THE APPLICABLE PURCHASE AGREEMENT, INVOICE, CREDIT APPLICATION, PURCHASE ORDER, AGREEMENT, QUOTATIONS, SCHEDULES, PROPOSALS, AND/OR ANY DOCUMENT(S) ANCILLARY TO THE FOREGOING (COLLECTIVELY, THE “PURCHASE ORDER”), BY AND BETWEEN THE ENTITY OR PERSON NAMED AS THE “CUSTOMER,” “PURCHASER,” OR “BUYER” (THE “PURCHASER”) IN THE PURCHASE ORDER AND PHOENIX STEEL SERVICE, INC., A MICHIGAN CORPORATION, TOGETHER WITH ITS AFFILIATED ENTITIES (COLLECTIVELY, “SELLER”), (WHICH PURCHASE ORDER IS INCORPORATED INTO AND MADE A PART OF THESE STANDARD TERMS AND CONDITIONS FOR SALE OF GOODS) IS SUBJECT TO THE FOLLOWING STANDARD TERMS AND CONDITIONS FOR SALE OF GOODS (“STANDARD TERMS OF SALE”). THESE TERMS OF SALE TAKE ABSOLUTE PRECEDENCE AND PREVALENCE OVER ANY TERMS AND CONDITIONS OF THE CUSTOMER. EXECUTION AND/OR ACCEPTANCE, AS THE CASE MAY BE, OF THE PURCHASE ORDER BY PURCHASER AND/OR ANY ACCEPTANCE BY PURCHASER OF GOODS SHALL CONSTITUTE ASSENT BY PURCHASER TO THESE STANDARD TERMS OF SALE. PURCHASER ACKNOWLEDGES THAT PURCHASER HAS READ AND UNDERSTANDS THESE STANDARD TERMS OF SALE AND AGREES TO BE BOUND BY THESE STANDARD TERMS OF SALE. IN THE EVENT OF ANY INCONSISTENCIES BETWEEN THE PURCHASE ORDER (OR ANY DOCUMENT ANCILLARY TO THE PURCHASE ORDER) AND THESE STANDARD TERMS OF SALE, THESE STANDARD TERMS OF SALE SHALL CONTROL. SELLER AND PURCHASER EXPRESSLY AGREE THAT SELLER MAY MODIFY THESE STANDARD TERMS OF SALE FROM TIME TO TIME, AND SUCH MODIFICATIONS SHALL BE BINDING UPON THE PURCHASER AS OF THE DATE OF SUCH MODIFICATIONS.
ACCEPTANCE. Seller shall have the right to reject any Purchase Order or other proposed agreement for the sale of goods (“Goods”) by Seller. These Standard Terms of Sale are applicable to all Purchase Orders. Any term or condition or standard of performance different from or in addition to these Standard Terms of Sale, whether set forth on the Purchase Order or otherwise proposed by Purchaser, must be agreed to, in writing, by Seller in advance, and in the event of any conflict or inconsistency between these Standard Terms of Sale and any Purchase Order or other document proposed by Purchaser, these Standard Terms and Conditions will control. Seller hereby expressly objects to and rejects any other terms and conditions proposed by Purchaser by way of Purchase Order or otherwise, which are different from or in addition to these Standard Terms of Sale, unless accepted by Seller in writing.
PURCHASE PRICE. The purchase price of the Goods covered by a Purchase Order (the “Purchase Price”) shall be as stated on the face side of said Purchase Order; provided, however, that Seller may change its price(s) at any time by providing written notice to Purchaser. Seller’s weights for Goods at shipping points shall govern.
CANCELLATION OR MODIFICATION. (a) Purchaser cannot modify, terminate, cancel or otherwise alter orders, or defer shipment, after acceptance of the order by Seller without the prior written consent of the President, Executive Vice President or authorized officer of Seller, which may be withheld or conditioned in Seller’s sole discretion. (b) Purchaser’s wrongful non-acceptance of Goods, or cancellation or repudiation of any Purchase Order to purchase Goods, shall entitle Seller to recover, in addition to any incidental damages caused by Purchaser’s wrongful non-acceptance, cancellation or repudiation, either (i) in the case of Goods, the risk of loss of which has passed to Purchaser at the time of wrongful non-acceptance, cancellation or repudiation, or Goods which cannot be reasonably be resold by Seller to a third party, or (ii) in the case of Goods for which other buyers exist, or where an action for the price is not otherwise permitted by law, damages equal to the profit (including reasonable overhead) which Seller would have realized had Purchaser fully performed, plus, in the case of special orders, Seller’s expenses, if any, incurred prior to receipt by Seller of notice of cancellation by Purchaser, in connection with providing such Goods.
RISK OF LOSS. All deliveries are F.O.B. Seller’s facility, freight prepaid. The charge for freight will be included in the total sale price for Goods in the invoice and, upon Purchaser’s request, will be separately set forth in the invoice. Risk of loss or damage in transit shall be borne by Purchaser; in the event Seller transports Goods to Purchaser’s facilities using private carriers, loss and damage claims shall be made directly with carrier. Purchaser may pick up the Goods that are the subject of this Invoice provided it does so within ten (10) days of the date it is notified of the date of shipment. Seller reserves the right to ship without further notification at any time after such 10-day period. Any unloading or demurrage charges incurred at destination will be for Purchaser’s sole account.
DELIVERY AND ACCEPTANCE. All shipping and delivery dates that Seller may provide or acknowledge to Purchaser are approximate, and are based on current availability of materials, present production schedules, and prompt receipt of all necessary information. In absence of written shipping and packing instructions from Purchaser, Seller shall use its own discretion in choice of carrier and method of loading and packing. Unless otherwise agreed to in writing by the parties, Seller has no obligation to obtain insurance for Purchaser covering Goods in transit to Purchaser. Purchaser agrees to accept and pay for, at the agreed price, any shipment which does not vary by more than ten percent (10%) from the amount ordered. Acceptance of goods upon delivery shall constitute a waiver by Purchaser of any claim for damages on account of delays in delivery or performance. Purchaser shall inspect any Goods delivered by Seller within TWENTY-FOUR (24) HOURS after delivery of such Goods to their shipping destination. Purchaser shall notify Seller in writing within ten (10) days of any claimed failure of the Goods to conform to the specifications or grade and allow Seller a reasonable opportunity to inspect such Goods to enable Seller to verify the alleged nonconformity and, upon such verification, order a replacement shipment (if practicable). Purchaser’s failure to notify Seller within ten (10) days of any alleged nonconformity of the Goods, or any commingling of such Goods shall constitute an acknowledgement by Purchaser that the Goods delivered conform and shall constitute an immediate and irrevocable acceptance of such Goods by Purchaser and any claim by Purchaser with respect to the foregoing is automatically waived. In the event Purchaser refuses to receive Goods delivered hereunder, Seller may exercise any or all of the remedies afforded to Seller by Ohio Revised Code Chapter 1302 et seq. Seller shall have no obligation to hold or resell such Goods for Purchaser’s account.
FORCE MAJEURE. Seller shall not be responsible for delays in delivery or performance, in whole or in part, due to causes beyond its reasonable control, including, but not limited to, acts of God, acts of Purchaser, strikes or other labor disturbances, accidents, casualties, shortages or cars or trucks, inability to obtain materials, fuel, or parts, war, acts of terrorism, riot, delays in transportation, repairs to equipment, epidemics, pandemics, floods, fires, accidents, or similar contingency. In the event of any such delay or nonperformance, Seller, upon notice to Purchaser, may, at its option, and without liability, revoke all or any portion of its acceptance of Purchaser’s Purchase Order, extend any date upon which any performance thereunder is due, or suspend or reduce delivery of Goods during the period of interference. However, Seller shall use commercially reasonable efforts to give written notice to Purchaser whenever such condition or act becomes reasonably foreseeable. Seller shall have no obligation to purchase supplies of Goods to enable it to perform its obligations under the Purchase Order.
WARRANTIES. All of Seller’s goods, including those produced to meet a specification, dimension, weight, or straightness are subject to the producer’s mill tolerances and variations in surface and internal conditions in respect to dimension, weight, straightness, section composition, and mechanical or physical properties, and to normal variations in surface and internal conditions and in quality; to deviations from tolerance and variations consistent with practical testing and inspection methods; and to regular steel industry mill practice on over and under shipment. SUBJECT TO THE PRECEDING SENTENCE, STANDARD MANUFACTURING VARIATIONS AND PARAGRAPH 26 HEREOF, SELLER WARRANTS THAT THE GOODS FURNISHED HEREUNDER SHALL BE IN SUBSTANTIAL ACCORDANCE WITH ONLY THOSE SPECIFICATIONS SET FORTH IN PURCHASER’S PURCHASE ORDER, AND THE FOREGOING WARRANTY, TOGETHER WITH WARRANTY OF TITLE, IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. NO AFFIRMATION OF SELLER, BY WORDS OR ACTION, OTHER THAN AS SET FORTH IN THIS PARAGRAPH OR ANY WRITTEN WARRANTY OR CERTIFICATION FURNISHED BY SELLER, SHALL CONSTITUTE A WARRANTY HEREUNDER.
SHORTAGES OR NON-CONFORMING GOODS; LIMITATION OF LIABILITY; LIMITATIONS OF ACTIONS. No claim or cause of action for shortages or damages for Goods that do not conform to specifications will be allowed unless written notice of such claim is given to Seller by Purchaser within thirty (30) days after receipt of the Goods, and the Goods relating to such claims are held intact and properly protected, unless instructed otherwise by Seller, pending inspection, or if requested by Seller, by Seller’s authorized inspector. Products for which damages are claimed shall not be returned or disposed of without Seller’s written consent. PURCHASER’S EXCLUSIVE REMEDY AGAINST A CLAIM SOUNDING IN TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL BE LIMITED TO SELLER’S REPLACING GOODS THAT DO NOT CONFORM TO SPECIFICATIONS, OR, AT SELLER’S OPTION, REFUNDING THE PURCHASE PRICE, REGARDLESS OF WHETHER THE REPLACEMENT OR REFUND REMEDY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE OR FOR ANY OTHER REASON WHATSOEVER. IN NO EVENT SHALL SELLER HAVE ANY LIABILITY FOR DAMAGES IN AN AMOUNT EXCEEDING THE PURCHASE PRICE OF THE GOODS SOLD HEREUNDER, NOR SHALL SELLER HAVE ANY LIABILITY FOR INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES TO ANY PERSON, WHETHER BASED UPON BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, TORT, BREACH OF CONTRACT OR ANY OTHER THEORY. “Consequential damages” for purposes hereof shall include, without limitation, loss of use, income or profit, or losses sustained as the result of injury (including death) to any person or loss or damage to property (including, without limitation, property handled or processed by the use of the Goods).
THE PROVISIONS OF THIS PARAGRAPH LIMITING REMEDIES TO REFUND OR REPLACEMENT, LIMITING LIABILITY AND EXCLUDING CONSEQUENTIAL OR INCIDENTAL DAMAGES ARE INDEPENDENT PROVISIONS AND ANY DETERMINATION THAT ANY OF THE AFOREMENTIONED PROVISIONS OR ANY OTHER PROVISION OF THIS AGREEMENT IS UNENFORCEABLE, SHALL NOT BE CONSTRUED TO MAKE ANY OTHER PROVISION UNENFORCEABLE
IN NO EVENT MAY ANY CLAIM BY PURCHASER ARISING FROM OR RELATING TO ANY AGREEMENT, ORDER OR SALE PURSUANT TO THE GOODS THAT ARE THE SUBJECT OF ANY INVOICE, AGREEMENT, ORDER OR SALE BE BROUGHT MORE THAN ONE (1) YEAR AFTER THE DATE OF DELIVERY OR THE DATE SUCH CLAIM AROSE, WHICHEVER SHALL BE EARLIER.
NO RIGHT OF OFFSET. Purchaser shall have no right, unless specifically authorized in writing by Seller, to assert any right of offset or setoff or credit toward the payment of any monies that may become due Purchaser under any invoice any amounts which may now or hereafter be owed to Seller.
PAYMENT TERMS. Payment terms are net thirty (30) days unless otherwise specified in writing by Seller or agreed to in writing by Purchaser and Seller. Late charges shall be added at the rate of one and one-half percent (1½%) per month on all past due amounts, the foregoing amount reflecting a reasonable administrative expense incurred by Seller in recovering past due amounts (including attorneys’ fees and court costs) and is not intended as a penalty. In addition, Purchaser shall incur a $30 return check fee for any returned checks from Purchaser’s financial institution, such fee to be due within 10 days of being notified by Seller. If Purchaser fails to make payment in full or refuses to provide satisfactory security or other financial assurances as set forth in Paragraph 20, then Seller shall have the right to enforce payment of the full purchase price, and may either cancel the unfinished portion of the Purchase Order, or may proceed with the Purchase Order, in which latter case, Seller shall be entitled to such extension of time for performance as is necessitated by the suspension. Seller shall have the right to set credit limits for the Purchaser in its sole discretion. If the Purchaser exceeds the set credit limit at any time during the Term (to the extent applicable and as defined in the Purchase Order), then the Purchaser will be required to remit payment for any and all outstanding Invoices within three (3) business days from the date of written notice from Seller. To secure payment and performance obligations hereunder and under the Purchase Order, Purchaser grants Seller a continuing security interest in any and all current and future Goods of the Purchaser in possession of Seller and in all other property of Purchaser, now or hereinafter in Seller’s possession, while any amount due from Purchaser to Seller remains unpaid and while any obligation of Purchaser hereunder and under the Purchase Order remains outstanding. Purchaser irrevocably authorizes Seller to file with appropriate governmental authorities any and all UCC financing statements as required by applicable law.
TAXES. All taxes of any kind levied by any federal, state, municipal or other governmental authority which Seller is required to collect or pay with respect to the production, sale or shipment of Goods sold hereunder are in addition to the Purchase Price and shall be the responsibility of Purchaser and shall be paid by Purchaser in the same manner as if originally included in the Purchase Price.
CONFIDENTIALITY. Seller may, from time to time, provide to the Purchaser or the Purchaser may have access to Seller’s Confidential Information. Confidential Information shall mean Seller’s trade secrets (defined as information, including the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, pattern, compilation, program, device, method, technique, or improvement, or any business information or plans, financial information, or listing of names, addresses, or telephone numbers, that satisfies both of the following: (1) it derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (2) it is the subject of efforts that are reasonable under the circumstances to maintain its secrecy), know how, inventions, ideas, discoveries, developments, processes, formulas, diagrams, drawings, designs, software, applications, source and object codes, data, programs, improvements, techniques, product data and specifications, test results, and other technical information, Seller’s Goods and the goods and services of its customers and prospective customers; (ii) information concerning Seller’s business and/or the business of its customers and prospective customers, including plans for research, development, and new products, cost information, profits, sales information, accounting and financial information, business plans, markets and marketing methods, advertising strategies, customer lists and customer information, purchasing techniques, supplier lists and supplier information; and (iii) information concerning Seller’s employees, including their compensation and skills. Except as expressly permitted herein, Purchaser shall not disclose any Confidential Information to any third party or use any of the Confidential Information for any purpose, except as is necessary to perform its obligations or exercise its rights as set forth herein or in the Purchase Order. Confidential Information shall not include any information that: (i) corresponds in substance to information developed by Purchaser without reference to the Confidential Information or was in the Purchaser’s possession prior to receipt of the same from Seller; (ii) now is or hereafter becomes publicly known through no fault of the Purchaser; or (iii) otherwise lawfully becomes available to the Purchaser from a third party not known by the Purchaser to be under an obligation of confidentiality to Seller. Upon termination of the Purchase Order, all Confidential Information and other information shall be returned or destroyed promptly upon request, no copies thereof shall be retained by Purchaser, and Purchaser shall not thereafter utilize such information in any respect whatsoever.
NON-SOLICITATION. Neither party shall, during the term of the Agreement and for a period of twenty-four (24) months following the termination of the Agreement, without the prior written consent of the other party, solicit, hire, or enter into a contract with any employee, consultant, agent, or representative of such other party, or, directly or indirectly, induce, or attempt to induce, or otherwise counsel, discuss, advise, or encourage any such employee, consultant, agent or representative of the other party to leave the employ or engagement of such other party or otherwise terminate such person’s relationship with the other party, or recommend to others the employment or retention of such person. Notwithstanding the foregoing, this non-solicitation provision will not prohibit either party from entering into an employment, consulting, or similar arrangement with any individual who responds to a general advertisement for employment, consulting, or other similar type of service.
NON-COMPETITION; NON-CIRCUMVENTION. Purchaser agrees during the Term of the Purchase Order and for twenty-four (24) months after the termination of the Purchase Order for any reason whatsoever, that it shall not, directly or indirectly, engage either as an individual for its own account, or as an owner, partner, joint venturer, lender, consultant, agent, contractor or independent contractor for any other entity, or as an officer, director or shareholder of a corporation (if a public corporation, then owning more than 1% of the issued and outstanding stock of such corporation), trustee of a trust, member or manager of a limited liability company or in any other manner whatsoever, in any business, that competes in any way, directly or indirectly, with the business of Seller. Purchaser agrees during the Term of the Purchase Order and for twenty-four (24) months after the termination of the Agreement for any reason whatsoever, that it shall not, directly and/or indirectly, solicit or induce or attempt to solicit or induce any of the suppliers with which Seller does business (the “Suppliers”), to terminate such Supplier’s relationship with Seller, nor shall Purchaser interfere with or disrupt (or attempt to interfere with or disrupt) any such relationship. Further, Purchaser agrees during the Term and for twenty-four (24) months after the termination of the Purchase Order for any reason whatsoever, that Purchaser shall be prohibited from directly or indirectly contacting and/or purchasing the Goods from any Supplier, such Supplier’s affiliates, subsidiaries, and/or parent companies.
INTELLECTUAL PROPERTY. Purchaser shall have no rights with respect to any of Seller’s existing or subsequently-acquired or developed Intellectual Property, as defined below, rights or trade secrets or Confidential Information of Seller, and Purchaser hereby acknowledges that it shall not acquire any rights in respect thereof and that all such trade secrets and Confidential Information are and shall remain vested in or controlled by Seller. “Intellectual Property” for purposes of these Standard Terms of Sale means (i) patents, patent applications, provisional applications, patent disclosures, including all ideas, inventions and improvements disclosed therein, and all reissues, continuations, continuations in part, divisions and reexaminations thereof; (ii) trademarks, service marks, trade names, trade dress, logos, slogans, domain names, including all goodwill appurtenant thereto, and all registrations and applications for registrations thereof and all renewals and extensions thereof; (iii) copyrights and mask works and all registrations and applications for registration thereof; (iv) computer software, software applications and platforms, websites, disks, disk drives, data, data bases and user documentation and audio visuals, domain names, and text materials; (v) all trade secrets, research and development materials, processes, procedures, know how, ideas discoveries, inventions, customer lists, supplier lists, formulas, drawings and designs, technical data, marketing, financial and business plans; (vi) advertising materials currently or in the future utilized by the Seller; and (vii) copies and tangible embodiments thereof (in whatever form or medium), and related documentation and goodwill. Purchaser acknowledges and agrees that Seller owns the exclusive right, title and interest and into all of Seller’s Intellectual Property. Purchaser shall not at any time during the Term and any time thereafter do or permit to be done any act or thing which impairs or may impair the rights of Seller with respect to Seller’s Intellectual Property. Purchaser will never represent that it has any ownership in any of Seller’s Intellectual Property. Purchaser expressly agrees that all of the use and good will of the Intellectual Property shall accrue to the sole benefit of Seller. Purchaser represents and warrants to Seller that Purchaser owns or has obtained all rights in the Purchaser IP necessary and sufficient to allow Seller to provide Goods to the Purchaser. To the extent applicable, Purchaser hereby grants to Seller, and Seller hereby accepts from Purchaser, a royalty-free, perpetual license to use the Purchaser IP in the course of providing Goods to the Purchaser. For purposes of these Standard Terms of Sale, “Purchaser IP” shall mean the Intellectual Property of the Purchaser provided by Purchaser to Seller and used to provide and/or create (as the case may be) the Goods.
INJUNCTIVE RELIEF. The parties hereby acknowledge and agree that the extent of damages in the event of a breach of the restrictive covenants contained in these Standard Terms of Sale may be difficult or impossible to ascertain and that there may be no adequate remedy at law in the event of any such breach. Consequently, in the event of such breach, the non-breaching party shall be entitled, in addition to any other remedies it may have at law, to seek an injunction or other equitable relief to enforce any or all of the covenants contained in these Standard Terms of Sale. The breaching party expressly waives (i) the defense that a remedy in damages will be adequate and (ii) any requirement in an action for specific performance or injunction for the posting of a bond.
RESERVATION OF REMEDIES. The rights, powers and remedies that may be given or reserved to the parties by these Standard Terms of Sale and the Purchase Order shall be cumulative and in addition to all other and further remedies provided by law. These Standard Terms of Sale and the Purchase Order shall not be construed to deprive the parties of any other rights, powers and other remedies otherwise given by law or at equity. No delay or failure by Seller in exercising any right or remedy and no partial or single exercise of such right or remedy shall constitute a waiver by Seller of such right or any other rights in these Standard Terms of Sale and/or the Purchase Order. No consent by Seller to a breach of any express or implied term of these Standard Terms of Sale and/or the Purchase Order shall constitute a consent to any prior or subsequent breach of the same or any other term.
INDEMNIFICATION. Purchaser agrees to indemnify and hold harmless Seller from and against all claims, demands, or actions regardless of legal theory, including the costs and expenses incurred in the defense thereof, brought against Seller, whether based on an act, omission or negligence of Purchaser, or its agents, employees or customers, in connection with Purchaser’s or its customer’s subsequent sale, consumption or use of the Goods, or upon any defect in the Goods, caused by Purchaser, its agents, employees or customers.
SELLER’S PERFORMANCE EXCUSED UPON PURCHASER’S BREACH. In addition to the rights and remedies conferred upon Seller by law or in equity, in the event that Purchaser fails to make payment of the Purchase Price or any portion thereof when due, Seller shall have the right to immediately suspend performance and fulfillment of the Purchase Order and to institute legal proceedings to collect the balance due, and in such event Purchaser agrees to pay all collection costs incurred by Seller, including its attorneys’ fees.
. By issuing a Purchase Order for Goods, Purchaser represents and warrants to Seller that Purchaser is solvent, as such term is defined in Article 1 of the Uniform Commercial Code, as adopted in the State of Ohio; and such representation and warranty shall be deemed reaffirmed with each Purchase Order issued by Purchaser in the future for Goods. Purchaser agrees to notify Seller in writing in the event Purchaser becomes insolvent Seller may, at its option, suspend performance if in its reasonable opinion the credit of Purchaser becomes impaired (“Financial Impairment”) until such time as Seller has received full payment or satisfactory security for payment for deliveries made and Seller is satisfied as to Purchaser’s credit for future deliveries. Seller reserves the right, upon written notice to Purchaser, to cancel any order or require full or partial payment or adequate assurance of performance from Purchaser, such as an irrevocable letter of credit, deposit, advance payment, C.O.D. and/or guaranties of principals and/or affiliates of Purchaser without liability to Seller in the event of: (i) Financial Impairment, (ii) Purchaser’s insolvency; (iii) the filing of a voluntary petition in bankruptcy by Purchaser; (iv) the filing of an involuntary petition in bankruptcy against Purchaser; (v) the appointment of a receiver or trustee for Purchaser; or (v) the execution by Purchaser of an assignment for the benefit of creditors. Seller reserves the right to cancel or reduce Purchaser’s credit at any time for any reason.
ASSIGNMENT OR DELEGATION. Purchaser shall not assign or delegate any or all of its duties or rights hereunder without the prior written consent of Seller.
EXPORT REGULATIONS. Purchaser acknowledges that certain Goods sold by Seller hereunder and any documentation and other technology of Seller may be subject to application export control and sanction laws, regulations, and orders. Purchaser certifies, represents, and warrants that it is in compliance and shall take all necessary acts to remain in compliance with all applicable export and re-export control laws and regulations, including, without limitation, the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions and regulations maintained by OFAC (defined below), and the International Traffic in Arms Regulations maintained by the U.S. Department of State. Purchaser hereby agrees to defend, indemnify and hold Seller harmless from and against any and all claims, damages, losses, risks, liabilities and expenses (including attorney’s fees and costs) arising from or related to any breach of the foregoing certification.
FCPA; ANTI-BRIBERY. In carrying out its responsibilities hereunder and under any Agreement, Purchaser shall comply with all applicable anti-bribery laws including, but not limited to, the U.S. Foreign Corrupt Practices Act, as revised (“FCPA”), and the Organization for Economic Cooperation and Development Anti-Bribery Convention, as implemented in the Territory. Purchaser understands that the FCPA generally prohibits the promise, payment or giving of anything of value either directly or indirectly to any government official for the purpose of obtaining or retaining business or any improper advantage. For purposes of this section, “government official” means any official, officer, representative, or employee of any non-U.S. government department, agency or instrumentality (including any government-owned or controlled commercial enterprise), or any official of a public international organization or political party or candidate for political office. Purchaser represents and warrants that, in the performance of this Agreement and in connection with its purchase of Goods, (i) neither it nor any of its representatives are governmental employees or officials or candidates for political office and Purchaser will advise Seller of any change in such representation; (ii) Purchaser and its representatives have not and will not make, offer, or agree to offer anything of value to any government official, political party, or candidate for office; (iii) Purchaser will comply with all provisions of the FCPA and the regulations thereunder as amended from time to time; and (iv) Purchaser agrees to indemnify, defend, and hold Seller harmless for damages and expenses resulting from a violation of the foregoing by Purchaser or its representatives.
OFAC. Pursuant to United States Presidential Executive Order 13224 (“Executive Order”), Purchaser may be required to ensure that it does not transact business with persons or entities determined to have committed, or to pose a risk of committing or supporting, terrorist acts and those identified on the list of Specially Designated Nationals and Blocked Persons (“List”) generated by the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of the Treasury. The names or aliases of these persons or entities (“Blocked Persons”) are updated from time to time. Purchaser certifies, represents and warrants to Seller that: (a) it is not acting, directly or indirectly, for or on behalf of any person, group, entity or nation named by any Executive Order of the United States Treasury Department as a terrorist, “Specially Designated National and Blocked Person” or any other banned or blocked person, entity, nation or transaction pursuant to any Law that is enforced or administered by the Office of Foreign Assets Control; and (b) it is not engaged in this transaction, directly or indirectly on behalf of, or instigating or facilitating this transaction, directly or indirectly on behalf of, any such person, group, entity or nation. Purchaser hereby agrees to defend, indemnify and hold Seller harmless from and against any and all claims, damages, losses, risks, liabilities and expenses (including attorney’s fees and costs) arising from or related to any breach of the foregoing certification.
MISCELLANEOUS. (a) Governing Law. The rights and obligations of Purchaser and Seller with respect to the Goods shall in all respects be governed by and interpreted in accordance with the laws of the State of Ohio, United States of America, applicable to contracts made and performed in the State of Ohio without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Ohio. Jurisdiction and venue for any action arising between the parties with respect to the Goods will lie in the Courts of Common Pleas of Cuyahoga County, Ohio or in federal courts situated in the Northern District of Ohio (Eastern Division), in addition to any other court of competent jurisdiction. The parties irrevocably consent and submit to the personal jurisdiction of said courts and agree not to challenge or assert any defense to the jurisdiction of said courts including, without limitation, forum non conveniens. Notwithstanding the foregoing, in the event Purchaser’s primary place of business is located within the People’s Republic of China (each, a “Chinese Purchaser”), all disputes, controversies, or differences which may arise between Seller and a Chinese Purchaser, out of or in relation to or in connection with an Agreement, these Terms and Conditions, or for the breach of either of the foregoing, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one (1) arbitrator appointed in accordance with the said Rules. The language of the arbitration shall be English. The situs for such arbitration shall be Hong Kong, China. The arbitrator shall apply the laws of the State of Ohio, USA to the merits of the dispute. The award rendered by the arbitrator shall be final and binding upon both Seller and Chinese Purchaser and may be enforced in any court of competent jurisdiction. The parties hereby exclude the application of the United Nations Convention on Contracts for the International Sale of Goods. (b) Failure to Enforce; Waiver. No change, modification, or waiver of any provision of these Standard Terms of Sale shall be valid or binding unless it is accepted by Seller. A waiver by either party of any breach or failure to enforce any term or condition of these Standard Terms of Sale shall not in any way affect, limit or waive such party’s right at any time to enforce strict compliance with that or any other term or condition of these Standard Terms of Sale. (c) Binding Effect. These Standard Terms and Conditions shall be binding upon and shall inure to the benefit of the successors, and permitted assigns of Purchaser and Seller. (c) Severability. Where possible, each provision of this Order shall be interpreted in such manner as to be effective and valid, but if any provision of this Order shall be prohibited by applicable law, unenforceable in any jurisdiction or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition, unenforceability or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Order, or affecting the validity or enforceability of such provision in any jurisdiction. (e) Priority. In the event of any inconsistency among the provisions in these Standard Terms of Sale or the Purchase Order, precedence shall be given first to these Standard Terms of Sale, and second, to the special terms and conditions contained on the face of the Purchase Order and accepted, in writing.
. THESE STANDARD TERMS OF SALE, TOGETHER WITH THE PURCHASE ORDER, CONSTITUTE THE ENTIRE AGREEMENT BETWEEN SELLER AND PURCHASER WITH RESPECT TO THE MATTERS CONTAINED HEREIN AND THEREIN, AND SUPERSEDE ALL PRIOR ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS, CORRESPONDENCE, DISCUSSIONS, NEGOTIATIONS AND AGREEMENTS. No course of prior dealings, acceptance or acquiescence in a course of performance and no usage of the trade shall be relevant to supplement, explain or modify any terms contained herein. ALL REPRESENTATIONS, PROMISES, WARRANTIES OR STATEMENTS BY AN AGENT OR EMPLOYEE OF SELLER THAT DIFFER IN ANY WAY FROM THE TERMS AND CONDITIONS HEREOF SHALL BE GIVEN NO EFFECT OR FORCE.
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