Terms & Conditions
TERMS
& CONDITIONS OF SALE. The goods that are the subject of a sale by Accurate
Composites, LLC and its affiliated entities (hereinafter collectively, "AccurateC")
to Buyer are referred to herein as the "Products," the services
sold by AccurateC to Buyer are referred to herein as the
"Services," and finished items from AccurateC’s Services shall
be referred to herein as “Service Items.”
All sales of Products or Services by AccurateC are governed by and
subject to (a) AccurateC's unexpired quotation, order acknowledgement and
these terms and conditions, or a separate written agreement signed by an
authorized representative of AccurateC, if applicable. Any irreconcilable conflict between
these terms and conditions and any terms in AccurateC's unexpired quotation,
order acknowledgement, or the separate written and signed agreement shall
be resolved in favor of the unexpired quotation, order acknowledgement, or
the separate written and signed agreement, as applicable. Except as otherwise agreed to by an authorized
representative of AccurateC in writing, the terms and conditions set forth
herein, together with AccurateC's unexpired quotation, order
acknowledgement, or a separate written and signed agreement, if
applicable, shall constitute the complete and final agreement between
AccurateC and Buyer (hereinafter, this "Agreement"), superseding
completely any prior oral or written communications between AccurateC and
Buyer regarding the subject matter.
AccurateC's
acceptance of Buyer's purchase order or commencement of performance shall
not constitute acceptance of any of Buyer's preprinted terms and
conditions. TERMS ADDITIONAL TO OR DIFFERENT FROM THESE TERMS AND
CONDITIONS, INCLUDING BUT NOT LIMITED TO TERMS CONTAINED IN BUYER'S
PURCHASE ORDER OR BUYER'S STANDARD TERMS AND CONDITIONS OF PURCHASE, ARE
DEEMED MATERIAL AND HEREBY REJECTED UNLESS OTHERWISE ACCEPTED BY ACCURATEC
IN WRITING.
BUYER'S
ASSENT TO THESE TERMS AND CONDITIONS. Buyer's assent to these terms and
conditions shall be conclusively presumed from Buyer's (1) receipt of AccurateC's
order acknowledgment without written objection sent to AccurateC within
ten (10) days after Buyer’s receipt thereof, (2) instructing AccurateC to
begin work or to ship any of the Products or Service Items after receipt
of AccurateC's order acknowledgement, (3) acceptance of or payment for all
or any part of the Products or Service Items, or (4) taking any other
action evidencing Buyer's acceptance of the benefits of the agreement
between the parties. AccurateC may commence performance in reliance upon
Buyer's acceptance of these terms and conditions, and AccurateC will not
be obligated to fulfill an order or request for the Products or Services,
unless AccurateC affirmatively acknowledges such order.
MODIFICATION.
No modification of this Agreement or waiver of any of its terms will be
binding on AccurateC, unless clearly expressed in writing and signed by an
authorized representative of AccurateC.
TERMINATION
OR CANCELLATION. AccurateC shall
have the right to terminate this Agreement if AccurateC determines that
Buyer’s credit is not satisfactory or for any other reason. Any such termination or cancellation
shall be effective upon notification (either orally or in writing) to
Buyer and shall be without liability to AccurateC. Buyer may not cancel this Agreement once
AccurateC has commenced manufacturing of Products or Service Items. Prior to commencement of manufacture,
orders may only be cancelled upon payment to AccurateC of the cost of raw
materials, component parts, engineering and administrative time an
supplies on which commitments have been made, as well as the profit which
AccurateC would have made on the completed order.
DELIVERY,
FREIGHT AND RISK OF LOSS. All deliveries are Ex Works (Incoterms 2020) AccurateC's
facility freight prepaid or freight collect to destination. Unless
otherwise agreed in writing, AccurateC may, in its sole discretion, select
the shipping method, the carrier and the applicable freight charges. If
Buyer desires to pick up the Products or Service Items at AccurateC's
facility, Buyer must contact AccurateC to arrange a mutually convenient
time for pick up. Title to the Products and Service Items, and risk of
loss to the Products and Service Items, shall pass to the Buyer at the
point of shipment from AccurateC's facility, whether freight prepaid or
freight collect to Buyer’s destination, regardless of which party selects
the carrier and arranges the freight charges or particulars of shipment. Risk of loss for damage or delay in
transit shall be borne by Buyer. Buyer shall file and pursue any claims
directly with the carrier related to loss, damage or delay in transit, and
Buyer shall not assert such claims against AccurateC or deduct from
amounts owing to AccurateC.
RELEASE
OF GOODS FOR SHIPMENT. Buyer must release the Products or Service Items
for shipment within twenty (20) days after AccurateC notifies Buyer that
those items are ready for shipment. After such 20-day period, Buyer will
pay a holding charge determined in good faith by AccurateC and/or AccurateC
may ship the Products or Service Items to Buyer without further
notification. Buyer agrees to accept delivery of all shipped Products and/or
Service Items and to pay the applicable price. AccurateC has the right to
sell or scrap any Products and/or Service Items without notice to Buyer if
Buyer has not released the Products and/or Service Items for shipment
within forty-five (45) days after AccurateC notifies Buyer that the
Products and/or Service Items are ready for shipment, and Buyer shall be
responsible for any difference between the agreed purchase price and the
sale price or the scrap allowance. With respect to any order of a single
item of a truckload or less, Buyer must release the entire order for shipment
at one time or pay the additional LTL charges required by AccurateC.
DELAYS
AND CANCELLATIONS BY BUYER. "Delay/Cancellation Costs" include
all labor, materials, overhead, general and administrative costs,
restocking charges, surcharges levied on material by outside suppliers,
sub-vendor cancellation charges, excess inventory charges, value of
storage space, inventory tax charges, banking and finance charges,
scrapping and disposal fees, and other harm, costs and charges incurred
directly or indirectly by AccurateC in connection with a delay or
cancellation of an order for the Products or Services. The "Firm
Order Period" is determined according to, as applicable, the
quotation, order acknowledgement or separate written and signed agreement.
If there is no quotation, order acknowledgement or separate written and
signed agreement, or if none of those items specifies the Firm Order
Period, the Firm Order Period will be determined according to AccurateC's
then current cancellation and orderbook management policy. If a Firm Order
Period cannot be determined in any of the preceding methods, the entire
order will be considered to be within the Firm Order Period. Buyer is not
entitled, without AccurateC's prior written consent, which may be withheld
or conditioned in AccurateC's sole discretion, to cancel or delay a
delivery of the Products and/or Service Items for all or any part of an
order within the Firm Order Period. AccurateC may treat as a cancellation
any proposed delay greater than 60 days. If AccurateC consents to the
cancellation or delay, Buyer shall pay a cancellation or delay charge in
an amount determined in AccurateC's sole discretion to reflect all
applicable Delay/Cancellation Costs, including, at a minimum, a storage
charge, inventory carrying costs, financing costs associated with the
finished Products or Service Items, work in process and raw materials, and
costs of inactive labor, from the original request date until the time of
delivery or performance. In the case of cancellation, the charge may also
include, at AccurateC's sole discretion, a reasonable and equitable profit
for AccurateC. If AccurateC's work on an order requires material from
Buyer or a third party selected by Buyer, and AccurateC does not timely
receive material that strictly conform to AccurateC's requirements,
including chemical composition, physical properties and dimensions, AccurateC
may delay performance of or cancel the order without liability, and Buyer
shall compensate AccurateC for all Delay/Cancellation Costs, including for
costs incurred and time expended working on non-conforming material.
SPECIFICATIONS.
The material specifications, quality requirements, or any other aspect of
the Products and/or Service Items or their manufacture (the "Product
Specifications") is controlled by AccurateC's unexpired quotation,
order acknowledgement, or separate written and signed agreement. If any of
the Product Specifications in AccurateC's unexpired quotation, order
acknowledgement, or separate written and signed agreement differ
materially from the Product Specifications requested by Buyer, AccurateC
may, in its sole discretion, require that Buyer provide a written
acknowledgment and acceptance of the Product Specifications in AccurateC's
quotation, order acknowledgement, or separate written and signed agreement
prior to the manufacture or delivery of the Products or Service Items.
Buyer is not entitled, without AccurateC's prior written consent, which
may be granted or withheld in AccurateC's sole discretion, to make any
changes to Product Specifications in AccurateC's quotation, order
acknowledgement, or separate written and signed agreement. If AccurateC
consents to the change, AccurateC may condition its consent on Buyer's
agreement to price adjustments and other compensating payments
satisfactory to AccurateC. In addition to all other remedies available to
it under applicable law, AccurateC may refuse to comply with any change to
which AccurateC has not given its prior written consent.
GOVERNMENT
CONTRACTS. If Buyer is purchasing the Products and/or Service Items for a
government contract or sub-contract, Buyer shall promptly notify AccurateC
of that fact and of any contractual terms from the government procurement
laws and regulations that Buyer is obligated to include in its contracts
for such Products and/or Service Items. No government procurement
provisions will be included in this Agreement unless agreed to in a
writing signed by an authorized representative of AccurateC.
PURCHASE
PRICE. The purchase price of the Products or Services shall be as stated
in AccurateC's unexpired quotation, order acknowledgement, or separate
written agreement signed by an authorized representative of AccurateC, as
applicable. Unless agreed by AccurateC in writing, the purchase price does
not include shipment costs. If the Products or Service Items are shipped
freight prepaid, the charge for freight shall be added to the invoice.
Prices are based on and assume Buyer's compliance with all of the terms
and conditions of this Agreement, including a promise by Buyer to purchase
a particular mix of goods, a certain quantity of goods, or a certain
percentage of Buyer's requirements for the goods. AccurateC may adjust prices,
in its sole discretion, if the circumstances do not coincide with the
forgoing assumptions. In addition, AccurateC may at any time adjust prices
based on changes to energy costs, raw material costs, labor costs and
exchange rates.
PAYMENT
TERMS. Unless otherwise stated in the unexpired quotation, payment terms
are net 30 days, with no discount allowed on transportation charges.
Interest will accrue on invoices unpaid after the net due date at the
annual rate of 12% or the maximum legal contract interest rate, whichever
is less.
SURCHARGES;
PRICE ADJUSTMENTS. For purchases made pursuant to a separate written
agreement signed by an authorized representative of AccurateC, if AccurateC
announces a surcharge, such surcharge shall become effective for the Products
or Service Items scheduled for shipment beginning on the date set forth in
AccurateC's announcement of such surcharge or, if there is no such date,
immediately upon such announcement. For all other purchases, including,
but not limited to, spot purchases: (i) if AccurateC announces a general
price increase, such price increase shall become effective for the
Products or Service Items scheduled for shipment beginning on the date set
forth in AccurateC's announcement of such price increase or, if there is
no such date, immediately upon such announcement; and (ii) if AccurateC
announces a surcharge, such surcharge shall become effective for the
Products or Service Items scheduled for shipment beginning on the date set
forth in AccurateC's announcement of such surcharge or, if there is no
such date, immediately upon such announcement.
TAXES.
Prices do not include any taxes or other assessments. All taxes, duties,
fees, assessments or other charges of any kind imposed by any federal,
state, municipal or other governmental authority which AccurateC is
required to collect or pay with respect to the provision, production, sale
or shipment of the Products or Services shall be the responsibility of
Buyer. Buyer agrees to pay all such taxes and further agrees to reimburse AccurateC
for any such payments made by AccurateC. Buyer hereby affirms that it is
purchasing the Products referenced herein for resale, and/or that Buyer is
not the end user of the Products, so as to be exempt from any otherwise
applicable sales tax.
FAILURE
OF PAYMENT. If Buyer fails to make payment in full or in part when due or
refuses to pay any applicable price increases or surcharges, AccurateC
shall have the right to: (i) immediately suspend performance and cancel
the unfinished portion of any outstanding orders, (ii) declare all unpaid
amounts for the Products or Service Items delivered immediately due and
payable, and (iii) withhold further deliveries. If AccurateC elects to
proceed with an order after the suspension of performance, AccurateC shall
have an extension of time for performance as is necessitated by the
suspension. AccurateC shall have the right to enforce payment of the full
purchase price, including any price increase or surcharge, for Products or
Service Items already delivered or in process. Buyer shall reimburse AccurateC
for all costs of collection, including reasonable attorney's fees,
incurred as a result of Buyer's failure to make payments when due.
BUYER'S
FINANCIAL CONDITION. First time customers may be required, in AccurateC’s
sole discretion, to supply a current financial statement, three trade
references, and/or completed credit questionnaire. AccurateC shall have
the right, by written notice, to suspend performance, terminate this
Agreement, cancel any order, modify any payment terms, or require full or
partial payment or adequate assurance of performance from Buyer, without
liability to AccurateC, in the event of a material adverse change in the
Buyer's financial condition or if reasonable grounds for insecurity arise
with respect to Buyer's performance of this Agreement, evidence of which
might include, among other things, (i) a default under any of Buyer's
financing agreements, (ii) Buyer's inability to obtain financing, (iii) a
reduction in Buyer's credit rating by a recognized rating agency, (iv)
Buyer's insolvency, (v) the filing of a bankruptcy by or against Buyer
(whether voluntary or involuntary), (vi) the appointment of a receiver or
trustee for Buyer, (vii) the execution by Buyer of an assignment for the
benefit of creditors, (viii) the failure by Buyer to make a payment to AccurateC
when due, or (viii) any other event which raises reasonable doubts as to
Buyer's creditworthiness. The modifications AccurateC may make to payment
terms include shortening the payment period, requiring advance payment, or
requiring payment of cash on delivery. AccurateC shall notify Buyer in
writing of any modifications to payment terms, which may be made
retroactive to include amounts then accrued but unpaid. AccurateC reserves
the right to cancel Buyer's credit at any time for any reason, without
notice.
SETOFF.
AccurateC shall have the right to credit toward the payment of any monies
that may become due Buyer hereunder any amounts which may now or hereafter
be owed to AccurateC. Buyer shall pay AccurateC's invoices without
discount, setoff or reduction for any reason, including asserted warranty
claims or other claims of non-performance by AccurateC.
ACCORD
AND SATISFACTION. Checks or payments, whether full or partial, received
from or for the account of Buyer, regardless of writings, legends or
notations upon such checks or payments, or regardless of other writings,
statements or documents, shall be applied by AccurateC against the amount
owing by Buyer with full reservation of all AccurateC's rights and without
an accord and satisfaction of Buyer's liability.
LIMITED
WARRANTY. EXCEPT AS EXPRESSLY SET FORTH IN ACCURATEC'S UNEXPIRED QUOTATION,
ORDER ACKNOWLEDGEMENT OR SEPARATE WRITTEN AND SIGNED AGREEMENT, ACCURATEC
MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, WHICH ARE EXPRESSLY DISCLAIMED. AT ACCURATEC'S DISCRETION,
BUYER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THE CONFORMANCE OF ANY
PRODUCTS OR SERVICE ITEMS FURNISHED BY ACCURATEC UNDER THIS AGREEMENT
SHALL BE LIMITED TO EITHER: (1) REPLACEMENT OF SUCH PRODUCTS OR SERVICE
ITEMS AT THE POINT OF SHIPMENT FROM ACCURATEC'S FACILITY, OR (2) REPAYMENT
OF OR CREDIT AGAINST THE PURCHASE PRICE OF SUCH PRODUCTS OR SERVICE ITEMS
UPON AUTHORIZED RETURN THEREOF. In the event AccurateC has authorized
Buyer to scrap all or any portion of the Products or Service Items, the
scrap allowance is to be credited to AccurateC. The employees and
representatives of AccurateC are not authorized to make any statement or
representation as to the Products or Service Items inconsistent with this
Agreement and no such statements made will be binding upon AccurateC or be
grounds for any claim.
NON-CONFORMING
GOODS. No claim for damages for non-conforming Products or Service Items
will be allowed unless Buyer provides AccurateC with written notice of the
claim within sixty (60) days of the date the Products or Service Items
were delivered to Buyer. To assert such a claim, Buyer must (a) at AccurateC's
request, return to AccurateC 100% or, if agreed by AccurateC, a lesser but
still statistically relevant percentage of the Products or Service Items
claimed to be non-conforming, and (b) provide reasonable evidence to
support the claim, including, if requested by AccurateC, results of
diagnostic tests, evaluations and investigations performed by Buyer or
Buyer's customer. Products or Service Items for which damages are claimed
shall not be returned, repaired, or discarded without AccurateC's prior
written consent. If requested by AccurateC, the non-conforming Products or
Service Items must be returned to AccurateC at Buyer's expense within ten
(10) days of AccurateC's request. No claims, rejections or returns for
non-conforming Products or Service Items will be permitted unless Buyer
cooperates in full with AccurateC's technical personnel to determine the
cause of the non-conformance.
SHORTAGE
OF GOODS OR DAMAGED GOODS. Claims by Buyer with respect to shortage of
Products or Service Items invoiced or for damaged Products or Service
Items must be made to AccurateC in writing no later than sixty (60) days
from the date the Products or Service Items were delivered to Buyer. All
claims must be made only for substantial cause, must be in writing, and
must specify the reason(s) for the claim. THE FAILURE TO NOTIFY ACCURATEC
OF ANY CLAIM WITHIN THE TIME PERIOD SPECIFIED BY THIS SECTION SHALL
CONSTITUTE A WAIVER OF AND BAR SUCH CLAIM. ACCURATEC SHALL INCUR NO
LIABILITY FOR SHORTAGE OR DAMAGE ALLEGED TO HAVE OCCURRED OR EXISTED AT OR
PRIOR TO DELIVERY TO THE CARRIER UNLESS BUYER SHALL HAVE ENTERED FULL
DETAILS THEREOF ON CARRIER'S DELIVERY RECEIPT WHICH MUST BE SIGNED BY THE
CARRIER'S AGENT. ACCURATEC MUST BE GIVEN AN OPPORTUNITY TO INVESTIGATE THE
CLAIM BEFORE BUYER DISPOSES OF THE PRODUCTS OR SERVICE ITEMS. ANY DAMAGED
PRODUCTS OR SERVICE ITEMS SHALL NOT BE RETURNED, REPAIRED OR DISCARDED
WITHOUT ACCURATEC'S WRITTEN PERMISSION.
TECHNICAL
ADVICE. AccurateC assumes no obligation or liability for any technical
advice furnished to Buyer, including without limitation technical advice
with respect to the use of the Products or Service Items, all such
technical advice being given and accepted at Buyer's risk. AccurateC will
not be liable for any damages of any kind arising out of or relating to
the use of or the inability to use the information provided, including but
not limited to any special, indirect, incidental or consequential damages
including, without limitation, demurrage charges, cost of shipment,
downtime, lost profits (whether direct or indirect), or lost sales,
whether foreseeable or not, and even if AccurateC has been advised of the
possibility of damages.
INTELLECTUAL
PROPERTY. Nothing in this Agreement is to be construed as a grant or
assignment of any license or other right to Buyer of any of AccurateC's or
its affiliates' intellectual property rights, whether patent, trademark,
trade secret, copyright or otherwise. All improvements and developments
related to the Products or the efforts of AccurateC and Buyer will be
owned exclusively by AccurateC, and Buyer shall reasonably cooperate with AccurateC
in confirming that result.
CONFIDENTIALITY.
Any pricing or other sensitive commercial information provided by AccurateC
to Buyer is proprietary to AccurateC and shall be held in confidence by
Buyer, shall only be used by Buyer in connection with this sale, and shall
not be used for any other purposes or disclosed to third parties without AccurateC's
prior written consent. Buyer shall be liable for any loss to AccurateC or
commercial gain by others from unauthorized use of confidential
information occasioned by Buyer's failure to comply with this provision.
AUDIT.
Unless otherwise agreed to in writing by an authorized representative of AccurateC,
Buyer shall have no right to audit any books or records of AccurateC and
Buyer shall have no right to enter into any facility owned or controlled
by AccurateC.
LIMITATION
OF LIABILITY. ACCURATEC'S LIABILITY, WHETHER IN CONTRACT, IN TORT, UNDER
WARRANTY, IN NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE
OF THE PRODUCTS OR SERVICES, AND UNDER NO CIRCUMSTANCES SHALL ACCURATEC BE
LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL
DAMAGES INCLUDING, BUT NOT LIMITED TO, DEMURRAGE CHARGES, COSTS OF
SHIPMENT, DOWNTIME, LOST PROFITS (WHETHER DIRECT OR INDIRECT), LOST SALES,
DAMAGE TO EQUIPMENT, OR CLAIMS OF BUYER'S CUSTOMERS OR OTHER THIRD PARTIES
FOR DAMAGES OR PENALTIES, WHETHER OR NOT BUYER IS LEGALLY OBLIGATED TO PAY
THEM. ACCURATEC'S LIABILITY HEREUNDER SHALL BE LIMITED TO EITHER: (1) THE
OBLIGATION TO REPAIR OR REPLACE, AT ACCURATEC'S SOLE DISCRETION, ONLY
THOSE PORTIONS OF THE PRODUCTS OR SERVICE ITEMS PROVEN TO HAVE FAILED TO
MEET IN MATERIAL RESPECT THE SPECIFICATIONS ON THE ACCURATEC'S QUOTATION,
ORDER ACKNOWLEDGEMENT, OR SEPARATE WRITTEN AND SIGNED AGREEMENT AT THE
TIME OF SHIPMENT FROM ACCURATEC'S FACILITY, OR (2) REPAYMENT OF OR CREDIT
AGAINST THE PURCHASE PRICE OF THE PRODUCTS OR SERVICES. ACCURATEC AND
BUYER EXPRESSLY AGREE TO THIS ALLOCATION OF RISK AND THE PRICE STATED FOR
THE PRODUCTS OR SERVICES IS CONSIDERATION FOR THE LIMITATION ON ACCURATEC'S
LIABILITY. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXCLUSIVE
REMEDY DESCRIBED IN THIS SECTION FAILS ITS ESSENTIAL PURPOSE.
INDEMNIFICATION
BY ACCURATEC. AccurateC agrees to
indemnify, defend and hold harmless Buyer, its directors, officers,
employees, agents, successors and assigns from and against any and all
damages, losses, expenses, costs (including without limitation reasonable
attorney's and accountant's fees), claims, suits, actions, judgments or
other liability asserted against or incurred by AccurateC arising out of
(a) a third party’s allegation the Products or Service Items constitute a
breach of such party’s U.S. patent or trademark. In the event the Products, Service
Items, or any parts thereof, are held to constitute infringement and the
use of such Products, Service Items, or any parts thereof are enjoined,
AccurateC shall, at its own expense and at its option, either (a) procure
for Buyer the right to continue using the Product, Service Item, or any
parts thereof, (b) replace the same with non-infringing comparable
products, modify the Products, Service Items, or parts thereof, as
applicable so they become non-infringing or (c) remove the Products,
Service Items, or parts thereof, and refund to Buyer the purchase price.
INDEMNIFICATION
BY BUYER. Notwithstanding the
provisions of the preceding paragraph, Buyer shall indemnify AccurateC, and
hold it harmless, against any and all damages, expenses, losses or liabilities
resulting from infringement of patents or trademarks arising out of a)
AccurateC’s compliance with Buyer’s required designs, specifications or
instructions, or b) arising out of AccurateC’s use of any equipment,
materials, parts or machinery furnished by Buyer, or c) Buyer’s use of the
Products or Service Items. The sale
of Products, Service Items, or parts thereof by AccurateC does not convey
any license, expressly or by implication estoppels or otherwise, under any
patent claim covering combinations of the Product, Service Item, or parts
thereof with other devices or elements.
INDEMNIFICATION
PROCEDURE. The Party seeking indemnification (the “Indemnitee”)
under this Paragraphs 27 or 28 shall promptly notify the other Party (the
“Indemnitor”) in writing of any claim, complaint, suit, proceeding or
cause of action with respect to which the Indemnitee intends to claim such
indemnification (for purposes of this Section 29, each a “Claim”), and the
Indemnitor shall have sole control of the defense and/or settlement
thereof; provided that the Indemnitee shall have the right to participate,
at its own expense, with counsel of its own choosing in the defense and/or
settlement of such Claim. The indemnification obligations of the Parties
shall not apply to amounts paid in settlement of any Claim if such
settlement is effected without the consent of the Indemnitor. The failure
to deliver written notice to the Indemnitor within a reasonable time after
the commencement of any such Claim, if prejudicial to its ability to
defend such action, shall relieve such Indemnitor of liability to the
Indemnitee. The Indemnitee, and its employees, at the Indemnitor’s request
and expense, shall provide full information and reasonable assistance to
Indemnitor and its legal representatives with respect to such Claims
covered by this indemnification.
FORCE
MAJEURE. AccurateC shall not be responsible for cancellation or delay in
delivery or performance resulting, in whole or in part, from causes beyond
its reasonable control, including, but not limited to: acts of God; acts
of Buyer; strikes or other labor disturbances regardless of whether or not
AccurateC is capable of settling such strike or disturbance; mill or
facility conditions; temporary or permanent mill or facility closures;
equipment failure; inability to obtain fuel, material, or parts; war; acts
of terrorism; sabotage; riot; delays in transportation; repairs to
equipment; natural disasters; epidemics; pandemics; floods; fires; action
of governmental authorities (valid or invalid); severe weather conditions;
accidents; explosions; failure of or inability to obtain power, raw
materials, suppliers, labor, equipment or transportation; a court or
administrative injunction or order; or any other contingency the
non-occurrence of which was a basic assumption on which this Agreement was
made.
GOVERNING
LAW; FORUM SELECTION. This Agreement shall be governed by, construed, and
enforced in accordance with the laws of the Commonwealth of Massachusetts,
without regard to conflict of laws principles. The United Nations
Convention on Contracts for the International Sale of Goods does not apply
to this Agreement. Buyer, acting for itself and its successors and
assigns, hereby expressly and irrevocably consents to the exclusive
jurisdiction of the state and federal courts having authority over the
territory of Boston, Massachusetts, for any litigation which may arise out
of or be related to this Agreement or the purchase or use of the Products
or Services. Any action brought in any such court may not be transferred
or removed to any other court. Buyer waives any objection based upon forum
non-conveniens or any objection to venue of any such action.
STATUTE
OF LIMITATIONS. BUYER AND ACCURATEC AGREE THAT, UNLESS OTHERWISE SPECIFIED
IN THIS AGREEMENT, ANY ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS
AGREEMENT OR THE SALE OF THE PRODUCTS OR SERVICES MUST BE BROUGHT WITHIN
ONE YEAR AFTER THE DATE ON WHICH THE PRODUCTS OR SERVICE ITEMS IN QUESTION
WERE DELIVERED TO BUYER OR THE DATE ON WHICH THE EVENT GIVING RISE TO THE
ACTION OCCURRED, WHICHEVER IS EARLIER.
DISPUTE
RESOLUTION. Buyer and AccurateC will attempt in good faith to resolve
promptly any dispute arising out of or relating to this Agreement or the
breach thereof. If a dispute should arise, BUYER AND ACCURATEC AGREE TO
SUBMIT THE DISPUTE TO MEDIATION. BUYER AND ACCURATEC FURTHER AGREE THAT
THEIR PARTICIPATION IN MEDIATION IS A CONDITION PRECEDENT TO ANY PARTY
PURSUING ANY OTHER AVAILABLE REMEDY IN RELATION TO THE DISPUTE. Mediation
involves no formal court procedures or rules of evidence, and the mediator
does not have the power to render a binding decision or force an agreement
on the parties. Buyer and AccurateC agree that the entire mediation
procedure will be confidential. Buyer or AccurateC must give written
notice of their desire to commence mediation, and a mediation session must
take place within forty-five (45) days after the date such notice is
given. The mediation shall be attended by representatives of each party
with authority to resolve the dispute, and counsel for the parties shall
not attend the mediation unless otherwise agreed to by the parties. Buyer
and AccurateC will jointly appoint a mutually acceptable and neutral
mediator. If Buyer and AccurateC are unable to agree upon the appointment
of a mediator within seven (7) days after notice of desire to mediate is
given, Buyer or AccurateC may apply to the American Arbitration
Association for appointment of a mediator. The mediation shall be held in
Cleveland, Ohio. Buyer and AccurateC agree that the expenses of mediation
shall be borne equally by both parties.
NONWAIVER.
The failure of AccurateC to enforce any of the provisions of this
Agreement shall not be construed as a waiver of AccurateC's right to
enforce each and every provision hereof. AccurateC reserves the right to
enforce these terms and conditions at any time and none shall be deemed
waived unless such waiver is in writing signed by an authorized
representative of AccurateC. AccurateC's rights and remedies set forth in
this Agreement are in addition to all legal and equitable rights and
remedies available to AccurateC.
ASSIGNMENT
OR DELEGATION. Buyer shall not assign or delegate any or all of its rights
or obligations under this Agreement without the prior written consent of AccurateC,
and any attempt to do so will be ineffective.
NO
THIRD PARTY RIGHTS. This Agreement is for the sole and exclusive benefit
of the parties hereto and their permitted successors and assigns. Nothing
expressed or referred to in this Agreement will be construed to give any
other person any legal or equitable right, remedy or claim under or with
respect this Agreement.
INDEPENDENT
PARTIES. AccurateC and Buyer are independent parties and nothing in this
Agreement shall make either party an agent, partner, joint venturer, or
legal representative of the other.
HEADINGS.
The section headings contained in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
SEVERABILITY.
If any provision or part of a provision of this Agreement is declared
invalid, illegal, or unenforceable under applicable law, the affected
provision will be considered omitted or modified to conform to applicable
law. The validity, legality, and enforceability of all other remaining
provisions or parts of provisions will remain in full force and effect.
INTERNATIONAL
TRADE. AccurateC makes no representation with respect to the country of
origin, qualification for duty preference or similar program, specific
Harmonized Tariff Schedule Number, export jurisdiction, U.S. Munitions
List category , Export Control Classification Number, or export authority
of any good. AccurateC retains all of its duty drawback rights, and any
attempt by Buyer to transfer any such rights will be void. Buyer shall
not, itself or by any freight forwarder, customs broker or other agent or
third party under Buyer's direction or control, designate AccurateC as the
U.S. Principal Party in Interest (as defined in the U.S. Foreign Trade
Regulations, 15 CFR Part 30) or file the Electronic Export Information
with U.S. Bureau of Census ("EEI"), unless otherwise agreed in
writing by an authorized representative of AccurateC. If Buyer files an
EEI without the prior written consent required by the preceding sentence,
then: (i) the EEI will be considered to have been made without AccurateC's
authority or permission, and any false statements to the government will
be considered to have been made by Buyer or its agent, as applicable, (ii)
any affected transaction will be considered to be a routed export
transaction, such that Buyer or its agent will be considered the U.S.
Principal Party in Interest and exporter of record (as defined by the
Foreign Trade Regulations and the Export Administration Regulations) for
those transactions, (iii) Buyer shall assume all of the responsibilities
of the exporter of record for any such transactions; and (iv) AccurateC
will have no responsibility as the exporter of record. Buyer represents
that it is not, and to the best of Buyer's knowledge, its customers, its
customers' end-users and its agents are not, subject to any U.S. or other
government sanction or restriction that would prohibit the sale or export
by AccurateC of the Products or Services. Upon AccurateC's request, Buyer
shall provide all end-user and end-use information of which it is aware or
which it could obtain with commercially reasonable efforts. Buyer shall
comply strictly with all applicable U.S. export laws and regulations, and
Buyer shall assist AccurateC in complying and documenting compliance with
any applicable U.S. export laws, regulations and executive orders.
Regardless of any statements on Buyer's purchase order or other documents
to the contrary, AccurateC shall not be the importer of record (as that
term is defined by U.S. law at 19 USC 1484, or equivalent provision of
non-U.S. law) with respect to a transaction governed by this Agreement,
unless otherwise agreed in writing by an authorized representative of AccurateC.
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