TERMS AND CONDITIONS OF AGREEMENT
(For Pelmor® Laboratories, Inc.)
Pelmor® Laboratories (the “Seller”), in accepting the Purchase Order of a buyer (the “Buyer”), sets forth these Terms and Conditions (the “Agreement”), and agrees to sell the products and/or services (the “Products”) on the terms and conditions set forth herein.
1. Seller’s Terms to Govern.
ALL SALES ARE EXPRESSLY LIMITED TO AND MADE CONDITIONAL UPON THE ACCEPTANCE BY BUYER OF THE EXACT TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. THE TERMS AND CONDITIONS CONTAINED ON ANY PURCHASE ORDER OR REQUEST FOR QUOTATION RECEIVED BY SELLER FROM BUYER ARE EXPRESSLY SUPERSEDED HEREBY AND SHALL NOT BE CONSTRUED AS PART OF THIS AGREEMENT. ANY ADDITIONAL OR DIFFERENT TERMS CONTAINED IN ANY RESPONSE HERETO SHALL BE DEEMED OBJECTED TO BY SELLER AND SHALL BE OF NO FURTHER EFFECT.
2. Terms and Prices.
(a) Terms of payment on all orders are subject to approval of Seller’s credit department and, unless otherwise stated, are Net 30 Days from the date of the invoice without regard to the date of delivery of Products. Seller reserves the right to charge a late payment fee of 1 ½% per month for all amounts not paid in full within the 30 days from the date of the invoice.
(b) Prices and deliveries are “Ex Works” (as that term is defined in Incoterms, published by the International Chamber of Commerce and entered into force on July 1, 1990) Seller’s plant unless otherwise stated and risk of loss shall pass to Buyer upon delivery to the Carrier.
(c) Buyer shall pay directly to the appropriate government authority all sales, use or any other local, state or federal taxes which arise from the sale or delivery of the Products or the execution of any contract of sale and will reimburse Seller for any such payment made by Seller.
(d) Notwithstanding any other provisions of this Acknowledgment, the prices of any Products are subject to increase by Seller to reflect increased costs of labor, raw materials, component parts, overhead and other expenses.
(e) Upon failure of Buyer to pay any amount when due, Seller may, at its option and without prejudice to any other remedies or rights it may have, suspend further shipments and deliveries to Seller.
(f) Payments by Buyer to Seller of a lesser amount than are then due and owing by Buyer pursuant to all outstanding invoices shall be deemed a payment on account of the earliest dated invoice. No endorsement or statement on or accompanying any check, money order or other form of remittance by Buyer shall be deemed an accord and satisfaction, without Seller’s express written consent thereto, which consent shall not be inferred from Seller’s endorsement and negotiation of such check, money order or other form of remittance. Any acceptance by Seller or any agent of Seller of any such check, money order or other form of remittance by Buyer as partial payment shall be without prejudice to Seller’s right to recover the balance of all outstanding invoice amounts or to pursue any other remedy provided by law or equity.
3. Shipping Date and Delivery.
(a) Buyer’s receipt of any Products delivered by Seller shall be an unqualified acceptance of any waiver by Buyer of any and all claims with respect to such products on the earliest to occur of (i) payment for the Products or (ii) failure of Seller to receive notice of shortages or defects in the products within 30 calendar days of the invoice date.
(b) The shipping date and delivery estimates are subject to adjustment due to any priorities or allocations necessitated by government orders or regulations and the time and manner of delivery is subject to adjustment due to any delay on the part of Buyer in supplying necessary data, or any changes therein at Buyer’s insistence, and to delays caused by any cause beyond Seller’s reasonable control. Delay in delivery for any of the aforementioned causes shall extend the terms of delivery hereunder by a period equal to the length of such delay. Seller shall be compensated for any and all extra costs and expenses occasioned by delays attributable to Buyer.
(c) In the event of delay or failure of performance not excused in accordance with clause (b) above, Seller’s liability shall not exceed five percent (5%) of the price hereunder for any undelivered goods, and, in any case, Seller’s liability shall not include any consequential, incidental, special or contingent damages.
4. Cancellations, Changes or Alternations.
(a) Orders placed cannot be canceled or altered nor can deliveries of Products completed or in process be extended beyond original specified delivery dates, except with Seller’s consent and upon terms which will indemnify Seller against loss.
(b) Products returned without permission will not be accepted for credit and will be returned to Buyer Ex Works Seller’s plant.
(c) The delivery schedule of an order cannot normally be extended more than six months beyond the date of the first scheduled delivery. If Buyer requests an extension of the delivery schedule beyond the date of the first scheduled delivery, Seller reserves the right to increase the price of ordered products or to substitute other products in place of the Products.
(d) Any claim based on the receipt of damaged Products must be filed with the carrier which delivered the Products. Seller will not allow credit for the return of damaged Products.
(e) Seller will not accept the return of any Products unless Buyer obtains Seller’s prior written authorization. Seller may, at its option, accept other returned Products subject to a 25% charge for the inspection, repackaging and restocking.
5. Limited Warranty, Replacement or Credit.
(a) Seller warrants that at the time of shipment only, the Products will comply with the written specifications supplied by Buyer on its purchase order as acknowledged by Seller. Seller shall not be responsible for any failure arising out of damage in transit, abuse, misuse, improper maintenance, acts of nature, accidents (e.g. dropping the Products), or alteration of the Product or causes beyond Seller’s reasonable control.
(b) Products which conform with the express warranty in clause (a) above will be deemed to be Products which conform to this Agreement. Buyer acknowledges and agrees that (i) Seller has made no other representations, promises or warranties concerning the quality, productiveness or functioning of the Products, (ii) it has conducted its own testing, analysis and evaluation of the Products prior to execution and delivery of this Agreement, and (iii) except to the extent that the Products are in violation of the express warranty in clause (a) above, the failure of the Products to comply with Article 35(2) of the 1980 United Nations Convention on Contracts for the International Sales of Goods (the “Convention”) shall not be deemed to be a lack of conformity to this Agreement.
(c) In the event that any Product is not expressly warranted in clause (a) above and does not conform with this Agreement, Seller will, at its sole option, either allow credit or replace such non-conforming Product if such Product is returned by Buyer to Seller, freight prepaid, in accordance with any and all applicable laws, rules and regulations, and together with a valid Seller return authorization (which shall designate the applicable return location). If Seller authorizes Buyer to destroy any non-conforming Product, Buyer shall destroy such Product in accordance with any and all applicable laws, rules and regulations. Buyer shall indemnify and hold Seller harmless for any and all liabilities and obligations arising as a result of Buyer’s failure to return or destroy non-conforming Products in accordance with applicable laws, rules and regulations.
(d) OTHER THAN THE WARRANTIES SET FORTH ABOVE, SELLER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE CONDITION, DESCRIPTION, FITNESS FOR A PARTICULAR PURPOSE, MECHANTABILITY, OR AS TO ANY OTHER MATTER, AND SUCH WARRANTIES SUPERSEDE ANY ORAL OR WRITTEN WARRANTIES OR REPRESENTATIONS MADE OR IMPLIED BY SELLER OR ANY OF SELLER’S EMPLOYEES OR REPRESENTATIVES OR IN ANY OF SELLER’S OTHER BROCHURES, MANUALS, CATALOGS, LITERATURE OR OTHER MATERIALS. IT IS EXPRESSLY AGREED THAT THE CREDIT OR REPLACEMENT REMEDY SET FORTH ABOVE, AT SELLER’S SOLE OPTION, IS BUYER’S EXCLUSIVE REMEDY UNDER THE WARRANTIES SET FORTH HEREIN.
(e) Any claim by Buyer that the Products are not as warranted herein or lack conformity with such warranty shall be made by Buyer within a reasonable time after Buyer has become aware or ought to be aware of such breach or lack of conformity. In no event, however, shall Buyer make any claims or demands against Seller with respect to the Products more than 30 days after the Products have been shipped by Seller to Buyer.
(f) The warranty provided herein is for the exclusive benefit of Buyer. Buyer has no right to extend, modify, or amplify this warranty in any respect. Buyer shall be exclusively responsible to its customers for any warranty on the Products which it provides to its customers and shall indemnify and hold Seller harmless of, from and against any and all losses, liabilities, claims, demands and causes of action arising out of such customer warranty and out of its performance of any servicing or warranty repairs performed by Buyer or its employees, agents or contractors.
(g) Seller, in its manufacturing and sale of these Products, will assume no liability as to possible infringement of patents by virtue of the use of said Products in combination with other elements or structures. Buyer warrants that the specifications provided to Seller will not cause the Products to infringe on any domestic or foreign patent and, if the Products are manufactured by Seller in accordance with such specifications, Buyer will indemnify, defend and hold Seller harmless from all liability and expense of any nature whatsoever based upon or arising out of any such claim or infringement of any such patent.
6. Compliance with Laws.
Seller certifies that the Products will be produced in accordance with the Fair Labor Standards Act of 1938, as amended.
7. Trademarks and Intellectual Property.
Buyer expressly acknowledges and agrees that Seller is the exclusive owner of and has all rights to the trademarks, patents and other Intellectual Property rights that relate to the manufacture of the Products. The term “Intellectual Property” as used in this Agreement shall mean all proprietary inventions, processes, product designs, know how, technology and information which relates to the manufacture of the Products, whether or not patented, and all trademarks and trade names used in connection therewith, whether heretofore or hereafter acquired. Notwithstanding anything to the contrary contained herein, in no event shall Buyer reverse engineer the formulation from which the Products are manufactured, or attempt to do so, without the prior written consent of Seller, which may be unreasonably withheld.
Buyer shall neither use nor disclose any information regarding customers, advertising, distribution, marketing, strategic plans or other confidential information of Seller.
9. Limitation of Liability.
SELLER’S LIABILITY, IF ANY, FOR DAMAGES AND/OR LOSS IN RELATION TO ANY CLAIM OR SUIT OF ANY KIND WHATSOEVER, REGARDLESS OF THE UNDERLYING LEGAL THEORY, ARISING DIRECTLY OR INDIRECTLY FROM THE SALE, USE OR FAILURE OF ANY PRODUCT PURCHASED FROM SELLER, SHALL NOT BE GREATER THAN THE ACTUAL PURCHASE PRICE PAID BY BUYER FOR THE PRODUCT(S) IN RELATION TO WHICH SUCH CLAIM OR SUIT IS BROUGHT. SELLER SHALL IN NO EVENT AND UNDER NO CIRCUMSTANCES BE LIABLE OR RESPONSIBLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT TORT LIABILITY OR OTHERWISE OR ANY OTHER LEGAL THEORY, ARISING DIRECTLY OR INDIRECTLY FROM THE SALE, USE OR FAILURE OF ANY PRODUCT PURCHASED FROM SELLER.
No waiver by Seller of any breach of any provision hereof shall constitute a waiver of a subsequent breach of the same provision or of any other breach hereunder. Seller’s failure to object to provisions contained in any communication from Buyer shall not be deemed an acceptance of such provisions or a waiver of the provisions hereof.
Seller reserves and Buyer grants to Seller a purchase money security interest in each of the Products supplied to Buyer in the amount of the purchase price. A copy of this document may be filed on Seller’s behalf with appropriate state and local authorities as a financing statement or as an attachment thereto to perfect Seller’s security interest. Buyer hereby authorizes Seller to file a financing statement to perfect Seller’s security interest in such Products.
12. Collection Costs and Expenses.
Seller shall be entitled to reasonable counsel fees, costs and expenses relative to enforcing the terms of this Agreement or defending its rights hereunder.
13. Entire Agreement.
The parties agree that there are no understandings, agreements or representations, express or implied, not specified herein or in Seller’s quotation, and that these instruments contain the entire agreement between Seller and Buyer, and that, consequently, no course of prior dealings and no usage of the trade shall be relevant to supplement or explain any of the terms used in this Acknowledgment. This Agreement may not be modified or amended, except in a writing signed by Seller and Buyer.
14. Governing Law; Jurisdiction.
This contract will be construed according to the substantive laws of the Commonwealth of Pennsylvania without giving effect to the conflict of laws principle thereof. It is the intent and desire of Buyer and Seller that this Agreement not be governed by and construed and interpreted in accordance with the Convention, and, pursuant to Article 6 of the Convention, Buyer and Seller hereby expressly exclude the application of the Convention, in its entirety, to this Agreement. This Agreement constitutes a valid and binding contract construed under the laws of the Commonwealth of Pennsylvania. Buyer hereby submits to the exclusive jurisdiction of the courts of the Commonwealth of Pennsylvania in resolving any dispute or claims by or against each party hereto.
If any provision of this Agreement shall be held invalid or unenforceable, the remaining provisions shall remain in full force and effect.
16. Governing Currency and Language.
The governing currency and medium of exchange for all purposes under this Agreement shall be the United States Dollar. The English language shall be the applicable language for all purposes under or in connection with this Agreement. Any translation of this Agreement shall be for the sole convenience of the party asking or arranging such translation and shall not be used in constructing or interpretation of this Agreement.
Buyer acknowledges that it has CAREFULLY READ AND REVIEWED THIS AGREEMENT and has received a copy thereof.
Seller and Buyer agree that Seller has the option of declaring this Agreement void ab initio in the event that Buyer fails to properly sign and return this Agreement.
Seller and Buyer agree that Seller has recommended that Buyer consult with its legal counsel prior to signing this Agreement, as this Agreement shall be legally binding on Buyer and limits Buyer’s rights and remedies.
This Agreement shall be deemed accepted and legally binding upon Buyer's acceptance of delivery of Seller's Products.