PURCHASE ORDER TERMS & CONDITIONS
- Agreement – All purchases by Round Ground Metals, Inc. (“Buyer”) are governed by these Purchase Order Terms & Conditions, and each order issued by Buyer is an offer by Buyer to purchase the goods and/or services described in the order, not a confirmation or acceptance of any offer to sell; and acceptance of this offer is expressly conditional on assent to these Purchase Order Terms and Conditions. By shipping goods ordered by Buyer, by acknowledging receipt of Buyer’s order or by performing the services ordered by Buyer, the seller agrees to these Purchase Order Terms and Conditions and the terms of any attachments to such order, none of which may be added to, modified, superseded or otherwise altered except by a written instrument signed by an authorized representative of Buyer and delivered to seller. Any different or additional items in seller’s Quotation, Order Acknowledgement, Invoice or other communications to Buyer are hereby rejected, and will be of no force or effect.
- Warranties – Seller expressly warrants that all materials and articles covered by each order or other description or specification furnished by Buyer will be in exact accordance with such order, description or specification, conform to any sample approved by Buyer, free from defects in material and/or workmanship, merchantable and new (not used, refurbished or reconstituted). Such warranties shall survive any inspection, delivery, acceptance, or payment by Buyer of said materials or articles, and Buyer reserves the right to cancel any order, without liability to seller, for breach of any such warranty. Any deviations from an order, description, sample or specifications furnished, or any other exceptions or alterations, must be approved in writing by Buyer. Seller further warrants that (a) all services furnished by seller will be performed in a good and workmanlike manner, in accordance with any established professional standards for similar services, and with the best practices in the seller’s industry, (b) any reports, drawings, advice, formula, protocol and other products of such services will be good and sufficient to enable Buyer to achieve the results therefor specified in the applicable order, and (c) none of such services, reports, drawings, advice, formula, protocol or other products of such services, nor the use thereof by Buyer, will infringe the proprietary rights of any third party.
- Shipment – Shipments shall be made in accordance with Buyer’s shipping instructions, which are subject to revision by Buyer with respect to undelivered quantities. Buyer reserves the right to cancel all or any part of the undelivered portion of any order if seller does not make deliveries as specified or if seller breaches any of the terms hereof. Any unauthorized quantity is subject to rejection, and such goods will be held at seller’s risk and may be returned at seller’s expense. Seller shall advise Buyer immediately of any shortage or delay in shipment. Time is of the essence of seller’s performance.
- Invoices; Packages – Invoices, shipping notices and test reports must be rendered in duplicate together with original bills of lading or express receipts not later than the day following shipment. Each package shall be numbered and labeled with Buyer’s order number, code number shown in each caption, and contents, and shall contain an itemized packing slip. Buyer’s order number and code number shown in each caption must appear on invoices and shipping notices.
- Inspection – Delivery shall not be deemed to be complete until, and goods will be received subject to, Buyer’s inspection and acceptance at destination, notwithstanding any agreement to pay freight, express or other transportation charges, and risk of loss or damage in transit shall be on seller. Defective goods or goods not in accordance with Buyer’s specifications or descriptions, or with seller’s sample, may be rejected by Buyer, and Buyer, at its option (without prejudice to any other legal remedy), may hold such goods at seller’s risk or return same to seller at seller’s risk and/or expense. If inspection discloses that part of the goods received are not in accordance with the warranties herein, Buyer shall have the right to cancel any unshipped portion of the pertinent order. Defects are not waived by acceptance of or payment for the goods or by failure to notify seller thereof. Each of seller and Buyer agrees to cooperate with the other if either party desires to file a claim against a third party for any loss of or damage to the goods in transit.
- Price – Prices set forth in an order are not subject to increase. If seller’s prices for the goods or services covered by an order are reduced (whether in the form of a price reduction, close-out, rebate, allowances, or additional discounts offered to anyone) before the time of any shipment to Buyer, Seller agrees that the price to Buyer for such goods or services will be reduced accordingly, and that Buyer will be billed at such reduced prices. If price is not stated in an order, it is agreed that the goods shall be billed at the price last quoted, or at the prevailing market price (whichever is lower). An order may not be filled at a price higher than last quoted or charged without Buyer’s specific authorization. Seller represents that the prices and terms of purchase and any allowances available shall be in full compliance with the Robinson-Patman Act.
- Extra Charges – No additional charges of any kind, including but not limited to any federal, state or local taxes, duties, customs or assessments in connection with the sale, purchase, transportation, use or possession of goods or services orders, and charges for boxing, burlapping, packing, cartage, storage, insurance or other extras will be allowed unless specifically agreed to in writing in advance by Buyer.
- Cancellation – Buyer reserves the right to any time and from time to time without cause to cancel all or any part of the undelivered portion of an order by notice to seller. In the event of such cancellation, Buyer shall not be liable to seller for loss of anticipatory profits. The provisions of this paragraph shall not limit or affect Buyer’s right to terminate a purchase order for default of seller.
- Compliance with Applicable Law – Each order is placed by Buyer with the understanding and, in accepting the same Seller warrants, that all applicable federal, state and local laws, regulations, rules and ordinances including those pertaining to noise, pollution and safety standards, will be complied with in connection with the manufacture and sale of the merchandise ordered hereby and the performance hereof. Seller further warrants that any equipment furnished pursuant to each order will meet existing federal and state noise, pollution and safety standards. Seller further agrees to abide by existing federal and state standards pertaining to non-discrimination in hiring and promotion practices, including the non-discriminatory provisions of Executive Order 11246, as amended.
Seller certifies that, in the performance of each order, it will comply with the provisions of the Fair Labor Standards Act of 1938, as amended. Seller further agrees that it will not discriminate against any employee or qualified applicant for employment because he or she is a disabled veteran or veteran of the Vietnam Era (Section 402 of the Vietnam Era Readjustment Act of 1974); or because of physical or mental handicap in regard to any position for which the employee or applicant for employment is qualified (Section 503 of the Rehabilitation Act of 1973). Seller further agrees to comply with the rules, regulations and relevant orders of the Secretary of Labor issued pursuant to such Act or Acts, as amended.
- Release and Indemnity– Seller waives all rights to make claim or file suit against Buyer for, and agrees to indemnify, defend and hold Buyer harmless from and against, all liability or responsibility of any kind arising from the death of or injury to persons or destruction of property sustained in connection with performance of any order, except that caused by the intentional misconduct of Buyer or its employees acting within the scope of their employment.
- Products Liability Indemnity – Seller will indemnify Buyer, its successors, assigns, and customers (whether direct or indirect) against any and all losses, damages and expenses (including attorneys’ fees and other costs of defending any action) which they, or any of them, may sustain or incur as a result of any claim of negligence, breach of warranty, personal injury or death, strict liability in tort or based on any other theory of law in connection with the goods/services furnished by the seller, or as a result of any claim that the goods furnished by the seller fail to conform to or comply with any federal, state or local laws, regulations or standards, or based upon or arising out of any construction or installation, services or facilities furnished by the seller under or in connection with any order..
- Patent Infringement – Seller will exonerate, indemnify and hold harmless Buyer, its affiliated corporations and their successors or assigns, and their customers, officers, agents and employees, from and against any and all liability, damage, loss, cost or expense, including but not limited to reasonable attorney’s fees, which may accrue to or be sustained on account of any claim, suit or action made or brought against any of them for actual or alleged infringement of any patent for or on account of the manufacture, sale, resale or use of any goods or services furnished by seller, or any part thereof, and Seller will defend any such claim, suit or action at seller’s expense, and Buyer (and any party against whom any such claim, suit or action is brought) may be represented by its own counsel in connection with any such claim, suit or action.
- Force Majeure – Failure of Buyer to take delivery hereunder, or delay in taking shipments, if occasioned by fire, explosion, flood, earthquake, war, riots, insurrection, civil disturbance, accident, storm, interruption or delay in transportation, shortages, strike or other labor dispute, act of terrorism, inability to obtain materials and supplies, acts of government, any act of God, pandemic or other widespread outbreak of disease, or any other causes of like or different character beyond Buyer’s reasonable control shall not subject Buyer to any liability to Seller.
At Buyer’s option, the total quantity covered by this order may be reduced by the amount of omitted shipments or the specified delivery period extended by a time equal to that during which shipments shall be so omitted and such shipments made during the period of extension. If seller needs to allocate any limited supply of the goods covered by any order, it agrees to allocate such supply first to the goods covered by any order, before allocating any of such supply to its other customers, or to seller’s own use in its operations.
- Assignment – This order and Seller’s duties hereunder may not be delegated or assigned by Seller without Buyer’s written consent, and any assignment attempted without such consent shall, at Buyer’s option, be null and void, and effect a cancellation of all of Buyer’s obligations hereunder. Buyer may assign any order and its interest therein to any affiliated corporation, or to any corporation succeeding to Buyer’s business, without the consent of seller.
- Entire Agreement – Each order, together with any attached specifications and drawings, and these Purchase Order Terms and Conditions, constitutes the entire final agreement between the parties, superseding all prior and contemporaneous agreements, understandings, representations and negotiations, on the subject matter hereof.
- Conflict with Applicable Law; Severability – No term or condition herein shall be effective or binding to the extent that it may be illegal or require an illegal action. If any provision of these terms and conditions shall be judged by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such adjudication shall not affect or modify any other provision of these terms and conditions and the effect thereof shall be confined to the provision as to which such adjudication is made.
- Interpretation – Each order, and these Purchase Order Terms and Conditions, shall be governed by and construed according to the laws of the State indicated in the heading of this document, without reference to that state’s principles of conflicts of laws. THE APPLICATION OF THE UNITED NATIONS CONVENSION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (1980) is excluded.
- Conflict Minerals – Seller must provide material that is “DRC conflict free” as defined by applicable SEC rules. Any required conflict mineral content must be from recycled or scrap sources or originate from outside of the DRC Covered Countries. Material that contains conflict minerals that originated in a DRC Covered Country will be deemed non-conforming and unacceptable.
- Test Reports – Seller shall have the option to provide original mill test reports or certificate of conformance as certification to the product or service performed. If original mill test reports or certifications are provided, any alterations shall be displayed in a way that retains full legibility on the original documentation. All certificates of conformances shall be in its original, unaltered state upon distribution to Seller.
- Additional Terms Applicable to AS9100 Orders – All orders designated as “AS9100” orders are subject to the following, additional terms, in which case any inconsistency between such additional terms and Sections 1 – 19 above will be governed by the additional terms in this Section 20:
- Seller written notification to Buyer is required in cases of nonconforming product, including arrangements for Buyer approval of seller nonconforming material.
- Seller written notification to Buyer is required for changes in product and/or process definition and, where required, Buyer’s written approval.
- Supplier will flow down to sub tier suppliers the applicable requirements of each order, including key characteristics.
- Certification(s) of Compliance to all applicable specifications will be provided upon Buyer’s request.
- Right of entry shall be granted to Buyer, its customers, and regulatory authorities, to all facilities involved in seller’s performance of its obligations to Buyer, including access to all applicable records, for the purpose of monitoring product quality.
- Records resulting from the processing of each order shall be retained for a minimum of ten (10) years after completion of Buyer’s performance thereunder, or as otherwise required by Buyer. If disposing of records after the minimum retention period, seller will dispose of expired records by means of deletion form all servers/databases (for electronic records) or shredding (for physical records).
- Supplier is responsible for lost or damaged product during shipment.
- Supplier performance: RGM will evaluate and record the supplier(s) ability to meet contractual requirements, including product characteristics, specifications, on-time delivery, completion of documentation, and responsiveness to corrective actions. RGM reserves the right, at our discretion, to approve and/or disapprove a supplier for lack of performance.
- Supplier Quality System: a quality system that assures compliance with supplied documentation, including applicable orders, drawings, MOT (Manufacturing Operations Traveler or Work Order), and specifications, in compliance with ISO 9001, AS9100, and/or Nadcap (preferred). Buyer will validate its quality system status by confirming sustained certification approval, quality surveys, and/or on-site surveillance audits upon Buyer’s request from time to time.
- Supplier will prevent the use of counterfeit parts (see 8.1.4 of the AS9100D / ISO 9001:2015 Standard), and will ensure that persons / employees are aware of:
- their contribution to product or service conformity
- their contribution to product safety, and the importance of ethical behavior
- Supplier will maintain an approved calibration system (where applicable) which ensures valid measurements within the appropriate accuracy and is traceable to the NIST.
- For Calibration Suppliers: ISO 17025 Certified is preferred.
- Calibration certificates must disclose to Buyer in writing the standards used, which must be traceable to NIST (National Institute of Standards Technology).
TERMS OF SALE
OFFER, GOVERNING PROVISIONS AND CANCELLATION — This document is an offer or counter-offer by Round Ground Metals, Inc., an Illinois corporation, (“Seller”) to sell the products and related services (collectively the “Products”) described in the accompanying quotation, proposal, order acknowledgment, invoice or other document provided by Seller to Buyer herewith (the “Seller Document”) in accordance with these terms and conditions (these “Terms”), is not an acceptance of any offer made by buyer (“Buyer”), and is expressly conditioned upon Buyer’s assent to these Terms. Seller objects to any additional or different terms contained in any request for proposal, purchase order, acknowledgement or other communication previously or hereafter provided by Buyer to Seller. No such additional or different terms or conditions will be of any force or effect. These Terms, together with the consistent terms provided by Seller in the Seller Document, shall be referred to herein as the “Agreement” and will be the entire agreement between Seller and Buyer on the subject of the transaction described herein and therein; there are no conditions to the Agreement that are not so contained or incorporated. THE AGREEMENT AND ANY DISPUTE ARISING HEREFROM WILL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE SUBSTANTIVE AND PROCEDURAL LAWS OF THE STATE OF ILLINOIS AND THE U.S. (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS). THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER WILL NOT BE GOVERNED BY THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. No accepted offer may be cancelled or altered by Buyer except upon terms and conditions accepted by Seller in writing, and no changes to the Agreement will be binding unless set forth in writing and manually signed by Seller. This offer may be revoked by Seller at any time before it is accepted by Buyer and will automatically expire five (5) calendar 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 Products) will oblige Seller to sell to Buyer any quantity of Products in excess of the quantity that Buyer has committed to purchase from Seller at the time of such acceptance or conduct.
CANCELLATION – Seller reserves the right to cancel any order if Buyer has not given full specifications within the time period required by Seller. Seller also reserves the right to cancel an order for any material increase in Seller’s costs to procure steel or other raw materials, whether as a result of tariff or otherwise.
QUOTATIONS – Unless otherwise provided in the Agreement, prices quoted are subject to change by Seller without notice. All prices listed in Seller’s publications (including on Seller’s website) are intended as a source of general information only and not as an offer to sell, and all prices contained therein are subject to confirmation by formal quotation by Seller. No order shall be binding upon Seller until received and accepted by Seller in its sole discretion. All prices, and amounts payable, under the Agreement are in U.S. Dollars. Any manufacturer’s tax, occupation tax, use tax, sales tax, excise tax, 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 on or measured by the transaction between Seller and Buyer will be paid by Buyer in addition to the prices quoted or invoiced. In the event Seller is required to pay any such taxes or other charges, Buyer will reimburse Seller therefor on demand.
DELIVERIES AND CLAIMS AGAINST CARRIER – Unless otherwise provided in the Seller Document, Products shall be delivered to Buyer F.O.B. Seller’s loading dock (as defined in the Illinois Uniform Commercial Code) or, for ultimate destinations outside of the U.S., EXW Seller’s loading dock (as the latter shipping term is defined in Incoterms 2010). Delivery of Products to the carrier will constitute delivery to Buyer, and regardless of shipping terms or freight payment, Buyer will bear all risk of loss or damage in transit. Seller reserves the right to make delivery in installments, unless otherwise expressly stipulated herein; all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment will not relieve Buyer of its obligations to accept remaining deliveries.
Promises of delivery on special mill orders are estimated as carefully as possible, but all delivery dates are approximate. Claims for shortages or other errors in delivery must be made in writing to Seller within 10 calendar days after receipt of shipment, and failure to give such notice will constitute unqualified acceptance and a waiver of all such claims by Buyer. Claims for loss of or damage to Products in transit must be made to the carrier, and not to Seller.
PAYMENT – Unless otherwise expressly provided in the Seller Documents, Seller’s payment terms are net thirty (30) days from date of invoice. Seller reserves the right to charge a finance charge of the lessor of (i) up to two (2) percent over the prime rate; or (ii) the highest rate permitted by applicable law, on the amount of the invoice which remains unpaid thirty (30) days after the invoice date. All payments are to be made in US Dollars.
TECHNICAL ADVICE – None of Seller’s agents, employees or representatives have any authority to bind Seller to any affirmation, representation or warranty other than those expressly stated in the Agreement. Unless an affirmation, representation or warranty is specifically included or referred to, it shall not be enforceable. Any technical advice Seller furnishes with respect to the use of Products is given without charge, and Seller assumes no obligation or liability for the advice given or the results obtained, all such advice being given and accepted at Buyer’s risk.
INTELLECTUAL PROPERTY – All intellectual property rights (including, without limitation, patents, trademarks, registered designs and any rights to apply for same, copyright, design rights, database rights, rights in and to confidential information and know-how) and any rights analogous to the same anywhere in the world and existing at any time in Products or arising out of or relating to the design or manufacture of Products or the provision of services shall belong to and remain vested in Seller. Nothing in the Agreement grants to Buyer any right, title or interest in or to Seller’s intellectual property.
NO RETURNS — Except as otherwise agreed to in writing by Seller, no Products will be accepted for return.
RELEASE OF GOODS — Buyer is required to take delivery 14 calendar days after agreed ship date. Finished material pushed out by Buyer is subject to a storage fee. Cancellations are not allowed, unless item is stocked, cancellations are subject to a restocking fee.
WARRANTY – Seller warrants that the Products, at the time of shipment by Seller to Buyer, shall conform to any specifications set forth on the face of Seller’s sales form and shall conform to the description contained in the Certificate of Tests or Certificate of Compliance if either has been furnished by Seller in connection with a sale. The retention period for all documents related to the contract is 7 years. SELLER DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO PRODUCTS SOLD OR SERVICES RENDERED, WHETHER EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS OF THE PRODUCTS OR SERVICES FOR ANY PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
BY PLACING AN ORDER WITH SELLER, BUYER AFFIRMS THAT IT HAS NOT RELIED UPON THE SKILL OR JUDGMENT OF SELLER OR ANY OF SELLER’S AGENTS, EMPLOYEES OR REPRESENTATIVES TO SELECT OR FURNISH THE PRODUCTS FOR ANY PARTICULAR PURPOSE, AND THE SALE IS MADE WITHOUT ANY WARRANTY BY SELLER THAT THE PRODUCTS ARE SUITABLE FOR ANY PARTICULAR PURPOSE.
Except for the specifications and certificates specifically referred to above, any description of the Products or services contained on any Seller sales form is for the sole purpose of identifying it, is not part of the basis of the sale, and does not constitute a warranty that the Products or services shall conform to that description. The use of any sample in connection with a sale is for illustrative purposes only, is not part of the basis of the sale, and is not to be construed as a warranty that the Products will conform to the sample. Any affirmation of fact or promise made by Seller or any of Seller’s agents or employees is not part of the basis of the bargain and shall not constitute a warranty that the Products will conform to the affirmation or promise.
EXCLUSIVE REMEDY – As Buyer’s exclusive remedy, and Seller’s exclusive liability for a breach of the warranties set forth in the “Warranty” Section of these Terms, or for any other defect or deficiencies of the Products, Seller shall, at its option, replace with new Products, or refund the purchase price for, the Products that in Seller’s opinion are defective (whichever Seller determines, in its discretion, to provide) if Buyer gives written notice of the defect to Seller within forty-five (45) days after receipt. Seller’s obligation shall not extend to any of the Products that, in Seller’s judgment, has been affected by damage or wear resulting from operations performed after the sale, or from misuse, abrasion, corrosion, negligence, accident, tampering, faulty installation, inadequate maintenance, damage or casualty. This exclusive remedy shall not be deemed to have failed of its essential purpose so long as Seller is willing and able to replace the defective Products or refund the purchase price for the defective Products. Buyer must immediately discontinue use of any item claimed to be defective. No charge for labor or expense required to repair the defective Products or occasioned by it will be allowed. Such replacement or refund (whichever Seller determines, in its discretion, to provide) shall be Seller’s sole obligation and Buyer’s exclusive remedy for any deficiency in Products furnished hereunder, and shall be conditioned upon Buyer’s return of such Products to Seller or, in Seller’s sole discretion, inspected in the field by a Seller-authorized representative, in either case at Buyer’s expense and risk of loss. Any parts of Products replaced under this warranty are warranted only for the balance of the Warranty Period on the original part that was replaced.
FORCE MAJEURE – Seller shall not be liable for damages for any delay or failure in the performance of this Agreement from any cause beyond its reasonable control. Such causes shall include, but not be limited to; acts of God, strikes, riots, sabotage, war, fire, explosion, snow, ice, floods, accidents, epidemics, governmental order or regulations or inability to secure any necessary governmental or other permits, any act or any tariff imposed by any government entity that may cause a material increase in Seller’s costs to procure steel or other raw materials, court orders, breakdown in machinery or despite seller’s due diligence, the failure of its suppliers to provide materials in a timely manner. If the occurrence of a contingency the non-occurrence of which was a basic assumption on which Seller’s agreement to sell hereunder was predicated affects only a part of Seller’s capacity to perform Seller’s contracts with Buyer and others, and to provide for Seller’s internal use, for similar products or services, Seller will allocate its available capacity first to the satisfaction of its internal needs and then in any manner that Seller determines, in good faith.
Government Contracts – If the provision of the Products by Seller under accepted orders is subject to mandatory provisions of U.S. law concerning contracts or subcontracts with or for the benefit of the U.S. or any state government, Buyer shall so notify Seller in advance of order acceptance specifying the mandatory provisions of U.S. or state law which apply.
BUYER’S INDEMNITY – Buyer shall indemnify and hold harmless Seller and its officers, agents, and employees from and against any and all losses, damages, liabilities, costs and expenses (including damages arising from personal injury or death) that may arise out of Buyer’s acts or omissions, including, but not limited to: (a) any breach by Buyer of the Agreement; (b) any violation by Buyer of any law, rule or regulation; (c) any use or resale of the Products by Buyer; (d) any negligence or willful misconduct of Buyer; or (e) any claim of patent, trademark, copyright or trade secret infringement, or infringement or any other proprietary rights of third parties to the extent that any Products are manufactured in accordance with drawings, designs or specifications proposed or furnished by Buyer.
INSURANCE — At Buyer’s expense, Buyer agrees to carry, with reputable insurance companies, insurance coverage of the types and in the amounts reasonably requested by Seller from time to time. Buyer shall ensure that Seller is named as an additional insured on such insurance policies, and Buyer shall provide Seller with certificates of such insurance upon request.
DESIGNS AND TOOLS — Any design work performed by Seller, and any dies, molds, jigs or other tools that Seller manufactures or acquires, in connection with its performance hereunder will be and remain the sole property of Seller, notwithstanding any charges to Buyer therefor. Any such charges convey to Buyer the right to have the designs, dies, molds, jigs and/or other tools used by Seller for performance hereunder, but do not convey title or right of possession or any other right.
LIMITATION OF LIABILITIES; LIMITATIONS ON ACTIONS – SELLER SHALL NOT BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING LOSS OF PROFITS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, AND (B) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Without limiting the generality of the foregoing, Seller specifically disclaims any liability for property damages, penalties, special or punitive damages, damages for lost profits or revenues, down-time, lost good will, cost of capital, cost of substitute Products, or for any other types of economic loss, or for claims of Buyer’s customers or any third party for any such damages, costs or losses. Seller shall not be liable to Buyer for any amount with respect to any order of Products that, in combination with all claims by Buyer against Seller related to such order of Products, exceeds the total price paid by Buyer to Seller for such order of Products. SELLER WILL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR UNDER OTHER THEORIES OF LAW OR EQUITY, WITH RESPECT TO PRODUCTS OR SERVICES SOLD BY SELLER, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO. The liability of Seller to Buyer, whether in contract, tort (including negligence or strict liability) or otherwise, is exclusively limited to the remedies expressly provided under the terms of the Agreement, in lieu of any and all other remedies at law or in equity.
No action against Seller for breach of any sale of Products under this Agreement may be brought more than one year after such cause of action accrues.
CUMULATIVE REMEDIES — Seller’s rights and remedies under the Agreement are cumulative and in addition to all other rights and remedies available to Seller at law or in equity.
NO ASSIGNMENT — Buyer shall not assign its rights or delegate its duties under the Agreement. Any such attempted assignment or delegation shall be null and void.
CONFIDENTIAL INFORMATION – Any and all designs, sketches, models, or samples, drawings, bills of materials, blueprints, plans, devices, machinery, specifications, processes, techniques, expertise, business and financial records, part numbers, plans and projections, and other similar information, items, documents and materials made available by Seller or its affiliates to Buyer or its affiliates, or otherwise acquired, obtained or developed by Buyer under or in connection with these Terms (collectively, the “Confidential Information”) are and at all times shall remain the exclusive property of Seller. “Confidential Information” shall not include any item of information that Buyer can demonstrate by documentary evidence: (a) is or has become public knowledge, whether by publication or otherwise, through no act, omission or fault of Buyer or any of its employees, officers, directors, agents or affiliates, or (b) is disclosed to Buyer by a third party who is in lawful, rightful possession of the information and who has the legal right to make disclosure thereof without confidentiality restrictions. During the Confidentiality Period, Buyer agrees that it shall not (i) make any use whatsoever of the Confidential Information except for the purpose(s) specified in these Terms; or (ii) disclose the Confidential Information to any third party. The “Confidentiality Period” shall mean, for all Confidential Information that constitutes a ‘trade secret’ under applicable law, the period beginning on the date of disclosure to Buyer and ending on the later of (x) the date such Confidential Information is no longer a trade secret under applicable law, or (y) the date that is 3 years after the date that Seller accepts the last purchase order submitted by Buyer; and shall mean, for all other Confidential Information, the period beginning on the date of disclosure to Buyer and ending 3 years after the date that Seller accepts the last purchase order submitted by Buyer. Buyer acknowledges and agrees that money damages for any and all breaches of Buyer’s obligations under this Section are both incalculable and insufficient and that any such breach would irreparably harm Seller. Therefore, in the event of an actual or prospective breach of any such obligation, Seller shall be entitled to seek a permanent and/or preliminary injunction to prevent or remedy such breach and shall have the right to specific enforcement of this Section against Buyer in addition to any other remedies to which Seller may be entitled at law or in equity.
RELATIONSHIP OF PARTIES – Buyer and Seller are independent contractors, and nothing herein shall be construed to create a partnership, joint venture, agency, or employment relationship. Neither party has nor will have any power to bind the other, or to assume or create any obligation or responsibility, express or implied, on behalf of the other party.
UPDATES – THESE STANDARD TERMS MAY BE MODIFIED, AMENDED AND UPDATED FROM TIME TO TIME AT THE DISCRETION OF SELLER UPON WRITTEN NOTICE TO BUYER.
Updated June 2020