TERMS OF SALE. These Terms and Conditions of Sale (“Terms”) shall apply to the H.M. Royal Inc. (“Company”) purchase order to which these Terms are attached (the “PO” and together with these Terms, the “Agreement”). All purchases by Customer of product described in the PO (“Product”) are expressly limited to and conditioned upon acceptance of these Terms, regardless of whether Customer purchases Product through any media or means, including, but not limited to, written purchase orders, electronic orders, confirmations or other writings (including, but not limited to, electronic mail confirmations) from/to Customer to/from Company. Unless such provisions are expressly agreed to by Company in a writing signed by Company, any additional or conflicting terms and conditions contained on, attached to or referenced by Customer’s purchase order, or other prior or later communication from Customer to Company, shall have no effect on the purchase of any such Product by Customer from Company and are expressly rejected by Company. These Terms along with the PO are deemed an offer for sale by Company. If Customer does not accept the PO by execution thereof, Customer’s commencement of performance (including ordering, purchasing or taking delivery of Product) shall in all cases constitute Customer’s unqualified and unconditional acceptance of the Agreement.
TITLE AND RISK OF LOSS.
Except as otherwise provided in the PO, Company and Customer agree that all Product ordered by Customer will be arranged by Company and shipped as specified in the PO; provided, however, that (i) Customer agrees to comply with all freight scheduling mechanisms and timeframes designated by Company in writing to Customer from time to time, and (ii) delivery of Product shall occur upon the transfer of Product to Customer’s location as specified in the PO. Delivery will be, and all prices are quoted, FCA Customer’s location specified on the PO, Incoterms 2010. Title to Product and risk of loss, damage and contamination of Product passes to Customer upon delivery of Product as stated above. After passage of title of Product to Customer, Customer assumes all risk and liability, and Company shall not be liable to Customer for any loss or damage to persons, property or the environment arising out of or related to Product.
TAXES, DUTIES AND OTHER CHARGES.
All taxes, duties, tariffs, consular fees, levies, penalties, VAT, foreign and US Customs clearing fees, foreign and domestic port charges, and any other charges imposed by any governmental authority, now or hereafter imposed with respect to the Agreement or the production, processing, manufacture, sale, delivery, transportation, importation, exportation or proceeds of Product or on remittance of funds in payment for Product shall be paid by Customer. If paid, or required to be paid by Company, Customer shall reimburse Company for such amounts upon receipt of written notice from Company. If any Product is rejected, Customer shall pay all such taxes, duties, tariffs, consular fees, levies, penalties, foreign and US Customs clearing fees, foreign and domestic port charges or other charges resulting from failure to re-export Product from the country of destination within such time limits as may be prescribed by Law (as defined below).
Customer shall defend, indemnify and hold Company, its affiliates and their respective employees, officers and directors, members, stockholders, agents and/or representative (collectively “Indemnitees”) harmless from and against any and all claims, demands, lawsuits, causes of action, strict liability claims, penalties, fines, administrative law actions and orders, expenses (including reasonable attorneys’ fees and expenses) and costs and liabilities of every kind and character (“Claims”) which may arise for any reason whatsoever, including personal injuries, death, damage to property or to the environment, regardless of whether based on negligence, strict liability, contract, or breach of warranty, arising out of or related to a breach of its obligations under this Agreement or the sale or use of Product. Customer’s duty to indemnify Indemnitees under this Agreement shall survive the termination, cancellation or expiration of the PO and the cessation of any business transactions between Customer and Company until the expiration of the applicable statute of limitations.
Delivery will be, and all prices are quoted, FCA Customer’s location specified in the PO. For the avoidance of doubt, except as otherwise expressly set forth in a PO, all air, rail, trucking, freight and/or shipping costs, including, but not limited to, insurance costs, shall be borne exclusively by Customer. Customer shall be responsible for all such charges for the shipment of Product. If any such cost is paid, or required to be paid by Company on behalf of Customer, Customer shall reimburse Company for such charges upon receipt of written notice from Company. Customer shall be solely liable for any demurrage arising out of the transportation, delivery, loading or storage of Product, and Company shall not be liable to Customer for damages or charges resulting from a delay in the delivery of Product. If and to the extent that Product sold hereunder is to be delivered from any Company facility, Company shall have the right to require the execution of an access agreement prior to granting Customer, its carriers, contractors or agents, access to such facility. Customer agrees that it, and its carriers, contractors and agents, will comply with all of Company’s safety rules and regulations when they are at any of Company’s facilities.
COMPLIANCE WITH LAW.
The parties agree to comply in all material respects with all applicable laws, treaties, conventions, directives, statutes, ordinances, rules, regulations, orders, writs, judgments, injunctions or decrees of any governmental authority having jurisdiction (“Laws”) pertaining to the fulfillment of the Agreement. Customer will be responsible for compliance in all material respects with all Laws applicable to Product once Product has been delivered by Company in accordance with this Agreement, including, but not limited to, those related to operations, safety, maintenance, equipment, size and capacity, and pollution prevention. If any license or consent of any government or other authority is required for the acquisition, carriage or use of Product by Customer, Customer will obtain the same at its expense, and if necessary, provide evidence of the same to Company on request. Failure to do so will entitle Company to withhold or delay shipment, but failure to do so will not entitle Customer to withhold or delay payment of the price therefor. Any expenses or charges incurred by Company resulting from such failure will be paid for by Customer upon receipt of written notice from Company. Except as permitted under United States federal Laws, Product will not be sold, supplied or delivered by the Customer directly or indirectly to any party or destination that, at the time of such sale, supply or delivery, is declared an embargoed/restricted party or destination by the government of the United States of America or by the United Nations. Within five (5) business days after Company’s request, Customer will provide Company with appropriate documentation to verify the final destination of any Product delivered hereunder.
Customer shall, at its sole cost and expense, inspect Product delivered immediately after receipt. Within five (5) days of Customer’s receipt of Product and before the use, disposition, processing, admixture, reaction or other change from the original condition of any part of the Product (except for reasonable test and inspection quantities), Customer shall notify Company in writing if Product is found defective or short in any respect. Any use of any of Product (except for reasonable tests and inspection quantities) or Customer’s failure to give written notice to Company of such defect or shortage within such five (5) day period shall constitute an unqualified acceptance of the Product and a waiver by Customer of all claims with respect thereto.
Customer shall pay all Product invoices, without deduction, in United States currency via (i) wire transfer of immediately available funds into a U.S. bank account designated by Company, (ii) check, or (iii) letter of credit, pursuant to the payment terms set forth in the PO. If the PO does not state payment terms, payment shall be received by Company no later than on receipt of Product. Delay in payment will result in Customer being responsible for interest at a rate of one and a half percent (1½%) per month (18% per annum), or the maximum rate allowed by Law, whichever is less, on the outstanding amount of any unpaid invoice beginning on the day after the payment due date. If the payment due date is a Saturday, Sunday or holiday where banks located in the State of New Jersey are authorized or required to be closed, Customer shall make such payment on the business day after such due date. (a) Company makes no assurance or guarantee regarding any amount of credit or the continuation of such credit to Customer.If Company, in its sole discretion, provides Customer with a line of credit to facilitate purchases of Product from Company under the Agreement, such credit line may be amended, decreased or terminated at any time at Company’s sole discretion. (b) If any such credit provided to Customer, or Performance Assurance (as defined below) is required by Company of Customer, Customer will provide to Company any or all annual reports containing Customer’s and/or the Customer’s Performance Assurance provider’s audited financial statements for a particular fiscal year. In all cases, the statements shall be for the most recent accounting period and prepared in accordance with generally accepted accounting principles. (c) Notwithstanding the foregoing, if Company determines, in its sole discretion, that the creditworthiness or future performance of Customer is impaired or unsatisfactory, Company may (i) suspend deliveries of Product, (ii) require prepayment by wire transfer of immediately available funds at least one (1) day prior to a scheduled shipment of Product, and/or (iii) require Performance Assurance at least one (1) day prior to a scheduled Product shipment. Customer hereby waives written notice of any such action. “Performance Assurance” means collateral in the form of either cash, letter(s) of credit, guaranty, or other security acceptable to Company in its sole discretion. (d) Company reserves the right, at any time, to Set-off (as defined below) against any amount that Company owes to Customer under the Agreement or any other agreement between such parties. “Set-off” means set-off, offset, combination of accounts, netting of dollar amounts of monetary obligations, right of retention or withholding or similar right to which Company is entitled (whether arising under the Agreement, another agreement, applicable Law, or otherwise) that is exercised by Company.
PAYMENT—AIR FREIGHT CHARGES.
To the extent applicable, Customer shall pay all air freight charges applicable to the sale of Product hereunder specified in the PO. Such charges shall be paid by Customer to Company, in advance of ordering and shipment, upon presentation of an invoice for such charges (even if an estimate by Company), without deduction, and in United States currency via (i) wire transfer of immediately available funds into a U.S. bank account designated by Company, (ii) check, or (iii) letter of credit, pursuant to the payment terms set forth in the PO. The PO and air freight arrangements will not be initiated by Company until Company confirms receipt of payment by Customer of the foregoing charges. Customer agrees to pay any additional shipping charges not included in the original estimate promptly following receipt of an invoice for such additional charges from Company.
Company warrants only, at the time of delivery, that: (i) Product shall conform to the manufacturer’s then current specifications for the Product sold hereunder; and (ii) Company will deliver good title to the Product and that the Product shall be delivered free of liens or encumbrances. EXCEPT AS SET FORTH IN THIS SECTION, COMPANY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS OF THE PRODUCT FOR A PARTICULAR PURPOSE, CONDITION OR QUALITY OF THE PRODUCT, ANY TRADE USAGE OR DEALING. ANY DETERMINATION OF THE SUITABILITY OF THE PRODUCT FOR THE USE CONTEMPLATED BY CUSTOMER IS CUSTOMER’S SOLE RESPONSIBILITY.
LIMITATION OF LIABILITY AND LIMITED REMEDIES.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT WILL COMPANY BE LIABLE TO CUSTOMER FOR ANY LOST OR PROSPECTIVE PROFITS, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST EARNINGS, LOST PROFITS OR BUSINESS INTERRUPTION, WHETHER OR NOT BASED UPON COMPANY’S NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY, IN TORT OR ANY OTHER CAUSE OF ACTION. FOR THE SAKE OF CLARITY, THE PRECEDING SENTENCE INCLUDES THOSE INCIDENTAL AND CONSEQUENTIAL DAMAGES REFERENCED IN THE APPLICABLE PROVISIONS OF THE NEW JERSEY UNIFORM COMMERCIAL CODE. Customer’s exclusive remedy vis-à-vis Company for any cause of action under the Agreement, including for failure to deliver or late delivery, is, at Company’s option limited to (i) replacement of the non-conforming Product; or (ii) refund to Customer of the portion of the purchase price attributable to such non-conforming Product. In no event shall either party’s cumulative liability exceed the price of Product sold which was the direct cause of the alleged loss, damage or injury plus other charged due under the Agreement. IN ANY EVENT, CUSTOMER AGREES THAT THE RETURN OF THE FULL SALES PRICE FOR THAT PRODUCT SOLD WHICH WAS THE CAUSE OF THE ALLEGED LOSS, DAMAGE OR INJURY WILL PREVENT THE FOREGOING REMEDIES FROM FAILING OF THEIR ESSENTIAL PURPOSE, AND THAT SUCH REMEDY IS FAIR AND ADEQUATE.
Upon the occurrence of any of the following events: (i) the failure by Customer to provide Performance Assurance when due; (ii) Company shall not have received a payment due from Customer hereunder by the date such payment is due under the Agreement, and such failure shall remain uncured for a period of five (5) days; (iii) the failure of Customer to perform any other obligation in the Agreement and such failure is not excused or cured within twenty (20) days after written notice thereof; (iv) the occurrence of a Bankruptcy Event (as defined below); (v) the failure of Customer to timely provide prepayment or Performance Assurance; or (vi) the failure by any Performance Assurance provider of Customer to perform any obligation of such Performance Assurance provider under any document executed and delivered in connection herewith, then in any such event Company, in its sole discretion and without prior notice to Customer, may do any one or more of the following: (a) suspend performance under the Agreement; (b) cancel the Agreement, whereby any and all obligations of Customer, including payments or deliveries due, will, at the option of Company, become immediately due and payable or deliverable, as applicable; and/or (c) Set-off against any amount that Company owes to Customer under the Agreement between such parties. If Company suspends performance and withholds Product delivery as permitted above, Company may sell the Product to a third party and deduct from the proceeds of such sale the purchase price and all reasonable costs resulting from Customer’s default as identified above, including, but not limited to, all costs associated with the transportation (including demurrage and other air freight, vessel or shipping related charges), storage, and sale of the Product. The foregoing rights, which shall include, but not be limited to, specific performance, shall be cumulative and alternative and in addition to any other rights or remedies to which Company may be entitled at Law or in equity. In addition, Company shall be entitled to recover from Customer all court costs, attorneys’ fees and expenses incurred by Company in connection with Customer’s default, and interest on past due amounts at the rate specified in this Section. “Bankruptcy Event” means the occurrence of any of the following events with respect to Customer or any Performance Assurance provider for Customer: (i) filing of a petition or otherwise commencing, authorizing or acquiescing in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar Law; (ii) making of an assignment or any general arrangement for the benefit of creditors; (iii) having a bankruptcy petition filed against it and such petition is not withdrawn or dismissed within sixty (60) days after such filing; (iv) otherwise becoming bankrupt or insolvent (however evidenced); (v) having a liquidator, administrator, custodian, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets; or (vi) being generally unable to pay its debts as they fall due.
PATENT INFRINGEMENT ARISING FROM PRODUCT USE.
Customer expressly assumes the risk of and agrees, to the fullest extent permitted by Law, to indemnify, defend, and hold the Indemnitees harmless from and against any and all Claims for patent infringement by reason of Customer’s use of Product provided hereunder, whether used singly or in combination with other product or material, or in the operation of any process.
Except as may be contained in a separate trademark license, the sale of Product (even if accompanied by documents using a trademark or trade name) does not convey a license, express or implied, to use any trademark or trade name and Customer shall not use a trademark or trade name of Company’s in connection with Product.
Force Majeure: The parties will be excused from their respective performances hereunder (except Customer’s payment obligations) if performance is prevented or delayed by any acts of God, fire, explosion, flood, riots or other civil disturbances, pandemic, wars, acts of terrorism, actions of governments, voluntary or involuntary compliance with any Law or request of any governmental authority, strikes, lockouts or other labor difficulties, failure of usual sources of raw materials or other sources of supply, failure of computer systems to operate properly, destruction or loss of electronic records or data, failure of mechanical or chemical function or equipment normally used by Company for handling or delivering of Product, or internally produced intermediates used in manufacture of any of the Product, plant shutdowns, any necessity to not operate, or to reduce operation of, equipment in order to protect the safety of people or to protect the environment, or any circumstances beyond the reasonable control of the party seeking excuse from performance (“force majeure”). Promptly after a party determines a force majeure condition exists, that party will notify the other of the circumstances and consequences claimed and will use reasonable means to remove the cause(s) in question. Neither party will be obligated to settle any demands of, or disputes with, laborers; nor will Customer be excused from paying monies due or complying with Company’s credit terms. Quantities affected by force majeure will be deleted from the Agreement, but the Agreement will otherwise continue in full force and effect for the term set forth in the Agreement. In periods of shortage of Product due to force majeure, Company may apportion any reduced quantity of Product among itself and its customers and affiliates in an equitable manner. Company shall not be required to acquire Product to replenish any shortfall in Product arising as a result of a force majeure. Should Company acquire any quantity of Product following a force majeure, Company may use or distribute, without apportioning, such Product at its sole discretion. Under no circumstances will Company be obligated to obtain Product for delivery hereunder except from its designated source(s) of supply, or if none is so designated by Company, from its usual, customary and/or most recent source(s) of supply. (a) Impracticability: Company may suspend performance and/or terminate the Agreement without liability to Customer if, for any reason, manufacturer of Product shuts down the unit(s) in which, or the plant at which, Product is made. (b) Shortages: If for any reason shortages occur in supply of goods or products necessary for the manufacturer to produce Product.
Each party agrees to treat as confidential all information supplied by the other party, and not in the public domain, in connection with the Agreement, including, but not limited to: specifications and other technical, business or sales data (collectively referred to as the “Confidential Information”). Each party agrees to (i) limit use of aforementioned Confidential Information only to the performance of the Agreement, and (ii) limit the disclosure of the Confidential Information to those of its employees necessary for the performance of the Agreement, unless prior written consent has been granted by the other party to permit other use or disclosure. Each party shall, upon request or upon expiration, termination or cancellation of the Agreement, promptly return all documents previously supplied, destroy any and all copies that were reproduced, and send written confirmation to the other party certifying such destruction.
SUCCESSOR AND ASSIGNS.
The Agreement binds and inures to the benefit of Customer and Company and their respective successors and permitted assigns. Neither party may assign any interest in, or delegate any obligation under the Agreement, by operation of Law or otherwise, without the other party’s prior written consent; provided, however, except as otherwise agreed to by the parties in writing, Company may assign its rights and duties in connection with a sale or other disposition of all or substantially all of its business or assets. Any assignment or attempted assignment in contravention of the foregoing shall be null and void, shall be considered a breach of the Agreement, and shall permit the non-breaching party, in addition to any other rights that it may have, to terminate the Agreement.
GOVERNING LAW/VENUE FOR DISPUTES.
The validity, performance, construction, and effect and all matters arising out of or relating to the Agreement shall be interpreted in accordance with the Laws of the State of New Jersey, without regard to its conflicts of law rules. Any action or proceeding between Customer and Company relating to the Agreement shall be commenced and maintained exclusively in the state or federal courts in State of New Jersey, and Customer submits itself unconditionally and irrevocably to the personal jurisdiction of such courts. CUSTOMER AND COMPANY EACH WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION, CLAIM OR PROCEEDING RELATING TO THE AGREEMENT.
Except for salespersons and other personnel directly employed by Company, neither a third party nor an independent contractor or sales agent is authorized to bind Company; orders placed are not binding on Company until confirmed in writing (including, but not limited to, via electronic mail) by Company’s authorized employee. All technical advice, services and recommendations by Company are intended for use by persons having skill and know-how, and are accepted by Customer at its own risk and Company assumes no responsibility for results obtained or damages incurred from their use. No statements or agreements, oral or written, not contained herein or in a future amendment hereto executed by both parties will vary or modify the terms hereof. Neither party shall claim any amendment, modification or release of any provisions hereof unless the same is in writing and such writing: (i) specifically refers to the Agreement; (ii) specifically identifies the term amended; and (iii) is signed by duly authorized representatives of Company and Customer.
All notices, consents, communications or transmittals under the Agreement shall be in writing and shall be deemed received on the day of delivery if delivered by hand, by nationally recognized overnight courier or delivery service; or within three (3) business days if mailed by United States mail as certified or registered mail with return receipt, postage prepaid, addressed to the party to whom such notice is given at the address of such party stated in the PO.
Company and Customer are independent contractors only and are not partners, master/servant, principal/agent or involved herein as parties to any other similar legal relationship with respect to the transactions contemplated under the Agreement or otherwise, and no fiduciary, trust or advisor relationship, nor any other relationship, imposing vicarious liability shall exist between the parties under the Agreement or otherwise at Law.
NO THIRD PARTY BENEFICIARIES.
The Agreement is solely for the benefit of Company and Customer and shall not be deemed to confer upon or give to any third party any right, claim, cause of action or interest herein.
These Terms supersede any terms and conditions of previous dates, and if there is a conflict between these Terms and the specific provisions contained in the PO, the specific provisions contained in such PO shall control. Capitalized terms not defined herein shall have the meanings set forth in the PO. The captions and section headings set forth in the Agreement are for convenience only and shall not be used in defining or construction of any of the terms and conditions of the Agreement. Waiver by either party of any breach of the terms and conditions contained herein will not be construed as a waiver of any other or continuing breach. The invalidity or unenforceability of any provision of the Agreement shall not affect the validity or enforceability of its other provisions. No course of dealing, course of performance, or usage of trade shall be considered in the interpretation or enforcement of the Agreement. The individual signing the Agreement on behalf of each party is authorized to sign on behalf of such party. The Agreement may be executed by facsimile and/or electronic transmission (i.e. by pdf or DocuSign) and/or in two or more counterparts, each of which counterpart shall be deemed to be an original, but all of which, taken together, shall constitute one and the same instrument.
[END OF TERMS AND CONDITIONS]
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