Pennex Aluminum Company("Seller") offers to sell the goods (the “Goods”) described in any quotation or acknowledgement made by Seller to Buyer on the following terms and conditions (these “Terms and Conditions,” together with any such quotation or customer acknowledgement made by Seller, the terms of which are incorporated herein, the “Sale Agreement”), regardless of anything provided in Buyer’s purchase order, Buyer’s terms and conditions of purchase, or other documentation or website, if any, in addition or to the contrary.
The acceptance of these Terms andConditions is an essential prerequisite to any contract of sale made by Seller.NOTWITHSTANDING ANY CONTRARY LANGUAGE PROPOSED BY THE ENTITY TO WHICH SELLER IS PROVIDING GOODS UNDER THIS SALE AGREEMENT (“BUYER”) THAT THE ACCEPTANCE OR USEOF, OR PAYMENT FOR, THE GOODS BY BUYER OR ANY OTHER ACT OR FAILURE TO ACT BY BUYER, CONSTITUTES ACCEPTANCE OF ANY DIFFERENT OR ADDITIONAL TERMS OR CONDITIONS, ANY OFFER OR ACCEPTANCE BY SELLER IS MADE SUBJECT TO THESE TERMS AND CONDITION AND THESE TERMS AND CONDITIONS EXPRESSLY LIMIT ACCEPTANCE TO THET ERMS AND CONDITIONS STATED HEREIN, AND ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS, WHETHER IN A PURCHASE ORDER, QUOTATION, PROPOSAL, SHIPPING INSTRUCTION, ACKNOWLEDGMENT, ACCEPTANCE, INVOICE OR OTHERWISE ARE REJECTED AND SHALL NOT APPLY UNLESS EXPRESSLY ASSENTED TO IN WRITING BY AN AUTHORIZED REPRESENTATIVE OF SELLER. If this Sale Agreement is an offer, acceptance of this offer is expressly limited to the terms hereof, and Seller reserves the right to withdraw this offer at any time before its acceptance by Buyer. If this document has been issued by Seller in response to a written offer made byBuyer, Seller's acceptance of Buyer's offer is expressly conditioned on Buyer's assent to the terms and conditions contained herein. If these Terms andConditions are not acceptable, Buyer will notify Seller in writing at once.Buyer's action in (a) accepting any Goods manufactured and delivered here under,or (b) receiving this document without disaffirmance within three business days of receipt, will constitute an unqualified acceptance by Buyer of this SaleAgreement (including these Terms and Conditions).
Delivery of more or less of the specified quantity up to fifteen percent (15%) is permissible and shall not constitute a breach of this Sale Agreement. A ton shall be understood to be two thousand (2,000) pounds unless other wisespecified.
The parties agree that all communications or other records with respect to any transactions under this Sale Agreement, including those required to be in writing, will have legal effect, validity and enforceability if provided in a retrievable and reproducible electronic or tangible medium.
The invalidity or unenforceability of any term or provision of this Sale Agreement will not affect the validity or enforceability of any of the other terms or provisions hereunder, and if any term or provision of this Sale Agreement is held to be to any extent invalid or otherwise unenforceable by any court of competent jurisdiction, such term or provision will be construed as if it were written so as to effectuate to the greatest possible extent the expressed intent of this Sale Agreement, and the remainder of this Sale Agreement will not be affected thereby and will remain valid and enforceable.
This Sale Agreement (including theseTerms and Conditions) constitutes the entire agreement of the parties regarding the subject matter hereof, and all prior written or oral representations, promises, conditions or statements are merged herein and superseded hereby. No representations, promises, statements, orders, quotations, proposals or other communications not contained herein shall be binding on the parties. UnlessSeller expressly agrees in writing otherwise, in the event of any conflict between the provisions of these Terms and Conditions and any other provisions included in this Sale Agreement, the provisions of this Sale Agreement shall control and take precedence. These Terms and Conditions will be binding upon and inure to the benefit of Seller's and Buyer's respective heirs, administrators, executors, successors, legal representatives and assigns, but shall not be assignable by Buyer without the prior written consent of Seller.
This Sale Agreement may not be canceled by Buyer without Seller's prior written consent and by prior payment to Seller of a sum equal to the total of out-of-pocket expenses incurred in connection with the purchase order, including, but not limited to, finished goods, work in process, raw materials that are non-returnable to suppliers and any supplier cancellation/return fees, plus a reasonable sum for overhead expenses and lost profits, as reasonably determined by Seller.
Prevention of Seller’s performance or delay in delivery caused by acts of God or public enemy, terrorism, war, civil commotion, riot, blockage or embargo, work stoppage, strike or other labor dispute or industrial disturbance, slowdowns or interruption, lockout, fire, earthquake, explosion, flood, drought, the elements, casualty, epidemic, terrorism, civil disturbance, default by any common carrier, or which are due to any law, order, proclamation, regulation, ordinance, demand, requisition or requirement or any other act of governmental authority, agency or entity, whether foreign, national, state or local, including court orders, judgments, or decrees, or the inability or refusal ofBuyer to accept or receive shipment when due, or the customer(s) to whom Buyer directs the Goods to accept or receive shipment when due (whether or not valid), inability of Seller to ship the Goods to have the same delivered when due, or the inability or refusal of Buyer to accept or receive shipment when due, curtailment, shortage, unavailability, rationing or allocation of normal sources of supply of labor, raw or other materials, transportation, energy or utilities, machinery or equipment breakdown or unavailability, accident, delay of subcontractors or vendors, embargo, or any other similar or dissimilar contingency, delay, failure or cause beyond the Seller's control, irrespective of whether such contingency is specified herein or is presently occurring or anticipated by Seller, will entitle Seller, at its sole option, to extend the time for performance and delivery for a period, or periods, of time that, inSeller's sole discretion, appears to be reasonable, or Seller may, in its sole discretion, cancel the sale, in either case without liability on the part ofSeller. Seller shall not be required to make any concession or grant any demand to bring an end to a strike or other concerted act of workers.
Any equipment (including jigs, dies, and tools) which Seller constructs or acquires for use exclusively in the production of Goods for Buyer will be and remainSeller's property, and in Seller's possession and control, and any charges bySeller therefore will be for the use of such equipment only unless such jigs, dies and/or tools were built by Seller for Buyer pursuant to Buyer’s specifications and for Buyer’s sole and exclusive use, in which case the same shall belong to Buyer. Unless otherwise agreed by the parties and unless thesame were built by Seller for Buyer as contemplated in the preceding sentence,Seller may make such use or disposition thereof as Seller desires without liability to Buyer.
(a) Buyer's Exclusive Remedies.Seller warrants that the Goods delivered pursuant this Sale Agreement will be free from defects in manufacturing and materials provided by Seller. Subject toSection 10(d) below, Seller's warranties on Goods delivered pursuant aPurchase Order will only be in effect until six months after date of delivery at the delivery point stated in this Sale Agreement.
(b) If Goods delivered pursuant aPurchase Order are found to be nonconforming with the warranties set forth in this Sale Agreement, Buyer must (i) with respect to any patent non conformity, notify Seller of such nonconformity within five business days of the date theGoods are delivered to Buyer or (ii) with respect to any latent non conformity, notify Seller of such nonconformity within five business days of discovery of the nonconformity. Seller shall be given the opportunity to confirm, by its inspection, the complaint of Buyer. If, in Seller's opinion, after such inspection, the complaint of Buyer is valid, or if Seller elects not to inspect, Seller will, at its option, cure such nonconformity within a reasonable period of time by repairing or replacing the nonconforming Goods or refund or credit to Buyer the price of such Goods (in which case, Buyer will return the Goods to Seller). Buyer will bear the costs of access (including removal and replacement of systems, structures or other parts of Buyer's facility),de-installation, decontamination, re-installation and transportation of theGoods sold hereby to Seller and back to Buyer.
(c) Any warranty repair or replacement of Goods provided by Seller pursuant to the above warranties will be warranted by Seller for a period equal to the remainder of the original warranty period set forth above, as applicable (no warranty will extend beyond such period); no"evergreen" or "in-place" warranty is being provided.
(d) THERE ARE NO WARRANTIES,GUARANTEES, REPRESENTATIONS, OR REMEDIES THAT EXTEND BEYOND THE FACE OF THE SETERMS AND CONDITIONS, AND ALL OTHER WARRANTIES, GUARANTEES, REPRESENTATIONS, OR REMEDIES (EXPRESS OR IMPLIED) NOT EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS ARE FULLY DISCLAIMED AND EXCLUDED TO THE FULLEST EXTENT PERMITTED BYLAW. THE WARRANTIES, GUARANTEES, REPRESENTATIONS, AND REMEDIES SET FORTH IN THESE TERMS AND CONDITIONS ARE EXCLUSIVE AND IN PLACE OF ALL OTHER WARRANTIES,GUARANTEES, REPRESENTATIONS, AND REMEDIES, IN EACH CASE, EXPRESS OR IMPLIED,INCLUDING BY WAY OF EXAMPLE, BUT NOT OF LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF TITLE, DESIGN, NON-INFRINGEMENT, WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SELLER'S WARRANTIES WITH RESPECT TO GOODS ARE VOIDED TO THE EXTENT THAT ANY BREACH THEREOF RESULTS FROM THE ALTERATION, MISUSE, IMPROPER STORAGE, INSTALLATION, ASSEMBLY,COMMISSIONING, MAINTENANCE, OR APPLICATION THEREOF AFTER DELIVERY OF THE GOODS BY SELLER.
(e) SELLER FURTHER DISCLAIMS ANY RESPONSIBILITY WHATSOEVER TO BUYER OR TO ANY OTHER PERSON FOR INJURY TO PERSON OR DAMAGE TO OR LOSS OF PROPERTY OR VALUE CAUSED BY ANY GOODS TO THE EXTENT SUCH INJURY, DAMAGE OR LOSS RESULTS FROM THE ALTERATION, MISUSE, IMPROPER STORAGE, INSTALLATION, ASSEMBLY, COMMISSIONING, MAINTENANCE, OR APPLICATION OFSUCH GOODS AFTER DELIVERY OF THE GOODS BY SELLER.
The failure by Seller to insist, in any one or more instances, upon the performance of any of the terms or conditions of this Sale Agreement, or to exercise any right hereunder, whether or not this Sale Agreement provides for delivery of the Goods in installments or otherwise, shall not be construed as a waiver of the future performance of any such terms or conditions or the future exercise of such right.
If Seller engages legal counsel in connection with the enforcement or preservation of any of its rights or remedies under this Sale Agreement and/or any other documents executed in connection with this Sale Agreement, Seller will be entitled to collect its reasonable attorneys' fees and costs incurred in connection there with, including the allocated costs of Seller’s in-house counsel. Seller specifically reserves the right, in its sole discretion, to set off any amounts to be paid by Seller to Buyer under this Sale Agreement against any amounts that Buyer may owe to Seller, whether pursuant to the Sales Agreement or any other agreement between Buyer and Seller. The rights and remedies granted Seller hereunder will be in addition to all rights and remedies granted Seller.
Unless otherwise agreed upon by the parties and stated in this Sale Agreement, terms of payment for shipments are net cash within 30 days from the date of invoice.Failure of Buyer to make any installment or other payment promptly when due will constitute an Event of Default (as hereinafter defined) and will entitle the Seller to treat the entire balance as immediately due and owing and to withhold further deliveries without liability until such Event of Default is cured, and/or entitle Seller to cancel the unperformed part of this SaleAgreement. Further, Seller will have the right to interest on all balances notpaid when due at a rate of interest equal one and one half percent (1.5%) per month (or such lesser amount as may be the maximum permitted by ApplicableLaw). As used herein, “Applicable Law” means all applicable federal, state and local laws, statutes, rules, regulations, orders and ordinances now or hereafter in effect. Notwithstanding anything set forth herein to the contrary, in the event Buyer’s financial condition, payment history, or any other circumstance occurs that results in Seller reasonably deeming itself insecure as to the ultimate collectability of any and all amounts due to Seller fromBuyer under this Sale Agreement and/or under any other agreement between Seller and Buyer, Seller may, in its sole and absolute discretion, do any one or more of the following, in each case immediately upon written notice to Buyer: (a)change or otherwise modify the payment and/or credit terms set forth in thisSale Agreement, including by way of example, but not of limitation, change the terms of payment to payment in full or in part in advance of shipment of the entire undelivered balance of Goods, (b) delay or postpone delivery of theGoods and/or suspend any outstanding orders for Goods, and/or (c) require financial data from Buyer for verification of Buyer's creditworthiness and/or require a bank guarantee or other security.
Unless otherwise agreed upon by the parties and stated in Seller's acknowledgement, prices specified in the Seller's acknowledgement do not include sales, use, excise, value added or similar taxes. Buyer will be responsible for payment of the amount of any present or future sales, use, excise, value added or other similar tax applicable to the sale of Goods hereunder.
The shipment date(s) for the Goods sold hereunder set forth in this Sale Agreement is(are) estimates only and is(are) not guaranteed by Seller; provided thatSeller will exercise its commercially reasonable efforts to meet the shipment date(s) specified in Seller's acknowledgement. Unless otherwise agreed upon by the parties and stated in Seller's acknowledgement, all shipments shall be made ex works (“EXW,” as defined in In coterms 2010, published by the InternationalChamber of Commerce), with transportation expenses paid by Buyer.Notwithstanding the foregoing or any provision in this Sale Agreement to the contrary, (a) risk of loss, destruction or damage to the Goods sold here under will pass to Buyer at the time of Seller's delivery of the Goods to the carrier for delivery to Buyer, even though the carrier may be selected by Seller, and(b) subject to Section 16 below, title to, and ownership of, the Goods sold hereunder will pass to Buyer at the time of Seller's delivery of the Goods to the carrier for delivery to Buyer, even though the carrier may be selected by Seller. Seller will not be liable for any loss, destruction or damage to theGoods sold hereunder that is suffered or incurred in connection with the transportation or delivery of such Goods from Seller's plant to the delivery point set forth in this Sale Agreement and Buyer will make any claims with respect to such loss, destruction or damage solely against the carrier, even though the carrier may be selected by Seller. If shipment is delayed beyond the specified shipment date due to Buyer, Buyer will reimburse Seller for the costs and expenses incurred by Seller in connection with such delay, including, without limitation, Seller's cost and expense to store the Goods. Seller may deliver the Goods sold hereunder in installments.
Seller reserves the right to require payment in advance or satisfactory security or guaranty that an invoice will be promptly paid when due if at any time Buyer's financial responsibility becomes impaired or unsatisfactory to Seller. Buyer hereby grants Seller a continuing first priority purchase money security interest in and to the Goods sold hereby and all replacements, substitutions and accessions thereto and all proceeds thereof, including insurance proceeds, to secure payment of all obligations and indebtedness of Buyer to Seller hereunder. Buyer agrees that Seller will have the right to take such actions with respect to the Goods as Seller may reasonably determine is necessary in order to create a first lien perfected security interest in the Goods, including filing UCC-1 financing statements evidencing the Goods as collateral; and Buyer further agrees to take such actions as Seller may reasonably request in order to perfect Seller's first-lien security interest in the Goods. Buyer specifically agrees and acknowledges that the security interest herein granted has attached. Upon the occurrence of an Event of Default, Seller will have all the rights and remedies of a secured party under the Pennsylvania enactment of the Uniform Commercial Code or if the Goods are located outside the UnitedStates, then the equivalent thereof. The security interests granted to Seller under this Sale Agreement will automatically terminate upon payment in full of the purchase price for the Goods and Buyer will be entitled to file a UCC-3termination statement evidencing such termination.
(a) Except as otherwise provided in this Section, no intellectual property or proprietary information is being sold, granted, transferred, licensed, or assigned in connection with this SaleAgreement and the Goods sold pursuant hereto do not constitute works-made-for-hire. Buyer's access and use of any intellectual property and proprietary information of Seller included in and part of the Goods sold hereby will be non-exclusive and limited to the use and maintenance of the Goods sold hereby as contemplated by this Sale Agreement.
(b) Buyer acknowledges and agrees that(i) any and all Goods delivered under this Sale Agreement were manufactured pursuant to Buyer’s specifications, (ii) Seller shall have no responsibility for, or liability with respect to, such Goods, whether or not to Buyer or a third party to which Buyer transfers or sells such Goods, and (iii) Seller shall have no responsibility for, or liability with respect to, the Goods even if Seller identified any modifications to Buyer’s specifications that were incorporated into such specifications by Buyer, it being understood and agreed that Buyer is solely responsible for the design of the Goods and for any specifications developed in connection therewith. Accordingly, except as otherwise contemplated by Section 10(a) hereof, Buyer covenants and agrees to indemnify, defend (with counsel acceptable to Seller), save and hold harmless Seller, its officers, directors, agents, employees, successors and assigns, from and against any and all liabilities, obligations, suits, claims, losses, damages, judgments, awards, penalties, injuries, actions, costs, fees and expenses (including attorneys’ fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties) of whatsoever kind and nature, whether incurred by an indemnified party or alleged by others, in contract or tort (including by way of example, but not of limitation, strict liability in tort) or otherwise, arising in whole or in part as a result of, or in connection with, any design defect of any kind in theGoods or any infringement of any intellectual property rights with respect to the Goods.
(c) The indemnification provided for herein is without prejudice to any other rights or remedies any of the indemnified parties may have under any Applicable Law. Matters covered by the foregoing indemnity include by way of example, but not of limitation: (i)damages for personal injury, disease or death; (ii) damages for injury to personal or real property; (iii) natural resource damages; (iv) any and all costs or recalls of such Goods or products, including by way of example, but not of limitation, costs incurred in transportation, labor, removal, installation, fines, penalties and attorneys’ fees, and (v) all expenses, costs and fees incurred by any Indemnitee as a result of any claim for indemnification hereunder.
(d) This indemnity shall survive the expiration, termination, or cancellation of this Sale Agreement.
a) Buyer hereby acknowledges and agrees that to the extent that it receives confidential, proprietary and trade secret information concerning Seller, unless required to do so pursuant to ApplicableLaw, it shall not disclose such information to any person or entity without the express prior written consent of Seller. Buyer also acknowledges and agrees that all confidential proprietary and trade secret information received from Seller, if any, is solely Seller’s property and shall be returned immediately upon written request of Seller. Confidential, proprietary and trade secret information includes by way of example, but not of limitation, all information concerning this Sale Agreement, including by way of example, but not of limitation, pricing and quantity of Goods purchased from Seller.
(b) Buyer shall not advertise or publicly announce the fact that Seller has contracted to supply any Goods toBuyer without obtaining the prior written consent of Seller.
(a) Each of the following constitutes an event of default by Buyer hereunder (each an “Event of Default”): (i)failure to pay any sum due Seller under this Sale Agreement, or under any other agreement between Buyer and Seller, as and when the same is due, (ii)noncompliance or breach of any term, condition, representation or warranty contained in this Sale Agreement by Buyer, (iii) institution by or against Buyer of any federal or state proceedings for relief of debtors including bankruptcy or appointment of a receiver, (iv) suspension of business or business failure,(v) entry of a judgment or a tax lien against Buyer, (vi) voluntary transfer, sale or assignment of substantially all of Buyer’s property, (vii) sale or transfer of majority ownership of Buyer, or (vii) Seller reasonably deems itself insecure as to the ultimate collectability of any and all amounts due toSeller under this Sale Agreement and/or under any other agreement betweenSeller and Buyer.
(b) If any Event of Default should occur, Seller may: (i) terminate this Sale Agreement effective immediately and demand a return of the Goods for which payment has not been made to the destination specified by Seller, freight prepaid by Buyer, and/or (ii) take possession of and remove all Goods for which payment has not been made, without notice to or consent of Products, and for that purpose, enter upon any premises owned or leased by Buyer, without liability for any damages occasioned thereby, and/or(iii) sue for damages, plus the costs and expenses of suit, including reasonable attorney’s fees, and/or (iv) take any and all other actions specified herein or otherwise permitted by Applicable Law.
INNO EVENT WILL SELLER'S LIABILITY FOR ANY AND ALL CLAIMS, LIABILITIES, LOSSES,DAMAGES, COSTS AND EXPENSES RELATING TO, ARISING OUT OF, OR IN CONNECTION WITH THIS SALE AGREEMENT AND/OR THE SALE, MANUFACTURE, DELIVERY, RESALE, REPAIR ORUSE OF ANY GOODS HEREUNDER (COLLECTIVELY, “CLAIMS”) EXCEED THE PRICE ACTUALLY PAID BY BUYER FOR THE GOODS THAT WERE NONCONFORMING OR THAT WERE NOT DELIVERED WITHIN THE TIME PERIOD AGREED TO BY BUYER AND SELLER. NOTWITHSTANDING ANY PROVISION IN THIS SALE AGREEMENT OR ELSEWHERE TO THE CONTRARY, IN NO EVENT WILL SELLER BE LIABLE FOR ANY CLAIMS OR to any person or entity whatsoever, including by way of example, but not of limitation, CLAIMS OF BUYER, BUYER'S CUSTOMERS OR OTHER THIRD PARTIES FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL,EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND WHATSOEVER, AND HOWEVER ARISING, INCLUDING BY WAY OF EXAMPLE, BUT NOT OF LIMITATION, LOST DATA, LOSS OF PRODUCT, ANY LOSS OF PROFIT OR REVENUES, LOSS OR INTERRUPTION OF BUSINESS, COSTOF CAPITAL, COST OF COVER, DOWNTIME COSTS, INCREASED OPERATING COSTS, IN EACH CASE WHETHER FROM ANY CLAIM FOR BREACH OF CONTRACT OR BY REASON OF ANY TORT(INCLUDING NEGLIGENCE AND STRICT LIABILITY), STATUTE, WARRANTY OR OTHERWISE,EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Buyer and Seller acknowledge and agree that in the event multiple orders, releases, draw-downs, deliveries, shipments or the like are fulfilled with respect to this Sale Agreement without the issuance of a new purchase order, all such orders, releases, draw-downs, deliveries, shipments and the like shall be governed and controlled hereby unless Buyer and Seller otherwise agree in writing.
Buyer may not assign this SaleAgreement or any of its rights or obligations hereunder without the prior written consent of Seller.
No Modification. No conditions, course of dealing, course of performance, usage of trade, understanding or agreement, if any, will constitute a waiver, modification, change or supplement to, or serve to explain or interpret, theseTerms and Conditions or this Sale Agreement. No change, modification or revision to this Sale Agreement shall be binding unless agreed to in a writing signed by an authorized representative of Seller. No contract shall exist except as herein provided.
No remedy of Seller provided herein shall be exclusive of any other remedy provided hereunder or under any Applicable Law. The rights and remedies grantedSeller hereunder shall be in addition to all rights and remedies granted Seller under the Uniform Commercial Code and other Applicable Law. Buyer’s sole and exclusive remedies are limited to those expressly stated herein.
Any notice or communication provided for hereunder will be in writing and will be deemed given and received (a) upon delivery, if delivered personally or by facsimile transmission with receipt acknowledged, (b) one business day after having been deposited for overnight delivery with Federal Express or a comparable overnight courier, or (c) three business days after deposit in U.S.mail when sent by registered or certified mail, postage prepaid, with proof of delivery to the address of the party shown on this Sale Agreement or such other address as a party may specify in a written notice to the other.
(a) Subject to Section 26(b) below, any controversy or claim arising out of or relating to this SaleAgreement, the relationship resulting in or from this Sale Agreement, the breach of any duties hereunder or any other relationship, transaction or dealing between the parties (collectively “Disputes”) will be settled by binding arbitration in accordance with commercial arbitration rules of theAmerican Arbitration Association and such arbitration shall take place in York County, Pennsylvania. Buyer and Seller waive any objection based on venue or forumn on convenience with respect to any arbitration instituted therein. Notwithstanding anything set forth herein to the contrary, all notices, arbitration claims, responses, requests and documents will be sufficiently given or served if mailed or delivered to the parties hereto as described herein. Arbitration shall be conducted by a panel of three arbitrators mutually agreeable to Buyer and Seller and selected in accordance with the commercial arbitration rules of the AAA. Buyer and Seller agree that all arbitrators selected will be attorneys with at least five (5) years commercial transactions experience.Notwithstanding anything to the contrary in the commercial arbitration rules of the AAA, Buyer and Seller agree that no discovery or depositions shall be ordered, conducted, or otherwise allowed in any arbitration. The arbitrators shall be limited to awarding compensatory damages and shall have no authority to award punitive, exemplary or similar type damages. Any award rendered by the arbitrator(s) may be entered as a judgment or order and confirmed or enforced by either party in any state or federal court having competent jurisdiction thereof. If either party brings or appeals any judicial action to vacate or modify any award rendered pursuant to arbitration or opposes the confirmation of such award and the party bringing or appealing such action or opposing confirmation of such award does not prevail, such party will pay all of the costs and reasonable expenses (including, without limitation, court costs, arbitrators fees, disbursements, expenses and attorneys’ fees) incurred by the other party in defending such action. Additionally, if either party brings any action for judicial relief in the first instance without pursuing arbitration prior thereto, the party bringing such action for judicial relief will be liable for and will immediately pay to the other party all of the other party’s costs and reasonable expenses (including, without limitation, court costs, disbursements and attorneys’ fees) to stay or dismiss such judicial action and/or remove it to arbitration. The failure of either party to exercise any rights granted hereunder shall not operate as a waiver of any of those rights.
(b) The interpretation, validity and enforcement of this Sale Agreement and all transactions hereunder as to interpretation, enforcement, validity, construction, effect and in all other respects, shall be governed by the laws of the State of Pennsylvania without regard to its choice of law provisions, and including by way of example, but not of limitation, the applicable provisions of the Uniform Commercial Code as adopted by the State of Pennsylvania; provided, however, that the FederalArbitration Act (“FAA”), to the extent inconsistent, will supersede the laws of such State and govern. The application to this Sale Agreement of the UnitedNations Convention on Contracts for the International Sale of Goods and the UnitedNations Convention on the Limitation Period in the International Sale of Goods are expressly excluded. This Sale Agreement concerns transactions involving commerce among the several states. The agreement to arbitrate will survive termination of this Sale Agreement. IN THE EVENT THIS SALE AGREEMENT IS FOUND NOT TO BE SUBJECT TO ARBITRATION, (a) BUYER AND SELLER HEREBY AGREE AND CONSENT TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED IN YORK COUNTY, PENNSYLVANIA AND WAIVE ANY OBJECTION BASED ON VENUE OR FORUM NON CONVENIENS WITH RESPECT TO ANY ACTION INSTITUTED THEREIN, and (b) BUYE RAND SELLER KNOWINGLY AND WILLINGLY WAIVE ANY RIGHT THEY HAVE UNDER APPLICABLE LAWTO A TRIAL BY JURY IN ANY DISPUTE ARISING OUT OF OR IN ANY WAY RELATED TO THIS SALE AGREEMENT OR THE ISSUES RAISED BY THAT DISPUTE.
Buyer agrees to include the Equal Employment Opportunity Clause by reference in every applicable contract, agreement and purchase order entered into with subcontractors or suppliers as required by 41 CFR 60-1.4(d).
This Sale Agreement is made subject to, and Buyer acknowledges that all Goods sold by Seller are subject to, all laws, regulations, orders or other restrictions on the export of the Goods from the United States or other information about the Goods, including by way of example, but not of limitation, all U.S. export control and sanctions laws, regulations and Executive Orders, including Export AdministrationRegulations (15 CFR Parts 730 to 774), in each case, as the same may be amended or modified from time to time. By entering into this Sale Agreement and accepting delivery of the Goods, Buyer hereby agrees to comply with such laws and regulations and obtain any approvals, licenses or permits required under such laws and regulations for any transfer, export or re-export of the Goods.Buyer shall not sell or distribute, directly or indirectly, any of the Goods or other information about any of the Goods to any end-user for which an export license or other governmental approval is required without first obtaining such license or approval. Buyer shall assume responsibility for understanding and meeting all applicable U.S. Export Regulations. Diversion contrary to U.S. law is prohibited.
Seller is acting as an independent contractor, and nothing contained in this SaleAgreement will be construed to create a partnership or joint venture betweenBuyer and Seller or to make either Buyer or Seller an agent of the other party hereto for any purpose. Neither party will have the right to bind the other, transact any business in the other’s name or on its behalf or incur any liability for or on behalf of the other. The manner and means of conducting any work required hereunder or necessitated hereby will be under Seller’s sole control. Each party will comply with all applicable federal, state and local wage and tax laws relating to such party and will be solely responsible for paying all wages to its employees, for obtaining insurance for its employees and for withholding and paying all applicable federal, state, local and social security taxes, Medicare and other withholding deductions and payments, and will make all appropriate unemployment tax payments and any similar taxes on behalf of its employees.
The paragraph headings herein have been inserted for the convenience of the parties and shall not be considered in the interpretation or construction of this SaleAgreement.
Revised December 9, 2024