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TERMS AND CONDITIONS OF SALES
1. Formation of Contract.
(a) All goods sold by Resinate are subject to these Terms and Conditions (these “Conditions”). Any term or condition of Buyer’s purchase order or any other document provided to us by Buyer which is in any way different from, inconsistent with or in addition to these Conditions will not become a part of the Contract or be binding upon Resinate without Resinate’s prior written consent. Resinate’s failure to object to terms contained in any communication from Buyer will not be a waiver of these Conditions. Buyer will not condition any acceptance of delivery upon the abrogation or modification of any of these Conditions. Consequently, if the Buyer orders any goods from Resinate (“Goods”), and Resinate sends an Order Acceptance to Buyer, it will always be on the basis that these Conditions govern the contract made by Resinate and Buyer (“Contract”).
(b) Where any of these Conditions allow a matter to be agreed in writing by Resinate then, unless otherwise stated, such agreement may be given by an Officer of Resinate. These Conditions may not be varied except in writing and signed by an Officer of Resinate.
2. Prices. All prices published by Resinate or quoted by its representative may be changed at any time without notice. Written quotations expire automatically 90 days from the date issued and are subject to change or termination by notice prior to Buyer’s acceptance during that period. All prices will be as specified by Resinate or, if no price has been specified or quoted, will be Resinate’s price in effect at the time of delivery. All prices are exclusive of all excise, sales, use, transfer and other taxes and duties imposed with respect to the Goods or their sale by any governmental authority, all of which taxes and duties will be paid by Buyer and will be added to the price of the Goods.
3. Terms of Payment. All orders are subject to Resinate’s approval and acceptance. Resinate reserves the right to reject any orders for any reason. Buyer will pay for the Goods, without any deduction or set-off, within 30 days of the date of Resinate’s invoice for the Goods. Resinate reserves the right, in Resinate’s sole discretion, to require payment on a COD basis, to require full or partial payment in advance or to revoke any credit previously extended. To the extent permitted by applicable law, overdue payments will be subject to finance charges computed at a rate of 2% per month (24% per year). Buyer will also pay or reimburse Resinate for all costs and expenses (including reasonable attorneys’ fees) incurred or paid by Resinate in collecting amounts due from Buyer or in enforcing Buyer’s obligations hereunder. If Buyer fails to comply with the terms of payment or, with any of these Conditions, Resinate will have the right to withhold further deliveries and to cancel the unfilled portion of any order, and all unpaid accounts will thereupon become due and payable, without prejudice to any claims for damages Resinate may be entitled to make.
4. Delivery. All sales are Incoterms Ex Works Resinate’s manufacturing facility (which may be a third party contract manufacturer) and the date of delivery is the date when the Goods are ready for pickup at that location by Buyer or by a carrier for delivery to Buyer. Resinate will use reasonable efforts to meet requested delivery dates, but Resinate will not be liable for any loss or damage resulting from any delay in delivery or failure to deliver. If Resinate is unable to meet a delivery date, Resinate will inform Buyer as soon as reasonably possible. If Resinate does not notify Buyer of such inability, Buyer can terminate the Contract. If Buyer fails to take delivery of Goods on the date of delivery, Buyer will be liable for all costs and expenses incurred by Resinate in holding or storing Goods for Buyer.
5. Title and Risk of Loss. Title to and risk of loss or damage for Goods will pass to Buyer upon Resinate’s delivery to Buyer or a carrier for shipment to Buyer.
6. Cancellations. No orders may be cancelled after Buyer has received an Order Acceptance from Resinate.
7. Warranty; Indemnification.
(a) Resinate represents and warrants that, as of the time and at the place of delivery, (i) Resinate has the right to convey good title to the Goods and (ii) the Goods delivered will conform to the specifications listed on the applicable data sheet provided by Resinate to Buyer. EXCEPT FOR THE FOREGOING, RESINATE DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
(b) Buyer must notify Resinate promptly in writing of any action (and all prior related claims) brought against Buyer based on a claim that the Goods infringe any valid United States patent, copyright or trade secret. Resinate will defend such action at Resinate’s expense and, subject to Paragraph 8 below, pay all costs and damages finally awarded in such action or settlement which are attributable to such claim. Resinate will have sole control of the defense of any such action and all negotiations for its settlement or compromise. Buyer will cooperate fully with Resinate in the defense, settlement or compromise of any such action. If a final injunction is obtained against Buyer’s use of the Goods by reason of infringement of a valid United States patent, copyright or trade secret, or if in Resinate’s opinion any Goods is likely to become the subject of a successful claim of such infringement, Resinate may, at its option and expense, (i) procure for Buyer the rights to continue using the Goods, or (ii) accept the return of the Goods and refund Buyer the purchase price therefor plus the cost of return. Resinate may withhold or cancel further shipments of any such Goods.
(c) Resinate will not have any liability to Buyer to the extent that any infringement or claim thereof is based upon (i) the use of the Goods in combination with other materials where the Goods would not themselves be infringing, or (ii) use of the Goods in an environment for which it was not designed.
8. Limitation of Liability.
(a) Resinate will not, under any circumstances, be liable on account of any non-material imperfection, defect or deviation from specifications, or a less than 5% deviation in the volume of Goods purchased. No sale of goods is guaranteed to comply with previous deliveries of similar goods. In addition, any claim by Buyer (i) that any Goods do not conform to the agreed-specifications or (ii) made otherwise with respect to the Goods must be made promptly and will be deemed to be waived unless received, in writing, by Resinate within thirty (30) days after the delivery of the Goods.
(b) Buyer’s exclusive remedy and Resinate’s exclusive liability for delivery of nonconforming Goods or for breach of warranty is expressly limited to, at Resinate’s option, (i) replacement of the nonconforming Goods or (ii) refund of the purchase price to the extent already paid plus the cost of freight required for return delivery. All nonconforming Goods must be returned to Resinate or, at Resinate’s direction, disposed of by Buyer in a manner acceptable to Buyer and Resinate. IN NO EVENT WILL RESINATE BE LIABLE TO BUYER, OR TO ANY THIRD PARTY, FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF WHATSOEVER NATURE.
9. Compliance with Laws. Buyer will comply with all applicable governmental laws, ordinances, codes, rules, regulations and orders in its performance hereunder, and will obtain all permits or licenses required in connection with the purchase, shipment, installation and use of any of the Goods. Buyer warrants to Resinate that it will not cause the Goods sold hereunder to be shipped to, or resold for shipment to, any country the shipment of Goods to which is barred by United States export regulations.
10. Force Majeure. If Resinate is prevented from performing, or is unable to perform, any of its obligations hereunder due to any cause beyond its reasonable control, and if Resinate has used reasonable efforts to minimize its duration and has given prompt written notice to Buyer, then Resinate’s failure to perform will be excused and the time for performance will be extended for the period of delay or inability to perform due to such cause.
11. Governing Law; Venue. All matters relating to or arising out of the Contract and the rights of the parties will be governed by and construed and interpreted under the laws of the State of Michigan without regard to conflicts of laws principles. Any disputes involving the Contract (whether sounding in contract, tort or otherwise) will be settled in binding arbitration using the Commercial Rules of the American Arbitration Association, and any such arbitration will be held in Detroit, Michigan.
12. Severability. If one or more provisions of the Contract are held to be unenforceable under applicable law, such provision will be excluded from the Contract and the balance of the Contract will be interpreted as if such provision was so excluded and will be enforceable in accordance with its terms.
13. Successors and Assigns. The Contract will be binding upon and inure the benefit of the parties hereto and their respective successors and assigns; provided, however, that Buyer may not assign any of its rights, or delegate any of its duties or obligations under this Contract without the written consent of Resinate.