Seller is hereinafter referred to as “Supplier”; CRP Industries Inc. is hereinafter referred to as “Buyer”
Terms and Conditions and Acceptance
The purchase of goods (“Products”) is conditioned upon these Terms and Conditions (“Terms”). No other terms and conditions including, without limitation, Supplier’s terms and conditions will have any application to any purchase between Buyer and Supplier unless specifically accepted in writing by Buyer. The Terms shall apply and are incorporated into every subsequent purchase order (“PO”) until superseded by later terms and conditions issued by Buyer. Written acceptance of a PO or shipment in whole or in part of any Products constitute Supplier’s acceptance of a PO.
Supplier will deliver the Products ordered at the price(s) stated in the PO. No charges or price increases of any kind shall be allowed unless specifically agreed to by Buyer in writing.
Shipping memos or packing lists must accompany the Products. Bills of lading or shipping receipts shall accompany each invoice. Buyer’s count or weight shall be final and conclusive on shipments. No charges will be allowed for transportation, boxing or packing. Supplier’s shipping charges shall reflect discounts received by Supplier from freight transporters. Products delivered under the PO in excess of the quantity specified may be retained by Buyer at no additional cost to Buyer.
Time is of the essence. Supplier shall not make delivery earlier than date (s) shown without written consent of Buyer. If Products are shipped in advance of scheduled delivery date (s), Buyer may return them or store them at Supplier’s expense. Acceptance by Buyer of late deliveries shall not relieve Supplier of the obligation to make future deliveries on schedule.
Buyer may terminate all or part of the PO by written notice for its convenience or for Supplier’s breach. If the PO is canceled for Supplier’s breach of these Terms Supplier shall have no claim against Buyer for any costs incurred or any profit with respect to the terminated or canceled portion of this PO. If the PO is terminated otherwise by Buyer, the Supplier shall be paid an equitable amount to cover the Supplier’s direct costs incurred prior to termination.
Risk of Loss
Title and risk of loss or damage to Products delivered in compliance with a PO will pass to Buyer on delivery to the F.O.B. point. All shipments will be F.O.B. destination unless expressly stated otherwise on the face of the PO.
Neither party shall be held responsible for any delay or failure in performance of any part of this Agreement to the extent such delay or failure is caused by fire, flood, explosion, war, embargo, government requirement, civil or military authority, act of God, or other similar causes beyond its control and without the fault or negligence of the delayed or non-performing party.
Inspection and Acceptance of Products
All Products are subject to final inspection and acceptance after delivery. Payment will not constitute final acceptance. Buyer reserves the right to reject defective or nonconforming goods. Goods rejected by Buyer will be returned, stored or properly disposed per Supplier’s request at Supplier’s expense.
Supplier expressly warrants that the Products furnished hereunder shall be merchantable, fit for the intended use, free from defects in design, workmanship and material; shall conform to specifications, drawings, samples or other description furnished to or specified by Buyer and shall meet the performance requirements of the PO. In the event of non-compliance, Buyer may, at its option, (i) retain the goods with an equitable adjustment in the price; (ii) have the Products repaired or replaced at the F.O.B. delivery point; or (iii) return the Products at Supplier’s expense for refund. Supplier further warrants that the price is as low as any net price now given by Supplier to any other customer for like material and quantity. The above warranties shall be in addition to any other express warranties of Supplier or warranties implied under law.
Confidential Information is and remains the property of Buyer. Supplier shall use the same care to protect Confidential Information, but not less than reasonable care. Supplier shall limit use of Confidential Information to the performance of Buyer’s PO, and disclose Confidential Information only to employees who have a need to know such information to perform their duties under this agreement. On Buyer’s request, Supplier will promptly return or certify the destruction, at Buyer’s sole determination, of Confidential Information and copies thereof.
Supplier shall indemnify, defend, and hold harmless Buyer, as well as its officers, employees, and consultants, from and against any claim, loss, damage, cost, charges, attorneys fees, legal costs, liens, death, personal injury, accidents, or property damage relating to or arising from Supplier’s (i) obligations, duties or rights under the PO; or (ii) breach of the terms of sale existing between the parties; (iii) or from any of the Products provided to Buyer; (iv) or from any actual or alleged infringement of a patent, trademark, copyright, trade secret or other intellectual or proprietary rights of third parties regarding the Products furnished under any PO from Seller to Buyer.
LIMITATION OF LIABILITY
IN NO EVENT SHALL BUYER BE LIABLE IN CONTRACT, TORT, OR OTHERWISE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, PUNITVE OR ECONOMIC DAMAGES OR LOST PROFITS, REGARDLESS OF WHETHER BUYER SHALL BE ADVISED, SHALL HAVE OTHER REASON TO KNOW, OR IN FACT SHALL KNOW OF THE POSSIBILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL BUYER’S LIABILITY ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT OR ANY PURCHASE ORDERS EXCEED THE TOTAL PRICE SPECIFIED IN THE APPLICABLE PURCHASE ORDERS OR AS OTHERWISE AGREED TO IN WRITING BY BUYER, LESS ANY AMOUNTS ALREADY PAID TO SUPPLIER UNDER THIS AGREEMENT.
Compliance with Laws
Supplier will at all times comply with all applicable federal, state, and local laws, rules, ordinances, and regulations governing, including but not limited to, the manufacture, transportation, performance, and sale of the Products. If any of the Products is protect by US patent law, Supplier will notify Buyer in writing and mark the Products respectively.
If Products provided in any PO include Hazardous Materials, Supplier represents and warrants that Supplier and any subcontractors understand the nature of and hazards associated with these materials. Prior to causing Hazardous Materials to be on Buyer’s property, Supplier shall obtain written approval from the Authorized Buyer. Supplier will be fully responsible for and indemnify Buyer from any liability resulting from the actions of Supplier or its subcontractors in connection with (i) providing such Hazardous Materials to Buyer and (ii) the use of such Hazardous Materials in performance under any PO.
No term or provision hereof will be considered waived and no breach of this Agreement excused unless such waiver or consent is in writing. The waiver or consent to a breach of any provision of this Agreement shall not operate or be construed as a waiver of, consent to, or excuse of any other or subsequent breach.
This Agreement shall be governed by the laws of the state of New Jersey.
Supplier may not assign any rights (including the right to receive monies due) or obligations under a PO without Buyer’s prior written consent. Any purported assignment without such consent will be void. Buyer may assign its rights under a PO to any parent company, subsidiary, or affiliate on written notice and without additional consideration.
With the exception of quantity, price, delivery date, and product specifications, these terms and conditions supersede, terminate, and otherwise render null and void any and all prior written or oral agreements or understandings between the Parties relating to the subject matter of this Agreement.
All notices under this Agreement shall be in writing and shall be hand-delivered, sent by an international common courier, or registered or certified U.S. mail, return receipt requested, postage prepaid, addressed to the last known address of the Party to be noticed.
If any provision of this Agreement is held by a court of law to be illegal, invalid, or unenforceable, that provision shall be deemed amended to achieve as nearly as possible the same economic effect as the original provision, and the legality, validity and enforceability of the remaining provisions of the Agreement shall not be affected or impaired.