Terms & Conditions
INTERFACE PERFORMANCE MATERIALS, INC.
TERMS AND CONDITIONS OF SALE
1. ACCEPTANCE. No order placed with SELLER shall be considered as accepted until officially acknowledged by SELLER. Except as otherwise agreed to in writing by SELLER and PURCHASER, the following sets forth all of the terms of the purchase and sale of goods, as hereinafter defined, between SELLER and PURCHASER and supersedes all prior agreements, offers, representations and negotiations between them to the extent that they conflict with or are in addition to the terms contained herein, this being intended as a final expression and complete and exclusive statement of the terms of the agreement. If SELLER’S acknowledgement contains terms additional to or different from the Purchaser’s order, it shall be effective as an acceptance of such order only if such terms are included in the agreement and they shall be so included if not objected to in writing within ten (10) days from the date of SELLER’S acknowledgement.
2. WARRANTY; SOLE AND EXCLUSIVE REMEDY. (a) SELLER warrants that the goods sold are free from defect in material and workmanship. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY OBLIGATION OR LIABILITY OF SELLER WITH RESPECT TO THE IMPLIED WARRANTY OF MERCHANTABILITY, ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OR TRADE AND ANY IMPLIED WARRANTY OF FITNESS, ACTUAL OR IMPUTED, OR OTHER LIABILITY OF SELLER, ARE HEREBY EXCLUDED AND DISCLAIMED. (b) Any claim for reason of defective goods, short count or for any other cause, shall be deemed to be waived by PURCHASER unless made in writing within thirty (30) days from the date of shipment of goods to which such claim relates. Defective goods may be returned to SELLER after inspection by SELLER and upon receipt of definite instruction from SELLER. Goods so returned and found to be defective by SELLER shall, at the option of SELLER, be replaced or repaired without charge, or purchase price therefor be refunded or credited. (c) SELLER’S liability, and PURCHASER’S exclusive remedy hereunder, shall be limited to, at the option of SELLER, the repair, replacement, refund or credit for such product, and SELLER shall not be liable to PURCHASER or any other person for loss of revenue, profit or any consequential, incidental or special damages directly or indirectly arising from the use of goods, from breach of any warranty or from any other cause, whether or not SELLER has been informed of the possibility of such damages.
3. DELIVERY AND RISK OF LOSS. (a) Unless otherwise specified, an overshipment or undershipment of ten percent (10%) of the ordered quantity will be considered fulfillment of any order placed by PURCHASER. Partial shipments shall be permitted, and if delivery is to be made in installments, no breach with respect to any installment shall be deemed to be a breach of the entire agreement (b) Unless otherwise stated on the face hereof, all goods purchased from SELLER shall be delivered EX WORKS (Incoterms latest version) SELLER’S plant (c) All delivery dates are approximate. In addition to any excuse provided by applicable law, SELLER shall be excused from liability for any delay or failure by SELLER to perform any contract in accordance with its terms from any event beyond SELLER’S control, whether or not foreseeable, including but not limited to, labor disturbance or differences with workers, war, fire, accident, adverse weather, inability to secure transportation, act of any governmental authority, priorities granted at the request of or for the benefit, directly or indirectly, of any government agency thereof, inability of SELLER to obtain raw materials, act of God and other causes or events beyond SELLER’S control, whether or not similar to those enumerated above. Any of the foregoing conditions resulting in delay or failure to perform any contract shall excuse such delay or failure whether the condition exists now or arises hereafter. In case of such delay or failure to perform for any of the above causes, either party may cancel the contract upon notice in writing to the other. The foregoing supersedes anything inconsistent therewith relating to the above subject matter.
4. PRICE. Notwithstanding contrary provisions in PURCHASER’S order or other correspondence, the prices for the items covered by this agreement (whether or not stated on the reverse side hereof) are those set forth in SELLER’S quotation. On all orders where delivery dates or a delivery schedule are not specifically set forth, delivery shall be subject to SELLER’S ability to produce and deliver the items called for in the normal course of business.
5. PAYMENT. (a) Terms of payment shall be subject to approval of SELLER’S Credit Department and in case of doubt arising at any time as to PURCHASER’S financial responsibility, production may be stopped and shipments suspended until satisfactory assurances are received. SELLER shall be under no obligation to make any shipment when PURCHASER is in default hereunder or under any other sales agreement between SELLER and PURCHASER. (b) PURCHASER agrees to pay SELLER the amount which SELLER is required to pay on account of any excise, manufacturer’s payroll, use or sales taxes or charges which may be established or levied by any governmental authority (domestic or foreign) upon the merchandise sold hereunder or any part thereof, or the manufacture, use, sale or delivery thereof, or upon the materials entering into the manufacture thereof, as the same may be applicable to the merchandise sold hereunder or the manufacture, use, sale or delivery thereof. (c) Unless otherwise agreed in writing between BUYER and SELLER, payments not made by BUYER on or before 30 days from the date of SELLERS invoice shall be subject to a 1.5% monthly finance charge.
6. INTELLECTUAL PROPERTY RIGHTS. (a) If the goods are to be prepared or manufactured according to PURCHASER’S specifications, PURCHASER indemnifies SELLER against any loss, damage, claim or liability for patent or trademark infringement or alleged violation of any other intellectual property rights on account of such preparation or manufacture. SELLER does not warrant against infringement by reason of the use of the goods with other materials, or in the operations of any process. (b) Unless otherwise expressly set forth in writing by Seller, non-recurring engineering charges and all charges of a similar nature which may be billed to PURCHASER for work performed by SELLER in connection with the sale of goods from SELLER to PURCHASER (including but not limited to tooling charges, partial preparation charges, set-up or fit-up charges, and the like) represent only part of the cost thereof incurred by SELLER. PURCHASER does not acquire any right, title or interest in, or license (either express or implied) to any drawings, designs, inventions or intellectual property or any tooling or other tangible property, by virtue of any such charges.
7. LIMITATION OF LIABILITY. The aggregate cumulative total liability for which SELLER is obligated to pay PURCHASER hereunder, whether for breach of warranty or contract, indemnifications herein, tort (including negligence), or otherwise, shall not exceed the payments made to SELLER in connection with those goods purchased under this agreement which gave rise to such liability. In no event shall SELLER have any liability for any indirect, special, consequential, incidental or punitive damages arising out of or in connection with this agreement, even if SELLER has been advised of the possibilities of such damages.
8. INDEMNITY. PURCHASER indemnifies SELLER against all damages, including attorney fees, incurred by SELLER and arising from claims by PURCHASER, its customers or third parties that are based on product defect claims not proven by PURCHASER to have been caused solely by SELLER’s negligence.
9. CANCELLATION. No order may be cancelled or altered without the express written consent of SELLER. In the event of such an approved cancellation, SELLER shall be entitled to payment of the entire contract price, less any expenses saved by SELLER as a result of the cancellation.
10. GOVERNING LAW. Each party to this agreement specifically waives the application of the law of any jurisdiction other than Pennsylvania. This agreement shall be governed by the laws of the Commonwealth of Pennsylvania and shall be interpreted in accordance with, and the rights and duties of the parties shall be governed by, the laws of the Commonwealth of Pennsylvania (conflict of laws rules excluded), including the Pennsylvania Uniform Arbitration Act. The parties specifically waive any application of the United Nations Convention on the International Sale of Goods as to the agreement, if applicable. Except with respect to any claim by SELLER against PURCHASER for unpaid amounts for goods sold to PURCHASER, the parties agree that any claim or controversy arising out of or relating to the sale of goods by SELLER to PURCHASER, whether sounding in contract, tort or otherwise, shall be asserted in a manner and forum set forth herein within one (1) year of the occurrence of the event giving rise to the alleged claim or controversy.
11. DISPUTE RESOLUTION. Any dispute arising out of or relating to the agreement or the breach thereof shall be resolved finally by binding arbitration conducted exclusively in Philadelphia, Pennsylvania administered by the American Arbitration Association under its Commercial Arbitration Rules. The arbitration panel shall consist of three arbitrators, with each party appointing one arbitrator and the two arbitrators so appointed selecting a third arbitrator. Any resulting arbitration award shall be entered and confirmed in a court of the Commonwealth of Pennsylvania. Notwithstanding the foregoing, before resorting to arbitration in the manner set forth herein, the parties agree first to try in good faith to settle any such dispute by mediation conducted in Philadelphia, Pennsylvania administered by the American Arbitration Association under its Commercial Mediation Rules if (a) the dispute arose prior to the delivery of a notice of termination or cancellation of this agreement to either party, and (b) the dispute cannot be settled through reasonable efforts involving negotiation.
12. INTEGRATION. This agreement sets forth the entire understanding of the parties and supersedes all other representations, communications and understanding between the parties.