These terms and conditions of sale (these “Terms”) govern the sale of any products (“Goods”) and any related services (“Services”) furnished Protective Lining Inc. and its divisions and subsidiaries (the “Seller”) to any person or entity whose order for Goods is accepted by Seller (“Buyer”).
These Terms and the order or other contract documents to which they are attached, or as provided by Seller in connection herewith, constitute the entire agreement between the parties with respect to Goods and Services (collectively, the “Agreement”) and supersedes all prior and contemporaneous understandings, agreements, negotiations, representations, warranties, and communications, whether oral or written.
All references by Seller to Buyer’s specifications and similar requirements are only to describe the Goods and Services covered hereby and no warranties or other terms will have any force or effect.
Neither this Agreement, nor any modification, amendment, or waiver to it, nor any cancellation, change, or return of any order under it, will be binding on Seller until agreed in writing by Seller’s authorized representative.
No representation, promise, or term not set forth herein has been or may be relied upon by Buyer, and any terms not contained in this Agreement are expressly objected to and rejected.
Acceptance of orders, whether oral or written, and/or delivery by Buyer is based on the express condition that Buyer agrees to these Terms.
This Agreement shall govern and control all Services and Goods provided by Seller to Buyer, now or in the future, regardless of whether performed pursuant to written orders issued by Buyer, written agreement(s) executed by the parties, and/or verbal request(s) or order(s) issued by Buyer, and shall remain in effect until either party provides the other with sixty (60) days advance written notice of termination.
The terms “Goods” or “Services”, whether used together or separately, and wherever appearing herein shall both mean:
All prices are EXW (Ex-Works) (Incoterms 2020), unless otherwise specified by Seller in writing.
All shipping dates are approximate, and any time period indicated for a shipment will not commence until receipt at Seller’s plant of complete manufacturing, shipping, and credit information.
Acceptance of shipment by designated shipper, allocation of Goods to Buyer at premises other than Seller’s, delivery to Buyer’s representative or designee or mailing of an invoice to Buyer, whichever first occurs, will constitute tender of delivery and title will pass to Buyer, subject to Seller’s right of stoppage in transit and to any interest of Seller reserved to secure Buyer’s payment or performance, irrespective of any freight allowance or prepayment of freight.
In the case of Goods held subject to Buyer’s instructions, Goods for which Buyer has failed to supply shipping instructions, or in any case where Seller, in its sole discretion, determines that any part of the Goods should be held for Buyer’s account, Seller may invoice for the Goods and Buyer agrees to make payment at the maturity of the invoice rendered.
Goods invoiced and held at any location for whatever reason will be at Buyer’s risk and Seller may charge for (but is not obligated to carry) insurance, storage and other expenses incident to such delay at their prevailing rates.
Partial deliveries shall be accepted by Buyer and paid for in accordance with the terms hereof. Delay in partial shipments does not relieve Buyer of obligations to accept and pay for the remainder of ordered Goods.
When Buyer has declared or manifested an intention not to accept delivery, no tender shall be necessary but Seller may, at its option, give notice in writing to Buyer that Seller is ready and willing to deliver and such notice shall constitute a valid tender of delivery.
Risk of loss shall pass to Buyer in accordance with the applicable Incoterm, and title shall pass to Buyer upon delivery.
Buyer must inspect all shipments of Goods upon receipt and Services upon completion thereof.
Buyer must report any shortages, visual defects, non-conformities, or damages in writing within five (5) days of receipt of such Goods or completion of such Services.
Seller shall be entitled to verify the same after written notification of the claim.
The right to perform such inspections shall not be construed as a reservation by Buyer of the right to control Seller’s work.
Buyer may not make any deduction from any payment due hereunder by reason of loss or damage to Goods in transit.
Upon Buyer’s written request, Seller, in its sole discretion, may agree as a service to Buyer to process Buyer’s claim against the carrier for any loss or damage in transit, provided that Seller receives such claim within five (5) days of the delivery of the Goods.
Any such claims must be accompanied by a delivery receipt, signed by carrier’s agent at time of delivery, on which receipt the loss or damage has been noted, or such claims will be waived.
Buyer is responsible for fees associated with not taking timely delivery of the Goods, such as, but not limited to, storage fees.
Terms of payment are stated on Seller’s order or invoice document.
Unless otherwise expressly stated in the Seller’s order or invoice document, all accounts are payable in U.S. currency thirty (30) days from the date of Seller’s invoice.
Seller may make partial shipments, and payment for such portion shall be due as provided on Seller’s order or invoice document based on time of shipment.
If, at any time or for any reason, Seller has cause to question Buyer’s ability to perform, Seller may demand such assurances of Buyer’s performance as Seller deems necessary in its discretion, including payment in advance for all shipments.
If Buyer fails within ten (10) days of Seller’s demand to provide Seller with such assurance, Seller may suspend its performance, cancel any order then outstanding, receive reimbursement for its reasonable and proper cancellation charges and collect, without limitation, any sums due and owing, its reasonable cancellation charges and all damages resulting from Buyer’s default.
In the event of Buyer’s bankruptcy or insolvency, or in the event of any proceeding brought against Buyer, voluntarily or involuntarily, under bankruptcy or any insolvency laws, Seller may cancel any order then outstanding at any time and receive reimbursement for its reasonable and proper cancellation charges.
If Buyer fails to make payment for Goods when due, Buyer’s account will be deemed delinquent, and Buyer will be liable to Seller for a service charge of eight percent (8%) per annum, from the date on which it is due until it is paid, on any unpaid amount.
In addition to the foregoing, Seller may also suspend its performance, cancel any order then outstanding, receive reimbursement for its reasonable and proper cancellation charges and collect, without limitation, any sums due and owing, its reasonable cancellation charges and all damages resulting from Buyer’s default.
Buyer will be liable to Seller for all costs and expenses of collection, including court costs and reasonable attorneys’ fees.
Seller reserves the right to require advance payment or modify payment terms based on Buyer’s credit history.
Buyer agrees to indemnify, defend, and hold harmless Seller and its subsidiaries, affiliates, partners, members, managers, officers, directors, shareholders, beneficiaries, representatives, successors, assigns, agents, and employees from and against any and all claims, demands, costs, penalties, and fines (including reasonable attorneys’ fees) arising in connection with any breach or alleged breach of this Agreement by Buyer or any of its officers, directors, employees, agents, contractors, designees, and/or any other party acting on its behalf.
Buyer shall notify Seller immediately of any third party claim made against Buyer alleging that any of the Goods infringe or misappropriate any U.S. patent, copyright, trademark, trade secret, or other intellectual property right of such third party (“Intellectual Property Rights”).
Seller may, with Buyer’s assistance, if required, but at Seller’s expense, conduct settlement negotiations or the defense of any litigation.
Provided that Buyer has given Seller the immediate notice required above, has used the Goods only in accordance with the provisions of this Agreement, and has not altered or changed the Goods in any material way, if any of the Goods are held to infringe or misappropriate any Intellectual Property Rights and their use is enjoined or, if as a result of a settlement, Seller deems their continued use unadvisable, Seller will, at its option and expense:
The foregoing states Seller’s entire liability for infringement or misappropriation of any Intellectual Property Rights.
Seller warrants that the Goods and Services will be of the kind described in the accepted order or invoice document and free from defects in workmanship under conditions of normal use for:
Each is a “Warranty Period.”
However, Seller will not be liable or responsible for, and the foregoing warranties shall not apply to:
If the second condition above is applicable, Seller will, as an accommodation to Buyer, assign to Buyer any warranties given to it by any such other manufacturers.
The foregoing will not extend Seller’s warranty to any accessory products unless otherwise agreed to in writing by an authorized representative of Seller.
All warranties provided herein are void if the Goods are modified or used in conjunction with products or accessories not manufactured or approved by Seller or which are incompatible with the Goods.
Any warranty claim by Buyer with reference to the Goods or Services will be deemed waived by Buyer unless submitted to Seller within the applicable Warranty Period.
Seller shall have an opportunity to investigate any warranty claims by Buyer.
Provided that Seller is furnished prompt notice by Buyer of any defect and an opportunity to inspect the alleged defect as provided herein, Seller will, at its option and in its sole discretion, either:
In no event will any obligation to pay or refund exceed the purchase price actually paid by Buyer for such non-conforming Goods or Services.
Repair and/or replacement of Goods as provided above will be shipped EXW (Ex-Works) (Incoterms 2020) unless otherwise agreed in writing by Seller.
Buyer will prepay all transportation charges for the return of the Goods or part thereof to Seller, unless otherwise agreed in writing by Seller.
Seller will not be responsible for any labor, removal, or installation charges that may result from the above-described repair and/or replacement of any Goods or Services.
For the avoidance of doubt, the foregoing warranty does not cover failure of any part or parts manufactured by others, failure of any part or parts from external forces, including without limitation corrosive soils, earthquake, installation, vandalism, vehicular or other impact, application of excessive torque to the operating mechanism, or other Force Majeure (as defined herein).
Buyer’s exclusive remedy and Seller’s sole liability for any loss, damage, injury, or expense of any kind arising from the fabrication, delivery, sale, use, or shipment of the Goods and Services and whether based on contract, warranty, tort, or any other basis of recovery whatsoever, will be, at Seller’s election, the remedies described above.
THE WARRANTIES SET FORTH ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED BY LAW OR STATUTE OR ARISING FROM TRADE USAGE OR COURSE OF DEALING.
THERE IS NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR STRICT LIABILITY, WILL SELLER BE LIABLE FOR ANY PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFIT, LOSS OF USE, LOST PRODUCTION, DAMAGE TO OTHER PROPERTY, COST OF CAPITAL, COST OF SUBSTITUTE GOODS OR SERVICES, DOWNTIME, OR THE CLAIMS OF BUYER’S CUSTOMERS FOR ANY OF THE AFORESAID DAMAGES.
SELLER WILL NOT BE LIABLE AND BUYER AGREES TO INDEMNIFY SELLER FOR ALL PERSONAL INJURY, PROPERTY DAMAGE OR OTHER LIABILITY RESULTING IN WHOLE OR IN PART FROM BUYER’S NEGLIGENCE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, SELLER’S LIABILITY IN CONNECTION WITH THIS AGREEMENT OR ANYTHING DONE IN CONNECTION HEREWITH, SUCH AS THE PERFORMANCE OR BREACH HEREOF, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL IN NO EVENT EXCEED THE AMOUNTS PAID AND PAYABLE BY BUYER WITHIN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Orders placed by Buyer may be changed, deferred, or canceled only upon specific agreement in writing by Seller, and Seller may condition such agreement upon Buyer’s assumption of liability and payment to Seller for:
In the event of a proper cancellation, change, or return request from Buyer under this Agreement, Seller may, at its option:
The credit will be, in Seller’s sole discretion, either the invoice price less a percentage to be determined by the Seller or the scrap value of the Goods, along with shipping and handling charges to be determined by Seller.
Buyer shall ship, at its expense and risk of loss, the returned Goods to Seller.
All returned Goods must be securely packed by Buyer to ensure that the returned material is not damaged during shipment.
All non-public, confidential or proprietary information disclosed by the disclosing party (the “Disclosing Party”) to the receiving party (the “Receiving Party”), including without limitation, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, financial status, pricing, and marketing (“Confidential Information”), 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 this Agreement, is confidential and shall not be disclosed by the Receiving Party to any third party or be used for any purpose other than the performance of this Agreement.
Confidential Information does not include information that:
Buyer shall not assign this Agreement or any part hereof without the prior written consent of Seller.
In the event that such consent is given, it shall not relieve Buyer from any of its obligations under this Agreement.
Any assignee of Buyer shall be considered an agent of Buyer and, as between the parties hereto, Buyer shall be and remain liable as if no such assignment or transfer had been made.
Buyer may freely assign this Agreement without the prior written consent of Seller.
Any attempted assignment, subcontract, or delegation in violation of this Section is void; however, this Agreement is enforceable against Seller’s successors and permitted assigns.
Buyer represents and warrants, in connection with the transactions contemplated by this Agreement, and any other agreement contemplated by or entered into pursuant to this Agreement, that Buyer will comply with all governmental laws, regulations, and orders that may be applicable to Buyer, including without limitation all laws and regulations regarding export controls, economic sanctions and trade embargoes, anti-boycott restrictions, anti-money laundering laws, and anti-corruption laws.
Buyer shall comply with all applicable equal opportunity requirements.
Seller may terminate this Agreement in its entirety, without liability to Buyer, if Seller believes in good faith that Buyer has violated or intends to violate this paragraph.
Seller’s prices do not include sales, use, excise, or other similar taxes.
Consequently, in addition to the price specified on the applicable order or invoice document, Buyer will pay the amount of any present or future such tax, unless Buyer, at the time of sale, provides Seller with all tax-exemption certificates required by taxing authorities.
This Agreement shall be governed by the laws of the State of New York.
Seller hereby submits to the jurisdiction of the federal and state courts of New York, and agrees that any claim, suit or action arising hereunder shall be tried in the State of New York.
Any failure by Seller to enforce any of the terms or conditions of this Agreement shall not constitute a waiver by Seller and shall not affect or impair such terms or conditions in any way, or the right of Seller at any time to avail itself of such remedies for any breach of such terms or conditions.
If Seller exercises its right to avail itself of any remedy for a breach, Buyer will remain liable to Seller for any and all costs and attorneys’ fees associated with seeking and recovering such relief.
Seller’s approval or consent to any action proposed by Buyer shall not be considered agreement to the proprietary, fitness, or usefulness of the proposed action, and shall not affect Buyer’s obligation to strictly comply with this Agreement.
This Agreement, together with any other specifications of Seller, constitutes the entire agreement between parties with respect to the Goods and Services.
No representation, promise or term not set forth herein has been nor may be relied upon by Buyer.
No other terms or conditions, and no agreement or understanding in any way modifying or amending the terms and conditions herein stated, shall be binding upon Seller unless made in writing and signed by an authorized representative of Seller.
If any provision or part of a provision in this Agreement is held by a court of competent jurisdiction to be contrary to law or public policy, the remaining provisions of the Agreement will remain in full force and effect.
Any notice, request, demand, or other communication from one party to the other required or permitted to be given under this Agreement will be sent to the address for each party indicated on the applicable order or invoice document and:
All notices will be effective on the date of receipt.
Parties may change such notice addresses upon written notice to the other party.
Seller will not be liable for any expense, loss or damage resulting from delay in delivery or prevention of performance caused by any event beyond Seller’s reasonable control (“Force Majeure”), including without limitation:
Seller will have such additional time for performance as may be reasonably necessary under the circumstances and may adjust the price to reflect increases occasioned by Force Majeure.
Buyer’s acceptance of any Goods or Services will constitute Buyer’s waiver of any claim for damages on account of any delay in delivery of such Goods or performance of such Services.
If delivery or performance is delayed or interrupted by Force Majeure, Seller may store the Goods at Buyer’s expense and risk and charge Buyer a reasonable storage rate.
If Seller is delayed because it is awaiting Buyer’s approval or acceptance of designs, drawings, prints, engineering, or technical data, or is awaiting Buyer’s approval or acceptance of Goods or Services, Seller will be entitled to an adjustment in price commensurate with any increase in its cost of production and any other losses and expenses incurred by Seller attributable to such delays.
No provision of this Agreement may be construed against either party as the drafting party.