These Terms and Conditions of Sale and all documents referenced herein (collectively, the “Terms”) are the only terms and conditions which govern the sale of goods (the “Goods”) by Pennex Aluminum Company, LLC (“Seller”) to the buyer (“Buyer”)named on the Order Confirmation (as defined below). Collectively Seller andBuyer are referred to as “Parties” and each individually as a “Party.”
Any order by Buyer to purchase Goods from Seller(“Order”) is subject to Seller’s acceptance in the form of a written confirmation of Buyer’s Order (the “Order Confirmation”). The OrderConfirmation and these Terms (collectively, the “Sale Agreement”)comprise the entire agreement between the Parties and supersede all other terms and conditions, oral or written, and all other communications between the Parties suggesting additional or different terms. No other representations, promises, statements, orders, quotations, proposals or other communications not contained herein shall be binding upon the Parties, provided, however, that a previously executed confidentiality or nondisclosure agreement will continue to apply to the extent not directly in conflict with this Sale Agreement.SELLER’S ACCEPTANCE OF ANY ORDER IS EXPRESSLY CONDITIONED UPON BUYER’S ACCEPTANCE OF THESE TERMS AND CONDITIONS OF SALE, AND ANY ADDITIONAL OR DIFFERENT TERMS ARE REJECTED AND SHALL NOT APPLY UNLESS EXPRESSLY AGREED TO INA WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SELLER. This Sale Agreement supersedes any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its Order or such terms. Seller expressly rejects Buyer’s general terms and conditions of purchase, and fulfillment of Buyer’s Order does not constitute acceptance of any of Buyer’s terms and conditions or serve to modify or amend these Terms. Acceptance of theOrder Confirmation by Buyer, which shall be deemed accepted should Buyer not object in writing within three (3) business days of receipt of the OrderConfirmation, is a prerequisite to the purchase of the Goods and shall operate as an acceptance of these Terms which are expressly incorporated into the OrderConfirmation. Notwithstanding anything herein to the contrary, if a written contract signed by both Parties is in existence covering the sale of the same Goods referenced in Order Confirmation (“Master Agreement”), then the MasterAgreement shall prevail to the extent of any inconsistency with these Terms.
(a) Provided no other shipping method has been noted on the Order Confirmation, Seller delivers EXW (Ex Works), duty unpaid, from Seller’s facility or warehouse where the Goods purchased by Buyer a restored in accordance with INCOTERMS 2020. The time at which the Goods are ready for shipment is determinant for the adherence to delivery periods and dates. Incase of any contradiction between these Terms and the INCOTERMS 2020, theseTerms shall prevail.
(b) Delivery dates are estimates only. Seller shall not be liable for any loss, claim, damage, or expense of any kind whatsoever for delays, or loss or damage in transit. Claims for loss or damage in transit shall be made solely against the carrier.
(c) Seller is entitled to make partial deliveries and may invoice for each such partial delivery separately. Seller reserves the right without liability to make deliveries inexcess of or below ordered volumes, in terms of weight or quantity, in accordance with the following over/under tolerances: weight from 0 to 500 lbs= +/- 35%; weight from 501 to 1,000 lbs = +/-25%; weight from 1,001 to 2,000 lbs= +/- 15%; and weight from 2,001 to 10,000 lbs = +/- 10%. These over/under tolerances shall apply both with regard to the total contractual quantity and each individual or partial delivery. Delay in delivery of any partial shipment will not relieve Buyer of its obligation to accept delivery of any remaining shipments.
(d) If shipment is delayed beyond the specified shipment date due to Buyer, Buyer will reimburse Seller for the costs and expenses incurred by Seller in connection with such delay, including, without limitation, Seller’s cost and expense to store the Goods.
The Parties agree that all communications or other records with respect to any transactions under this Sale Agreement, including those required to be in writing, will have legal effect, validity and enforceability if provided in a retrievable and reproducible electronic or tangible medium.
(a) Buyer shall pay to Seller, in the invoiced currency, the agreed contract price (“Price”). Unless otherwise agreed in writing, Seller’s prices apply Ex Works, duties unpaid. Prices include standard packaging. Prices exclude transportation and insurance costs which are the responsibility of Buyer. Unless otherwise stated by Seller, payment terms are net 60 days from the date of Seller’s invoice, by electronic funds transfer. All payment shall be made without deduction, reduction, adjustment, or set-off. In the event Buyer fails to pay Seller’s invoices when due, Buyer will be obligated to pay Seller interest, on all amounts so due and payable, at the greater of (i) 4% above the prime rate of JPMorgan Chase Bank, N.A. offered rate, or (ii) the maximum rate permitted by Applicable Laws. As used herein, “ApplicableLaws” means all applicable federal, state and local laws, statutes, rules, regulations, orders and ordinances now or hereinafter in effect. Buyer shall be liable for all costs and expenses related to collection of past due amounts, including, without limitations, attorneys’ fees and costs.
(b) In the event of delivery of Goods in installments or partial deliveries, each shipment shall constitute a separate sale, and Buyer shall pay for the units shipped and invoiced whether such shipment is a whole or partial fulfillment of Buyer’s Order.
(c) Whenever reasonable grounds for in security arise with respect to payment by Buyer, Seller may demand different terms of payment and may demand assurance of Buyer’s due payment. Any such demand may be oral or written and Seller may, upon making such demand, stop production and suspend shipment until Buyer provides, in Seller’s sole discretion, sufficient assurance of payment. The non-payment of any amounts due and payable to Seller when the whole or any part or installment of such amount has become due and payable and is not paid, will be deemed an Event of Default (as herein defined) by theBuyer until payment is made along with interest on such unpaid amount.
(d) Upon an Event of Default, including the Buyer’s inability or unwillingness to perform, or other circumstances which, in the reasonable determination of Seller, may have a material adverse effect on the creditworthiness of Buyer and/or the Buyer’s ability to perform its obligations, Seller is entitled, without prejudice to any other remedies under this Sale Agreement or the Applicable Laws, to demand advance payment and/or reduce or withdraw any unsecured credit limit for any deliveries not yet performed and to call due for payment immediately all claims arising under this Sale Agreement. The obligation to deliver is suspended for as long as the Event of Default remains with regard to any overdue payment.
(a) Until full payment is received in Seller’s bank account, with proof of payment being sent by the Buyer to Seller, title to the Goods shall be subject to a security interest pursuant to Section 6(f)below for all claims accruing to Seller against the Buyer under this SaleAgreement. Risk of loss shall be in accordance with the applicable Incoterm(2020).
(b) In the event the Buyer fails to make timely payment to Seller or fails to take delivery of the Goods within thirty(30) days from the arrival of said Goods or such other period as mutually agreed between the Parties, then upon request by Seller, Buyer shall return theGoods to Seller with the logistics and or/disposition of the return to be as mutually agreed between the Parties.
(c) To the extent legally permitted in the jurisdiction where the Buyer is domiciled or where the Goods are delivered, Seller’s security interest in the Goods extends to any new products created by processing the Goods sold to Buyer as mentioned in Section 6(a). In the event of processing, linking or mixing with other property, Seller acquires a security interest equivalent to the relation of the invoice value of the Goods sold to the other materials.
(d) To the extent permitted by Applicable Laws,Buyer acknowledges and agrees that the execution, acceptance and/or transmittal of this Sale Agreement, as the case may be, constitutes Buyer’s express authorization for Seller to take all legal measures necessary to secure the security interest in Goods, particularly the registration of the security interest in public books or registers. The Buyer shall support and cooperate with Seller for all measures to secure Seller's security interest in the Goods.
(e) The Buyer has the obligation to insure theGoods subject to security interest against theft, weather-related perils and other customary risks, and to take such measures necessary to ensure the security interest of Seller in the Goods is neither impaired nor rescinded. Buyer shall, upon request, provide Seller with a Certificate of Insurance or other evidence reasonably acceptable to Seller that Buyer has the insurancerequired by this Section 6(e). Notwithstanding the foregoing, if this SaleAgreement is on a CIF or CIP basis, one hundred ten percent (110%) of the contract price shall be insured by Seller, unless otherwise agreed herein.
(f) To secure Seller's relevant claims underSection 6(a), the Buyer hereby assigns to Seller all receivables and/or proceeds from the sale of Goods subject to security interest, including bills of exchange and checks. If the Goods subject to security interest are extended to new products and sold in accordance with Section 6(c), assignment is limited to the share of the receivable that corresponds to Seller's security interest in such Goods.
(g) In the event of Default in payment by theBuyer, the Buyer's cessation of payment or if a petition for the commencement of insolvency proceedings has been filed by or against the Buyer under the applicable insolvency laws, the Buyer must, at Seller's request, notify its customers of the assignment, carried out in accordance with Section 6(f), and provide Seller with all necessary information and take all measures to secure Seller’s rights in the Goods. In particular, Seller must be notified immediately of any attachment by creditors of Goods subject to security interest or the receivables assigned to Seller.
(h) Subject to Section 6(a) above, if the value of the Goods subject to security interest exceeds the value of receivables to be secured by more than 20% Seller shall, upon the Buyer's request, release securities selected by the Buyer to such extent.
(i) The Buyer agrees and accepts that Seller has an interest in the Goods, as an unpaid seller, until the Buyer pays the amounts due and payable under the Sale Agreement for purchase of the Goods, to Seller.In consideration of Seller having sold the Goods to the Buyer and in order to secure the payment of the amount as due and payable to Seller by the Buyer under the Sale Agreement, the Buyer hereby irrevocably nominates, constitutes and appoints Seller to be the true and lawful attorney of the Buyer in the name of and for and on behalf of the Buyer in the event (x) any amount payable by the Buyer to Seller under the Sale Agreement remains unpaid for a period of thirty (30) days after arrival of the Goods or such other period as mutually agreed between the Parties, and/or (y) the Buyer does not take timely delivery of the Goods, to do, execute, and perform any one or more of the following acts, deeds, matters, and things, namely:
(1) To make, execute, sign and deliver in favor of Seller, at the cost of the Buyer, in all respects, all documents as may be necessary, to authorize Seller to take custody, delivery and possession of all the Goods from the transporter or shipping line, or any other person, agency, authority, or entity who has custody or possession of the Goods, at the costs of the Buyer, without intervention of the court or third person which expressly includes, but is not limited to, creation, presentation and delivery of a Notice of Change of name of the consignee changing the consignee under the applicable invoice, bill of lading, and/or any other applicable documents from Buyer to Seller or any other person or entity that Seller may determine, in its sole discretion;
(2) To apply, sign, execute, submit, represent and obtain all permissions and approvals from any person, agency, authority, court or Government for Seller to obtain custody, delivery and possession of the Goods, at the costs of the Buyer;
(3) Todeliver, store, export or transport the Goods to any place as Seller may deem fit, at the costs of the Buyer;
(4) To sell, transfer and deliver the Goods to any other person as Seller may deem fit and to receive price of the Goods sold to such person and issue receipt or acknowledgement for the price received;
(5) Todo or cause to be done all such acts, deeds, matters and things as may be necessary or proper for the effectual completion of the transfer, delivery, sale and possession of the Goods to or by Seller;
(6) Seller may exercise all or any of the aforesaid powers conferred upon Seller through any of its officer(s), director(s), employee(s), agent(s) and/or representative(s) or any other person duly authorized by Seller for and on its behalf; and,
(7) TheBuyer hereby agrees and accepts that all and every receipts, documents, deeds, matters and things which shall be made by Seller for and on behalf of the Buyer, be made, executed or done for the aforesaid purposes by virtue of the aforesaid powers granted by the Buyer to Seller shall be as good, valid and effectual to all intents and purposes whatsoever as if the same had been made, executed or done by the Buyer in its own name and person.
Buyer further agrees and accepts that in the event Seller elects to take one or more of the foregoing actions, Seller shall bear no liability to Buyer or to any person or party claiming by or through Buyer.
All prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any government authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, however, that Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, or real or personal property or other assets. Seller may, at its sole discretion, increase the price to Buyer of the Goods by the amount of any direct or indirect increase in any tariffs or duties on the Goods or components of the Goods.
(a) Seller warrants toBuyer that for a period of six (6) months from the date of delivery of theGoods (the “Warranty Period”), the Goods be free from defects in manufacturing and in materials provided by Seller.
(b) If Goods delivered are found to be non conforming with the warranties set forth in this Sale Agreement, Buyer must(i) with respect to any patent nonconformity, notify Seller of such nonconformity within five (5) business days of the date the Goods are delivered to Buyer or (ii) with respect to any latent nonconformity, notify Seller of such nonconformity within five (5) business days of the date Buyer discovered or reasonable should have discovered the nonconformity. Seller shall be given the opportunity to confirm, by its inspection, the complaint of Buyer. If, inSeller’s opinion, after such inspection, the complaint of Buyer is valid, or ifSeller elects not to inspect, Seller will, at its option, cure such nonconformity within a reasonable period of time by repairing or replacing the nonconforming Goods or refund or credit to Buyer the price of such Goods (in which case, Buyer will return the Goods to Seller). Buyer will bear the costs of access (including removal and replacement of systems, structures or other parts of Buyer’s facility), de-installation, decontamination, re-installation and transportation of the Goods sold hereby to Seller and back to Buyer.
(c) The warranties under this section do not apply where the Goods have been: (i) subject to abuse, misuse, neglect, negligence, accident, abnormal physical stress or environmental conditions, use contrary to any instructions issued by Seller, or improper testing, installation, storage handling, repair, or maintenance; (ii)reconstructed, repaired, or altered by anyone other than the Seller or its authorized representative; or (iii) used with any third-party product, hardware, or product that has not been previously approved in writing by Seller.
(d) Any warranty repair or replacement ofGoods provided by Seller pursuant to the above warranties will be warranted bySeller for a period equal to the remainder of the original warranty period set forth above, as applicable (no warranty will extend beyond such period); no“evergreen” or “in-place” warranty is being provided.
(e) THIS SECTION 8 SETS FORTH BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH HEREIN.
(f) THER EARE NO WARRANTIES, GUARANTEES, REPRESENTATIONS, OR REMEDIES THAT EXTEND BEYOND THOSE IN THESE TERMS AND CONDITIONS, AND ALL OTHER WARRANTIES, GUARANTEES,REPRESENTATIONS, OR REMEDIES (EXPRESS OR IMPLIED) NOT EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS ARE FULLY DISCLAIMED AND EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. THE WARRANTIES, GUARANTEES, REPRESENTATIONS, AND REMEDIES SET FORTH IN THESE TERMS AND CONDITIONS ARE EXCLUSIVE AND IN PLACE OFALL OTHER WARRANTIES, GUARANTEES, REPRESENTATIONS, AND REMEDIES, IN EACH CASE,EXPRESS OR IMPLIED, INCLUDING BY WAY OF EXAMPLE, BUT NOT OF LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF TITLE, DESIGN, NON-INFRINGEMENT,WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SELLER’S WARRANTIES WITH RESPECT TO GOODS ARE VOIDED TO THE EXTENT THAT ANY BREACH THEREOF RESULTS FROM THE ALTERATION, MISUSE, IMPROPER STORAGE, INSTALLATION,ASSEMBLY, COMBINATION, COMMISSIONING, MAINTENANCE, OR APPLICATION THEREOF AFTER DELIVERY OF THE GOODS BY SELLER.
(g) SELLER FURTHER DISCLAIMS ANY RESPONSIBILITY WHATSOEVER TO BUYER OR TO ANY OTHER PERSON FOR INJURY TO PERSON OR DAMAGE TO OR LOSS OF PROPERTY OR VALUE CAUSED BY ANY GOODS TO THE EXTENT SUCH INJURY, DAMAGE OR LOSS RESULTS FROM THE ALTERATION,MISUSE, IMPROPER STORAGE, INSTALLATION, ASSEMBLY, COMBINATION, COMMISSIONING,MAINTENANCE, OR APPLICATION OF SUCH GOODS AFTER DELIVERY OF THE GOODS BYSELLER.
(a) Except as otherwise provided in this Section, no intellectual property or proprietary information with regard to the Goods is being sold, granted, transferred, licensed, or assigned in connection with this Sale Agreement and the Goods sold pursuant hereto do not constitute works-made-for-hire. Buyer’s access and use of any intellectual property and proprietary information of Seller included in and part of the Goods sold hereby will be non-exclusive and limited to the use and maintenance of the Goods sold hereby as contemplated by this Sale Agreement.
(b) Buyer acknowledges and agrees that (i) any and all Goods delivered under this Sale Agreement were manufactured pursuant toBuyer’s specifications, (ii) Seller shall have no responsibility for, or liability with respect to, such Goods, whether or not to Buyer or a third-party to which Buyer transfers or sells suchGoods, and (iii) Seller shall have no responsibility for, or liability with respect to, the Goods even if Seller identified any modifications to Buyer’s specifications that were incorporated into such specifications by Buyer, it being understood and agreed that Buyer is solely responsible for the design of the Goods and for any specifications developed in connection therewith.
(a) Buyer covenants and agrees to indemnify, defend (with counsel acceptable to Seller), save and hold harmless Seller, its officers, directors, agents, employees, successors and assigns, from and against any and all liabilities, obligations, suits, claims, losses, damages, judgments, awards, penalties, injuries, actions, costs, fees and expenses(including reasonable attorneys’ fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties) of whatsoever kind and nature, whether incurred by an indemnified party or alleged by others, in contract or tort (including by way of example, but not of limitation, strict liability in tort) or otherwise, arising in whole or in part as a result of, or in connection with, or in relation to (a) Buyer’s or its agents’ provided specifications, design, or prescribed material or method of making Goods, including without limitations, any resulting violation of intellectual or proprietary rights; (b) Buyer’s use, misuse, or disposal of theGoods or materials; (c) Buyer’s non-compliance with any Applicable Laws; (d)breach by Buyer of these Terms or the Sale Agreement; (e) any infringement of any intellectual property rights with respect to the Goods; and (f) Goods subjected to (i) improper installation of storage; (ii) accident, damage, abuse, or misuse; (iii) abnormal operating conditions or applications; or (iv)repairs or modifications made to Goods without prior written approval ofSeller.
(b) The indemnification provided for herein is without prejudice to any other rights or remedies any of the indemnified parties may have under any Applicable Law. Matters covered by the foregoing indemnity include by way of example, but not of limitation: (i) damages for personal injury, disease or death; (ii) damages for injury to personal or real property; (iii) natural resource damages; (iv) any and all costs or recalls of such Goods or products, including by way of example, but not of limitation, costs incurred in transportation, labor, removal, installation, fines, penalties and attorneys’ fees, and (v) all expenses, costs and fees incurred by any indemnified party as a result of any claim for indemnification hereunder.
(c) This indemnity shall survive the expiration, termination, or cancellation of this Sale Agreement.
(a) Seller shall not be liable for the consequences of any non-performance or delayed performance for any event or cause beyond its reasonable control, such as defined in Section 11(b)below (each a “Force Majeure Event”) or for any damages to the Goods suffered by the Buyer by reason of any Force Majeure Event, in each case, irrespective of whether such contingency is specified herein or is presently occurring or anticipated by Seller, for the duration of the Force Majeure Event and to the extent of its effects on the obligation of Seller to perform under this Sale Agreement;
(b) Force Majeure Event includes, but is not limited to, any hindrance connected with the sale, manufacture, supply, shipment, or delivery of Goods, including but not limited to, any act of God, earthquake, fire, flood, landslide, tidal wave, typhoon, hurricane, storm, natural disaster, public enemy, riot, terrorism, embargo, breakdown of transportation, restrictions upon shipping or transport, impositions of a ban on imports or exports, trade restrictions, explosion, lockouts, sabotage, strikes, any act of war (whether declared or undeclared),civil commotion, invasions, hostilities, terrorist acts or threats, governmental actions (including any government authority or agency or similar authority exercising de facto sovereignty), directions, or orders (whether foreign, national, state or local, including court orders, judgments, or decrees and including compliance issues), trikes, labor stoppages, failure to deliver or to delivery on time on the part of Seller’s supplier, bankruptcy of Seller’s supplier, restrictions or shortage in supply of energy and raw material, lack of warehouse or storage space, epidemics, pandemics, sanctions or measures enacted by national or foreign authorities for which Seller is not responsible.
(c) Any declaration of a Force Majeure Event will entitle Seller, at its sole option, and without liability on the part of Seller to Buyer, to (a) extend the time for performance and delivery for a period, or periods, of time that, in Seller’s sole discretion, appear reasonable, or (b) cancel the sale of the Goods. Seller shall not be required to make any concession or grant any demand to bring an end to a strike or other concerted act of workers.
Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $2 million per occurrence, $2 million in products-completed operations aggregate, and $4 million annual aggregate with insurance carriers having an AMBest rating of “A-VIII” or better. Upon Seller’s request, Buyer shall provide Seller with a certificate of insurance from Buyer’s insurer evidencing the insurance coverage specified in this Section 12. Buyer shall provide Seller with 30 days’ advance written notice in the event of a cancellation or material reduction of coverage in Buyer’s insurance policy. Except where prohibited by law, Buyer shall require(i) that Buyer’s insurance will be primary and noncontributory; (ii) that Seller be named as an Additional Insured; and (iii) that Buyer and its insurer waive all rights of subrogation against Seller's insurers and Seller.
(a) IN NO EVENT SHALL SELLER OR ANY OF ITS REPRESENTATIVES BE LIABLE FOR ANY CLAIMS OR TO ANY PERSON OR ENTITY WHATSOEVER, INCLUDING BYWAY OF EXAMPLE, BUT NOT OF LIMITATION, CLAIMS OF BUYER, BUYER’S CUSTOMERS OR OTHER THIRD PARTIES FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL,EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES OF ANY KIND WHATSOEVER, AND HOWEVER ARISING, INCLUDING BY WAY OF EXAMPLE, BUT NOT LIMITATION, LOST DATA, LOSS OF PRODUCT, LOST PROFITS OR REVENUES, DIMINUTION IN VALUE, LOSS OR INTERRUPTIONS OF BUSINESS, COST OF CAPITAL, COST OF COVER, DOWNTIME COSTS, INCREASED OPERATING COSTS, ARISING OUT OF OR RELATING TO THIS SALE AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER SELLER WAS ADVISED OFTHE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY(CONTRACT, TORT INCLUDING NEGLIGENCE AND STRICT LIABILITY, STATUTE, WARRANTY OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
(b) IN NO EVENT WILL SELLER’S AGGREGATE LIABILITY FOR ANYAND ALL CLAIMS, LIABILITIES, LOSSES, DAMAGES, COSTS AND EXPENSES RELATING TO,ARISING OUT OF, OR IN CONNECTION WITH THIS SALE AGREEMENT AND/OR THE SALE,MANUFACTURE, DELIVERY, RESALE, REPAIR OR USE OF ANY GOODS HEREUNDER(COLLECTIVELY, “CLAIMS”) EXCEED THE PRICE ACTUALLY PAID BY BUYER FOR THE GOODS THAT WERE NONCONFORMING OR THAT WERE NOT DELIVERED WITHIN THE TIME PERIOD AGREED TO BY BUYER AND SELLER.
Buyer’s rights, interests, or obligations hereunder may not be assigned, transferred, or delegated by Buyer without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Sale Agreement. Seller may assign any of its rights or obligations to an affiliate of Seller or to any successor (whether by merger, purchase, or otherwise) to all or substantially all of the equity or assets of Seller.
Seller is acting as an independent contractor, and nothing contained in this Sale Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. Each Party will comply with all Applicable Laws with regard to its own employees and will be solely responsible for paying all wages to its employees, for obtaining insurance for its employees and for withholding and paying all applicable federal, state, local and social security taxes, Medicare and other withholding deductions and payments, and will make all appropriate unemployment tax payments and any similar taxes on behalf of its employees.
This Sale Agreement benefits solely the Parties to this Sale Agreement. Nothing in this Sale Agreement express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Sale Agreement.
(a) All non-public, confidential, or proprietary information ofSeller (“ConfidentialInformation”), including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, quantities, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Sale Agreement is confidential, solely for the purpose of performing this Sale Agreement, andmay not be disclosed or copied unless authorized in advance by Seller in writing. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (i) in the public domain; (ii) known to Buyer at the time of disclosure; or (iii)rightfully obtained by Buyer on a non-confidential basis from a third party. Buyer acknowledges and agrees that all Confidential Information received from Seller, if any, is solely Seller's property and upon Seller’s request, Buyer shall promptly return or destroy, as requested by Seller, all ConfidentialInformation received from Seller.
(b) Buyer shall not advertise or publicly announce the fact that Seller has contracted to supply any Goods to Buyer without obtaining the prior written consent of Seller.
(c) Following Buyer’s offering of Goods in commerce or other disclosure of Goods to third parties, Seller may display, show, disclose or otherwise publicize that Seller has manufactured the Goods and sold them to Buyer. Furthermore, Buyer grants Seller a non-exclusive, royalty-free license to use Buyer's trademarks, logos, and brand names solely in connection with identifying the Buyer as a customer who has purchased goods from Seller. Seller acknowledges Buyer's exclusive ownership of its trademarks, logos and brand names and shall not challenge or assist others in challenging Buyer's rights.
Buyer shall comply with all Applicable Laws in relation to this Sale Agreement,Buyer’s performance of its obligations hereunder, and Buyer’s use or resale ofGoods. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Sale Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Sale Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller mayt erminate this Sale Agreement immediately if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods or critical components of Goods.
(a) Each of the following constitutes an event of default by Buyer hereunder (each an“Event of Default”): (i) failure to pay any amount when due under this SaleAgreement or any other agreement between Buyer and Seller; (ii) non compliance or breach with any of these Terms, in whole or in part; (iii) institution by or against Buyer of any federal or state proceedings for relief of debtors including bankruptcy or appointment of a receiver, (iv) suspension of business or business failure, (v) entry of a judgment or a tax lien against Buyer, (vi) voluntary transfer, sale or assignment of substantially all of Buyer’s property, (vii)sale or transfer of majority ownership of Buyer, or (vii) Seller reasonably deems itself insecure as to the ultimate collectability of any and all amounts due to Seller under this Sale Agreement and/or under any other agreement between Seller and Buyer.
(b) Ifany Event of Default should occur, Seller may: (i) terminate this SaleAgreement effective immediately and demand a return of the Goods for whichpayment has not been made to the destination specified by Seller, freightprepaid by Buyer, and/or (ii) take possession of and remove all Goods for whichpayment has not been made, without notice to or consent of Buyer, and for thatpurpose, enter upon any premises owned or leased by Buyer, without liabilityfor any damages occasioned thereby, and/or (iii) sue for damages, plus thecosts and expenses of suit, including reasonable attorney’s fees, and/or (iv)take any and all other actions specified herein or otherwise permitted byApplicable Law.
Unless otherwise agreed by the Parties in writing, any equipment (including jigs, dies, and tooling) which Seller acquires or constructs for use in the production of Goods for Buyer will be and remain Seller’s property and in Seller's possession and control until such time that Seller elects to dispose of the property. Any charges by Seller therefore will be for the use of such equipment only.
Any notice or communication provided for hereunder (each a “Notice”) will, unless otherwise provided for herein, be inwriting and will be deemed given and received (a) upon delivery, if delivered personally with proof of delivery, (b) by e-mail or by facsimile transmission(with a copy by mail), (c) one business day after having been deposited for overnight delivery with Federal Express or a comparable overnight courier, or(c) three business days after deposit in U.S. mail when sent by registered or certified mail, postage prepaid, with proof of delivery to the address of the Party shown on this Sale Agreement or such other address as a Party may specify in a written notice to the other.
The failure by Seller to insist, in any one or more instances, upon the performance of any of the terms or conditions of this SaleAgreement, or to exercise any righ thereunder, shall not be construed as a waiver of the future performance of any such terms or conditions or the future exercise of such right. No waiver bySeller of any of the provisions of this Sale Agreement is effective unless explicitly set forth in writing and signed by an authorized representative ofSeller.
The rights and remedies granted Seller hereunder shall be in addition to all rights and remedies granted Seller under the Uniform Commercial Code and any other Applicable Laws. Buyer’s sole and exclusive remedies are limited to those expressly stated herein. If Seller engages legal counsel in connection with the enforcement or preservation of any of its rights or remedies under this Sale Agreement and/or any other documents executed in connection with thisSale Agreement, Seller will be entitled to collect its reasonable attorneys’ fees and costs incurred in connection therewith, including the allocated costs of Seller’s in-house counsel, Seller specifically reserves the right, in its sole discretion, to set off any amounts to be paid by Seller to Buyer under this Sale Agreement against any amounts that Buyer may owe to Seller, whether pursuant to this Sale Agreement or any other agreement between Buyer andSeller.
The invalidity or unenforceability of any provision of this Sale Agreement shall not affect the validity or enforceability of any other provision hereunder, and if any provision of this Sale Agreement is held to be to any extent invalid or otherwise unenforceable by any court of competent jurisdiction, such provision will be construed as if it were written so as to effectuate to the greatest possible extent the expressed intent of this SaleAgreement, and the remainder of this Sale Agreement will not be affected there by and will remain valid and enforceable. Diversion contrary to U.S. law is prohibited.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Sale Agreement.
No conditions, usage of trade, course of dealing, or performance, if any, will constitutes a waiver, modification, change or supplement to, or serve to explain or interpret these Terms or this Sale Agreement. These Terms may only be amended, changed, or modified in a writing stating specifically that it amends, changes, or modifies these Terms and is signed by an authorized representative of each Party. No contract shall exist except as herein provided.
Buyer agrees to include the Equal EmploymentOpportunity Clause by reference in every applicable contract, agreement andpurchase order entered into with subcontractors or suppliers as required by 41CFR 60-1.4(d).
This Sale Agreement is made subject to, and Buyer acknowledges that all Goods sold by Seller are subject to, all laws, regulations, orders or other restrictions on the export of the Goods from theUnited States or other information about the Goods, including by way of example, but not of limitation, all U.S. export control and sanctions laws, regulations and Executive Orders, including Export Administration Regulations (15 CFR Parts730 to 774), in each case, as the same may be amended or modified from time to time. By entering into this Sale Agreement and accepting delivery of the Goods,Buyer hereby agrees to comply with such laws and regulations and obtain any approvals, licenses or permits required under such laws and regulations for any transfer, export or re-export of the Goods. Buyer shall not sell or distribute, directly or indirectly, any of the Goods or other information about any of theGoods to any end-user for which an export license or other governmental approval is required without first obtaining such license or approval. Buyer shall assume responsibility for understanding and meeting all applicable U.S.Export Regulations. Diversion contrary to U.S. law is prohibited.
The interpretation, validity and enforcement of this Sale Agreement and all transactions hereunder as to interpretation, enforcement, validity, construction, effect and in all other respects, shall be governed by the laws of the State of Pennsylvania without regard to its choice of law provisions, and including byway of example, but not of limitation, the applicable provisions of the UniformCommercial Code as adopted by the State of Pennsylvania. The application to this Sale Agreement of the United NationsConvention on Contracts for the International Sale of Goods and the UnitedNations Convention on the Limitation Period in the International Sale of Goods are expressly excluded. This SaleAgreement concerns transactions involving commerce among the several states. SELLER AND BUYER HEREBY AGREE AND CONSENT TO THE EXCLUSIVE JURISDICTION OFTHE FEDERAL AND STATE COURTS LOCATED IN YORK COUNTY, PENNSYLVANIA AND WAIVE ANY OBJECTION BASED ON VENUE OR FORUM NON CONVENIENS WITH RESPECT TO ANY ACTION INSTITUTED THEREIN. SELLER AND BUYER KNOWINGLY AND WILLINGLY WAIVE ANY RIGHT THEY HAVE UNDER APPLICABLE LAW TO A TRIAL BY JURY IN ANY DISPUTE ARISING OUT OF OR IN ANY WAY RELATED TO THIS SALE AGREEMENT OR THE ISSUES RAISED BYTHAT DISPUTE.
The paragraph headings herein have been inserted for the convenience of the Parties and shall not be considered in the interpretation or construction of this Sale Agreement.
Revised November 3, 2025