sanctions.
16.2 The Customer acknowledges that some of the Products, their components and technologies may be subject to Export Controls and Sanctions. The Customer shall: (i) comply with Export Controls and Sanctions applicable to both the Supplier and the Customer, (ii) not export, re- export, transfer or trade, directly or indirectly, with or to any Restricted Party nor any person or entity incorporated or located in any country subject to Sanctions, (iii) obtain at its cost any license, permit, notification or authorization required to sell, export, re-export, transfer or import the Products, their components and technologies, and (iv) ensure that the end-use of the Products will not breach any Export Controls or Sanctions, including weapons of mass destruction and military end-use controls.
17.1 The Customer shall at all times: (i) respond promptly to any request for guidance or instruction which is reasonably required by the Supplier to enable it to perform its obligations under a Contract; (ii) co-operate with the Supplier as necessary or desirable for the performance of a Contract, and (iii) promptly provide the Supplier with all documents and information in the Customer’s possession or control which the Supplier reasonably requires in order to comply with its internal and Group policies and with all applicable laws and regulatory requirements (including all documents and information associated with know your customer checks).
17.2 The Contract contains the entire agreement and understanding of the parties and supersedes all prior agreements, understandings or arrangements (both oral and written) in respect of the Products and the subject matter hereof. The Customer acknowledges that it is entering into the Contract without reliance on any undertaking, warranty, or representation given by or on behalf of the Supplier, other than as expressly contained in the Contract (or any document expressly incorporated into the Contract). This clause 17.1 is subject to clause 11.5.
17.3 The parties acknowledge that in performing their obligations hereunder, each party is acting as an independent contractor. Nothing in this Contract shall be construed to create a relationship of partnership, joint venture, agency, employment, franchise or other similar arrangement between the parties. Neither party has the authority to enter into any agreement, or make any warranty or representation on behalf of the other party, except where and to the extent specifically authorized to do so in writing. To the extent that either party utilizes its employees for the performance of its duties pursuant to this Contract, that party shall be solely responsible for the payment of salaries and wages to such employees and matters relating thereto (including the withholding and/or payment of all federal, state and local income and other payroll taxes), workers compensation, disability benefits, and all such other legal requirements of like nature applicable to such employees.
17.4 The Customer shall not transfer, assign, sub-contract or deal in any other similar manner any of its rights or obligations under the Contract or purport to do any of the same.
17.5 Any notice shall be in writing and addressed to the other party at, in the case of the Supplier, the address, facsimile number or email address specified in the Sales Sheet and/or Confirmation (as applicable) and in the case of the Customer at the address or email address specified in the Sales Sheet or (if that is not applicable) at its registered address or an email address it may have used to place an order for Products with the Supplier, and may be given by any of the following methods: (a) personal delivery; (b) facsimile transmission; (c) registered or certified mail, postage prepaid, return receipt requested; (d) overnight delivery service; or (e) email. All such notices and communications shall be deemed received upon the earlier of (a) actual receipt thereof by the addressee, or (b) actual delivery thereof to the appropriate address, (c) in the case of a facsimile transmission, upon transmission thereof by the sender and issuance by the transmitting machine of a confirmation slip confirming that the number of pages constituting the notice have been transmitted without error, and (d) in the case of email transmission, the date and time the email was sent (unless an out of office message is received by the sending party, in which case notice will deemed to have not been validly provided by email). In the case of notices sent by facsimile transmission or email, the sender shall contemporaneously mail a copy of the notice to the addressee at the address provided for above. However, such mailing shall in no way alter the time at which the facsimile or email notice is deemed received.
17.6 In the event that any provision of these Terms and Conditions is held illegal or invalid for any reason, that illegality or invalidity shall not affect the remaining provisions of these Terms and Conditions, in which event these Terms and Conditions shall be construed and enforced as if that illegal or invalid provision had never been inserted herein.
17.7 Where the Contract is entered into in the manner described in clause 3.3.1, the Sales Sheet may be executed in any number of counterparts and by the parties on separate counterparts, but shall not be effective until each party has executed at least one counterpart. Each counterpart, when executed, shall be an original, but all counterparts shall together constitute one and the same instrument.
17.8 No modification or amendment of the Contract shall be effective unless it is made in writing, refers specifically to the Contract and is signed by both of the parties.
17.9 No waiver of any term, provision or condition of the Contract shall be effective, except where it is clearly made in writing and signed by the waiving party. No waiver of any particular breach of the Contract shall be held to be a waiver of any other or subsequent breach.
17.10 No omission or delay on the part of any party in exercising any right, power or privilege under the Contract shall operate as a waiver by it or of any right to exercise it in future or of any other of its rights under the Contract.
17.11 The rights and remedies arising under, or in connection with, the Contract are cumulative and, except where otherwise expressly provided in the Contract do not exclude rights and remedies provided by law or otherwise.
17.12 The Contract shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the internal laws of the State of Illinois (without giving effect to the choice of law rules thereof), notwithstanding that one or more parties may now or hereafter become domiciled in another state or country. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Contract. To the extent relevant pursuant to clause 8.1 the international rules for the interpretation of trade terms prepared by the International Chamber of Commerce (Incoterms) shall apply (unless agreed otherwise) but where they conflict with the Contract, the Contract shall prevail.
17.13 Subject to clause 17.14, any and all disputes, complaints, controversies, claims and grievances arising under, out of, in connection with, or in any manner related to this Contract or the relationship of parties hereunder shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The obligation to arbitrate shall extend to any affiliate, subsidiary, officer, employee, shareholder, principal, agent, trustee in bankruptcy or guarantor of a party making or defending any claim hereunder. Any decision and award of the arbitrator shall be final, binding and conclusive upon all of the parties hereto and said decision and award may be entered as a final judgment in any court of competent jurisdiction. Notwithstanding said Rules, any arbitration hearing to take place hereunder shall be conducted in Chicago, Illinois, before one (1) arbitrator who shall be an attorney who has substantial experience in commercial law issues. However, neither party shall institute an arbitration, or any other proceeding to resolve such disputes between the parties before that party has sought to resolve disputes through direct negotiation with the other party. If disputes are not resolved within three (3) weeks after a demand for direct negotiation, the parties shall attempt to resolve disputes through mediation conducted in Chicago, Illinois. If the parties do not agree on a mediator within ten (10) days, either party may request the American Arbitration Association to appoint a mediator who shall be an attorney who has substantial experience in commercial law issues. If the mediator is unable to facilitate a settlement of disputes within forty-five (45) days, the mediator shall issue a written statement to the parties to that effect and the aggrieved party may then seek relief through arbitration as provided above. The fees and expenses of the mediator shall be split and paid equally by each of the parties. In the event of any arbitration between the parties hereto involving this Contract or the respective rights of the parties hereunder, the party who does not prevail in such arbitration shall pay all the prevailing party’s reasonable attorneys’ and experts’ fees, costs and expenses incurred by the prevailing party in resolving said matter. As used herein the term ‘prevailing party’ shall include, but not be limited to, a party who obtains legal counsel or brings an action against the other by reason of the other’s breach or default and obtains substantially the relief sought whether by compromise, settlement, or judgment. Each party hereby consents to a single, consolidated arbitration proceeding of multiple claims, or claims involving two (2) or more parties. Either party may apply to any court of competent jurisdiction for injunctive relief or other interim measures as provided for elsewhere in this Contract, in aid of the arbitration proceedings, or to enforce the arbitration award, but not otherwise. Any such application to a court shall not be deemed incompatible or a waiver of this provision. The arbitrator shall be required to make written findings of fact and conclusions of law to support its award. Except as may be required by law, neither a party nor an arbitrator(s) may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. By execution of this Agreement, the Customer consents to the jurisdiction of the American Arbitration Association and waives any objection which Customer may have to any proceeding so commenced based upon improper venue or forum non coveniens.
17.14 Nothing in this clause 17 shall limit the right of the Supplier to initiate proceedings against the Customer in any other court of competent jurisdiction, nor shall the initiation of proceedings in any one or more jurisdiction preclude the Supplier from initiating proceedings in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.