Terms & Conditions
TERMS
No purchase order is valid until accepted by Engineered Controls International®, LLC (the Company).
Customers with established credit will be shipped open account. Shipments will be made C.O.D. until credit is established. Payment terms are net thirty days from date of shipment. Past due invoices are subject to a service charge of 2% per month (an effective rate of 24% per annum). All domestic orders are subject to a minimum billing of $ 50.00 net.
Prices are subject to change without notice. This price list supersedes all previous price lists and quotations.
Federal, State, or Municipal Taxes required by law to be paid or collected by us shall be added to prices quoted.
Prices as quoted apply only to each order accepted by us.
Prices at which orders will be billed shall be those in effect at the time shipments are made.
SHIPPING INFORMATION
Prices are F.O.B. our factory.
Method and route of shipment will be at the discretion of ECI®, LLC unless the customer specifies otherwise. Any additional expense of the method or route specified by the customer shall be born by the customer.
We assume no responsibility for placing valuation upon a shipment unless specifically requested to do so by the customer. We are not responsible for merchandise lost or damaged in transit. Our responsibility ends when merchandise is delivered to or receipted for by the transportation company.
EXPORT TERMS AND SHIPPING INFORMATION
The terms and conditions stated on this page apply to export shipments except as follows:
Customers with established credit will be shipped open account. All other customers must prepay prior to shipment or furnish a confirmed irrevocable Letter of Credit. Payment terms are net 60 days from date of shipment.
All orders are subject to a minimum billing of $ 100.00. Prices at which orders will be invoiced shall be those in effect at the time shipments are made unless an order confirms a still valid quotation or proforma invoice issued by the Company.
Prices are F.O.B. our factories.
Any insurance, freight and handling charges incurred for export shipments will be invoiced at cost. If customers require quotations C.I.F. destination, The Company must quote these charges in advance.
EQUIPMENT CLASSIFICATION
Equipment sold may fall into the following categories:
- 1. Standard Equipment: Equipment listed in this price list is considered standard.
- 2. Non-Standard Equipment: These are items that are modifications of standard parts shown in this price list. The set-up charge is $200.00 net. In addition to the list price.
- 3. Special Equipment: These are items involving special machined parts or dimensions to suit a particular customer need. Prices to be quoted to the customer upon request.
SCHEDULE OF DELIVERIES
Each order, before acceptance by us, must specify a shipping schedule. Every effort will be made to fill orders within the time requested by the customer but under no circumstances shall we be liable by any damages growing out of or owing to any delay in delivery. If we are unable to ship orders within the periods specified, we will make shipments as soon thereafter as possible.
We will accept schedule changes, provided the customer gives us reasonable advance notice of the desired changes.
CLAIMS FOR SHORTAGES
In all cases or shortages, we must be notified within ten (10) days after receipt of shipment by customer.
LIMITED 10 YEAR WARRANTY AND LIMITATION OF LIABILITY
LIMITED 10 YEAR WARRANTY
ECI®, LLC warrants to the original purchasers the products and repair kits manufactured by it to be free from defects in materials and workmanship under normal use and service for a period of 10 years from the date of manufacture. If within thirty days after buyer’s discovery of what buyer believes is a defect, buyer notifies in writing and ships the product to ECI®, LLC at 3181 Lear Drive, Burlington NC 27215, ECI®, LLC, at its option, and within forty-five days of receipt , will repair, replace F.O.B. point of manufacture, or refund the purchase price of that part or product found by ECI®, LLC to be defective. Failure of buyer to give such written notice and ship the product within thirty days shall be deemed an absolute and unconditional waiver of any and all claims of buyer arising out of such defect.
This warranty does not extend to any product or part that is not installed and used continuously after installation in accordance with ECI®, LLC’s printed instructions, all applicable state and local regulations, and all applicable national standards. This warranty does not extend to any product or part that has been damaged by accident, misuse, abuse, failure to maintain, or neglect, nor does it extend to any product or part which has been modified, altered, disassembled, or repaired in the field. This warranty does not cover any cosmetic issues, such as scratches, dents, marring, fading of colors or discoloration.
Except as expressly set forth above, and subject to the limitation of liability below, ECI®, LLC MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, with respect to its products and parts, whether used alone or in combination with others. ECI®, LLC disclaims all warranties not stated herein.
LIMITATION OF LIABILITY
ECI®, LLC’s total liability for any and all losses and damages arising out of any cause whatsoever shall in no event exceed the purchase price of the products or parts in respect of which such cause arises, whether such cause be based on theories of contract, negligence, strict liability, tort or otherwise.
ECI®, LLC shall not be liable for incidental, consequential or punitive damages or other losses. ECI®, LLC shall not be liable for, and buyer assumes any liability for, all personal injury and property damage connected with the handling, transportation, possession, further manufacture, other use or resale of products, whether used alone or in combination with any other products or materials.
From time to time buyers might call to ask ECI®, LLC for technical advice based upon limited facts disclosed to ECI®, LLC. If ECI®, LLC furnishes technical advice to buyer, whether or not at buyer’s request, with respect to application, further manufacture or other use of the products and parts, ECI®, LLC shall not be liable for such technical advice or any such advice provided to buyer by any third party and buyer assumes all risks of such advice and the results thereof.
NOTE: Some states do not allow the exclusion or limitation of incidental, consequential or punitive damages, so the above limitation or exclusion may not apply to you. The warranty gives you specific legal rights, and you may have other rights that vary from State to State. The portions of this limited warranty and limitation of liability shall be considered severable and all portions which are not disallowed by applicable law shall remain in full force and effect.
WARNING
All ECI®, LLC products are mechanical devices that will eventually become inoperative due to wear, corrosion and aging of components made of materials such as rubber, etc. The environment and conditions of use will determine the safe service life of these products. Periodic inspection and maintenance are essential to avoid serious injury and property damage.
Many ECI®, LLC products are manufactured components which are incorporated by others on or in other products or systems used for storage, transport, transfer and otherwise for use of toxic, flammable and dangerous liquids and gases. Such substances must be handled by experienced and trained personnel only, using accepted governmental and industrial safety procedures.
NOTICE TO USERS OF PRODUCTS
The Limited Warranty stated above is a factory warranty to the first purchasers of ECI®, LLC products. Since most users have purchased these products from ECI®, LLC distributors, the user must within thirty (30) days after the user’s discovery of what user believes is a defect, notify in writing and return the product to the distributor from whom he purchased the product/part. The distributor may or may not at the distributor’s option choose to submit the product/parts to ECI®, LLC, pursuant to this Limited Warranty. Failure by buyer to give such written notice within thirty (30) days shall be deemed an absolute and unconditional waiver of buyer’s claim for such defects. Acceptance of any alleged defective product/parts by ECI®, LLC’s distributor for replacement or repairs under the terms of ECI®, LLC’s Limited Warranty in no way determines ECI®, LLC’s obligations under this Limited Warranty.
Because of a policy of continuous product improvement, ECI®, LLC reserves the right to change designs, materials or specifications without notice.
Equal Employment, Affirmative Action, and Non-Segregated Facilities:
Company and any of its covered subcontractors shall abide by the Equal Employment Opportunity Clause of Executive Order 11246 and the implementing rules and regulation of the Office of Federal Contract Compliance including the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin, or for inquiring about, discussing, or disclosing information about compensation. These regulations require affirmative action by covered prime contractors and subcontractors to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. Likewise, when applicable, Company and/or its covered subcontractors agrees to comply with the provisions of 29 CFR Part 471, Appendix A to Subpart A. Company does not and will not maintain or provide for its employees any segregated facilities or permit its employees to perform services at locations where segregated facilities are maintained, as required by 41 CFR 60-1.8.
1. Acceptance and Complete Agreement. All orders (“Orders”) placed for products (the “Products”) furnished by Engineered Controls International, LLC (“Seller”) to the purchaser thereof (“Buyer”) are subject to the terms and conditions set forth herein and any Schedules attached hereto (collectively, these “Terms”), the warranty incorporated by reference in Section 14 of these Terms (the “Warranty”), the sales quotation for the Products given by Seller (the “Offer”), the written order acknowledgment from Seller accepting Buyer’s written Order for the Products (the “Order Acknowledgment”) and any confidentiality and/or nondisclosure agreement executed between Seller and Buyer (the “NDA”). These Terms, the Warranty, the Offer, the Order Acknowledgment and the NDA are hereafter collectively referred to as the “Contract,” whether or not specifically referred to. If any provision in the Order Acknowledgment is inconsistent with these Terms, the provision of the Order Acknowledgment shall govern. No additional or different terms or conditions or any modifications, changes or amendments to the Contract shall be binding upon Seller unless specifically agreed to in writing by an authorized representative of Seller. Seller hereby objects to, and rejects, any additional or different terms already or hereafter proposed by Buyer, but not expressly set forth in the Contract, whether contained in any documentation or communication from Buyer or otherwise, including, without limitation, any terms set forth in any purchase order, acknowledgement, statement of terms and conditions or any other such document or communication. Seller’s failure to further object to any of the provisions contained in any documentation of Buyer’s or any communication of any kind from Buyer shall not be deemed a waiver of the terms of the Contract or as an acceptance by Seller of any deviation from the terms of the Contract. SELLER’S ACCEPTANCE OF ANY OR ALL OF BUYER’S ORDERS FOR PRODUCTS IS CONDITIONAL UPON BUYER’S ASSENT TO THE TERMS OF THE CONTRACT REGARDLESS OF ANY TERMS CONTAINED IN ANY OF BUYER’S COMMUNICATIONS OR DOCUMENTS. Sales literature, price lists, illustrations, drawings, samples, photographs or descriptions and other documents issued by Seller in relation to the Products are subject to alteration without notice and are intended as a guide only and shall not be binding on Seller. The Contract constitutes the entire agreement between Seller and Buyer with respect to the topics in the Contract, superseding all prior oral or written communications, representations, agreements and negotiations.
2. Delivery Times. All quoted delivery dates for Products are estimates only and Seller shall not be liable for any failure to deliver the Products at the specified time or on the specified date unless agreed in writing between the parties. Seller reserves the right to make delivery in installments and all such installments, when separately invoiced, shall be paid for when due per Seller’s invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept remaining deliveries. Seller will attempt to comply with reasonable requests by Buyer for changes in delivery dates, but Seller shall be under no obligation to do so. Additional charges may apply for changes in delivery dates or times, at Seller’s discretion.
3. Shipping and Delivery.
3.1. Unless otherwise specified in the Order Acknowledgment or agreed in writing by Seller, all Products shall be delivered Free Carrier (FCA, Incoterms 2020) from Seller’s facility or another location designated by Seller.
3.2. Products will be packaged in accordance with Seller’s standard packaging specifications applicable at the time of shipment, unless otherwise provided in the Order Acknowledgement. Upon Buyer’s request, Seller may agree to provide special packaging, marking or forms, in each case, subject to additional charges and Seller’s prior written consent.
3.3. Buyer shall be responsible for all shipping charges, including, but not limited to, shipping, transportation, duties and insurance costs, unless otherwise specified in the Order Acknowledgment or agreed in writing by Seller. The Products will be shipped under a straight bill of lading, naming Buyer as consignee. If requested by Buyer, forthwith after the Products have been delivered to a shipper for transportation to Buyer, Seller shall transmit the bill of lading to Buyer at Buyer’s address as stated in Buyer’s Order. Unless otherwise agreed by Buyer and Seller, any prepayment by Seller of certain shipping, handling, transportation, duties or other related charges that are the responsibility of Buyer pursuant to the Incoterms set forth in Section 3.1 will be added to Buyer’s invoice.
4. Risk and Title. Title to all Products shall transfer to Buyer upon delivery of such Products to a shipper or freight carrier, as applicable, for transportation to Buyer in accordance with the Incoterms set forth in Section 3.1 (the “Delivery”) and upon such Delivery, Buyer shall bear all risk of loss. Subsequent to Delivery, Seller shall not be responsible or liable for the security, safeguarding or insurance of the Products so transferred.
5. Storage. Any of the Products whose manufacture, installation or shipment is delayed (a) by the acts or omissions of Buyer or (b) at Buyer’s request, may be placed in storage by Seller (at Seller’s sole option) at Buyer’s risk and at Buyer’s cost and expense (including insurance). Storage fees will be assessed from the originally-scheduled shipment date (or the date the Products were ready to ship if a shipment date had not been scheduled) until the Delivery. The storage fee rate for finished Products that are prevented from shipping will be provided to Buyer. The storage fee will be added along with the actual freight and handling and applicable taxes to the final invoice for the Products. All charges for storage are per Product and may vary based on the type of Product stored.
6. Orders and Price.
6.1. All prices and delivery quotations made by Seller in the Offer are conditioned upon these Terms. No Order shall be binding upon Seller until received in writing and accepted by an authorized representative of Seller through Seller’s issuance of a written Order Acknowledgment. Any amendment to an Order made by Buyer shall be binding on Seller only if confirmed in writing by Seller and additional costs, if any, for such amendment shall be borne by Buyer. Any Contract resulting from acceptance of any Order placed with Seller may only be modified or rescinded by a written document signed by the duly authorized representative of both parties.
6.2. All information, prices and specifications shown in Seller’s advertisements, catalogues, brochures, product and price lists, website or otherwise are indicative, subject to change without notice and shall under no circumstances bind Seller.
6.3. All prices and special terms quoted by Seller will expire thirty (30) calendar days from the date such pricing or terms were originally proposed by Seller in the Offer unless otherwise specified or extended in writing by Seller. The price of the Products will be Seller’s quoted price in the Offer or, where no price has been quoted (or a quoted price is no longer valid), the price current at the date of the Order Acknowledgment by Seller; provided that, in the event of a price change following the Order Acknowledgement, products on hand at the time of a price increase will be invoiced at the acknowledged price, while products entered or scheduled for shipment after the effective date of the price change will be invoiced at the increased price.
6.4. Seller reserves the right, by giving notice to Buyer at any time before Delivery to increase the price of Products to reflect any factor beyond the control of Seller, such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labor, materials or other costs of manufacture, any change in delivery dates, quantities or specifications for the Products which is requested by Buyer or any delay caused by any instructions of Buyer or failure of Buyer to give Seller adequate information or instructions. Seller also reserves the right to make changes to quoted prices for pricing errors, clerical errors, or other errors or omissions.
6.5. Prices are subject to adjustment on account of specifications, quantities, shipment arrangements or other terms and conditions which are not part of the original price quotation in the Offer. If the prices are based on the purchase of a particular quantity of Products and Buyer fails to purchase that quantity which would justify the pricing granted, Buyer will, at Seller’s option, pay Seller the difference between the stated prices and Seller’s standard prices for such Products in the quantity actually purchased by Buyer.
7. Payment.
7.1. Products are invoiced upon Delivery, shipment or at the time Seller puts the Products at Buyer’s disposal, whichever occurs earlier. If Delivery of any Product is delayed by Buyer, the date of notice of readiness for Delivery shall be deemed to be the date of Delivery for invoice purposes. Unless otherwise provided in the applicable Order Acknowledgement, terms of payment are net thirty (30) calendar days from the date of Seller’s invoice and shall be made in U.S. dollars, provided that Seller reserves the right to modify its credit terms from time to time. All Orders are subject to Seller’s credit approval process. If Buyer is not offered credit or if its creditworthiness changes, in each case, as determined by Seller in its sole discretion, then Seller may demand advance payment for Products or other means of financial security, including a letter of credit.
7.2. Any late payments are subject to a finance charge of the lesser of 1.5% per month (18% per annum) or the maximum amount allowed by law, computed on all unpaid amounts and calculated on a day to day basis until the actual date of full payment. All payments due to Seller shall be made in full without any set-off or deduction to the amounts shown on the relevant invoice. If Seller receives partial payment in an amount less than the full amount of any invoice, such receipt shall neither constitute a waiver of Seller's right to collect the balance nor an accord and satisfaction, notwithstanding Seller’s endorsement of a check or other instrument. Buyer shall have no right to withhold any amount due to Seller under the Contract because of a claim Buyer may have against Seller. If Seller engages counsel in respect of any late payment or default, Buyer will pay, in addition to the balance then due and owing, all collection costs, court costs, administrative costs, investigation costs, reasonable attorneys’ fees and all other incidental costs, charges or expenses incurred in the collection of past due amounts or otherwise resulting or arising from any breach by Buyer of the Contract. In addition to all other remedies available under the Contract or at law (which Seller does not waive by the exercise of any rights under the Contract), Seller shall be entitled to withdraw credit or suspend or cancel the delivery of any Products, under this Contract or any other agreement between the parties, if Buyer fails to pay any amount when due hereunder and such failure continues for five (5) calendar days following written notice to Buyer thereof.
8. Taxes and Other Charges. Unless otherwise specified or required by law, all prices will be quoted and billed exclusive of customs, duties or taxes and Buyer shall be responsible for all such applicable duties and taxes (exclusive of taxes on Seller's income). If exemption from such taxes is claimed, Buyer must provide a certificate of exemption at the time its Order is submitted to Seller and Buyer will indemnify Seller for any unpaid taxes, as well as any penalties and interest, in the event such exemption is not applicable.
9. Loss or Damage in Transit; Returns.
9.1. Seller’s responsibility for damaged Products ceases upon Delivery and all claims for loss or damage occurring after Delivery must be filed by Buyer with the carrier.
9.2. In the event of (a) shortage, (b) excess deliveries, (c) wrong product, (d) visible damage, (e) concealed damage or (f) loss occurring prior to acceptance by the carrier, a claim must be made in writing by Buyer against Seller. All claims against the carrier or Seller under this Section 9 must be made within five (5) business days after the Delivery of the Products; provided, however, that Buyer may make a claim within four (4) weeks after Delivery of the Products for international shipments. Buyer’s failure to timely make any such claim shall constitute unqualified acceptance and a waiver of all such claims by Buyer. Claims against Seller are subject to Buyer’s compliance with Seller’s return merchandise authorization policy, which will be provided to Buyer upon request. Seller may, at Seller’s option, require Buyer to (a) provide photographs or other documentation of such claim and (b) make the Products (including packaging, wrappings and/or carton) subject to the claim available for inspection by Seller or its authorized representative in order to substantiate the grounds for rejection of the Products. Unless otherwise agreed in writing by Seller, all rejected Products must be returned to Seller, at Buyer’s expense, prior to replacement by Seller. All returns shall be at Buyer’s risk and expense and must be sent to Seller under DDP (Incoterms 2020) at the place of destination indicated by Seller.
9.3. Seller may, in its sole discretion, accept the return of Products. Returned Products must be unused, in their original packaging, and in good working condition to be eligible for return, unless otherwise provided in writing by Seller. Prior to returning any Products, Buyer shall issue a written request to Seller for a return merchandise authorization number (“RMA Number”) setting forth the reason for such request in reasonable detail. Any return of Products to Seller will be made ONLY upon Seller’s assignment of a RMA Number to Buyer. Such RMA Number must be displayed prominently on the outside of the box that contains the returned Products. Any Products returned to Seller without a RMA Number will be refused and returned to Buyer at Buyer’s expense. Seller may reimburse Buyer for any returned Products either by providing a replacement for the returned Products or as Seller store credit, at Seller’s sole option.
10. Substitutions; Modifications.
10.1. Seller shall have the right to deliver substitute products for the Products ordered by Buyer, provided that such substituted products do not materially differ from the ordered Products in terms of overall form, fit and performance, as determined in Seller’s sole and complete discretion. Seller reserves the right at any time to make changes to Products or in the design or specifications of the Products, without liability or obligation to implement such change to any Products previously manufactured and further reserves the right to discontinue any Product at any time.
10.2. Drawings, specifications, product finishes and color shades in Seller’s literature and advertisements are approximate only and do not constitute a trade description.
11. Cancellation and Termination by Buyer; Rescheduling. Buyer’s Order, after acceptance by Seller, shall not be subject to cancellation, change, or reduction in amount, nor to any suspension by Buyer of deliveries, without Seller’s prior written consent. If Seller consents to a cancellation, change, or reduction of an Order, Seller may invoice Buyer for cancellation fees which may take into account (a) all expenses already incurred, including, but not limited to, expended materials, labor, production costs and work in progress; (b) outstanding commitments that cannot be cancelled, and (c) all incidental costs and expenses, including, but not limited, to storage and handling fees. Buyer will pay such cancellation fees within thirty (30) calendar days of the date of Seller’s invoice. Any requests by Buyer to delay the delivery of any Order beyond the originally scheduled delivery date shall be made in writing and are subject to the prior written consent of Seller, in its sole discretion. Seller reserves the right to assess Buyer a charge sufficient to cover all costs incurred by Seller due to any approved delay or Buyer’s failure to take delivery on the scheduled delivery date (in addition to any storage charges described above). Any charge assessed to Buyer due to its failure to take delivery of an Order shall be in addition to, and without prejudice to, other remedies Seller may have at law or equity.
12. Cancellation and Termination by Seller; Rescheduling. Seller reserves the right to cancel any Orders placed by Buyer or to refuse or delay shipment thereof, with no liability to Seller, if Buyer (a) fails to make any payment as provided in the Contract or under the terms of payment set forth in any invoice or otherwise agreed to by Seller and Buyer, (b) fails to meet reasonable credit or financial requirements established by Seller, including any limitations on allowable credit, (c) otherwise fails to comply with the Contract, (d) becomes debarred, suspended or identified as a denied party by any applicable government agency, (e) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors or (f) violates or is reasonably believed to have violated, applicable law, including anti-bribery, anti-corruption or anti-money laundering or privacy laws.
13. Tooling. Unless otherwise specified in an agreement signed by Seller and Buyer, all tooling, fixtures, equipment, tools, software and designs produced, acquired or used by Seller for the purposes of filling Buyer’s Order remain the property of Seller.
14. Warranty.
14.1. General. The warranty applicable to the Products is located at: https://www.regoproducts.com/legal-pages/waranty-info.html and, as applicable, is incorporated herein by reference. The extended warranty provisions of the applicable warranty shall apply to the Products if an extended warranty is purchased by Buyer, as indicated on the applicable Order.
14.2. Additional Terms Pertaining to Warranties. Deviations from published specifications which do not materially affect performance of the Products covered hereby shall not be deemed to constitute a breach of the applicable warranty. The applicable warranty is subject to the disclaimers and exclusions set forth therein.
15. Intellectual Property Rights. All intellectual property rights in or relating to, the Products, including, but not limited to, all technical data, processes, designs, drawings, engineering data, U.S. and foreign patents, patent applications, patent rights, trademarks and service marks (including common law rights, applications and registrations therefor), copyrightable and un-copyrightable works (including those in computer programs, drawings, designs, documentation and specifications), copyright registrations, trade secrets, proprietary rights in information (including in data, inventions, discoveries, know-how, formulas, processes, technical information and business information), license rights under the intellectual property rights of third parties and all other intellectual property rights whether or not subject to statutory registration or protection (collectively, “Intellectual Property Rights”), are owned by or licensed to Seller. The sale of any Products to Buyer in no way conveys to Buyer, either expressly or by implication, any intellectual property ownership or license whatsoever, except as may be expressly granted by Seller in the materials which accompany the Products upon delivery. Seller expressly reserves its ownership rights in and to its Products and asserts that additional restrictions may apply to the use of the Products, as set forth in the applicable documentation and other materials which accompany the Products. Any unauthorized use of Seller’s Intellectual Property Rights, including, but not limited to its trademarks, is expressly prohibited.
15.1. Infringement Claims – Indemnification by Seller. Seller will defend, indemnify and hold harmless Buyer and its officers, directors, employees, agents and equity holders from any liabilities, losses, costs and expenses (including, without limitation, reasonable out of pocket expenses for attorneys’ fees and costs of litigation) (collectively “Losses”) arising out of a claim made against Buyer by an unaffiliated third party (but excluding claims described in Section 15.2) for alleged infringement of any U.S. patent, trademark or copyright existing as of the date of issuance of the related Order Acknowledgement and relating to Buyer’s lawful use of the Products purchased under the Contract in Buyer’s business. Seller’s obligations hereunder are contingent upon Buyer having made all payments to Seller then due at the time the claim arises and not otherwise being in breach of any provision of the Contract as well as Buyer’s compliance with the indemnification procedures outlined below. Seller may also, at any time, at its option: (a) procure for Buyer the right to continue to use the Products in question, free of any liability for such infringement; or (b) direct Buyer to cease use of and not market or sell such Products and (i) modify the Products in question so that they become non-infringing; (ii) substitute the Products in question with functionally equivalent non-infringing Products; or (iii) in accordance with Section 9.3 above, accept the return of the Products against payment of the Products’ then-depreciated value, computed on a three (3) year straight-line depreciation schedule commencing as of the date of delivery. The obligations set forth in this Section 15.1 shall be Buyer’s sole and exclusive remedy and Seller’s entire liability for any infringement of third party intellectual property rights as described in this Section 15.1.
15.2. Infringement Claims – Indemnification by Buyer. Buyer shall indemnify, defend and hold harmless Seller and its officers, directors, employees, agents and equity holders from and against any Losses arising out of a claim made against Seller or its suppliers by a third party to the effect that any Products manufactured for or sold to Buyer infringe upon any patent, trademark, copyright or other intellectual property right, if such Products were manufactured pursuant to Buyer’s designs, specifications, processes and/or formulas or include.
16. Other Indemnification Claims.
16.1. By Buyer. Buyer shall defend, indemnify and hold harmless Seller and its officers, directors, employees, agents and equity holders from and against any and all Losses arising out of the use, operation or possession of the Products by Buyer or its affiliates, directors, employees, agents or representatives, the negligent or willful act or negligent or willful omission of Buyer or its affiliates, officers, directors, employees, agents or representatives or the alteration or modification of the Products or the use or combination of the Products with other products, devices or services by Buyer or its affiliates, directors, employees, agents or representatives.
16.2. By Seller. Seller agrees to defend, indemnify and hold harmless Buyer and its officers, directors, employees, agents and equity holders from and against any and all Losses arising out of the negligent or willful act or negligent or willful omission of Seller or its affiliates, officers, directors, employees, agents or representatives.
17. Indemnification Procedures. Promptly after receipt of any written claim or notice of any action giving rise to a claim for indemnification, (a) the indemnified party shall notify the other party and provide copies of the claim and any documents relating to the same in its possession and (b) the indemnifying party shall have control of the defense of any such claim and all negotiations for settlement or compromise provided, however, that the indemnified party shall have the right to approve defense counsel selected by the indemnifying party, such consent not to be unreasonably withheld or delayed. In the event both the indemnified party and the indemnifying party are named in the claim and circumstances exist or may arise which would make the indemnifying party and the indemnified party adverse to each other or create a conflict of interest for the indemnifying party defending the indemnified party, the indemnified party shall be permitted to participate in the defense of the claim with counsel of its own choosing at the reasonable cost and expense of the indemnifying party and (c) at the indemnifying party’s reasonable request and expense, the indemnified party shall provide it with reasonable assistance for the defense of the claim. The indemnified party shall be entitled to employ counsel at its own expense to monitor the handling of the claim and neither party shall settle a claim that imposes on or restricts the operations of the other party or requires the other party to pay monies or make admissions without the written consent of such other party, which consent shall not be unreasonably withheld or delayed. If the indemnifying party fails to assume the defense of any claim within the prescribed period of time, then the indemnified party may assume the defense of such claim at the reasonable cost and expense of the indemnifying party.
18. Confidentiality; Data Security and Data Protection.
18.1. 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, 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 the Contract (“Confidential Information”) is confidential, solely for the use of performing this Contract and may not be disclosed or copied unless authorized in advance by Seller in writing. Buyer shall safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain (other than due to an improper disclosure by Buyer); (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party. The parties agree that the provisions set forth in the NDA (if executed by the parties) shall supplement and be in addition to the obligations of this Section. In the event of any conflict between this Contract and the NDA, the parties agree that the NDA shall control with respect to the obligations of confidentiality of information between the parties and this Contract shall control with respect to the sale of any Products.
18.2. Buyer represents that it has developed and implemented and covenants that it will maintain effective information security policies and procedures that include administrative, technical and physical safeguards designed to (a) ensure the confidentiality, security, integrity and availability of Seller’s Confidential Information provided hereunder; (b) protect against anticipated threats or hazards to the confidentiality, security, integrity and availability of such information; (c) protect against unauthorized access or use of such information and (d) ensure the proper disposal of such information. Buyer shall promptly notify Seller of any breach of confidentiality by Buyer or any of its agents, disclosure of Seller’s Confidential Information by Buyer or any of its agents or a breach of Buyer’s information security policies or procedures. Notice shall be provided to Seller no later than twenty-four (24) hours upon Buyer’s discovery of such breach of confidentiality.
18.3. Buyer shall comply with the data protection and privacy legislation in all relevant countries and shall ensure that its employees, agents and contractors observe the provisions of that legislation.
19. Security Interest. Buyer hereby grants to Seller and its successors and assigns, a lien on and purchase money security interest in and to all of the right, title and interest of Buyer in, to and under the Products sold hereunder, wherever located and whether now existing or hereafter arising or acquired from time to time and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing, to secure payment of all obligations of Buyer under the Contract, including, but not limited to, all costs and expenses set forth in Section 7 hereof and Buyer authorizes Seller to take all actions necessary to perfect and/or enforce such security interests, including, but not limited to, the filing of any financing statement in accordance with the Uniform Commercial Code or other applicable law. Default in payment of such price or any part of the obligations when due shall permit Seller, in its sole discretion, to declare all obligations of Buyer immediately due and payable and in such event, Seller shall have all the rights and remedies of a secured party under applicable law. In connection with the security interest granted herein, Seller is expressly authorized, at its discretion, to file one (1) or more financing statements or other notices under applicable law naming Buyer as debtor and Seller as secured party. Buyer will execute such documents requested by Seller to record and otherwise perfect this security interest.
20. Limitation of Liability.
20.1. Incidental and Consequential Damages. SELLER’S LIABILITY WITH RESPECT TO THE PRODUCTS PROVIDED HEREUNDER SHALL BE LIMITED TO THE AMOUNT RECEIVED BY SELLER FOR THE PRODUCTS GIVING RISE TO ANY CLAIM HEREUNDER. SELLER SHALL NOT BE SUBJECT TO AND BUYER EXPRESSLY DISCLAIMS AND WAIVES ANY CLAIM OR INTEREST IN OR TO ANY AND ALL INDIRECT, SPECIAL, EXEMPLARY PUNITIVE, CONSEQUENTIAL, INCIDENTAL AND CONTINGENT DAMAGES WHATSOEVER RESULTING FROM SELLER'S PERFORMANCE OR FAILURE TO PERFORM UNDER THE CONTRACT OR THE FURNISHING, PERFORMANCE OR USE OF ANY PRODUCTS SOLD PURSUANT HERETO, WHETHER DUE TO BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, PRODUCT LIABILITY, THE NEGLIGENCE OF SELLER OR OTHERWISE AND WHETHER OR NOT SUCH LOSS WAS FORESEEABLE OR WHETHER BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
20.2. Specifically Excluded Damages. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SELLER SPECIFICALLY DISCLAIMS AND BUYER WAIVES ANY LIABILITY OR CLAIM FOR PROPERTY OR PERSONAL INJURY DAMAGES, PENALTIES, DAMAGES FOR LOST PROFITS OR REVENUES, LOSS OF USE OF PRODUCTS OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, FACILITIES OR SERVICES, DOWN TIME, SHUT DOWN OR SLOW DOWN COSTS OR FOR ANY OTHER TYPES OF ECONOMIC LOSS AND FOR CLAIMS OF BUYER’S CUSTOMERS OR ANY THIRD PARTY FOR ANY SUCH DAMAGES.
20.3. Remedies. THE DAMAGE LIMITATIONS PROVIDED IN THESE TERMS AND CONDITIONS AND THE REMEDIES STATED HEREIN SHALL BE EXCLUSIVE AND SHALL BE BUYER’S SOLE REMEDY (EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN). THIS LIMITATION ON LIABILITY SHALL SURVIVE FAILURE OF ANY ESSENTIAL PURPOSE.
21. Statute of Limitations. Except as otherwise expressly provided herein, any action that Buyer may have against Seller alleging Seller’s breach of any provision of the Contract must be commenced within one (1) year following Buyer’s discovery of the alleged breach or such claim shall be forever barred.
22. Modification; Waiver. No modifications to these terms and conditions shall be enforceable except when in writing and signed by both parties, unless otherwise expressly stated herein. Seller shall not be deemed to have waived any of its rights, powers or remedies under these terms and conditions or at law or in equity unless such waiver is in writing and is executed. No delay or omission by Seller in exercising any right, power or remedy shall operate as a waiver thereof or of any other right, power or remedy. No waiver by Seller of any default shall operate as a waiver of any other default or of the same default or another occasion.
23. Severability. If any provisions of the Contract shall be deemed illegal or unenforceable, such illegality or unenforceability shall not affect the validity and enforceability of any legal and enforceable provisions hereof which shall be construed as if such illegal and unenforceable provision or provisions had not been inserted herein, unless such illegality or unenforceability shall destroy the underlying business purpose of the Contract.
24. Assignability. Buyer may not assign any Contract without Seller’s prior written consent. Seller may assign any Contract to an affiliate of Seller or to an acquirer of control of all or substantially all of Seller’s equity or assets.
25. Force Majeure. Seller shall not be liable for any loss, delay or failure to perform resulting from any circumstance, direct or indirect, reasonably beyond its control including, without limitation, pandemic, fire, flood, accident, explosion, insurrection, riots, national emergencies, war, armed conflict, acts of public enemies, acts of God, mechanical breakdown, strike or other labor trouble, plant shutdown, acts or omissions of Buyer, unavailability of or interference with the usual means of transporting the Products, any law, regulation order, recommendation or request of any governmental authority having or claiming to have jurisdiction over Seller, its subcontractors and/or its suppliers, or any supplier delays or supplier failures to deliver necessary materials or components. In addition, Seller shall be so excused in the event it is unable to acquire from its usual sources, and on terms it deems to be reasonable, any labor or material necessary for manufacturing the Products. In the event that there should be a shortage of any Product, Seller may apportion its available Product among itself, its affiliates and all of its customers in such equitable manner as it deems fair and reasonable. Upon giving prompt written notice to Buyer of any such causes of a delay or failure in its performance of any obligation under the Contract, the time of performance by Seller shall be extended, at Seller’s option, to the extent of any delay resulting from any force majeure event.
26. Governing Law; Exclusive Jurisdiction and Venue. The Contract shall be governed and construed according to the laws of the State of Delaware, without reference to principles or conflicts of laws. Any action brought by either party arising out of or relating to the Contract must be brought in a U.S. District Court or state court in New Castle County, Delaware. Buyer waives any objection to jurisdiction or venue in respect of said Courts and to any service of process issued under their authority. The U.N. Convention on Contracts for the International Sale of Goods does not apply to the Contract or these Terms.
27. Compliance with Laws. Buyer shall: (a) comply with all applicable laws, rules and regulations, including, without limitation, those regarding anti-corruption, anti-bribery, human rights and environmental health and safety; (b) maintain in effect all licenses, permissions, authorizations, certificates, consents, approvals and permits necessary to carry out Buyer’s responsibilities and obligations under the Contract and these Terms and (c) handle, store, use and transfer the Products in compliance with the foregoing and any safety information provided by Seller. Buyer shall complete any documents and provide such information as Seller may reasonably request to ascertain Buyer’s compliance with the foregoing. The Products, including any documentation and technical data related thereto, may be subject to certain: (a) U.S. or other applicable export laws, rules and regulations, including, without limitation, the U.S. International Traffic in Arms Regulations, Export Administration Regulations and Foreign Assets Control Regulations (“Export Laws”) and (b) anti-money laundering laws, rules and regulations, including, without limitation, the U.S. Patriot Act (“AML Laws”). Buyer shall comply with all applicable Export Laws and AML Laws. Buyer shall not export, re-export or release any Products that are subject to Export Laws, directly or indirectly, to any jurisdiction to which or person to whom, such export, re-export or release is prohibited by any applicable Export Laws. It is Buyer’s responsibility to obtain any license or other approvals and Buyer will complete any documents requested by Seller prior to exporting, re-exporting or releasing any Products that are subject to Export Laws. Seller will have no obligation to make any shipment to Buyer until it has received all such information and has obtained the applicable licenses, permits, approvals or documentation for shipment, if any. Buyer shall indemnify, defend and hold Seller, including its equity holders, directors, officers, employees, affiliates, successors and permitted assigns, harmless from and against any breach of this Section by Buyer or any of its equity holders, directors, officers, employees, affiliates, successors, permitted assigns, customers, agents, distributors, resellers or vendors.
28. Relationship of Parties. Nothing contained in these terms and conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these terms and conditions shall be deemed to construe either of the parties as the agent or distributor of the other party.
29. No Third-Party Beneficiaries. Except with respect to the indemnification obligations in favor of each party’s officers, directors, employees, agents and equity holders in Sections 15 and 16, the Contract is for the sole benefit of the parties hereto and their respective successors and permitted assigns. Nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
30. Survival. Sections 6, 9, 15–25, 27, 29, 30 and this Section 30 will survive the expiration or earlier termination of the Contract, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination.
1. Acceptance and Complete Agreement. Engineered Controls International, LLC, Acme Cryogenics LLC, and any division or operation thereof adopting this Order (“Buyer”), agrees to purchase, and the seller identified on the face of this purchase order (“Seller”) agrees to sell the goods (“Goods”) and/or provide the services (“Services”) as described in this purchase order, which includes any exhibit, document, drawing, specifications, data referenced or incorporated by reference in this purchase order and any confidentiality and/or nondisclosure agreement executed between Seller and Buyer (the “NDA” and, collectively, “Order”), subject to the following. Acceptance of the offer represented by this Order is expressly limited to the terms and conditions of this Order and any additional or different terms proposed by Seller are hereby objected to and rejected. Buyer’s failure to further object to any of the provisions contained in any documentation of Seller’s or any communication of any kind from Seller shall not be deemed a waiver of the terms of the Order or as an acceptance by Buyer of any deviation from the terms of the Order. There are no understandings or agreements relating to the subject matter of this Order other than as set forth in this Order. The previous sentence notwithstanding, to the extent Buyer is purchasing Goods and/or Services pursuant to a master agreement between Dover Corporation and Seller, such master agreement shall govern to the extent any provision of this Order conflicts with such master agreement. Seller shall be bound by this Order when it executes and returns the acknowledgement copy of this Order, when it otherwise indicates acceptance of this Order or when it ships any Goods and/or provides any Services ordered herein to Buyer or otherwise commences performance hereunder. Buyer's acceptance of Goods and/or Services shall not be construed as an acceptance of any terms and conditions contained in any such document.
2. Price and Payment Terms. The price of the Goods and/or Services is the price stated in this Order. Prices for Goods are EXW Seller’s dock (Incoterms 2020) unless otherwise specified and agreed to by Buyer. Unless specifically otherwise set forth, prices herein shall not be increased without Buyer’s written consent and no additional charges of any type shall be added including, but not limited to, any charges for insurance, shipping, taxes, storage, packing and crating unless authorized in writing by Buyer. Seller will give Buyer the benefit of any price reductions available or in effect at the actual time of shipment and/or performance. Terms of payment, unless otherwise expressly agreed in writing, are as set forth on the face hereof.
3. Changes. Buyer reserves the right at any time to make changes to this Order without the consent of Seller including, but not limited to: specifications, drawings and data; methods of shipment or packing; and place or time of delivery and/or performance; provided, however that no additional changes to this Order, including but not limited to those listed above, will be made unless authorized in writing by Buyer. If any such change causes an increase or decrease in the cost of or the time required for performance of this Agreement, an equitable adjustment shall be made in the price or delivery schedule, or both, in writing. If the parties cannot agree to such price or time adjustment within ten (10) business days of Seller's receipt of Buyer's written request for a change, Buyer may terminate this Agreement upon five (5) business days prior written notice to Seller. Any changes, if authorized by Buyer in writing, whether initiated by Seller or Buyer, shall be denominated as a "Revision" to this Agreement. Only Buyer shall issue Revisions and, if issued, shall be in writing. Each such Revision shall be subject to and expressly incorporate the terms and conditions of this Order. Seller shall not deliver substitute goods for the Goods ordered by Buyer or make any changes to the design, materials or processes used to manufacture the Goods or to provide Services or to the location at which the Goods are manufactured, without the prior written consent of Buyer.
4. Termination. Buyer reserves the right to terminate this Order, or any part hereof, upon one (1) business day’s notice to Seller. In the event of termination under this Section, Seller shall immediately stop all work hereunder, and shall immediately cause any of its suppliers or subcontractors to cease such work. If this Order, or part thereof, is terminated by Buyer for any reason other than for breach by Seller, Seller must notify Buyer of any claim resulting from Buyer’s termination within ninety (90) days of the effective date of Buyer’s termination. Such claim shall be settled on the basis of reasonable costs Seller has incurred in the performance of this Order prior to receipt of Buyer’s notice of termination; provided, however, that Seller shall use its best efforts to mitigate such costs. Buyer may also terminate this Order, or any part hereof, or any other Order between the parties, for cause upon notice to Seller. Cause includes Seller’s default or non-compliance with any term or condition of this Order, late delivery, delivery of defective or non-conforming Goods and/or Services, cessation of the conduct of Seller’s business, failure of Seller to pay its debts generally as such debts become due, commencement of any proceeding under the bankruptcy code or insolvency laws by or against Seller, appointment of a receiver for Seller or a substantial portion of its business or assets, or an assignment for the benefit of Seller’s creditors. In the event of termination for cause, Buyer shall not be liable to Seller for any amount, and, notwithstanding anything to the contrary in this Order (including the limitations set forth in Section 11), Seller shall be liable to Buyer for any and all damages sustained by such termination including, without limitation, at Buyer’s option, direct, indirect, incidental and consequential damages, costs (including attorneys’ and other professionals’ fees and costs), expenses and losses. Seller may not cancel or modify this Order in whole or in part, without Buyer’s written consent.
5. Delivery; Title and Risk of Loss. Title to Goods and risk of loss thereof, or damage thereto, shall pass to Buyer upon delivery to Buyer or Buyer’s nominated carrier at Seller’s dock. If Goods are to be installed by Seller at Buyer’s facility or a facility designated by Buyer, title will pass to Buyer upon completion of the installation and written approval by Buyer. Seller shall deliver the Goods and/or provide the Services on the date specified in this Order (the “Delivery Date”). Except as otherwise provided in this Order, delivery and/or performance shall be at the location shown on the face of this Order. Time is of the essence and if delivery of Goods and/or performance of the Services is not completed by the Delivery Date, Buyer reserves the right, without liability and in addition to its other rights and remedies, to terminate this Order by notice to Seller effective as to Goods not yet shipped and/or Services not yet performed and to purchase substitute Goods and/or alternative Services elsewhere and charge Seller with any additional expenses, costs and loss incurred as a result. Seller shall promptly notify Buyer in writing if the Goods and/or provision of the Services will be delayed, indicating the cause and extent of the delay, but this shall not relieve Seller of its obligation to deliver and/or perform as required by this Order unless otherwise instructed by Buyer in writing. If, in order to meet the Delivery Date it becomes necessary for Seller to ship by a more expensive way than specified in this Order, increased transportation costs shall be paid by Seller unless the necessity for such rerouting or expedited handling has been caused solely and exclusively by Buyer.
6. Inspection And Rejection. Receipt of any Goods and/or Services or payment for any Goods and/or Services will not constitute acceptance of any Goods and/or Services hereunder. At any time, Buyer may reject any Goods and/or Services which are of inferior quality or workmanship, not in compliance with this Order, shipped and/or provided contrary to instructions, not in the quantities specified, otherwise do not conform to this Order or that violate any applicable law. In addition to other rights and remedies available to Buyer, Goods so rejected may, at Buyer’s option, be returned to Seller for reimbursement (including freight charges), credit, refund or replacement, or held by Buyer for pickup by Seller, all at Seller's expense and risk. Buyer may charge Seller any expenses incurred in unpacking, examining, repacking, storing and reshipping any Goods so rejected. Nothing contained in this Order relieves Seller, in any way, from the obligation of testing, inspection and quality control of Goods and/or Services.
7. Confidentiality; Data Security and Data Protection.
7.1 All non-public, confidential or proprietary information of Buyer, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Buyer to Seller, 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 the Order (“Confidential Information”) is confidential, solely for the use of performing this Order and may not be disclosed or copied unless authorized in advance by Buyer in writing. Seller may disclose Confidential Information to its officers, directors, employees, and agents and agrees on behalf of itself and its officers, directors, employees and agents to use its/their best efforts to prevent unauthorized access, use, duplication or disclosure, by or to a third party, of Confidential Information, including, without limitation, data, plans, specifications, formulae, drawings or any other information whether business or technical, of a confidential nature, which has been furnished directly or indirectly, in writing or otherwise by Buyer to Seller. Seller shall be responsible for a breach of this Section by its officers, directors, employees, and agents. Confidential information shall include such information as would be apparent to a reasonable person, familiar with Buyer’s business and the industry in which it operates, that such information is of a confidential or proprietary nature and that maintenance of its confidentiality would likely be of commercial value to Buyer. Seller shall safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. Confidential information shall not include information that is in the public domain prior to its disclosure, becomes part of the public domain through no wrongful act of Seller, was in the lawful possession of Seller prior to its disclosure to Seller or was independently developed by Seller. Disclosure of Confidential Information pursuant to order by a court shall not be a violation of this Section; provided, however, that Seller, to the extent allowed by law, notify Buyer in advance of such disclosure. Seller agrees that the provisions set forth in the NDA (if executed by the parties) shall supplement and be in addition to the obligations of this Section. In the event of any conflict between this Order and the NDA, the parties agree that the NDA shall control with respect to Seller’s obligations of confidentiality, and this Order shall control with respect to the sale of any Goods or Services.
7.2 Seller represents that it has developed and implemented and covenants that it will maintain effective information security policies and procedures that include administrative, technical and physical safeguards designed to (a) ensure the confidentiality, security, integrity and availability of Buyer’s Confidential Information provided hereunder; (b) protect against anticipated threats or hazards to the confidentiality, security, integrity and availability of such information; (c) protect against unauthorized access or use of such information; and (d) ensure the proper disposal of such information. Seller shall promptly notify Buyer of any breach of confidentiality by Seller or any of its agents, disclosure of Buyer’s Confidential Information by Seller or one of its agents or a breach of Seller’s information security policies or procedures. Notice shall be provided to Buyer no later than 24 hours upon discovery of breach.
7.3 Seller shall not make any public announcement about the Order without prior written approval of Buyer.
7.4 Seller shall comply with the data protection and privacy legislation in all relevant countries and shall ensure that its employees, agents and contractors observe the provisions of that legislation.
8. Warranty. Seller warrants to Buyer, Buyer's successors, assigns, customers and users of the products manufactured by Buyer incorporating the Goods, that: (a) Seller has good title to any and all Goods supplied hereunder and has the right to transfer title of said Goods to Buyer free and clear of any and all liens and encumbrances; (b) all Services shall be performed in a workmanlike manner, in accordance with this Order, and with applicable laws; (c) all Goods shall conform to all Buyer-approved drawings, specifications and appropriate standards and all other requirements of this Order; (d) all Goods (including their component parts) will be new (and not counterfeit); (e) all Goods will conform to any statements made on the containers or labels or advertisements for such Goods, and any Goods will be adequately contained, packaged, marked and labeled; (f) Goods supplied hereunder will be of merchantable quality; (g) Goods supplied hereunder shall be fit for the particular use intended, free from defects, whether patent or latent, in material and workmanship, and shall conform to all specifications and requirements of this Order; (h) and Seller shall, in the performance of its obligations hereunder, comply with all, and shall not violate any, applicable federal, state, and local laws and governmental regulations and orders. The foregoing warranties shall survive acceptance, testing, inspection, or use of the Goods and/or Services by Buyer, and shall be cumulative and in addition to any warranties of additional scope given to Buyer by Seller and/or provided by law or in equity. Seller shall replace or correct defects of any Goods and/or Services not conforming to the foregoing warranty promptly, without expense to Buyer, when notified of such nonconformity by Buyer, provided Buyer elects to provide Seller with the opportunity to do so. Alternatively, if Buyer elects not to do so, or in the event of failure of Seller to correct defects in or replace nonconforming Goods and/or Services promptly, Buyer may make such corrections or replace such Goods and/or Services, and in either case may engage third parties to do so, and charge Seller for the cost incurred by Buyer in doing so.
9. Intellectual Property. Seller warrants that neither the Goods, Services, nor use thereof shall infringe on any existing or pending patent, copyright, trademark, trade name, invention or process of manufacturing or other intellectual property right; provided, however, that this warranty shall not apply to the extent that the Goods were manufactured or the Services were performed according to Buyer’s specifications and such specifications would have resulted in a violation of this warranty. Seller will, upon receipt of notification, promptly assume full responsibility for defense of any suit or proceeding which may be brought against Buyer or its agents, customers, users of its products incorporating the Goods, or other vendors for alleged infringement, as well as for any alleged unfair competition resulting from similarity in design, trademark or appearance of Goods and/or Services provided hereunder, and Seller will indemnify, defend and hold Buyer and its agents and customers harmless against any and all claims, demands, losses, expenses, costs (including attorneys’ fees and court costs), fines and penalties resulting from any such suit or proceeding, including any settlement. Any settlement of such action must be approved by Buyer. Buyer may be represented by and actively participate through its own counsel in any such suit proceeding if it so desires, and the costs of such representation shall be paid by Seller. If, in any such suit, the Goods and/or Services are held to violate the intellectual property rights of any third party and/or sale and/or use thereof is enjoined, Seller shall, at Buyer's election, either (1) procure for Buyer the right to continue using same; (2) replace the same with non-infringing Goods and/or Services; or (3) modify the same so that it becomes non-infringing. Any Goods and/or Services which are capable of copyright protection made, designed or developed for Buyer pursuant to this Order shall be a “work made for hire.” Seller hereby grants and assigns to Buyer and its successors and assigns any and all inventions, discoveries, computer programs, software, data, technologies, designs, innovations and improvements and related patents, copyrights, trademarks and other industrial and intellectual property rights and applications therefor made or conceived by Seller or its agents or employees in connection with the performance of this Order.
10. Indemnification. Seller shall defend, indemnify and save harmless Buyer, its officers, directors, successors, assigns, employees, agents, customers and users of its products incorporating the Goods (the “Indemnitees”), of and from any claim, loss, demand, damage, liability, cost, fine, penalty or expense (including reasonable attorney's fees), sustained or incurred by one or more of the Indemnitees directly or indirectly arising out of: (a) Injury to persons or property by reason of any defects in the Goods and/or Services; (b) breach by Seller of any of its warranties, or Seller's failure timely to deliver the Goods and/or Services purchased hereunder; (c) Any noncompliance or violation of law as provided herein; and/or (d) any breach of this Order.
11. Limitation of Liability. IN NO EVENT SHALL BUYER BE LIABLE TO SELLER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF WHATSOEVER NATURE, OR FOR ATTORNEY’S FEES, LOSS OF MARKET SHARE, OR LOST PROFITS HOWSOEVER THESE MAY BE CHARACTERIZED. BUYER’S LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS ORDER, SHALL NOT EXCEED THE PRICE ALLOCABLE TO THE GOODS, OR UNIT THEREOF, AND/OR SERVICES WHICH GIVES RISE TO THE CLAIM.
12. Ownership. Unless otherwise agreed to in writing, all property of any description furnished to Seller by Buyer or unconditionally appropriated to this Order, or any replacement thereof, or any materials affixed or attached thereto, shall be and remain the property of Buyer and shall be used only in fulfilling this Order and for no other purpose and shall not be duplicated or disclosed to others. Such furnishing of Buyer’s property shall not be construed as granting any rights whatsoever, express or implied, to any such property to Seller.
13. Insurance. During the provision of Goods and/or Services under this Order, Seller shall, at its own expense, maintain and carry insurance in full force and effect, which includes, but is not limited to: (a) commercial general liability (including product liability) in a sum not less than $1,000,000 per occurrence combined single limit for bodily injury and property damage; (b) Workers’ Compensation insurance at the statutory limit for the jurisdiction in which Seller operates; (c) for any Services to be provided on Buyer’s property or property of Buyer’s customers, automobile liability insurance covering all owned, hired and non-owned vehicles with a minimum combined single limit for bodily injury and property damage liability of $1,000,000 per accident or occurrence; and (d) Employer’s liability insurance with a minimum amount of $1,000,000 per accident. Such insurance shall be with financially sound and reputable insurers. Prior to providing Goods and/or Services, Seller shall provide Buyer with a certificate of insurance from Seller's insurers evidencing the insurance coverage specified in this Order. The certificate of insurance shall name Buyer as an additional insured. Seller shall provide Buyer with ten (10) days' advance written notice in the event of a cancellation or material change in Seller's insurance policy. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against Buyer's insurers and Buyer or the Indemnitees.
14. Work on Buyer’s or Buyer’s Customer’s Premises. If Seller’s provision of Goods and/or Services under this Order involves operations by Seller on the premises of Buyer or any of Buyer’s customers, Seller shall take necessary precautions to prevent injury to person or property during such work, including, but not limited to, adhering to the rules, policies, procedures or other requirements governing Buyer’s or Buyer’s customer’s premises.
15. Applicable Laws. Seller shall: (a) comply with all applicable treaties, trade agreements, laws, rules, regulations and ordinances, including, without limitation, those regarding anti-corruption, anti-bribery, human rights, and environmental health and safety; (b) maintain in effect all licenses, permissions, authorizations, certificates, consents, approvals, and permits necessary to carry out Seller’s responsibilities and obligations under the Order and these terms; and (c) handle, store, use, and transfer the Goods in compliance with the foregoing and any safety information provided by Buyer. Seller shall complete any documents and provide such information as Buyer may reasonably request to ascertain Seller’s compliance with the foregoing. The Goods, including any documentation and technical data related thereto, may be subject to certain: (1) U.S. or other applicable export laws, rules, and regulations, including, without limitation, the U.S. International Traffic in Arms Regulations, Export Administration Regulations and Foreign Assets Control Regulations (“Export Laws”); (2) anti-money laundering laws, rules, and regulations, including, without limitation, the U.S. Patriot Act and the U.S. Foreign Corrupt Practices Act (collectively, “AML Laws”). Seller shall comply with all applicable Export Laws and AML Laws; (i) all applicable requirements of the Occupational Safety and Health Act of 1970, as amended; (ii) the Fair Labor Standards Act of 1938, as amended; (iii) Executive Order 11246, and all regulations issued under such laws; (iv) the Restriction of Hazardous Substances Directive (RoHS) (2002/95/EC and 2011/65/EU); and (v) all other requirements of all countries involved in the sale of Goods under this Order.
16. Non-Waiver. No delay or failure by Buyer to pursue any remedy hereunder shall not constitute a waiver on its part to pursue such remedy with respect to the same or similar breach. Buyer shall not be deemed to have waived any of its rights, powers, or remedies under these terms and conditions, or at law or in equity unless such waiver is in writing and executed.
17. Remedies; Governing Law. Each of the rights and remedies herein set forth shall be cumulative and in addition to any other available rights or remedies provided in law or equity. The Order shall be governed and construed according to the laws of the State of Delaware, without reference to principles or conflicts of laws. Any action brought by either party arising out of or relating to the Order must be brought in a U.S. District Court or state court in New Castle County, Delaware. Seller waives any objection to jurisdiction or venue in respect of said Courts and to any service of process issued under their authority. Notwithstanding the foregoing, if Seller exists under the laws of any non-U.S. jurisdiction, then any claim or controversy arising out of or relating to the Order or these terms may also be resolved under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The seat of arbitration shall be in New York, New York. The language to be used in the arbitral proceedings shall be English. The U.N. Convention on Contracts for the International Sale of Goods does not apply to the Order or these terms. Notwithstanding the foregoing, Buyer will have the right at any time, at its option and where legally available, to immediately commence an action or proceeding in a court of competent jurisdiction, subject to the terms of this Order, to seek a restraining order, injunction, or similar order to enforce the confidentiality provisions set forth in Section 7 or to seek interim or conservatory measures.
18. Severability. If any provision of this Order shall be held invalid or unenforceable to any extent, the remainder of the Order shall not be affected thereby and shall be enforced to the greatest extent permitted by law.
19. Setoff. Buyer shall have the right to set off any amount payable any time by Buyer to Seller in connection with this Order against any amounts due from Seller or its affiliated companies to Buyer.
20. Relationship of the Parties. The relationship of the parties is solely that of Buyer and Seller and nothing contained in this Order shall be construed as creating any agency, partnership, joint venture or employment relationship and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
21. Assignment; Subcontracting. Seller may not assign this Order, in whole or in part, without the prior written consent of Buyer. Buyer may assign this Agreement to an affiliated entity as part of a merger or reorganization. Seller shall not subcontract this Order, or any part hereof, without the prior written authorization of Buyer, which may or may not be granted in Buyer’s sole discretion.
22. Force Majeure. Performance by either party hereunder shall be excused in the event and for the period of time that such party is unable to perform its obligations because of fire, flood, war, breakdowns, delays in or lack of transportation, governmental priorities or allocation, or any other cause beyond the reasonable control of such party; provided, however, that, with respect to Seller, Seller’s economic hardship, changes in market conditions, strikes, labor or supply chain-related delays shall not be considered force majeure.
23. Notices. Notices shall be sent by a nationally recognized overnight courier service to the addresses specified on the face hereof and shall be effective one day after dispatch.
24. Legal Effect. The parties acknowledge and agree that transmission of this Order or any Revision thereof by email which contains a typed name of Buyer and/or Buyer's logo shall satisfy the requirements of both a "writing" and a "signature".
25. Verification. Seller shall verify the legal status and employment eligibility of all of Seller’s personnel using the federal electronic verification program jointly operated and administered by the Department of Homeland Security and the Social Security Administration (“E-Verify”). In accordance with the Immigration Reform and Control Act of 1986 and the rules and regulations pertaining to E-Verify, Seller shall maintain records of all documents involved in the hiring process.
26. Equal Opportunity. Unless exempt, Seller shall comply with the Equal Opportunity clauses set forth in 41 CFR 60-1.4(a), 41 CFR 60-300.5(d), 41 CFR 60-741.5(d) and 29 CFR Part 471, Appendix A, Subpart A. The following shall apply to the extent the Seller is a federal contractor: (i) Seller represents and warrants that Seller is committed to the maintenance of policies that promote equal employment opportunity (41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a)); and (ii) Seller, and Seller’s permitted subcontractors, if any, shall abide by the regulations of 41 CFR 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or veteran status. To the extent applicable, the clauses with respect to government grants set forth at 2 C.F.R. 200.321 (small and minority business, women’s business enterprises, and labor surplus area firms), or government contracts at 41 C.F.R., 60-1.4 (equal employment opportunity), 60-1.40 (affirmative action compliance program), 60-1.8 (non-segregated facilities), 60-250.4 (employment of veterans), 60-741.5 (employment of persons with disabilities), and 48 C.F.R. 52.219-8 and 5219-9 (small business concerns), Executive Order 12138 (women-owned businesses), Executive Order 13496 (employee notice of rights to organize) and at 42 U.S.C. Section 12101 et seq. (American with Disabilities Act) are incorporated by reference and shall have the same binding effect as if reproduced herein in their entirety. Execution of this Agreement by Seller constitutes certification of compliance by Seller to Buyer.
27. Conflict Minerals. Seller shall, with each shipment to Buyer (or as otherwise agreed in writing between Seller and Buyer), provide a certificate of the country of origin for any and all Conflict Minerals (as defined in this Section) contained in any Goods, materials, products or items included in such shipment, including whether any part of the shipment contains Conflict Minerals from Covered Countries (as defined in this Section). Buyer reserves the right, on reasonable notice, to require Seller to produce documentation as to the country of origin and the due diligence process undertaken by Seller to confirm the country of origin of Conflict Minerals included in each shipment to Buyer. Where Seller is permitted by Buyer to provide a blanket certificate of country of origin for Conflict Minerals contained in any Goods, materials, products or items purchased by Buyer, Seller agrees to promptly notify Buyer of any change in Seller’s sourcing, including in changes in country of origin or any changes in sub-seller identification. Blanket certificates of country of origin will not be accepted covering periods of greater than 12 calendar months. For purposes of this Section, “Conflict Minerals” include Columbite-Tantalite (Tantalum), Cassiterite (Tin), Gold, Wolframite (Tungsten) and any derivatives from these minerals, and “Covered Countries” include the Democratic Republic of the Congo, Angola, Burundi, the Central African Republic, The Republic of Congo, Uganda, Rwanda, Sudan (South Sudan), Tanzania and Zambia.
28. Dover’s Supplier Code of Conduct. Seller has read, understands and agrees to comply with the Dover Corporation Supplier Code of Conduct, a copy of which may be found at http://www.dovercorporation.com/. If there are any inconsistencies between this Order and the Dover Corporation Supplier Code of Conduct, the Dover Corporation Supplier Code of Conduct shall govern.
TERMS
No purchase order is valid until accepted by Engineered Controls International®, LLC (the Company).
Customers with established credit will be shipped open account. Shipments will be made C.O.D. until credit is established. Payment terms are net thirty days from date of shipment. Past due invoices are subject to a service charge of 2% per month (an effective rate of 24% per annum). All domestic orders are subject to a minimum billing of $ 50.00 net.
Prices are subject to change without notice. This price list supersedes all previous price lists and quotations.
Federal, State, or Municipal Taxes required by law to be paid or collected by us shall be added to prices quoted.
Prices as quoted apply only to each order accepted by us.
Prices at which orders will be billed shall be those in effect at the time shipments are made.
SHIPPING INFORMATION
Prices are F.O.B. our factory.
Method and route of shipment will be at the discretion of ECI®, LLC unless the customer specifies otherwise. Any additional expense of the method or route specified by the customer shall be born by the customer.
We assume no responsibility for placing valuation upon a shipment unless specifically requested to do so by the customer. We are not responsible for merchandise lost or damaged in transit. Our responsibility ends when merchandise is delivered to or receipted for by the transportation company.
EXPORT TERMS AND SHIPPING INFORMATION
The terms and conditions stated on this page apply to export shipments except as follows:
Customers with established credit will be shipped open account. All other customers must prepay prior to shipment or furnish a confirmed irrevocable Letter of Credit. Payment terms are net 60 days from date of shipment.
All orders are subject to a minimum billing of $ 100.00. Prices at which orders will be invoiced shall be those in effect at the time shipments are made unless an order confirms a still valid quotation or proforma invoice issued by the Company.
Prices are F.O.B. our factories.
Any insurance, freight and handling charges incurred for export shipments will be invoiced at cost. If customers require quotations C.I.F. destination, The Company must quote these charges in advance.
EQUIPMENT CLASSIFICATION
Equipment sold may fall into the following categories:
- 1. Standard Equipment: Equipment listed in this price list is considered standard.
- 2. Non-Standard Equipment: These are items that are modifications of standard parts shown in this price list. The set-up charge is $200.00 net. In addition to the list price.
- 3. Special Equipment: These are items involving special machined parts or dimensions to suit a particular customer need. Prices to be quoted to the customer upon request.
SCHEDULE OF DELIVERIES
Each order, before acceptance by us, must specify a shipping schedule. Every effort will be made to fill orders within the time requested by the customer but under no circumstances shall we be liable by any damages growing out of or owing to any delay in delivery. If we are unable to ship orders within the periods specified, we will make shipments as soon thereafter as possible.
We will accept schedule changes, provided the customer gives us reasonable advance notice of the desired changes.
CLAIMS FOR SHORTAGES
In all cases or shortages, we must be notified within ten (10) days after receipt of shipment by customer.
LIMITED 10 YEAR WARRANTY AND LIMITATION OF LIABILITY
LIMITED 10 YEAR WARRANTY
ECI®, LLC warrants to the original purchasers the products and repair kits manufactured by it to be free from defects in materials and workmanship under normal use and service for a period of 10 years from the date of manufacture. If within thirty days after buyer’s discovery of what buyer believes is a defect, buyer notifies in writing and ships the product to ECI®, LLC at 3181 Lear Drive, Burlington NC 27215, ECI®, LLC, at its option, and within forty-five days of receipt , will repair, replace F.O.B. point of manufacture, or refund the purchase price of that part or product found by ECI®, LLC to be defective. Failure of buyer to give such written notice and ship the product within thirty days shall be deemed an absolute and unconditional waiver of any and all claims of buyer arising out of such defect.
This warranty does not extend to any product or part that is not installed and used continuously after installation in accordance with ECI®, LLC’s printed instructions, all applicable state and local regulations, and all applicable national standards. This warranty does not extend to any product or part that has been damaged by accident, misuse, abuse, failure to maintain, or neglect, nor does it extend to any product or part which has been modified, altered, disassembled, or repaired in the field. This warranty does not cover any cosmetic issues, such as scratches, dents, marring, fading of colors or discoloration.
Except as expressly set forth above, and subject to the limitation of liability below, ECI®, LLC MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, with respect to its products and parts, whether used alone or in combination with others. ECI®, LLC disclaims all warranties not stated herein.
LIMITATION OF LIABILITY
ECI®, LLC’s total liability for any and all losses and damages arising out of any cause whatsoever shall in no event exceed the purchase price of the products or parts in respect of which such cause arises, whether such cause be based on theories of contract, negligence, strict liability, tort or otherwise.
ECI®, LLC shall not be liable for incidental, consequential or punitive damages or other losses. ECI®, LLC shall not be liable for, and buyer assumes any liability for, all personal injury and property damage connected with the handling, transportation, possession, further manufacture, other use or resale of products, whether used alone or in combination with any other products or materials.
From time to time buyers might call to ask ECI®, LLC for technical advice based upon limited facts disclosed to ECI®, LLC. If ECI®, LLC furnishes technical advice to buyer, whether or not at buyer’s request, with respect to application, further manufacture or other use of the products and parts, ECI®, LLC shall not be liable for such technical advice or any such advice provided to buyer by any third party and buyer assumes all risks of such advice and the results thereof.
NOTE: Some states do not allow the exclusion or limitation of incidental, consequential or punitive damages, so the above limitation or exclusion may not apply to you. The warranty gives you specific legal rights, and you may have other rights that vary from State to State. The portions of this limited warranty and limitation of liability shall be considered severable and all portions which are not disallowed by applicable law shall remain in full force and effect.
WARNING
All ECI®, LLC products are mechanical devices that will eventually become inoperative due to wear, corrosion and aging of components made of materials such as rubber, etc. The environment and conditions of use will determine the safe service life of these products. Periodic inspection and maintenance are essential to avoid serious injury and property damage.
Many ECI®, LLC products are manufactured components which are incorporated by others on or in other products or systems used for storage, transport, transfer and otherwise for use of toxic, flammable and dangerous liquids and gases. Such substances must be handled by experienced and trained personnel only, using accepted governmental and industrial safety procedures.
NOTICE TO USERS OF PRODUCTS
The Limited Warranty stated above is a factory warranty to the first purchasers of ECI®, LLC products. Since most users have purchased these products from ECI®, LLC distributors, the user must within thirty (30) days after the user’s discovery of what user believes is a defect, notify in writing and return the product to the distributor from whom he purchased the product/part. The distributor may or may not at the distributor’s option choose to submit the product/parts to ECI®, LLC, pursuant to this Limited Warranty. Failure by buyer to give such written notice within thirty (30) days shall be deemed an absolute and unconditional waiver of buyer’s claim for such defects. Acceptance of any alleged defective product/parts by ECI®, LLC’s distributor for replacement or repairs under the terms of ECI®, LLC’s Limited Warranty in no way determines ECI®, LLC’s obligations under this Limited Warranty.
Because of a policy of continuous product improvement, ECI®, LLC reserves the right to change designs, materials or specifications without notice.
Equal Employment, Affirmative Action, and Non-Segregated Facilities:
Company and any of its covered subcontractors shall abide by the Equal Employment Opportunity Clause of Executive Order 11246 and the implementing rules and regulation of the Office of Federal Contract Compliance including the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin, or for inquiring about, discussing, or disclosing information about compensation. These regulations require affirmative action by covered prime contractors and subcontractors to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. Likewise, when applicable, Company and/or its covered subcontractors agrees to comply with the provisions of 29 CFR Part 471, Appendix A to Subpart A. Company does not and will not maintain or provide for its employees any segregated facilities or permit its employees to perform services at locations where segregated facilities are maintained, as required by 41 CFR 60-1.8.
1. Acceptance and Complete Agreement. All orders (“Orders”) placed for products (the “Products”) furnished by Engineered Controls International, LLC (“Seller”) to the purchaser thereof (“Buyer”) are subject to the terms and conditions set forth herein and any Schedules attached hereto (collectively, these “Terms”), the warranty incorporated by reference in Section 14 of these Terms (the “Warranty”), the sales quotation for the Products given by Seller (the “Offer”), the written order acknowledgment from Seller accepting Buyer’s written Order for the Products (the “Order Acknowledgment”) and any confidentiality and/or nondisclosure agreement executed between Seller and Buyer (the “NDA”). These Terms, the Warranty, the Offer, the Order Acknowledgment and the NDA are hereafter collectively referred to as the “Contract,” whether or not specifically referred to. If any provision in the Order Acknowledgment is inconsistent with these Terms, the provision of the Order Acknowledgment shall govern. No additional or different terms or conditions or any modifications, changes or amendments to the Contract shall be binding upon Seller unless specifically agreed to in writing by an authorized representative of Seller. Seller hereby objects to, and rejects, any additional or different terms already or hereafter proposed by Buyer, but not expressly set forth in the Contract, whether contained in any documentation or communication from Buyer or otherwise, including, without limitation, any terms set forth in any purchase order, acknowledgement, statement of terms and conditions or any other such document or communication. Seller’s failure to further object to any of the provisions contained in any documentation of Buyer’s or any communication of any kind from Buyer shall not be deemed a waiver of the terms of the Contract or as an acceptance by Seller of any deviation from the terms of the Contract. SELLER’S ACCEPTANCE OF ANY OR ALL OF BUYER’S ORDERS FOR PRODUCTS IS CONDITIONAL UPON BUYER’S ASSENT TO THE TERMS OF THE CONTRACT REGARDLESS OF ANY TERMS CONTAINED IN ANY OF BUYER’S COMMUNICATIONS OR DOCUMENTS. Sales literature, price lists, illustrations, drawings, samples, photographs or descriptions and other documents issued by Seller in relation to the Products are subject to alteration without notice and are intended as a guide only and shall not be binding on Seller. The Contract constitutes the entire agreement between Seller and Buyer with respect to the topics in the Contract, superseding all prior oral or written communications, representations, agreements and negotiations.
2. Delivery Times. All quoted delivery dates for Products are estimates only and Seller shall not be liable for any failure to deliver the Products at the specified time or on the specified date unless agreed in writing between the parties. Seller reserves the right to make delivery in installments and all such installments, when separately invoiced, shall be paid for when due per Seller’s invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept remaining deliveries. Seller will attempt to comply with reasonable requests by Buyer for changes in delivery dates, but Seller shall be under no obligation to do so. Additional charges may apply for changes in delivery dates or times, at Seller’s discretion.
3. Shipping and Delivery.
3.1. Unless otherwise specified in the Order Acknowledgment or agreed in writing by Seller, all Products shall be delivered Free Carrier (FCA, Incoterms 2020) from Seller’s facility or another location designated by Seller.
3.2. Products will be packaged in accordance with Seller’s standard packaging specifications applicable at the time of shipment, unless otherwise provided in the Order Acknowledgement. Upon Buyer’s request, Seller may agree to provide special packaging, marking or forms, in each case, subject to additional charges and Seller’s prior written consent.
3.3. Buyer shall be responsible for all shipping charges, including, but not limited to, shipping, transportation, duties and insurance costs, unless otherwise specified in the Order Acknowledgment or agreed in writing by Seller. The Products will be shipped under a straight bill of lading, naming Buyer as consignee. If requested by Buyer, forthwith after the Products have been delivered to a shipper for transportation to Buyer, Seller shall transmit the bill of lading to Buyer at Buyer’s address as stated in Buyer’s Order. Unless otherwise agreed by Buyer and Seller, any prepayment by Seller of certain shipping, handling, transportation, duties or other related charges that are the responsibility of Buyer pursuant to the Incoterms set forth in Section 3.1 will be added to Buyer’s invoice.
4. Risk and Title. Title to all Products shall transfer to Buyer upon delivery of such Products to a shipper or freight carrier, as applicable, for transportation to Buyer in accordance with the Incoterms set forth in Section 3.1 (the “Delivery”) and upon such Delivery, Buyer shall bear all risk of loss. Subsequent to Delivery, Seller shall not be responsible or liable for the security, safeguarding or insurance of the Products so transferred.
5. Storage. Any of the Products whose manufacture, installation or shipment is delayed (a) by the acts or omissions of Buyer or (b) at Buyer’s request, may be placed in storage by Seller (at Seller’s sole option) at Buyer’s risk and at Buyer’s cost and expense (including insurance). Storage fees will be assessed from the originally-scheduled shipment date (or the date the Products were ready to ship if a shipment date had not been scheduled) until the Delivery. The storage fee rate for finished Products that are prevented from shipping will be provided to Buyer. The storage fee will be added along with the actual freight and handling and applicable taxes to the final invoice for the Products. All charges for storage are per Product and may vary based on the type of Product stored.
6. Orders and Price.
6.1. All prices and delivery quotations made by Seller in the Offer are conditioned upon these Terms. No Order shall be binding upon Seller until received in writing and accepted by an authorized representative of Seller through Seller’s issuance of a written Order Acknowledgment. Any amendment to an Order made by Buyer shall be binding on Seller only if confirmed in writing by Seller and additional costs, if any, for such amendment shall be borne by Buyer. Any Contract resulting from acceptance of any Order placed with Seller may only be modified or rescinded by a written document signed by the duly authorized representative of both parties.
6.2. All information, prices and specifications shown in Seller’s advertisements, catalogues, brochures, product and price lists, website or otherwise are indicative, subject to change without notice and shall under no circumstances bind Seller.
6.3. All prices and special terms quoted by Seller will expire thirty (30) calendar days from the date such pricing or terms were originally proposed by Seller in the Offer unless otherwise specified or extended in writing by Seller. The price of the Products will be Seller’s quoted price in the Offer or, where no price has been quoted (or a quoted price is no longer valid), the price current at the date of the Order Acknowledgment by Seller; provided that, in the event of a price change following the Order Acknowledgement, products on hand at the time of a price increase will be invoiced at the acknowledged price, while products entered or scheduled for shipment after the effective date of the price change will be invoiced at the increased price.
6.4. Seller reserves the right, by giving notice to Buyer at any time before Delivery to increase the price of Products to reflect any factor beyond the control of Seller, such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labor, materials or other costs of manufacture, any change in delivery dates, quantities or specifications for the Products which is requested by Buyer or any delay caused by any instructions of Buyer or failure of Buyer to give Seller adequate information or instructions. Seller also reserves the right to make changes to quoted prices for pricing errors, clerical errors, or other errors or omissions.
6.5. Prices are subject to adjustment on account of specifications, quantities, shipment arrangements or other terms and conditions which are not part of the original price quotation in the Offer. If the prices are based on the purchase of a particular quantity of Products and Buyer fails to purchase that quantity which would justify the pricing granted, Buyer will, at Seller’s option, pay Seller the difference between the stated prices and Seller’s standard prices for such Products in the quantity actually purchased by Buyer.
7. Payment.
7.1. Products are invoiced upon Delivery, shipment or at the time Seller puts the Products at Buyer’s disposal, whichever occurs earlier. If Delivery of any Product is delayed by Buyer, the date of notice of readiness for Delivery shall be deemed to be the date of Delivery for invoice purposes. Unless otherwise provided in the applicable Order Acknowledgement, terms of payment are net thirty (30) calendar days from the date of Seller’s invoice and shall be made in U.S. dollars, provided that Seller reserves the right to modify its credit terms from time to time. All Orders are subject to Seller’s credit approval process. If Buyer is not offered credit or if its creditworthiness changes, in each case, as determined by Seller in its sole discretion, then Seller may demand advance payment for Products or other means of financial security, including a letter of credit.
7.2. Any late payments are subject to a finance charge of the lesser of 1.5% per month (18% per annum) or the maximum amount allowed by law, computed on all unpaid amounts and calculated on a day to day basis until the actual date of full payment. All payments due to Seller shall be made in full without any set-off or deduction to the amounts shown on the relevant invoice. If Seller receives partial payment in an amount less than the full amount of any invoice, such receipt shall neither constitute a waiver of Seller's right to collect the balance nor an accord and satisfaction, notwithstanding Seller’s endorsement of a check or other instrument. Buyer shall have no right to withhold any amount due to Seller under the Contract because of a claim Buyer may have against Seller. If Seller engages counsel in respect of any late payment or default, Buyer will pay, in addition to the balance then due and owing, all collection costs, court costs, administrative costs, investigation costs, reasonable attorneys’ fees and all other incidental costs, charges or expenses incurred in the collection of past due amounts or otherwise resulting or arising from any breach by Buyer of the Contract. In addition to all other remedies available under the Contract or at law (which Seller does not waive by the exercise of any rights under the Contract), Seller shall be entitled to withdraw credit or suspend or cancel the delivery of any Products, under this Contract or any other agreement between the parties, if Buyer fails to pay any amount when due hereunder and such failure continues for five (5) calendar days following written notice to Buyer thereof.
8. Taxes and Other Charges. Unless otherwise specified or required by law, all prices will be quoted and billed exclusive of customs, duties or taxes and Buyer shall be responsible for all such applicable duties and taxes (exclusive of taxes on Seller's income). If exemption from such taxes is claimed, Buyer must provide a certificate of exemption at the time its Order is submitted to Seller and Buyer will indemnify Seller for any unpaid taxes, as well as any penalties and interest, in the event such exemption is not applicable.
9. Loss or Damage in Transit; Returns.
9.1. Seller’s responsibility for damaged Products ceases upon Delivery and all claims for loss or damage occurring after Delivery must be filed by Buyer with the carrier.
9.2. In the event of (a) shortage, (b) excess deliveries, (c) wrong product, (d) visible damage, (e) concealed damage or (f) loss occurring prior to acceptance by the carrier, a claim must be made in writing by Buyer against Seller. All claims against the carrier or Seller under this Section 9 must be made within five (5) business days after the Delivery of the Products; provided, however, that Buyer may make a claim within four (4) weeks after Delivery of the Products for international shipments. Buyer’s failure to timely make any such claim shall constitute unqualified acceptance and a waiver of all such claims by Buyer. Claims against Seller are subject to Buyer’s compliance with Seller’s return merchandise authorization policy, which will be provided to Buyer upon request. Seller may, at Seller’s option, require Buyer to (a) provide photographs or other documentation of such claim and (b) make the Products (including packaging, wrappings and/or carton) subject to the claim available for inspection by Seller or its authorized representative in order to substantiate the grounds for rejection of the Products. Unless otherwise agreed in writing by Seller, all rejected Products must be returned to Seller, at Buyer’s expense, prior to replacement by Seller. All returns shall be at Buyer’s risk and expense and must be sent to Seller under DDP (Incoterms 2020) at the place of destination indicated by Seller.
9.3. Seller may, in its sole discretion, accept the return of Products. Returned Products must be unused, in their original packaging, and in good working condition to be eligible for return, unless otherwise provided in writing by Seller. Prior to returning any Products, Buyer shall issue a written request to Seller for a return merchandise authorization number (“RMA Number”) setting forth the reason for such request in reasonable detail. Any return of Products to Seller will be made ONLY upon Seller’s assignment of a RMA Number to Buyer. Such RMA Number must be displayed prominently on the outside of the box that contains the returned Products. Any Products returned to Seller without a RMA Number will be refused and returned to Buyer at Buyer’s expense. Seller may reimburse Buyer for any returned Products either by providing a replacement for the returned Products or as Seller store credit, at Seller’s sole option.
10. Substitutions; Modifications.
10.1. Seller shall have the right to deliver substitute products for the Products ordered by Buyer, provided that such substituted products do not materially differ from the ordered Products in terms of overall form, fit and performance, as determined in Seller’s sole and complete discretion. Seller reserves the right at any time to make changes to Products or in the design or specifications of the Products, without liability or obligation to implement such change to any Products previously manufactured and further reserves the right to discontinue any Product at any time.
10.2. Drawings, specifications, product finishes and color shades in Seller’s literature and advertisements are approximate only and do not constitute a trade description.
11. Cancellation and Termination by Buyer; Rescheduling. Buyer’s Order, after acceptance by Seller, shall not be subject to cancellation, change, or reduction in amount, nor to any suspension by Buyer of deliveries, without Seller’s prior written consent. If Seller consents to a cancellation, change, or reduction of an Order, Seller may invoice Buyer for cancellation fees which may take into account (a) all expenses already incurred, including, but not limited to, expended materials, labor, production costs and work in progress; (b) outstanding commitments that cannot be cancelled, and (c) all incidental costs and expenses, including, but not limited, to storage and handling fees. Buyer will pay such cancellation fees within thirty (30) calendar days of the date of Seller’s invoice. Any requests by Buyer to delay the delivery of any Order beyond the originally scheduled delivery date shall be made in writing and are subject to the prior written consent of Seller, in its sole discretion. Seller reserves the right to assess Buyer a charge sufficient to cover all costs incurred by Seller due to any approved delay or Buyer’s failure to take delivery on the scheduled delivery date (in addition to any storage charges described above). Any charge assessed to Buyer due to its failure to take delivery of an Order shall be in addition to, and without prejudice to, other remedies Seller may have at law or equity.
12. Cancellation and Termination by Seller; Rescheduling. Seller reserves the right to cancel any Orders placed by Buyer or to refuse or delay shipment thereof, with no liability to Seller, if Buyer (a) fails to make any payment as provided in the Contract or under the terms of payment set forth in any invoice or otherwise agreed to by Seller and Buyer, (b) fails to meet reasonable credit or financial requirements established by Seller, including any limitations on allowable credit, (c) otherwise fails to comply with the Contract, (d) becomes debarred, suspended or identified as a denied party by any applicable government agency, (e) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors or (f) violates or is reasonably believed to have violated, applicable law, including anti-bribery, anti-corruption or anti-money laundering or privacy laws.
13. Tooling. Unless otherwise specified in an agreement signed by Seller and Buyer, all tooling, fixtures, equipment, tools, software and designs produced, acquired or used by Seller for the purposes of filling Buyer’s Order remain the property of Seller.
14. Warranty.
14.1. General. The warranty applicable to the Products is located at: https://www.regoproducts.com/legal-pages/waranty-info.html and, as applicable, is incorporated herein by reference. The extended warranty provisions of the applicable warranty shall apply to the Products if an extended warranty is purchased by Buyer, as indicated on the applicable Order.
14.2. Additional Terms Pertaining to Warranties. Deviations from published specifications which do not materially affect performance of the Products covered hereby shall not be deemed to constitute a breach of the applicable warranty. The applicable warranty is subject to the disclaimers and exclusions set forth therein.
15. Intellectual Property Rights. All intellectual property rights in or relating to, the Products, including, but not limited to, all technical data, processes, designs, drawings, engineering data, U.S. and foreign patents, patent applications, patent rights, trademarks and service marks (including common law rights, applications and registrations therefor), copyrightable and un-copyrightable works (including those in computer programs, drawings, designs, documentation and specifications), copyright registrations, trade secrets, proprietary rights in information (including in data, inventions, discoveries, know-how, formulas, processes, technical information and business information), license rights under the intellectual property rights of third parties and all other intellectual property rights whether or not subject to statutory registration or protection (collectively, “Intellectual Property Rights”), are owned by or licensed to Seller. The sale of any Products to Buyer in no way conveys to Buyer, either expressly or by implication, any intellectual property ownership or license whatsoever, except as may be expressly granted by Seller in the materials which accompany the Products upon delivery. Seller expressly reserves its ownership rights in and to its Products and asserts that additional restrictions may apply to the use of the Products, as set forth in the applicable documentation and other materials which accompany the Products. Any unauthorized use of Seller’s Intellectual Property Rights, including, but not limited to its trademarks, is expressly prohibited.
15.1. Infringement Claims – Indemnification by Seller. Seller will defend, indemnify and hold harmless Buyer and its officers, directors, employees, agents and equity holders from any liabilities, losses, costs and expenses (including, without limitation, reasonable out of pocket expenses for attorneys’ fees and costs of litigation) (collectively “Losses”) arising out of a claim made against Buyer by an unaffiliated third party (but excluding claims described in Section 15.2) for alleged infringement of any U.S. patent, trademark or copyright existing as of the date of issuance of the related Order Acknowledgement and relating to Buyer’s lawful use of the Products purchased under the Contract in Buyer’s business. Seller’s obligations hereunder are contingent upon Buyer having made all payments to Seller then due at the time the claim arises and not otherwise being in breach of any provision of the Contract as well as Buyer’s compliance with the indemnification procedures outlined below. Seller may also, at any time, at its option: (a) procure for Buyer the right to continue to use the Products in question, free of any liability for such infringement; or (b) direct Buyer to cease use of and not market or sell such Products and (i) modify the Products in question so that they become non-infringing; (ii) substitute the Products in question with functionally equivalent non-infringing Products; or (iii) in accordance with Section 9.3 above, accept the return of the Products against payment of the Products’ then-depreciated value, computed on a three (3) year straight-line depreciation schedule commencing as of the date of delivery. The obligations set forth in this Section 15.1 shall be Buyer’s sole and exclusive remedy and Seller’s entire liability for any infringement of third party intellectual property rights as described in this Section 15.1.
15.2. Infringement Claims – Indemnification by Buyer. Buyer shall indemnify, defend and hold harmless Seller and its officers, directors, employees, agents and equity holders from and against any Losses arising out of a claim made against Seller or its suppliers by a third party to the effect that any Products manufactured for or sold to Buyer infringe upon any patent, trademark, copyright or other intellectual property right, if such Products were manufactured pursuant to Buyer’s designs, specifications, processes and/or formulas or include.
16. Other Indemnification Claims.
16.1. By Buyer. Buyer shall defend, indemnify and hold harmless Seller and its officers, directors, employees, agents and equity holders from and against any and all Losses arising out of the use, operation or possession of the Products by Buyer or its affiliates, directors, employees, agents or representatives, the negligent or willful act or negligent or willful omission of Buyer or its affiliates, officers, directors, employees, agents or representatives or the alteration or modification of the Products or the use or combination of the Products with other products, devices or services by Buyer or its affiliates, directors, employees, agents or representatives.
16.2. By Seller. Seller agrees to defend, indemnify and hold harmless Buyer and its officers, directors, employees, agents and equity holders from and against any and all Losses arising out of the negligent or willful act or negligent or willful omission of Seller or its affiliates, officers, directors, employees, agents or representatives.
17. Indemnification Procedures. Promptly after receipt of any written claim or notice of any action giving rise to a claim for indemnification, (a) the indemnified party shall notify the other party and provide copies of the claim and any documents relating to the same in its possession and (b) the indemnifying party shall have control of the defense of any such claim and all negotiations for settlement or compromise provided, however, that the indemnified party shall have the right to approve defense counsel selected by the indemnifying party, such consent not to be unreasonably withheld or delayed. In the event both the indemnified party and the indemnifying party are named in the claim and circumstances exist or may arise which would make the indemnifying party and the indemnified party adverse to each other or create a conflict of interest for the indemnifying party defending the indemnified party, the indemnified party shall be permitted to participate in the defense of the claim with counsel of its own choosing at the reasonable cost and expense of the indemnifying party and (c) at the indemnifying party’s reasonable request and expense, the indemnified party shall provide it with reasonable assistance for the defense of the claim. The indemnified party shall be entitled to employ counsel at its own expense to monitor the handling of the claim and neither party shall settle a claim that imposes on or restricts the operations of the other party or requires the other party to pay monies or make admissions without the written consent of such other party, which consent shall not be unreasonably withheld or delayed. If the indemnifying party fails to assume the defense of any claim within the prescribed period of time, then the indemnified party may assume the defense of such claim at the reasonable cost and expense of the indemnifying party.
18. Confidentiality; Data Security and Data Protection.
18.1. 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, 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 the Contract (“Confidential Information”) is confidential, solely for the use of performing this Contract and may not be disclosed or copied unless authorized in advance by Seller in writing. Buyer shall safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain (other than due to an improper disclosure by Buyer); (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party. The parties agree that the provisions set forth in the NDA (if executed by the parties) shall supplement and be in addition to the obligations of this Section. In the event of any conflict between this Contract and the NDA, the parties agree that the NDA shall control with respect to the obligations of confidentiality of information between the parties and this Contract shall control with respect to the sale of any Products.
18.2. Buyer represents that it has developed and implemented and covenants that it will maintain effective information security policies and procedures that include administrative, technical and physical safeguards designed to (a) ensure the confidentiality, security, integrity and availability of Seller’s Confidential Information provided hereunder; (b) protect against anticipated threats or hazards to the confidentiality, security, integrity and availability of such information; (c) protect against unauthorized access or use of such information and (d) ensure the proper disposal of such information. Buyer shall promptly notify Seller of any breach of confidentiality by Buyer or any of its agents, disclosure of Seller’s Confidential Information by Buyer or any of its agents or a breach of Buyer’s information security policies or procedures. Notice shall be provided to Seller no later than twenty-four (24) hours upon Buyer’s discovery of such breach of confidentiality.
18.3. Buyer shall comply with the data protection and privacy legislation in all relevant countries and shall ensure that its employees, agents and contractors observe the provisions of that legislation.
19. Security Interest. Buyer hereby grants to Seller and its successors and assigns, a lien on and purchase money security interest in and to all of the right, title and interest of Buyer in, to and under the Products sold hereunder, wherever located and whether now existing or hereafter arising or acquired from time to time and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing, to secure payment of all obligations of Buyer under the Contract, including, but not limited to, all costs and expenses set forth in Section 7 hereof and Buyer authorizes Seller to take all actions necessary to perfect and/or enforce such security interests, including, but not limited to, the filing of any financing statement in accordance with the Uniform Commercial Code or other applicable law. Default in payment of such price or any part of the obligations when due shall permit Seller, in its sole discretion, to declare all obligations of Buyer immediately due and payable and in such event, Seller shall have all the rights and remedies of a secured party under applicable law. In connection with the security interest granted herein, Seller is expressly authorized, at its discretion, to file one (1) or more financing statements or other notices under applicable law naming Buyer as debtor and Seller as secured party. Buyer will execute such documents requested by Seller to record and otherwise perfect this security interest.
20. Limitation of Liability.
20.1. Incidental and Consequential Damages. SELLER’S LIABILITY WITH RESPECT TO THE PRODUCTS PROVIDED HEREUNDER SHALL BE LIMITED TO THE AMOUNT RECEIVED BY SELLER FOR THE PRODUCTS GIVING RISE TO ANY CLAIM HEREUNDER. SELLER SHALL NOT BE SUBJECT TO AND BUYER EXPRESSLY DISCLAIMS AND WAIVES ANY CLAIM OR INTEREST IN OR TO ANY AND ALL INDIRECT, SPECIAL, EXEMPLARY PUNITIVE, CONSEQUENTIAL, INCIDENTAL AND CONTINGENT DAMAGES WHATSOEVER RESULTING FROM SELLER'S PERFORMANCE OR FAILURE TO PERFORM UNDER THE CONTRACT OR THE FURNISHING, PERFORMANCE OR USE OF ANY PRODUCTS SOLD PURSUANT HERETO, WHETHER DUE TO BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, PRODUCT LIABILITY, THE NEGLIGENCE OF SELLER OR OTHERWISE AND WHETHER OR NOT SUCH LOSS WAS FORESEEABLE OR WHETHER BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
20.2. Specifically Excluded Damages. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SELLER SPECIFICALLY DISCLAIMS AND BUYER WAIVES ANY LIABILITY OR CLAIM FOR PROPERTY OR PERSONAL INJURY DAMAGES, PENALTIES, DAMAGES FOR LOST PROFITS OR REVENUES, LOSS OF USE OF PRODUCTS OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, FACILITIES OR SERVICES, DOWN TIME, SHUT DOWN OR SLOW DOWN COSTS OR FOR ANY OTHER TYPES OF ECONOMIC LOSS AND FOR CLAIMS OF BUYER’S CUSTOMERS OR ANY THIRD PARTY FOR ANY SUCH DAMAGES.
20.3. Remedies. THE DAMAGE LIMITATIONS PROVIDED IN THESE TERMS AND CONDITIONS AND THE REMEDIES STATED HEREIN SHALL BE EXCLUSIVE AND SHALL BE BUYER’S SOLE REMEDY (EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN). THIS LIMITATION ON LIABILITY SHALL SURVIVE FAILURE OF ANY ESSENTIAL PURPOSE.
21. Statute of Limitations. Except as otherwise expressly provided herein, any action that Buyer may have against Seller alleging Seller’s breach of any provision of the Contract must be commenced within one (1) year following Buyer’s discovery of the alleged breach or such claim shall be forever barred.
22. Modification; Waiver. No modifications to these terms and conditions shall be enforceable except when in writing and signed by both parties, unless otherwise expressly stated herein. Seller shall not be deemed to have waived any of its rights, powers or remedies under these terms and conditions or at law or in equity unless such waiver is in writing and is executed. No delay or omission by Seller in exercising any right, power or remedy shall operate as a waiver thereof or of any other right, power or remedy. No waiver by Seller of any default shall operate as a waiver of any other default or of the same default or another occasion.
23. Severability. If any provisions of the Contract shall be deemed illegal or unenforceable, such illegality or unenforceability shall not affect the validity and enforceability of any legal and enforceable provisions hereof which shall be construed as if such illegal and unenforceable provision or provisions had not been inserted herein, unless such illegality or unenforceability shall destroy the underlying business purpose of the Contract.
24. Assignability. Buyer may not assign any Contract without Seller’s prior written consent. Seller may assign any Contract to an affiliate of Seller or to an acquirer of control of all or substantially all of Seller’s equity or assets.
25. Force Majeure. Seller shall not be liable for any loss, delay or failure to perform resulting from any circumstance, direct or indirect, reasonably beyond its control including, without limitation, pandemic, fire, flood, accident, explosion, insurrection, riots, national emergencies, war, armed conflict, acts of public enemies, acts of God, mechanical breakdown, strike or other labor trouble, plant shutdown, acts or omissions of Buyer, unavailability of or interference with the usual means of transporting the Products, any law, regulation order, recommendation or request of any governmental authority having or claiming to have jurisdiction over Seller, its subcontractors and/or its suppliers, or any supplier delays or supplier failures to deliver necessary materials or components. In addition, Seller shall be so excused in the event it is unable to acquire from its usual sources, and on terms it deems to be reasonable, any labor or material necessary for manufacturing the Products. In the event that there should be a shortage of any Product, Seller may apportion its available Product among itself, its affiliates and all of its customers in such equitable manner as it deems fair and reasonable. Upon giving prompt written notice to Buyer of any such causes of a delay or failure in its performance of any obligation under the Contract, the time of performance by Seller shall be extended, at Seller’s option, to the extent of any delay resulting from any force majeure event.
26. Governing Law; Exclusive Jurisdiction and Venue. The Contract shall be governed and construed according to the laws of the State of Delaware, without reference to principles or conflicts of laws. Any action brought by either party arising out of or relating to the Contract must be brought in a U.S. District Court or state court in New Castle County, Delaware. Buyer waives any objection to jurisdiction or venue in respect of said Courts and to any service of process issued under their authority. The U.N. Convention on Contracts for the International Sale of Goods does not apply to the Contract or these Terms.
27. Compliance with Laws. Buyer shall: (a) comply with all applicable laws, rules and regulations, including, without limitation, those regarding anti-corruption, anti-bribery, human rights and environmental health and safety; (b) maintain in effect all licenses, permissions, authorizations, certificates, consents, approvals and permits necessary to carry out Buyer’s responsibilities and obligations under the Contract and these Terms and (c) handle, store, use and transfer the Products in compliance with the foregoing and any safety information provided by Seller. Buyer shall complete any documents and provide such information as Seller may reasonably request to ascertain Buyer’s compliance with the foregoing. The Products, including any documentation and technical data related thereto, may be subject to certain: (a) U.S. or other applicable export laws, rules and regulations, including, without limitation, the U.S. International Traffic in Arms Regulations, Export Administration Regulations and Foreign Assets Control Regulations (“Export Laws”) and (b) anti-money laundering laws, rules and regulations, including, without limitation, the U.S. Patriot Act (“AML Laws”). Buyer shall comply with all applicable Export Laws and AML Laws. Buyer shall not export, re-export or release any Products that are subject to Export Laws, directly or indirectly, to any jurisdiction to which or person to whom, such export, re-export or release is prohibited by any applicable Export Laws. It is Buyer’s responsibility to obtain any license or other approvals and Buyer will complete any documents requested by Seller prior to exporting, re-exporting or releasing any Products that are subject to Export Laws. Seller will have no obligation to make any shipment to Buyer until it has received all such information and has obtained the applicable licenses, permits, approvals or documentation for shipment, if any. Buyer shall indemnify, defend and hold Seller, including its equity holders, directors, officers, employees, affiliates, successors and permitted assigns, harmless from and against any breach of this Section by Buyer or any of its equity holders, directors, officers, employees, affiliates, successors, permitted assigns, customers, agents, distributors, resellers or vendors.
28. Relationship of Parties. Nothing contained in these terms and conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these terms and conditions shall be deemed to construe either of the parties as the agent or distributor of the other party.
29. No Third-Party Beneficiaries. Except with respect to the indemnification obligations in favor of each party’s officers, directors, employees, agents and equity holders in Sections 15 and 16, the Contract is for the sole benefit of the parties hereto and their respective successors and permitted assigns. Nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
30. Survival. Sections 6, 9, 15–25, 27, 29, 30 and this Section 30 will survive the expiration or earlier termination of the Contract, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination.
1. Acceptance and Complete Agreement. Engineered Controls International, LLC, Acme Cryogenics LLC, and any division or operation thereof adopting this Order (“Buyer”), agrees to purchase, and the seller identified on the face of this purchase order (“Seller”) agrees to sell the goods (“Goods”) and/or provide the services (“Services”) as described in this purchase order, which includes any exhibit, document, drawing, specifications, data referenced or incorporated by reference in this purchase order and any confidentiality and/or nondisclosure agreement executed between Seller and Buyer (the “NDA” and, collectively, “Order”), subject to the following. Acceptance of the offer represented by this Order is expressly limited to the terms and conditions of this Order and any additional or different terms proposed by Seller are hereby objected to and rejected. Buyer’s failure to further object to any of the provisions contained in any documentation of Seller’s or any communication of any kind from Seller shall not be deemed a waiver of the terms of the Order or as an acceptance by Buyer of any deviation from the terms of the Order. There are no understandings or agreements relating to the subject matter of this Order other than as set forth in this Order. The previous sentence notwithstanding, to the extent Buyer is purchasing Goods and/or Services pursuant to a master agreement between Dover Corporation and Seller, such master agreement shall govern to the extent any provision of this Order conflicts with such master agreement. Seller shall be bound by this Order when it executes and returns the acknowledgement copy of this Order, when it otherwise indicates acceptance of this Order or when it ships any Goods and/or provides any Services ordered herein to Buyer or otherwise commences performance hereunder. Buyer's acceptance of Goods and/or Services shall not be construed as an acceptance of any terms and conditions contained in any such document.
2. Price and Payment Terms. The price of the Goods and/or Services is the price stated in this Order. Prices for Goods are EXW Seller’s dock (Incoterms 2020) unless otherwise specified and agreed to by Buyer. Unless specifically otherwise set forth, prices herein shall not be increased without Buyer’s written consent and no additional charges of any type shall be added including, but not limited to, any charges for insurance, shipping, taxes, storage, packing and crating unless authorized in writing by Buyer. Seller will give Buyer the benefit of any price reductions available or in effect at the actual time of shipment and/or performance. Terms of payment, unless otherwise expressly agreed in writing, are as set forth on the face hereof.
3. Changes. Buyer reserves the right at any time to make changes to this Order without the consent of Seller including, but not limited to: specifications, drawings and data; methods of shipment or packing; and place or time of delivery and/or performance; provided, however that no additional changes to this Order, including but not limited to those listed above, will be made unless authorized in writing by Buyer. If any such change causes an increase or decrease in the cost of or the time required for performance of this Agreement, an equitable adjustment shall be made in the price or delivery schedule, or both, in writing. If the parties cannot agree to such price or time adjustment within ten (10) business days of Seller's receipt of Buyer's written request for a change, Buyer may terminate this Agreement upon five (5) business days prior written notice to Seller. Any changes, if authorized by Buyer in writing, whether initiated by Seller or Buyer, shall be denominated as a "Revision" to this Agreement. Only Buyer shall issue Revisions and, if issued, shall be in writing. Each such Revision shall be subject to and expressly incorporate the terms and conditions of this Order. Seller shall not deliver substitute goods for the Goods ordered by Buyer or make any changes to the design, materials or processes used to manufacture the Goods or to provide Services or to the location at which the Goods are manufactured, without the prior written consent of Buyer.
4. Termination. Buyer reserves the right to terminate this Order, or any part hereof, upon one (1) business day’s notice to Seller. In the event of termination under this Section, Seller shall immediately stop all work hereunder, and shall immediately cause any of its suppliers or subcontractors to cease such work. If this Order, or part thereof, is terminated by Buyer for any reason other than for breach by Seller, Seller must notify Buyer of any claim resulting from Buyer’s termination within ninety (90) days of the effective date of Buyer’s termination. Such claim shall be settled on the basis of reasonable costs Seller has incurred in the performance of this Order prior to receipt of Buyer’s notice of termination; provided, however, that Seller shall use its best efforts to mitigate such costs. Buyer may also terminate this Order, or any part hereof, or any other Order between the parties, for cause upon notice to Seller. Cause includes Seller’s default or non-compliance with any term or condition of this Order, late delivery, delivery of defective or non-conforming Goods and/or Services, cessation of the conduct of Seller’s business, failure of Seller to pay its debts generally as such debts become due, commencement of any proceeding under the bankruptcy code or insolvency laws by or against Seller, appointment of a receiver for Seller or a substantial portion of its business or assets, or an assignment for the benefit of Seller’s creditors. In the event of termination for cause, Buyer shall not be liable to Seller for any amount, and, notwithstanding anything to the contrary in this Order (including the limitations set forth in Section 11), Seller shall be liable to Buyer for any and all damages sustained by such termination including, without limitation, at Buyer’s option, direct, indirect, incidental and consequential damages, costs (including attorneys’ and other professionals’ fees and costs), expenses and losses. Seller may not cancel or modify this Order in whole or in part, without Buyer’s written consent.
5. Delivery; Title and Risk of Loss. Title to Goods and risk of loss thereof, or damage thereto, shall pass to Buyer upon delivery to Buyer or Buyer’s nominated carrier at Seller’s dock. If Goods are to be installed by Seller at Buyer’s facility or a facility designated by Buyer, title will pass to Buyer upon completion of the installation and written approval by Buyer. Seller shall deliver the Goods and/or provide the Services on the date specified in this Order (the “Delivery Date”). Except as otherwise provided in this Order, delivery and/or performance shall be at the location shown on the face of this Order. Time is of the essence and if delivery of Goods and/or performance of the Services is not completed by the Delivery Date, Buyer reserves the right, without liability and in addition to its other rights and remedies, to terminate this Order by notice to Seller effective as to Goods not yet shipped and/or Services not yet performed and to purchase substitute Goods and/or alternative Services elsewhere and charge Seller with any additional expenses, costs and loss incurred as a result. Seller shall promptly notify Buyer in writing if the Goods and/or provision of the Services will be delayed, indicating the cause and extent of the delay, but this shall not relieve Seller of its obligation to deliver and/or perform as required by this Order unless otherwise instructed by Buyer in writing. If, in order to meet the Delivery Date it becomes necessary for Seller to ship by a more expensive way than specified in this Order, increased transportation costs shall be paid by Seller unless the necessity for such rerouting or expedited handling has been caused solely and exclusively by Buyer.
6. Inspection And Rejection. Receipt of any Goods and/or Services or payment for any Goods and/or Services will not constitute acceptance of any Goods and/or Services hereunder. At any time, Buyer may reject any Goods and/or Services which are of inferior quality or workmanship, not in compliance with this Order, shipped and/or provided contrary to instructions, not in the quantities specified, otherwise do not conform to this Order or that violate any applicable law. In addition to other rights and remedies available to Buyer, Goods so rejected may, at Buyer’s option, be returned to Seller for reimbursement (including freight charges), credit, refund or replacement, or held by Buyer for pickup by Seller, all at Seller's expense and risk. Buyer may charge Seller any expenses incurred in unpacking, examining, repacking, storing and reshipping any Goods so rejected. Nothing contained in this Order relieves Seller, in any way, from the obligation of testing, inspection and quality control of Goods and/or Services.
7. Confidentiality; Data Security and Data Protection.
7.1 All non-public, confidential or proprietary information of Buyer, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Buyer to Seller, 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 the Order (“Confidential Information”) is confidential, solely for the use of performing this Order and may not be disclosed or copied unless authorized in advance by Buyer in writing. Seller may disclose Confidential Information to its officers, directors, employees, and agents and agrees on behalf of itself and its officers, directors, employees and agents to use its/their best efforts to prevent unauthorized access, use, duplication or disclosure, by or to a third party, of Confidential Information, including, without limitation, data, plans, specifications, formulae, drawings or any other information whether business or technical, of a confidential nature, which has been furnished directly or indirectly, in writing or otherwise by Buyer to Seller. Seller shall be responsible for a breach of this Section by its officers, directors, employees, and agents. Confidential information shall include such information as would be apparent to a reasonable person, familiar with Buyer’s business and the industry in which it operates, that such information is of a confidential or proprietary nature and that maintenance of its confidentiality would likely be of commercial value to Buyer. Seller shall safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. Confidential information shall not include information that is in the public domain prior to its disclosure, becomes part of the public domain through no wrongful act of Seller, was in the lawful possession of Seller prior to its disclosure to Seller or was independently developed by Seller. Disclosure of Confidential Information pursuant to order by a court shall not be a violation of this Section; provided, however, that Seller, to the extent allowed by law, notify Buyer in advance of such disclosure. Seller agrees that the provisions set forth in the NDA (if executed by the parties) shall supplement and be in addition to the obligations of this Section. In the event of any conflict between this Order and the NDA, the parties agree that the NDA shall control with respect to Seller’s obligations of confidentiality, and this Order shall control with respect to the sale of any Goods or Services.
7.2 Seller represents that it has developed and implemented and covenants that it will maintain effective information security policies and procedures that include administrative, technical and physical safeguards designed to (a) ensure the confidentiality, security, integrity and availability of Buyer’s Confidential Information provided hereunder; (b) protect against anticipated threats or hazards to the confidentiality, security, integrity and availability of such information; (c) protect against unauthorized access or use of such information; and (d) ensure the proper disposal of such information. Seller shall promptly notify Buyer of any breach of confidentiality by Seller or any of its agents, disclosure of Buyer’s Confidential Information by Seller or one of its agents or a breach of Seller’s information security policies or procedures. Notice shall be provided to Buyer no later than 24 hours upon discovery of breach.
7.3 Seller shall not make any public announcement about the Order without prior written approval of Buyer.
7.4 Seller shall comply with the data protection and privacy legislation in all relevant countries and shall ensure that its employees, agents and contractors observe the provisions of that legislation.
8. Warranty. Seller warrants to Buyer, Buyer's successors, assigns, customers and users of the products manufactured by Buyer incorporating the Goods, that: (a) Seller has good title to any and all Goods supplied hereunder and has the right to transfer title of said Goods to Buyer free and clear of any and all liens and encumbrances; (b) all Services shall be performed in a workmanlike manner, in accordance with this Order, and with applicable laws; (c) all Goods shall conform to all Buyer-approved drawings, specifications and appropriate standards and all other requirements of this Order; (d) all Goods (including their component parts) will be new (and not counterfeit); (e) all Goods will conform to any statements made on the containers or labels or advertisements for such Goods, and any Goods will be adequately contained, packaged, marked and labeled; (f) Goods supplied hereunder will be of merchantable quality; (g) Goods supplied hereunder shall be fit for the particular use intended, free from defects, whether patent or latent, in material and workmanship, and shall conform to all specifications and requirements of this Order; (h) and Seller shall, in the performance of its obligations hereunder, comply with all, and shall not violate any, applicable federal, state, and local laws and governmental regulations and orders. The foregoing warranties shall survive acceptance, testing, inspection, or use of the Goods and/or Services by Buyer, and shall be cumulative and in addition to any warranties of additional scope given to Buyer by Seller and/or provided by law or in equity. Seller shall replace or correct defects of any Goods and/or Services not conforming to the foregoing warranty promptly, without expense to Buyer, when notified of such nonconformity by Buyer, provided Buyer elects to provide Seller with the opportunity to do so. Alternatively, if Buyer elects not to do so, or in the event of failure of Seller to correct defects in or replace nonconforming Goods and/or Services promptly, Buyer may make such corrections or replace such Goods and/or Services, and in either case may engage third parties to do so, and charge Seller for the cost incurred by Buyer in doing so.
9. Intellectual Property. Seller warrants that neither the Goods, Services, nor use thereof shall infringe on any existing or pending patent, copyright, trademark, trade name, invention or process of manufacturing or other intellectual property right; provided, however, that this warranty shall not apply to the extent that the Goods were manufactured or the Services were performed according to Buyer’s specifications and such specifications would have resulted in a violation of this warranty. Seller will, upon receipt of notification, promptly assume full responsibility for defense of any suit or proceeding which may be brought against Buyer or its agents, customers, users of its products incorporating the Goods, or other vendors for alleged infringement, as well as for any alleged unfair competition resulting from similarity in design, trademark or appearance of Goods and/or Services provided hereunder, and Seller will indemnify, defend and hold Buyer and its agents and customers harmless against any and all claims, demands, losses, expenses, costs (including attorneys’ fees and court costs), fines and penalties resulting from any such suit or proceeding, including any settlement. Any settlement of such action must be approved by Buyer. Buyer may be represented by and actively participate through its own counsel in any such suit proceeding if it so desires, and the costs of such representation shall be paid by Seller. If, in any such suit, the Goods and/or Services are held to violate the intellectual property rights of any third party and/or sale and/or use thereof is enjoined, Seller shall, at Buyer's election, either (1) procure for Buyer the right to continue using same; (2) replace the same with non-infringing Goods and/or Services; or (3) modify the same so that it becomes non-infringing. Any Goods and/or Services which are capable of copyright protection made, designed or developed for Buyer pursuant to this Order shall be a “work made for hire.” Seller hereby grants and assigns to Buyer and its successors and assigns any and all inventions, discoveries, computer programs, software, data, technologies, designs, innovations and improvements and related patents, copyrights, trademarks and other industrial and intellectual property rights and applications therefor made or conceived by Seller or its agents or employees in connection with the performance of this Order.
10. Indemnification. Seller shall defend, indemnify and save harmless Buyer, its officers, directors, successors, assigns, employees, agents, customers and users of its products incorporating the Goods (the “Indemnitees”), of and from any claim, loss, demand, damage, liability, cost, fine, penalty or expense (including reasonable attorney's fees), sustained or incurred by one or more of the Indemnitees directly or indirectly arising out of: (a) Injury to persons or property by reason of any defects in the Goods and/or Services; (b) breach by Seller of any of its warranties, or Seller's failure timely to deliver the Goods and/or Services purchased hereunder; (c) Any noncompliance or violation of law as provided herein; and/or (d) any breach of this Order.
11. Limitation of Liability. IN NO EVENT SHALL BUYER BE LIABLE TO SELLER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF WHATSOEVER NATURE, OR FOR ATTORNEY’S FEES, LOSS OF MARKET SHARE, OR LOST PROFITS HOWSOEVER THESE MAY BE CHARACTERIZED. BUYER’S LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS ORDER, SHALL NOT EXCEED THE PRICE ALLOCABLE TO THE GOODS, OR UNIT THEREOF, AND/OR SERVICES WHICH GIVES RISE TO THE CLAIM.
12. Ownership. Unless otherwise agreed to in writing, all property of any description furnished to Seller by Buyer or unconditionally appropriated to this Order, or any replacement thereof, or any materials affixed or attached thereto, shall be and remain the property of Buyer and shall be used only in fulfilling this Order and for no other purpose and shall not be duplicated or disclosed to others. Such furnishing of Buyer’s property shall not be construed as granting any rights whatsoever, express or implied, to any such property to Seller.
13. Insurance. During the provision of Goods and/or Services under this Order, Seller shall, at its own expense, maintain and carry insurance in full force and effect, which includes, but is not limited to: (a) commercial general liability (including product liability) in a sum not less than $1,000,000 per occurrence combined single limit for bodily injury and property damage; (b) Workers’ Compensation insurance at the statutory limit for the jurisdiction in which Seller operates; (c) for any Services to be provided on Buyer’s property or property of Buyer’s customers, automobile liability insurance covering all owned, hired and non-owned vehicles with a minimum combined single limit for bodily injury and property damage liability of $1,000,000 per accident or occurrence; and (d) Employer’s liability insurance with a minimum amount of $1,000,000 per accident. Such insurance shall be with financially sound and reputable insurers. Prior to providing Goods and/or Services, Seller shall provide Buyer with a certificate of insurance from Seller's insurers evidencing the insurance coverage specified in this Order. The certificate of insurance shall name Buyer as an additional insured. Seller shall provide Buyer with ten (10) days' advance written notice in the event of a cancellation or material change in Seller's insurance policy. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against Buyer's insurers and Buyer or the Indemnitees.
14. Work on Buyer’s or Buyer’s Customer’s Premises. If Seller’s provision of Goods and/or Services under this Order involves operations by Seller on the premises of Buyer or any of Buyer’s customers, Seller shall take necessary precautions to prevent injury to person or property during such work, including, but not limited to, adhering to the rules, policies, procedures or other requirements governing Buyer’s or Buyer’s customer’s premises.
15. Applicable Laws. Seller shall: (a) comply with all applicable treaties, trade agreements, laws, rules, regulations and ordinances, including, without limitation, those regarding anti-corruption, anti-bribery, human rights, and environmental health and safety; (b) maintain in effect all licenses, permissions, authorizations, certificates, consents, approvals, and permits necessary to carry out Seller’s responsibilities and obligations under the Order and these terms; and (c) handle, store, use, and transfer the Goods in compliance with the foregoing and any safety information provided by Buyer. Seller shall complete any documents and provide such information as Buyer may reasonably request to ascertain Seller’s compliance with the foregoing. The Goods, including any documentation and technical data related thereto, may be subject to certain: (1) U.S. or other applicable export laws, rules, and regulations, including, without limitation, the U.S. International Traffic in Arms Regulations, Export Administration Regulations and Foreign Assets Control Regulations (“Export Laws”); (2) anti-money laundering laws, rules, and regulations, including, without limitation, the U.S. Patriot Act and the U.S. Foreign Corrupt Practices Act (collectively, “AML Laws”). Seller shall comply with all applicable Export Laws and AML Laws; (i) all applicable requirements of the Occupational Safety and Health Act of 1970, as amended; (ii) the Fair Labor Standards Act of 1938, as amended; (iii) Executive Order 11246, and all regulations issued under such laws; (iv) the Restriction of Hazardous Substances Directive (RoHS) (2002/95/EC and 2011/65/EU); and (v) all other requirements of all countries involved in the sale of Goods under this Order.
16. Non-Waiver. No delay or failure by Buyer to pursue any remedy hereunder shall not constitute a waiver on its part to pursue such remedy with respect to the same or similar breach. Buyer shall not be deemed to have waived any of its rights, powers, or remedies under these terms and conditions, or at law or in equity unless such waiver is in writing and executed.
17. Remedies; Governing Law. Each of the rights and remedies herein set forth shall be cumulative and in addition to any other available rights or remedies provided in law or equity. The Order shall be governed and construed according to the laws of the State of Delaware, without reference to principles or conflicts of laws. Any action brought by either party arising out of or relating to the Order must be brought in a U.S. District Court or state court in New Castle County, Delaware. Seller waives any objection to jurisdiction or venue in respect of said Courts and to any service of process issued under their authority. Notwithstanding the foregoing, if Seller exists under the laws of any non-U.S. jurisdiction, then any claim or controversy arising out of or relating to the Order or these terms may also be resolved under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The seat of arbitration shall be in New York, New York. The language to be used in the arbitral proceedings shall be English. The U.N. Convention on Contracts for the International Sale of Goods does not apply to the Order or these terms. Notwithstanding the foregoing, Buyer will have the right at any time, at its option and where legally available, to immediately commence an action or proceeding in a court of competent jurisdiction, subject to the terms of this Order, to seek a restraining order, injunction, or similar order to enforce the confidentiality provisions set forth in Section 7 or to seek interim or conservatory measures.
18. Severability. If any provision of this Order shall be held invalid or unenforceable to any extent, the remainder of the Order shall not be affected thereby and shall be enforced to the greatest extent permitted by law.
19. Setoff. Buyer shall have the right to set off any amount payable any time by Buyer to Seller in connection with this Order against any amounts due from Seller or its affiliated companies to Buyer.
20. Relationship of the Parties. The relationship of the parties is solely that of Buyer and Seller and nothing contained in this Order shall be construed as creating any agency, partnership, joint venture or employment relationship and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
21. Assignment; Subcontracting. Seller may not assign this Order, in whole or in part, without the prior written consent of Buyer. Buyer may assign this Agreement to an affiliated entity as part of a merger or reorganization. Seller shall not subcontract this Order, or any part hereof, without the prior written authorization of Buyer, which may or may not be granted in Buyer’s sole discretion.
22. Force Majeure. Performance by either party hereunder shall be excused in the event and for the period of time that such party is unable to perform its obligations because of fire, flood, war, breakdowns, delays in or lack of transportation, governmental priorities or allocation, or any other cause beyond the reasonable control of such party; provided, however, that, with respect to Seller, Seller’s economic hardship, changes in market conditions, strikes, labor or supply chain-related delays shall not be considered force majeure.
23. Notices. Notices shall be sent by a nationally recognized overnight courier service to the addresses specified on the face hereof and shall be effective one day after dispatch.
24. Legal Effect. The parties acknowledge and agree that transmission of this Order or any Revision thereof by email which contains a typed name of Buyer and/or Buyer's logo shall satisfy the requirements of both a "writing" and a "signature".
25. Verification. Seller shall verify the legal status and employment eligibility of all of Seller’s personnel using the federal electronic verification program jointly operated and administered by the Department of Homeland Security and the Social Security Administration (“E-Verify”). In accordance with the Immigration Reform and Control Act of 1986 and the rules and regulations pertaining to E-Verify, Seller shall maintain records of all documents involved in the hiring process.
26. Equal Opportunity. Unless exempt, Seller shall comply with the Equal Opportunity clauses set forth in 41 CFR 60-1.4(a), 41 CFR 60-300.5(d), 41 CFR 60-741.5(d) and 29 CFR Part 471, Appendix A, Subpart A. The following shall apply to the extent the Seller is a federal contractor: (i) Seller represents and warrants that Seller is committed to the maintenance of policies that promote equal employment opportunity (41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a)); and (ii) Seller, and Seller’s permitted subcontractors, if any, shall abide by the regulations of 41 CFR 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or veteran status. To the extent applicable, the clauses with respect to government grants set forth at 2 C.F.R. 200.321 (small and minority business, women’s business enterprises, and labor surplus area firms), or government contracts at 41 C.F.R., 60-1.4 (equal employment opportunity), 60-1.40 (affirmative action compliance program), 60-1.8 (non-segregated facilities), 60-250.4 (employment of veterans), 60-741.5 (employment of persons with disabilities), and 48 C.F.R. 52.219-8 and 5219-9 (small business concerns), Executive Order 12138 (women-owned businesses), Executive Order 13496 (employee notice of rights to organize) and at 42 U.S.C. Section 12101 et seq. (American with Disabilities Act) are incorporated by reference and shall have the same binding effect as if reproduced herein in their entirety. Execution of this Agreement by Seller constitutes certification of compliance by Seller to Buyer.
27. Conflict Minerals. Seller shall, with each shipment to Buyer (or as otherwise agreed in writing between Seller and Buyer), provide a certificate of the country of origin for any and all Conflict Minerals (as defined in this Section) contained in any Goods, materials, products or items included in such shipment, including whether any part of the shipment contains Conflict Minerals from Covered Countries (as defined in this Section). Buyer reserves the right, on reasonable notice, to require Seller to produce documentation as to the country of origin and the due diligence process undertaken by Seller to confirm the country of origin of Conflict Minerals included in each shipment to Buyer. Where Seller is permitted by Buyer to provide a blanket certificate of country of origin for Conflict Minerals contained in any Goods, materials, products or items purchased by Buyer, Seller agrees to promptly notify Buyer of any change in Seller’s sourcing, including in changes in country of origin or any changes in sub-seller identification. Blanket certificates of country of origin will not be accepted covering periods of greater than 12 calendar months. For purposes of this Section, “Conflict Minerals” include Columbite-Tantalite (Tantalum), Cassiterite (Tin), Gold, Wolframite (Tungsten) and any derivatives from these minerals, and “Covered Countries” include the Democratic Republic of the Congo, Angola, Burundi, the Central African Republic, The Republic of Congo, Uganda, Rwanda, Sudan (South Sudan), Tanzania and Zambia.
28. Dover’s Supplier Code of Conduct. Seller has read, understands and agrees to comply with the Dover Corporation Supplier Code of Conduct, a copy of which may be found at http://www.dovercorporation.com/. If there are any inconsistencies between this Order and the Dover Corporation Supplier Code of Conduct, the Dover Corporation Supplier Code of Conduct shall govern.
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