Bella Pak LLC Terms and Conditions
The following terms and conditions apply to
all goods and materials furnished under this Order Acknowledgement
except to the extent expressly set forth by MCT Manufacturing LLC d/b/a
Bella Pak LLC. ("Seller") on the face of the Order Acknowledgment.
Moreover, these terms and conditions shall apply to any and all
transactions between the Seller and Buyer unless modified by a written
document duly executed by an authorized agent of Seller.
Application of Terms and Conditions.
Acceptance of any part of the goods or services under this Order
Acknowledgement (the "Products") by the buyer ("Buyer") whether or not
in conformity herewith, constitutes an acceptance of this Order
Acknowledgement and of all terms and conditions herein. Any additional
or different terms or conditions submitted by Buyer are hereby objected
to by Seller and shall not be binding upon Seller unless expressly
agreed to in writing by Seller. If Buyer objects to any of these terms
and conditions, said objection must be brought to the attention of
Seller by Buyer in a written statement separate from any sales order or
other printed form of Buyer. Said objections shall be deemed proposals
for different terms and conditions and may be accepted only in writing
by an authorized representative of Seller. The Buyer acknowledges that
he is not relying on any warranties or representations not specified
herein.
Price; Payment; No Setoff.
The price stated on the face of this Order Acknowledgement is net of all
taxes and duties. Any changes in freight rates, wharfage, handling,
terminal charges, surcharges (e.g., bunker, currency, congestion, etc.)
or insurance premiums, as well as any new or additional duties or taxes
or imposts of whatsoever kind and by whomsoever imposed, whether with
retroactive effect or not, subsequent to the date of this Agreement,
shall be for the Buyer's account. Liability for payment for the Products
shall arise on confirmation of the order (the "Order") to which this
Order Acknowledgement relates and payment is due at the time agreed upon
or in the absence thereof, immediately on receipt of the Seller's
invoice, whether or not ownership in the Products has passed to Buyer.
Sums unpaid after the due date shall bear interest from the due date
until the day payment is received at the rate of eighteen (18%) percent
per annum (or such lower maximum rate as imposed by law). No
counterclaim of the Buyer of any nature may be set off against any
payment due to the Seller hereunder.
Delivery.
All shipments of the Products ordered hereunder shall be delivered in
accordance with the delivery instructions agreed upon by Buyer and
Seller. Seller will use its best efforts to complete delivery on or
before any delivery dates requested by the Buyer or estimated by the
Seller, but will not be liable for any delay in delivery or non-delivery
by third parties. The quantity delivered will be subject to variation
from the exact amount ordered, up to five (5%) percent plus or minus.
Seller shall notify Buyer that the Products are ready for dispatch or,
where applicable, the date on which the Products will be available for
delivery, and Buyer shall accept immediate delivery, arrange to collect
the Products, or arrange suitable storage, as the case may be, and upon
Buyer’s failure to make such arrangements, Seller may, in its absolute
discretion, but without obligation so to do: either (a) effect delivery
by whatever means it thinks most appropriate, or arrange storage and
insurance at the Buyer's risk and expense, including demurrage charges,
pending delivery; or (b) at any time resell or otherwise dispose of the
Products without prejudice to any other rights the Seller
may have against the Buyer for breach of contract or otherwise. Where
the Agreement provides for delivery by installments, each installment
shall constitute a separate contract and any failure or defect in any
one or more installment delivered shall not entitle Buyer to repudiate
the agreement nor to cancel any subsequent installments. Postponement of
any shipment at the Buyer's request, if granted by the Seller, shall
require payment by the Buyer to the Seller of all storage and interest
charges and all other costs to the Seller occasioned by the said
postponement including without limitation the cost of the Seller having
purchased any Products for such postponed shipment.
Excused Performance.
The Seller will be excused from its obligations hereunder if performance
is prevented or delayed by any acts of God, fire, explosion, flood,
earthquakes, weather, riots, civil disturbances, invasions, hostilities,
revolutions, insurrections, epidemics, wars, acts of terrorism, actions
of governments (including, but not limited to,
reductions in trade quotas and/or increases/decreases in tariffs)
voluntary or involuntary compliance with any Law or request of any
governmental authority, any detention or rejection of the Products by an
agency of the United States or of any state, strikes, lockouts, or other
labor difficulties, failure of usual sources of Products, mechanical or
electronic failure, plant shutdowns, any necessity not to operate or to
reduce operations, or any circumstances beyond the reasonable control of
the Seller. The Seller shall, if practicable, give to the Buyer
reasonable notice of any such cause and shall resume performance of its
obligations as soon as the cause ceases to affect the performance of its
obligations.
Title and Risk
of Loss. Title shall pass from Seller to
Buyer upon delivery. Delivery and risk of loss, shall be determined by
the Incoterms agreed to, in writing, by the parties; provided,
however, that if the Products are Non-Conforming Products as defined
herein, title to and risk of loss of such Non-Conforming Products shall
remain at all times with Seller unless Buyer agrees in writing to accept
such Non-Conforming Products. If a shipment is not accompanied by a bill
of lading, packing slip or similar delivery document, then Buyer’s count
and/or weight will be conclusive. Notwithstanding the foregoing, if
Buyer requests postponement of delivery, risk shall pass to the Buyer at
the time of such request. Ownership of the Products will pass to the
Buyer only when payment in full for all Products to be delivered by the
Seller to the Buyer under this Agreement, including any interest or
other expenses payable in accordance herewith, has been received by the
Seller.
Non-Conforming Products.
“Non-Conforming Products” shall mean any Products that are defective,
damaged, or fail to conform to (i) the requirements of these Terms and
Conditions (ii) the requirements of any applicable Purchase Order, (iii)
the specifications supplied by Buyer to Seller, provided, however, that
any such deviation from the specifications exceed the tolerances
permitted within the Code of Federal Regulations, (iv) Seller’s
representations regarding product specifications, quality, and/or
quantity, and/or (v) applicable industry or legal fitness and safety
standards including, but not limited to, any relevant standards set
forth in the US Code of Federal regulations.
Termination; Default.
Seller reserves the right to terminate this order or any part hereof at
any time (a) for its convenience, in which case Seller will pay Buyer's
costs properly allocable to the termination and Buyer shall accept
delivery of Product delivered by Seller prior to termination; and (b)
for cause in the event of any default by Buyer in which case Buyer shall
be liable to Seller for any and all damages sustained by reason of such
default. Breach of any warranty contained herein, or failure to comply
with any other term or condition hereof including, without limitation,
failure to pay for Products within the time specified, shall constitute
a default. Time is of the essence in connection with payments
hereunder.
NO IMPLIED WARRANTIES.
Seller warrants, at the time of delivery, only that:
(i) Products, if delivered by Seller in the United States are not
adulterated or misbranded within the meaning of the Federal Food, Drug
and Cosmetic Act of June 25, 1938, as amended, or the Fair Packaging and
Labeling Act of 1966, as amended, or within the meaning of any state
food and drug law substantially similar to those federal acts
(collectively, the “Acts”), and that the Products are not articles which
may not, under the provisions of Section 404 or 505 of the Federal Food,
Drug and Cosmetic Act of June 25, 1938, be introduced into interstate
commerce; and (ii) Seller will deliver good title to the Products and
the Products shall be delivered free of liens and encumbrances. Buyer,
having the expertise and knowledge in the intended use of the Products
and any use of other products made therefrom, assumes all risk and
liability for results obtained by the use of the Products, whether used
singly or in combination with other ingredients or in any process.
Except as set forth in this Section, Seller specifically disclaims all
other warranties, whether express or implied, whether arising by
operation of law or otherwise, including, without limitation, any
warranties of fitness of the product for a particular purpose, quality,
description, and/or merchantability. Any determination of the
suitability of the product for the use contemplated by Buyer is Buyer’s
sole responsibility.
Inspection and Acceptance of Product.
Immediately upon receipt of the Products, Buyer shall, at its sole cost
and expense, inspect the Products to ensure that it has received all
quantities and the quality ordered. No later than three (3) days after
Buyer’s receipt of Products and before the use, disposition, processing,
or any other change from the original condition of any part of the
Products, Buyer shall notify Seller in writing if any Product is found
to be deficient, defective or short and shall furnish such written
evidence and other documentation as Seller may reasonably request.
Buyer’s failure to give timely, written notice to Seller of any
deficiency, defect or shortage within such three (3) day period shall
constitute an unqualified acceptance of the Product and a waiver by
Buyer of all claims with respect thereto. Buyer shall make the Products
available for inspection by the Seller and an independent inspector to
verify any claim of damage, defect, or shortage, and shall keep the
Products in a protective environment to prevent or retard any possible
deterioration. Unless authorized to do so by Seller, Buyer shall not
use, process, or resell the Products until such inspection is completed.
Buyer's failure to comply with the foregoing shall constitute an
absolute waiver by the Buyer of any and all claims against the Seller
with respect to said Products
LIMITATIONS OF SELLER'S LIABILITY.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL
SELLER BE LIABLE FOR ANY LOST OR ANTICIAPTED PROFITS, INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES,
INCLUDING, WITHOUT LIMITATION, LOST EARNINGS, LOST PROFITS OR UPON
SELLER’S NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY, IN TORT OR
ANY OTHER CAUSE OF ACTION. Buyer’s exclusive remedy
against Seller for any cause of action under these terms and conditions,
including for failure to deliver, is, at Seller’s option, either: (i)
replacement of the Products; or (ii) refund of the amount paid to seller
for the Products. IN NO EVENT SHALL SELLER’S CUMULATIVE LIABILITY
EXCEED THE AMOUNT PAID BY BUYER TO SELLER FOR THE PRODUCTS. BUYER AGREES
THE BUYER’S REMEDY IN (i) OR (ii) IS FAIR AND ADEQUATE.
Compliance with Laws and Regulations.
The parties represent and warrant that they have complied, and will
continue during the performance of this order to comply, with the
applicable provisions of federal, state, and local laws and regulations
from which liability may accrue, including, but not limited to, Federal
Food, Drug and Cosmetic Act of June 25, 1938, as amended (the “FFDCA”),
including the Food Additives Amendment of 1958 and the Food Allergen
Labeling and Consumer Protection Act of 2004; the Federal Insecticide,
Fungicide, and Rodenticide Act; the Fair Packaging and Labeling Act; the
Poison Prevention Packaging Act of 1970; the HACCP food safety systems
requirements of the USDA/FSIS; the provisions of the Public Health
Security and Bioterrorism Preparedness and Response Act of 2002; the
registration requirements of the Food Safety Modernization Act (FSMA);
the country-of-origin labeling provisions of the Farm Security and Rural
Investment Act of 2002 as amended, for any violations thereof.
Indemnification.
Buyer assumes full responsibility for and agrees to indemnify, defend,
and hold harmless Seller, its affiliates, shareholders, officers,
directors, members, managers, employees, representatives and agents from
and against all claims, losses, damages, costs, and expenses, including,
without limitation, reasonable attorneys’ fees, caused by, arising out
of, or in any way resulting from Buyer's activities in connection with
this order, including, but not limited to (a) any act or omission of
Buyer, its agents, employees, or subcontractors and (b) any breach of
any representation, warranty or covenant of Buyer contained in this
order or incorporated here by law.
No Waiver.
Seller's failure at any time to insist upon strict performance of any
provision of this Agreement or to take advantage of any right hereunder,
shall not be construed as a waiver of such performance or right.
Applicable Law; Consent to Jurisdiction
and Venue. The contract of sale arising
out of the acceptance of this Agreement shall be governed by, and
construed and interpreted in accordance with, the internal law,
including, but not limited to, the Uniform Commercial Code of the State
of New Jersey. Buyer hereby consents to exclusive jurisdiction in the
state and federal courts in the State of New Jersey and to venue where
Seller's offices are located with respect to all disputes concerning the
subject matter of this Order Acknowledgement. Notwithstanding the
foregoing, this Purchase Order and all arrangements between Seller and
Buyer shall also be governed by the Incoterms rules, as amended.
Waiver of Jury Trial. SELLER AND BUYER
IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY OF ANY CAUSE
OF ACTION, CLAIM, COUNTERCLAIM OR CROSS-COMPLAINT IN ANY ACTION OR OTHER
PROCEEDING BROUGHT BY THE OTHER WITH RESPECT TO ANY MATTER ARISING OUT
OF, OR IN ANY WAY CONNECTED WITH OR RELATED TO ANY ORDER OR ANY PORTION
OF ANY AGREEMENT WHICH IS RELATED TO ANY ORDER, WHETHER BASED UPON
CONTRACTUAL, STATUTORY, TORTIOUS OR OTHER THEORIES OF LIABILITY.
Insurance.
Buyer agrees to keep in full force for a period of at least two (2)
years from the date of this order, General Liability Insurance,
Insurance, including Products Liability, Completed Operations Liability,
and Contractual Liability covering Buyer's indemnification obligations
under this order, with limits of at least $500,000 each person and
$1,000,000 each occurrence for bodily injury, and $500,000 each
occurrence for property damage, and Workmen's Compensation and
Employer's Liability Insurance with limits as required by applicable
state laws.
No Third Party Beneficiaries.
Nothing in this order is to be construed as creating a contract for the
benefit of third parties.
Construction.
Any term or provision of these conditions which is
found to be contrary to the governing or otherwise applicable law shall
not invalidate any other terms or provision hereof and any term or
provision required to be included in a contract of sale of this type by
the governing or otherwise applicable law shall be deemed to be
incorporated herein.
Counterparts: Facsimile.
This Agreement and any amendments hereto may be executed in any number
of counterparts, all of which together shall constitute a single,
original instrument. Facsimile signatures shall be deemed to be
originals.
Rev. 8/22/2019
The following terms and conditions apply to
all goods and materials ordered under this Purchase Order except to the
extent expressly set forth by MCT Manufacturing LLC d/b/a Bella Pak LLC.
(“Buyer”) on the face of the Purchase Order. Moreover, these terms
and conditions shall apply to any and all transactions between the
Seller and Buyer unless modified by a written document duly executed by
an authorized agent of Buyer.
Application of Terms and Conditions.
Shipment of any part of the goods or services ordered
under this Purchase Order (the “Products”) by the supplier or vendor
(“Seller”) whether or not in conformity herewith, constitutes an
acceptance of this Purchase Order and of all terms and conditions
hereof. Any additional or different terms or conditions submitted
by Seller are hereby objected to by Buyer and shall not be binding upon
Buyer unless expressly agreed to in writing by Buyer. If Seller
objects to any of these terms and conditions, said objection must be
brought to the attention of Buyer by Seller in a written instrument
separate from any sales order or printed form of Seller. Said
objections shall be deemed proposals for different terms and conditions
and may be accepted only in writing by an authorized representative of
Buyer. No disclaimer or limitation of warranty is acceptable.
Confirmation by Seller.
Seller must confirm Buyer’s order within three (3)
business days after the date shown hereon or the offer to purchase the
Products shall, in Buyer’s sole discretion and upon written notice by
Buyer, expire.
Changes. Buyer
shall have the right at any time to make changes in specifications,
packaging, time and place of delivery, and method of transportation. If
any such changes cause an increase or decrease in the cost or the time
required for performance of the Purchase Order, an equitable adjustment
will be made, and the applicable Purchase Order shall be modified in
writing accordingly. Seller agrees to accept any such change to a
Purchase Order or decline such changes in writing within five (5) days
of receipt of such request.
Complete Price.
Prices shown on this Purchase Order are complete and no
additional charges of any type such as, but not limited to, shipping,
packaging, labeling, taxes, storage, or insurance, shall be added
without Buyer’s express written consent.
Setoff.
Buyer shall have the right to deduct or set-off amounts owed by Seller
or any of Seller’s affiliates to Buyer against amounts payable under any
Purchase Order.
Delivery; Risk of Loss; Late Delivery.
All shipments of the Products ordered hereunder shall be delivered in
accordance with Buyer’s written instructions. The delivery location, and
risk of loss, shall be determined by the Incoterms agreed to, in
writing, by the parties; provided, however, that if the
Products are Non-Conforming Products as defined herein, title to and
risk of loss of such Non-Conforming Products shall remain at all times
with Seller unless Buyer agrees in writing to accept such Non-Conforming
Products. If a shipment is not accompanied by an accurate bill of
lading, packing slip or similar delivery document, then Buyer’s count
and/or weight will be conclusive. Seller shall deliver the Products in
the quantities, on the dates, and to the places specified in the
applicable Purchase Order and all Products shall be properly packed,
sealed and secured in such a manner as to reach their destination in
good and marketable condition. Time shall be of the essence. If the
Products are not adequately delivered on the due date, in addition to
its other rights and remedies, Buyer may (i) terminate the Purchase
Order in whole or in part without liability by notice effective when
received by Seller as to Products not delivered, (ii) refuse to accept
any subsequent delivery of the Products which Seller attempts to make,
(iii) recover from Seller any expenditure reasonably incurred by Buyer
in obtaining the Products in substitution from another provider, or (iv)
claim damages for any additional costs, losses or expenses incurred by
Buyer which are in any way attributable to Seller’s failure to
adequately deliver the Products on the due date.
Non-Conforming Products.
“Non-Conforming Products” shall mean any Products that are defective,
damaged, or fail to conform to (i) the requirements of these Terms and
Conditions (ii) the requirements of any applicable Purchase Order, (iii)
the specifications supplied by Buyer to Seller, (iv) Seller’s
representations regarding product specifications, quality, and/or
quantity, and/or (v) applicable industry or legal fitness and safety
standards including, but not limited to, any relevant standards set
forth in the US Code of Federal regulations.
Title. Title
shall pass from Seller to Buyer upon delivery. Delivery shall be
determined by the Incoterms agreed to, in writing, by the parties.
Seller represents and warrants to Buyer that the title conveyed on all
Products produced pursuant to any Purchase Order will be good and
marketable, its transfer rightful, and the Products will be delivered
free from any security interest or other lien or encumbrance (including
any statutory or common law lien).
Warranty.
Seller expressly warrants and represents to Buyer, its successors,
assigns, customers, and users of Buyer’s products, that all Products
furnished under any Purchase Order shall (i) conform in all respects to
all samples, specifications and appropriate standards, (ii) meet all
performance specifications or guarantees provided in writing to Buyer,
(iii) be new, and free from defects in materials or workmanship, (iv)
conform to any statements made on the containers, labels, and/or
advertisements, (v) be properly contained, packaged, marked, and
labeled, (vi) not infringe or misappropriate any patents, copyrights,
trademarks, trade names, trade secrets or other intellectual property
rights, and (vii) be merchantable, safe and appropriate for the
purpose(s) for which Products of that kind are normally used. In
addition, if Seller knows or has reason to know the particular purpose
for which Buyer intends to use the Products, Seller warrants that such
Products will be fit for such particular purpose. Inspection, test,
acceptance or use of the Products furnished under any Purchase Order
shall not affect Seller’s obligation under this warranty, and all
warranties shall survive inspection, test, acceptance and use.
Inspection; Rejection; Revocation of
Acceptance. Buyer, or Buyer’s
designated agent, shall have a reasonable time after delivery, but not
less than thirty (30) days to inspect the Products delivered.
Buyer may reject (or revoke acceptance of) any or all of the Products
which fail to strictly conform to specifications, or are otherwise
defective, and may return the same to Seller without notice. All
transportation, handling, railroad demurrage, insurance, and storage
expenses in connection with such return shall be the sole responsibility
of Seller.
Buyer’s Remedies.
Each of Buyer’s rights and remedies specified in this
Purchase Order shall be cumulative and additional to any other or
further remedies provided in law or equity.
Termination; Default.
Buyer reserves the right to terminate this order, or
any part hereof, at any time (a) for its sole convenience, in which case
Buyer will pay Seller’s costs properly allocable to the termination and
accept delivery of Product purchased or produced by Seller prior to
termination or, at Buyer’s sole option, pay Seller’s reasonable profit
anticipated thereon; and (b) for cause in the event of any default by
Seller in which case Seller shall be liable to Buyer for any and all
damages sustained by reason of such default. Breach of any
warranty contained herein, or failure to comply with any other term or
condition hereof including, without limitation, failure to deliver
Products within the time specified shall constitute a default.
Time is of the essence in connection with this Purchase Order.
LIMITATIONS OF BUYER’S LIABILITY.
IN NO EVENT SHALL BUYER BE LIABLE FOR ANTICIPATED PROFITS OR FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES. BUYER SHALL NOT BE LIABLE FOR
PENALTIES OF ANY DESCRIPTION.
Compliance with Laws and Regulations.
Seller represents and warrants to Buyer that it has
complied, and will continue during the performance of this order to
comply, with the applicable provisions of federal, state, and local laws
and regulations from which liability may accrue to Buyer, including, but
not limited to, Federal Food, Drug and Cosmetic Act of June 25, 1938, as
amended (the “FFDCA”), including the Food Additives Amendment of 1958
and the Food Allergen Labeling and Consumer Protection Act of 2004; the
Federal Insecticide, Fungicide, and Rodenticide Act; the Fair Packaging
and Labeling Act; the Poison Prevention Packaging Act of 1970,
(collectively, and as applicable, the “Acts”); the HACCP food safety
systems requirements of the USDA/FSIS; the provisions of the Public
Health Security and Bioterrorism Preparedness and Response Act of 2002;
the registration requirements of the Food Safety Modernization Act
(FSMA); the country-of-origin labeling provisions of the Farm Security
and Rural Investment Act of 2002 as amended, for any violations thereof.
Force Majeure.
Neither party shall be liable to the other for its failure to comply
with the terms of a Purchase Order if such failure shall have been
caused by any unforeseeable incident beyond the control of the
non-performing party, including but not limited to fire, labor dispute,
strike, war, insurrection, governmental restriction, governmental act
(including, but not limited to, reductions in trade quotas and/or
increases/decreases in tariffs), or act of God, provided that it shall
be the responsibility of each party to take all reasonable measures to
eliminate such cause and recommence performance as quickly as possible;
and further provided, it shall be the obligation of the party claiming a
force majeure event for excuse of non-performance to notify the other
party in writing as soon as practicable. In the event Seller claims
inability to perform due to an act of force majeure, Buyer shall have
the right to secure an alternate source of supply and Buyer shall
reimburse Buyer for any additional reasonable expense incurred by Buyer.
Notwithstanding the foregoing, if the inability of Seller to perform
continues for a period greater than thirty (30) days from written notice
to Buyer, Buyer shall have the option of terminating the Purchase Order
immediately without any liability for Products not yet shipped or
Services not yet performed. Whenever Seller has knowledge of any
occurrence (or potential occurrence) which may delay, stop or in any way
disrupt production or shipment of the Goods and/or Services under a
Purchase Order, Seller shall promptly notify Buyer of said occurrence or
potential occurrence.
Indemnification.
Seller assumes full responsibility for and agrees to
indemnify, defend, and hold Buyer harmless from and against all claims,
losses, damages, costs, and expenses, including legal fees, caused by,
arising out of, or in any way resulting from Seller’s activities in
connection with this order, including, but not limited to (a) patent,
trademark, or copyright infringement; (b) violation of any business or
trade secret of any third party; (c) violation of any federal, state, or
local law; (d) any defect in the Products; (e) any act or omission of
Seller, its agents, employees, or subcontractors; (f) any illness or
death resulting from the consumption of Seller’s Products; and (g) any
breach of any warranty or covenant of Seller contained in this order or
incorporated herein by law.
Warranties.
Seller warrants that the Products delivered to Buyer
under this Purchase Order are in perfect condition, are in strict
accordance with the specifications shown or referred to on this Purchase
Order, or with any samples furnished by Seller, and are merchantable and
fit for the use intended or stated by Buyer to Seller. Seller
warrants that as of the date of their delivery, the Products are not
adulterated or misbranded within the meaning if the Federal Food, Drug
and Cosmetic Act, as amended, or within the meaning of any state food
and drug law, and that such Products are not articles which may not,
under the provisions of sections 404 and 405 of the Federal Food, Drug
and Cosmetic Act, be introduced into interstate commerce.
Contingencies Beyond Buyer’s Control.
Buyer reserves the right to suspend shipments or
deliveries in the event Buyer is unable to accept delivery because of
contingencies beyond Buyer’s reasonable control.
No Waiver.
Buyer’s failure at any time to insist upon strict
performance of any provision of this Purchase Order, or to take
advantage of any right hereunder, shall not be construed as a waiver of
such performance or right.
Applicable Law; Consent to Jurisdiction
and Venue. The contract of sale
arising out of the acceptance of this Purchase Order shall be governed
by, and construed and interpreted in accordance with, the internal law,
including, but not limited to, the Uniform Commercial Code of the State
of New Jersey. Seller hereby consents to the exclusive
jurisdiction in the state and federal courts in the State of New Jersey
and to venue where Buyer’s offices are located with respect to all
disputes concerning the subject matter of this Purchase Order.
Notwithstanding the foregoing, this Purchase Order and all arrangements
between Seller and Buyer shall also be governed by the Incoterms rules,
as amended.
Waiver of Jury Trial. SELLER AND
BUYER IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY OF ANY
CAUSE OF ACTION, CLAIM, COUNTERCLAIM OR CROSS-COMPLAINT IN ANY ACTION OR
OTHER PROCEEDING BROUGHT BY THE OTHER WITH RESPECT TO ANY MATTER ARISING
OUT OF, OR IN ANY WAY CONNECTED WITH OR RELATED TO ANY ORDER OR ANY
PORTION OF ANY AGREEMENT WHICH IS RELATED TO ANY ORDER, WHETHER BASED
UPON CONTRACTUAL, STATUTORY, TORTIOUS OR OTHER THEORIES OF LIABILITY.
Attorneys’ Fees and Costs.
In the event that any action is initiated by Buyer under this Agreement
to enforce or interpret any of the terms hereof, Seller Buyer
shall be entitled to be paid all court costs and expenses, including
reasonable attorneys’ fees, incurred by Buyer with respect to such
action, unless as a part of such action, the court of competent
jurisdiction determines that each of the material assertions made by
Buyer as a basis for such action were not made in good faith or were
frivolous. In the event of an action instituted by or in the name of the
Seller under this Agreement or to enforce or interpret any of the terms
of this Agreement, Buyer shall be entitled to be paid all court costs
and expenses, including attorneys’ fees, incurred by Buyer in defense of
such action (including with respect to Buyer’s counterclaims and
cross-claims made in such action), unless as a part of such action the
court determines that each of Buyer’s material defenses to such action
were made in bad faith or were frivolous.
Insurance.
Seller agrees to keep in full force for a period of at
least two (2) years from the date of this order, General Liability
Insurance, including Products Liability, Completed Operations Liability,
and Contractual Liability covering Seller’s indemnification obligations
under this order, with limits of at least $1,000,000 each person and
$2,000,000 each occurrence for bodily injury, and $1,000,000 each
occurrence for property damage, and Workmen’s Compensation and
Employer’s Liability Insurance with limits as required by applicable
state laws.
No Third Party Beneficiaries.
Nothing in this order is to be construed as creating a
contract for the benefit of third parties.
Construction.
Any term or provision of these conditions which is
found to be contrary to the governing or otherwise applicable law shall
not invalidate any other terms or provision hereof and any term or
provision required to be included in a contract of sale of this type by
the governing or otherwise applicable law shall be deemed to be
incorporated herein.
NOTICE: IF NO WRITTEN OBJECTION
TO THESE TERMS AND CONDITIONS IS RECEIVED BEFORE SELLER TAKES ANY ACTION
TO PERFORM UNDER THIS ORDER ACKNOWLEDGEMENT, THEN THE TERMS AND
CONDITIONS SHALL BE DEEMED ACCEPTED.
Counterparts: Facsimile.
This Agreement and any amendments hereto may be executed in any number
of counterparts, all of which together shall constitute a single,
original instrument. Facsimile signatures shall be deemed to be
originals.