The goods that are the subject of a sale by Resonac America, Inc. (“Seller”) to the customer identified on the face of Seller’s quotation, order acknowledgement, or a separate written agreement signed by an authorized representative of Seller (“Buyer”) are referred to as the “Products,” the services sold by Seller to Buyer are referred to as the “Services,” and items of tangible property on which Seller performs Services or that result from Services are referred to as the “Service Items.” All sales of Products, Services and/or Service Items by Seller are governed by and subject to (a) Seller’s quotation, order acknowledgement, or a separate written agreement signed by an authorized representative of Seller, as applicable, and (b) these terms and conditions set forth herein (“Terms and Conditions”), whether or not they are specifically referenced in or incorporated by Seller’s quotation, order acknowledgement, or the separate written agreement signed by Buyer. Any irreconcilable conflict between these Terms and Conditions and any terms in Seller’s quotation, order acknowledgement, or the separate written agreement signed by Buyer shall be resolved in favor of the quotation, order acknowledgement, or the separate written agreement signed by Buyer. Seller’s acceptance of Buyer’s purchase order or commencement of performance shall not constitute acceptance of any of Buyer’s terms and conditions. TERMS ADDITIONAL TO OR DIFFERENT FROM THESE TERMS AND CONDITIONS, INCLUDING BUT NOT LIMITED TO TERMS CONTAINED IN BUYER’S PURCHASE ORDER OR BUYER’S STANDARD TERMS AND CONDITIONS OF PURCHASE, ARE DEEMED MATERIAL AND HEREBY REJECTED UNLESS OTHERWISE ACCEPTED BY SELLER IN WRITING.
Buyer’s assent to these Terms and Conditions shall be conclusively presumed from Buyer’s (a) receipt of Seller’s order acknowledgment without written objection delivered to Seller within ten (10) days after receipt of the order acknowledgement (b) instructing Seller to begin work or ship any of the Products or Service Items after receipt of Seller’s order acknowledgement, (c) acceptance of or payment for all or any part of the Products or Services, or (d) taking any other action evidencing Buyer’s acceptance of the benefits of the agreement between Seller and Buyer, whichever occurs first. Seller may commence performance in reliance upon Buyer’s acceptance of these Terms and Conditions, and Seller will not be obligated to fulfill an order or request for the Products, Services or Service Items unless Seller affirmatively acknowledges the order in writing. BUYER AND SELLER AGREE THAT THESE TERMS AND CONDITIONS ARE ACCEPTED IN GOOD FAITH BY BOTH PARTIES AS THE CONTROLLING AND FINAL TERMS AND CONDITIONS SUBJECT TO THE PROVISIONS SET FORTH HEREIN.
Except as otherwise agreed to by Seller in writing, the Terms and Conditions set forth herein, together with Seller’s quotation, order acknowledgement, or a separate written and signed agreement, as applicable, shall constitute the complete and final agreement between Seller and Buyer (hereinafter, this “Agreement”), superseding completely any prior oral or written communications.
No modification of this Agreement or waiver of any of its terms will be binding on Seller unless clearly expressed in writing and signed by an authorized representative of Seller. For avoidance of doubt, this paragraph prohibits, among other things, purported modifications and waivers by oral agreement, course of performance, and usage of trade, none of which shall modify this Agreement without Seller’s express written consent. Seller and Buyer expressly agree that Seller may modify these Terms and Conditions from time to time, and such modifications shall be binding upon
Buyer for all sales of Products, Services or Service Items occurring after Buyer receives written notice of any such modifications.
Delivery dates are approximate. The failure to meet an indicated delivery date will not constitute a breach of this Agreement. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products or Service Items to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the Products or Service Items shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order. If for any reason Buyer fails to accept delivery of any of the Products or Service Items delivered to the location previously agreed by both parties on the date fixed pursuant to Seller’s notice, or if Seller is unable to deliver the Products or Service Items in accordance with this Agreement on such date because Buyer has not provided appropriate instructions, documentation, licenses or authorizations: (i) risk of loss to the Products or Service Items shall pass to Buyer; (ii) the Products or Service Items shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Products or Service Items until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses including, without limitation, storage and insurance. In no event shall Seller be liable for any claims for labor or for any actual, direct, special, indirect, incidental, or consequential damages including, but not limited to, demurrage charges, cost of shipment, downtime, lost profits (whether direct or indirect), lost sales, or any other damages resulting from delay in delivery. If Seller’s production or delivery is delayed, Seller may allocate production and delivery among its customers in a manner it deems reasonable. Seller reserves the right to change or redesignate any product source listed in this Agreement. IN ADDITION, ACCEPTANCE OF THE PRODUCTS OR SERVICE ITEMS BY BUYER UPON DELIVERY SHALL CONSTITUTE A WAIVER BY BUYER OF ANY CLAIM FOR DAMAGES ON ACCOUNT OF DELAY IN DELIVERY OR PERFORMANCE.
All deliveries, including the packaging, insurance and shipping method for the Products or Service Items, are as set forth in Seller’s quotation, order acknowledgement, or separate written and signed agreement. Title to and risk of loss to the Products and Service Items shall pass to the Buyer at the point of shipment from Seller’s facility, Seller’s designated location or where both parties’ prior-agreed location in writing, as applicable, whether freight prepaid or freight collect to destination, regardless of which party selects the carrier and arranges the freight charges or particulars of shipment. If Buyer requests Seller’s assistance in shipping, and Seller consents to provide such assistance, Seller may, in its sole discretion, select the shipping method, the carrier and the applicable freight charges and Buyer shall indemnify, defend and hold harmless Seller from and against any claims, damages or liabilities suffered by Seller resulting from any acts or omissions of said carrier.
“Delay/Change/Cancellation Costs” include all labor, materials, overhead, general and administrative costs, restocking charges, Charges (as defined in Section 13) levied on material by outside suppliers, sub-vendor cancellation charges, excess inventory charges, value of storage space, inventory tax charges, banking and finance charges, scrapping and disposal fees, and other harm, costs and charges incurred directly or indirectly by Seller in connection with a delivery delay request, change or cancellation of an order for the Products or Services by Buyer. Unless Buyer has obtained Seller’s prior written consent, which may be withheld or conditioned in Seller’s sole discretion, Buyer is not entitled to delay a delivery, change or cancel the Products, Services, or Service Items for all or any part of an order and any such delay, change or cancellation shall be a breach by Buyer of this Agreement. If Seller consents to the delay, change or cancellation, Buyer shall pay a delay, change or cancellation charge in an amount determined in Seller’s reasonable discretion to reflect all applicable Delay/Change/Cancellation Costs, including, at a minimum, storage charges, inventory carrying costs and financing costs associated with the finished Products or Service Items, work in process and raw materials, and costs of inactive labor during the delayed period.
The material specifications, quality requirements, or any other aspect of the Products and the Service Items or their manufacture (the “Product Specifications”) is controlled by Seller’s quotation, order acknowledgement, or separate written and signed agreement. If any of the Product Specifications in Seller’s quotation, order acknowledgement, or separate written and signed agreement differ materially from the Product Specifications requested by Buyer, the Product Specifications in Seller’s quotation, order acknowledgment, or separate written and signed agreement shall control. Buyer is not entitled, without Seller’s prior written consent, which may be granted or withheld in Seller’s sole discretion, to make any changes to Product Specifications in Seller’s quotation, order acknowledgement, or separate written and signed agreement. If Buyer requests a change, Seller, if it elects to consent, may condition its consent on Buyer’s agreement to price adjustments and other compensating payments satisfactory to Seller. In addition to all other remedies available to it under applicable law, Seller may refuse to comply with any change to which Seller has not given its prior written consent.
If Buyer is purchasing the Products or Services for a government contract or sub-contract, Buyer shall promptly notify Seller of that fact and of any contractual terms from the government procurement laws and regulations that Buyer is obligated to include in its contracts for such Products or Services. No government procurement provisions will be included in this Agreement unless agreed to in a written agreement signed by an authorized representative of Seller.
All purchase prices of the Products or Services are quoted and shall be paid in United States Dollars unless otherwise agreed in writing by Seller in Seller’s quotation, order acknowledgement, or separate written agreement signed by an authorized representative of Seller, as applicable. Prices are based on and assume Buyer’s compliance with all of the terms and conditions of this Agreement, including any commitment by Buyer to purchase a certain quantity of goods. Seller may adjust prices, in its sole discretion, if the circumstances do not coincide with the forgoing assumptions. Regardless of the time of any offer by Buyer and unless otherwise agreed by Buyer and Seller in writing, Products or Services pricing shall be based on Seller’s then-current pricing in effect on the date on which Seller dispatches its acceptance of Buyer’s offer, provided, however, Seller reserves the right to make adjustments to pricing and Products and Services for reasons including, but not limited to, changing market conditions, Products or Services discontinuation, Products or Services unavailability, and supplier price or index changes with or without notice.
Unless otherwise separately agreed to in writing between the parties, payment terms are net 30 days from the Seller’s invoice date, with no discount allowed on transportation charges. Interest will accrue on invoices unpaid after the net due date at the rate of 1.5% per month or the maximum legal contract interest rate, whichever is less. Pursuant to Section 15, Seller may demand payment in advance of delivery if, in Seller’s opinion, the credit or financial condition of Buyer is, or is about to become, impaired.
All weights offered, shown or calculated with respect to the Products or Service Items, other than actual shipping weights, are approximate estimated weights only. If sale terms are on a weight basis, Seller’s shipping weights stated on the invoice are to govern the performance of this Agreement. If such an approximate weight is offered, shown or calculated, Buyer shall nevertheless accept Seller’s weights stated on the invoice as the basis of full and complete delivery, and make payment therefor.
Unless otherwise agreed in writing by Seller in Seller’s quotation, order acknowledgement, or separate written agreement signed by an authorized representative of Seller, as applicable, (i) all local, state, federal, foreign, VAT or other taxes, duties, tariffs, fees, assessments or charges of any kind imposed by any federal, state, municipal or other governmental authority (“Taxes”) which Seller is required to collect or pay with respect to the provision, production, sale or shipment of the Products, Services or Service Items shall be the responsibility of Buyer and shall be charged and collected by Seller unless Buyer submits a valid exemption certificate as to any such Taxes to Seller, and (ii) all Taxes, packaging, loading, freight, customs, insurance, shipping and handling charges, assembly and/or other services (collectively “Charges”) are not included in the price and shall be the responsibility of Buyer, and Buyer agrees to pay all such Charges and further agrees to reimburse Seller for any such payments made by Seller.
If Buyer fails to make payment in full or in part when due or refuses to pay any applicable price increases or Charges, Seller shall have the right to: (i) immediately suspend performance and cancel the unfinished portion of any outstanding orders, (ii) declare all unpaid amounts for the Products or Service Items delivered immediately due and payable, and/or (iii) withhold further deliveries. If Seller elects to proceed with an order after the suspension of performance, Seller shall have an extension of time for performance as is necessitated by the suspension. Seller shall have the right to enforce payment of the full purchase price, including any price increase for Products, Services or Service Items already delivered or in process. Buyer shall reimburse Seller for all costs of collection, including attorney’s fees, incurred as a result of Buyer’s failure to make payments when due.
Prior to a sale, Buyer is requested to supply a current financial statement or a similar document acceptable to Seller. All new Buyers further must provide at least three trade references, and a completed credit questionnaire. Without prejudice to the rights and remedies Seller may have, Seller shall have the right, by written notice, to immediately suspend performance, terminate this Agreement, cancel any order, modify any payment terms, or require full or partial payment or adequate assurance of performance from Buyer, without liability to Seller, in the event of a material adverse change in the Buyer’s financial condition or if reasonable grounds for insecurity arise with respect to Buyer’s performance of this Agreement, evidence of which might include, among other things, (i) a default under any of Buyer’s financing agreements, (ii) Buyer’s inability to obtain financing, (iii) a reduction in Buyer’s credit rating by a recognized rating agency, (iv) Buyer’s insolvency, (v) the filing for bankruptcy by or against Buyer (whether voluntary or involuntary), (vi) the appointment of a receiver, liquidator or trustee for Buyer or for any material part of Buyer’s assets or properties with the consent or acquiescence of Buyer, or if any such appointment, not so consented to or acquiesced in, remains unvacated or unstayed or such receiver, liquidator or trustee has not been dismissed or discharged for an aggregate of thirty (30) days (whether or not consecutive), (vii) the execution by Buyer of an assignment for the benefit of creditors, (viii) the failure by Buyer to make a payment to Seller when due, (ix) the filing of a petition or answer seeking, consenting to or acquiescing in any reorganization, arrangement, adjustment, composition, readjustment, liquidation, dissolution or similar relief (“Relief”) under any present or future statute, law or regulation, (x) the filing of an answer admitting or not contesting the material allegations of a petition or answer filed against Buyer for or proposing any such Relief, or if any proceedings against Buyer for seeking any such Relief has not been dismissed within thirty (30) days after the commencement thereof, or (xi) any other event which raises reasonable doubts as to Buyer’s creditworthiness. The modifications Seller may make to payment terms include shortening the payment period, requiring advance payment, or requiring payment of cash on delivery. Seller shall notify Buyer in writing of any modifications to payment terms, which may be made retroactive to include amounts then accrued but unpaid. Seller reserves the right to cancel Buyer’s credit at any time for any reason, without notice.
The foregoing remedies are in addition to Seller’s other rights and remedies under this Agreement and under applicable law, including Section 2-609 of the Uniform Commercial Code (“UCC”).
(a) Seller reserves a purchase money security interest in the Products, Services and Service Items and proceeds thereof to secure their payment. In order to protect its security interest as aforesaid against the claim of creditors of Buyer and other third parties, Seller shall have the right to file financing statements covering the Products and Service Items thereof, and Buyer shall sign and deliver such financing statements at the request of Seller. Buyer consents to the filing of financing statements without the signature of Buyer if permitted by applicable law. (b) Seller or its agent or any sheriff or other officer of the law may in enforcement of said security interest take possession of the Products or Service Items without demand or further notice and without legal process. For this purpose, Seller shall have the right, and Buyer does hereby authorize and empower Seller or its agent, to enter the premises where the Products or Service Items are maintained and to remove same. In the event of such repossession, Seller shall have such rights and remedies as are provided and permitted by applicable law, including the right to attorneys’ fees and legal expenses incurred for the purpose of retaking and disposing of the Products or Service Items. (c) If, prior to complete payment of the Products or Service Items, any Products and Service Items are to be located or relocated by Buyer at any place other than Buyer’s address set forth in this Agreement, Buyer will notify Seller of such other address in advance.
Seller shall have the right to setoff the payment of any monies that become due and payable to Buyer hereunder against any amounts which may now or hereafter be owed to Seller or any of its subsidiaries or affiliates. Buyer shall pay Seller’s invoices without discount, setoff or reduction for any reason, including asserted warranty claims or other claims of non-performance by Seller.
Checks or payments, whether full or partial, received from or for the account of Buyer, regardless of writings, legends or notations upon such checks or payments, or regardless of other writings, statements or documents, shall be applied by Seller against the amount owing by Buyer with full reservation of all Seller’s rights and without an accord and satisfaction of Buyer’s liability.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN SELLER’S QUOTATION, ORDER ACKNOWLEDGEMENT, OR IN A SEPARATE WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SELLER AND EXCEPT AS SET FORTH IN THIS SECTION 19, PRODUCTS, SERVICES AND SERVICE ITEMS, INCLUDING PRODUCTS MANUFACTURED BY A THIRD PARTY THAT MAY CONSTITUTE, CONTAIN, BE CONTAINED IN, INCORPORATED INTO, ATTACHED TO OR PACKAGED TOGETHER WITH PRODUCTS, SERVICES, OR SERVICE ITEMS, ARE PROVIDED “AS IS” AND SELLER MAKES NO REPRESENTATIONS, WARRANTIES, EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR THAT THE PRODUCTS, SERVICES AND SERVICE ITEMS ARE DELIVERED FREE OF THE RIGHTFUL CLAIM OF ANY THIRD PARTY BY WAY OF PATENT OR TRADEMARK OR THE LIKE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. IF SELLER PROVIDES SPECIFICATIONS FOR PRODUCTS OR SERVICE ITEMS IN ITS QUOTATION, ORDER ACKNOWLEDGEMENT OR IN ANY SEPARATE WRITTEN AGREEMENT SIGNED BY SELLER, SELLER WARRANTS ONLY THAT SUCH PRODUCTS OR SERVICE ITEMS CONFORM TO SAID SPECIFICATIONS AT THE TIME OF SHIPPING FROM SELLER. BUYER’S RIGHTS WITH RESPECT TO ANY PRODUCTS OR SERVICE
ITEMS THAT DO NOT CONFORM TO SAID SPECIFICATIONS ARE SET FORTH IN SECTION 20 BELOW. ANY WARRANTY PROVIDED BY SELLER SHALL NOT APPLY TO ANY PRODUCTS OR SERVICE ITEMS THAT (I) HAVE BEEN MODIFIED OR ALTERED, (II) HAVE NOT BEEN MAINTAINED OR HAVE BEEN USED IN A MANNER OTHER THAN SPECIFIED IN THE PROTOCOLS, INSTRUCTION MANUALS AND OTHER WRITTEN MATERIALS, AS APPLICABLE, PROVIDED BY SELLER RELATING TO THE USE, OPERATION, SUPPORT OR MAINTENANCE OF THE PRODUCT OR SERVICE ITEMS (“DOCUMENTATION”), OR (III) HAVE BEEN MISHANDLED OR TREATED WITH ABUSE OR NEGLIGENCE BY ANY PERSON OTHER THAN SELLER. THE EMPLOYEES AND REPRESENTATIVES OF SELLER ARE NOT AUTHORIZED TO MAKE ANY STATEMENT OR REPRESENTATION AS TO THE PRODUCTS, SERVICES OR SERVICE ITEMS INCONSISTENT WITH THIS AGREEMENT AND NO SUCH STATEMENTS MADE WILL BE BINDING UPON SELLER OR BE GROUNDS FOR ANY CLAIM. IF ANY MODEL OR SAMPLE WAS SHOWN BY SELLER, SUCH MODEL OR SAMPLE WAS USED MERELY TO ILLUSTRATE THE GENERAL TYPE AND QUALITY OF THE PRODUCTS, SERVICES OR SERVICE ITEMS AND NOT TO REPRESENT THAT THE PRODUCTS, SERVICES OR SERVICE ITEMS WOULD NECESSARILY BE OF THAT TYPE OR NATURE.
No claim for nonconforming Products or Service Items under Section 19 or for shortage or damage of Products or Service Items delivered will be allowed unless Buyer provides Seller with written notice of the claim within fifteen (15) days of the date the Products or Service Items were delivered to Buyer. THE FAILURE TO NOTIFY SELLER OF ANY CLAIM WITHIN THE TIME PERIOD SPECIFIED BY THIS SECTION SHALL CONSTITUTE A WAIVER OF
AND BAR SUCH CLAIM. Seller shall incur no liability for nonconformance, shortage or damage alleged to have occurred or existed at or prior to delivery to the carrier unless Buyer shall have entered full details thereof on carrier’s delivery receipt which must be signed by the carrier’s agent. Seller must be given an opportunity to investigate the claim before Buyer disposes of the Products or Service Items. Any non-conforming or damaged Products or Service Items shall not be returned, repaired or discarded without Seller’s written permission. To assert a claim for non- conforming Products or Service Items or for damaged Products or Service Items, Buyer must (a) at Seller’s request, return to Seller 100% or, if agreed by Seller, a lesser but still statistically relevant percentage of the Products or Service Items claimed to be non-conforming or damaged, and (b) provide reasonable evidence to support the claim, including, if requested by Seller, results of diagnostic tests, evaluations and investigations performed by Buyer or Buyer’s customer. If requested by Seller, the non-conforming or damaged Products or Service Items must be returned to Seller according to Seller’s instruction and at Buyer’s expense and risk of loss within ten (10) days of Seller’s request. No claims, rejections or returns for non-conforming or damaged Products or Service Items will be permitted unless Buyer cooperates in full with Seller’s technical personnel to determine the cause of the non- conformance or damage. Buyer’s sole and exclusive remedy with respect to the nonconformance of any Products or Service Items or shortage or damage of Products or Service Items furnished by Seller under this Agreement shall be limited to, at Seller’s discretion, either: (1) replacement or repair of such Products or Service Items at the point of shipment from Seller’s facility, Seller’s designated location or a location previously agreed by both parties in writing, as applicable, or (2) repayment of or credit against the purchase price of such Products or Service Items upon authorized return thereof and are subject to these provisions. The replacement or repair or repayment or credit shall be made only to the Buyer purchasing the Products or Service Items directly from Seller, is not transferable and does not extend to the benefit of any other person or entity, unless otherwise expressly stated in writing by Seller. Buyer shall cause its customers to comply with, and shall be responsible for Buyer’s customers’ compliance with, Buyer’s obligations with regard to the use, maintenance, operation and disposal of the Products or Service Items under this Agreement. In the event Seller has authorized Buyer to scrap all or any portion of the Products or Service Items, Buyer shall be solely responsible for such scrap and shall comply with all applicable laws, rules and regulations, including Seller’s instructions, relating to the disposal of such Products or Service Items.
Seller makes no warranty with respect to data referring to mechanical properties or chemical analyses of tests performed on specimens of the Products or Service Items. Any data referring to mechanical properties or chemical analyses are the result of tests performed on specimens obtained from specific locations on the Products or Service Items in accordance with prescribed sampling procedures.
After the sale of any Products or Service Items, Seller will provide technical advice to Buyer with respect to such Products or Service Items during Seller’s business hours at a level that is customary in the industry in responding to Buyer’s questions regarding such Products or Service Items, provided, however, Seller assumes no obligation or liability for any technical advice furnished to Buyer, including without limitation technical advice with respect to the use of the Products or Service Items, all such technical advice being given and accepted at Buyer’s risk. Seller will not be liable for any damages of any kind arising out of or relating to the use of or the inability to use the information provided, including but not limited to any actual, direct, special, indirect, incidental or consequential damages including, without limitation, demurrage charges, cost of shipment, downtime, lost profits (whether direct or indirect), or lost sales, whether foreseeable or not, and even if Seller has been advised of the possibility of damages.
Nothing in this Agreement is to be construed as a grant or assignment of any license or other right to Buyer of any of Seller’s, its parent’s or affiliates’ intellectual property rights, whether patent, trademark, trade secret, copyright or otherwise, express or implied, in or to any Product, Services or Service Items or any right to manufacture or to have manufactured any Product or Service Items. Except as otherwise agreed in writing by Seller, the purchase of Products, Services or Service Items only conveys to Buyer the non-transferable right for Buyer solely to use the quantity of Products, Services or Service Items purchased in compliance with the applicable intended use and Documentation, and Buyer is not granted any right to be supplied with any Product or Service Items beyond those ordered by Buyer and supplied by Seller in accordance with this Agreement. Seller retains its rights to enforce its patent(s) or other intellectual property rights, including, without limitation, as to any use of any Product, Service Items or Documentation beyond that granted hereunder any patent or other intellectual property to the Product, Service Items or Documentation. Buyer shall not alter, modify, reverse engineer, decompile, disassemble or create derivatives of any of Product or Service Items. Seller, its parent and/or its affiliates, as applicable, retains sole title to, and ownership of, all intellectual property and proprietary rights in all Documentation, Products, Services and Service Items and all derivatives thereof. Buyer hereby agrees all improvements and developments related to the Products, Services or Service Items or the efforts of Seller and Buyer shall be owned exclusively by Seller, and Buyer shall reasonably cooperate with Seller in confirming that result. Seller shall not be responsible for any infringement or unauthorized use with regard to patent, utility model, trademark, design, copyright or any other industrial proprietary right whether in Buyer’s country or any other place. If any dispute and/or claim arises in connection with the above right or rights, Seller reserves the right to cancel any Agreement between the parties relating thereto at its discretion without liability to Buyer and Buyer shall be responsible for any and all loss and/or damage caused thereby.
All non-public, confidential, or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, that Seller discloses to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and regardless of whether marked, designated, or otherwise identified as “confidential,” in connection with this Agreement is confidential, to be used by Buyer solely for the use of performing this Agreement, and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request and
Seller’s discretion, Buyer shall promptly return or destroy all confidential information received from Seller. Seller will be entitled to injunctive relief for any violation of this Section 24, without having to post bond or establish the insufficiency of a remedy at law. This Section 24 does not apply to information that is: (a) in the public domain at the time of disclosure, or subsequently enters the public domain through no act or omission on the part of Buyer; (b) known to Buyer at the time of disclosure without restriction on its use or independently developed by Buyer without the breach of this Agreement, provided there is adequate documentation to demonstrate either condition; (c) used or disclosed with the prior written approval of Seller; or (d) received by Buyer from a source other than Seller who is not under any obligation of confidentiality with respect to such information. Buyer shall have the burden of proving the existence of the foregoing exceptions.
SELLER’S LIABILITY, WHETHER IN CONTRACT, IN TORT, UNDER WARRANTY, IN NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCTS, SERVICES OR SERVICE ITEMS GIVING RISE TO SUCH LIABILITY CONTAINED IN THE SAME QUOTATION, ORDER ACKNOWLEDGMENT OR SEPARATE WRITTEN AGREEMENT SIGNED BY SELLER. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, COSTS OF SHIPMENT, DOWNTIME, LOST PROFITS (WHETHER DIRECT OR INDIRECT), LOST SALES, DAMAGE TO EQUIPMENT, OR CLAIMS OF BUYER’S CUSTOMERS OR OTHER THIRD PARTIES FOR DAMAGES OR PENALTIES, WHETHER OR NOT BUYER IS LEGALLY OBLIGATED TO PAY THEM. SELLER AND BUYER EXPRESSLY AGREE TO THIS ALLOCATION OF RISK AND THE PRICE STATED FOR THE PRODUCTS, SERVICES OR SERVICE ITEMS IS CONSIDERATION FOR THE LIMITATION ON SELLER’S LIABILITY. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXCLUSIVE REMEDY DESCRIBED IN THIS SECTION FAILS ITS ESSENTIAL PURPOSE.
Buyer agrees to indemnify, defend and hold harmless Seller, its parent and affiliates and their respective directors, officers, employees, agents, successors and assigns from and against any and all damages, losses, expenses, costs (including without limitation attorney’s and accountant’s fees), claims, suits, actions, judgments or other liability asserted against or incurred by Seller arising out of (a) Buyer’s breach of its obligations under this Agreement, (b) Buyer’s or Buyer’s customers’ negligence or misconduct, or misuse or misapplication with regard to the Products or Service Items or (c) damage to the Products or Service Items caused by Buyer or its employees, agents or customers.
Seller shall not be responsible for cancellation or delay in delivery or performance resulting, in whole or in part, from causes beyond its reasonable control, including, but not limited to: acts of God; acts of Buyer; strikes or other labor disturbances regardless of whether or not Seller is capable of settling such strike or disturbance; mill or facility conditions; temporary or permanent mill or facility closures; equipment failure; inability to obtain fuel, material, or parts; war; invasion; hostilities (whether war is declared or not); acts or threats of terrorism; sabotage; riot or other civil unrests; national or regional emergency or lockdowns; delays in transportation; repairs to equipment; natural disasters; epidemics; pandemics; floods; earthquakes; fires; action of governmental authorities (valid or invalid); embargoes or blockades; severe weather conditions; accidents; explosions; failure of or inability to obtain power, raw materials, suppliers, labor, equipment or transportation; a court or administrative injunction or order; or any other contingency the non-occurrence of which was a basic assumption on which this Agreement was made.
This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of California, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement and/or the sale of any Products, Services or Service Items to Buyer.
Any dispute regarding the Products, Services, Service Items or any of these terms, or any other matter between the parties will be resolved exclusively by binding arbitration, conducted in the English language, as follows: (i) the arbitration will be conducted under the commercial arbitration rules of the American Arbitration Association (AAA) in Santa Clara County, California; and the arbitration award shall be final and binding upon the parties, and enforceable in any court of competent jurisdiction thereof, (ii) the arbitrator will be selected from an AAA list using the AAA recommended selection method and (iii) all arbitration proceedings shall be confidential, except to the extent that disclosure is necessary to enforce an arbitration award in a court. Each party will bear equally the costs and expenses of AAA and the arbitrator, and each party will bear its own costs and expenses; provided, however, (1) that the failure by one party to pay its share of the arbitration fees constitutes a waiver of such party’s claim or defense in the arbitration, and (2) that the arbitrator may award attorneys’ fees and costs to the substantially prevailing party. Notwithstanding the foregoing, any enforcement of an arbitration award or any requests for injunctive relief for enforcement of Seller’s intellectual property rights will be exclusively litigated in court rather than through arbitration and the parties expressly and irrevocably consent to the exclusive jurisdiction and venue of the state and federal courts having authority over the territory of Santa Clara County, California for such matters. The action brought in such court in Santa Clara County, California may not be transferred or removed to any other court. Buyer and Seller waive any objection based upon forum non-conveniens or any objection to venue of any such action. If any arbitral or judicial proceedings shall be commenced to enforce or interpret this Agreement, the prevailing party in such action or proceedings shall be entitled to recover its reasonable attorneys’ fees, costs and expenses in connection with such action or proceedings. In no event will any party be awarded punitive or exemplary damages.
The failure of Seller to enforce any of the provisions of this Agreement shall not be construed as a waiver of Seller’s right to enforce each and every provision hereof. Seller reserves the right to enforce these terms and conditions at any time and none shall be deemed waived unless such waiver is in writing signed by an authorized representative of Seller. Seller’s rights and remedies set forth in this Agreement are in addition to all legal and equitable rights and remedies available to Seller. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Buyer shall not assign or delegate any or all of its rights or obligations under this Agreement without the prior written consent of Seller, which may be granted or withheld in Seller’s sole and absolute discretion, and any attempt to do so will be ineffective. Subject to the foregoing, any and all of Buyer’s obligations under this Agreement shall be binding upon Buyer’s permitted successor and assign. Seller may assign its right to receipt of payment(s) from Buyer without the prior written consent of Buyer.
This Agreement is for the sole and exclusive benefit of the parties hereto and their permitted successors and assigns. Nothing expressed or referred to in this Agreement will be construed to give any other person or entity any legal or equitable right, benefit, remedy or claim of any nature whatsoever under or with respect to this Agreement.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, or legal representative of the other, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
If any provision or part of a provision of this Agreement is declared invalid, illegal, or unenforceable under applicable law, the affected provision will be considered omitted or modified to conform to applicable law. The validity, legality, and enforceability of all other remaining provisions or parts of provisions will remain in full force and effect.
Buyer hereby certifies and warrants on its own behalf as well as on behalf of any person or entity under its direction or control, including its customers and any party with which Buyer has contractual relations, that (i) it shall comply with all applicable governmental laws, regulations, and orders in the purchase and resale of any Product, Services or Service Items sold hereunder, (ii) it will not export or re-export Products or Service Items except in full compliance with all applicable laws and regulations, (iii) it is solely responsible for complying with all U.S. Export Administration laws, rules and regulations, (iv) it is not on the U.S. Commerce Department’s Denied Party or Entity List or the Unverified Parties List and it will not sell or distribute any Products or Service Items sold hereunder to any party on such lists and (v) in performing its obligations under this Agreement, it will not take any action rendering Seller liable for violation of the United States Foreign Corrupt Practices Act, which prohibits offering, giving, or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, political party, or instrumentality of these organizations, in order to assist it or Seller in obtaining or retaining business. Buyer will indemnify and hold Seller harmless from all fees, fines, or other damages imposed on or suffered by Seller due to Buyer’s failure to comply with this Section. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
© Resonac America, Inc. 2023. All rights reserved.
In order to resolve a complaint regarding the Services or to receive further information regarding use of the Services, please contact us at:
Resonac America, Inc.
420 Lexington Avenue
New York, NY 10170