Terms & Conditions
TERMS AND CONDITIONS OF SALE
1. GENERAL. For purposes of these Terms and Conditions (“Terms”) shall apply to all products (“Goods”) sold by Meyer Aluminium Blanks, Inc. (“Seller”) to any customer who purchases such Goods (“Buyer”).
a. All sales, agreements for sale, offers to sell, proposals, acknowledgments and contracts of sale, including but not limited to purchase orders, and subsequent purchases of Goods shall be subject to these Terms, which are the only terms, conditions, and limitations to which Seller will agree, constitute the entire agreement between the parties with regard to the subject matter hereof, and supersede all prior statements, proposals, negotiations, and representations, and, to the extent permissible by law, supersede all statutory provisions regarding the scope and duration of Seller’s warranties and the availability of remedies with regard to such subject matter. Unless specifically agreed to in writing by a duly authorized representative of Seller, Seller shall not be bound by any terms or conditions other than these Terms, whether written or oral, whether contained in Buyer’s Order, or elsewhere. Any such Buyer terms and conditions are hereby expressly objected to and rejected by Seller.
b. The terms, conditions, and limitations set forth herein can be modified, altered, or added to only by a subsequent written instrument signed by an authorized Seller representative. No inconsistent course of dealing, course of performance, or usage of trade, if any, shall constitute a waiver or serve to explain or interpret these Terms.
c. All purchase orders for Goods delivered by Buyer to Seller (“Orders”) must be in writing and processed only when all the pertinent information is received. Seller’s acceptance of a Buyer’s Order is conditioned upon Buyer holding Seller harmless for any delay in the delivery of ordered Goods. Seller shall generate a written notice to Buyer (“Order Confirmation”) confirming Seller’s acceptance of a Buyer Order, and the intended ship dates for the ordered Goods, which Seller may modify to reflect unforeseen delays. Order Confirmations of delivery are issued only after drawing approval, if required. Buyer cannot cancel or alter any Order after Seller has issued an Order Confirmation, without Seller’s written consent.
d. Any delivery date(s) provided by Seller to Buyer are estimates, and Seller reserves the right to modify the delivery date(s) without notice. Seller will undertake commercially reasonable efforts to provide Buyer with approximately two (2) weeks’ notice of the planned delivery date. Any quoted lead time(s) may be impacted due to pandemics, epidemics, public health emergencies, or geopolitical crises and any related foreseeable or unforeseeable circumstances arising therefrom, including but not limited to government regulations, labor shortages, supply chain disruptions, or measures taken to preserve the health and safety of Seller’s workforce. Any quoted lead time shall be considered an estimate based upon the best information available to Seller at the time the estimate is made, and is subject to change without notice. Seller reserves the right to postpone any confirmed lead time without prior notice.
e. Seller reserves the right to correct clerical, arithmetic, or typographical errors or omissions in Quotes, invoices, price schedules, Order Confirmations, acknowledgements, or other relevant documents.
2. PRICE & PAYMENT:
a. Seller’s Right to Invoice and Ship. If Seller notifies Buyer that the Goods are completed and ready for delivery, inspection, or other release, and Buyer does not respond within three (3) business days, Seller may ship the Goods on or after the delivery date specified in the Order Confirmation and invoice Buyer. In such a case, payment will be due according to the payment period specified in Section 2(d), and any portions of payment triggered by an event following shipment of the Goods will be included in the invoice, rather than delayed to a later date. Seller will also have the option of billing for partial shipments.
b. Price. Unless otherwise indicated, Seller’s prices, proposals, and quotations are net cash (without deduction), pursuant to the applicable Incoterms® 2020 delivery term specified in Seller’s Quotation or Order Confirmation, and may be subject to a surcharge due to the price volatility of raw materials. Prices for Goods shall be the price indicated in the Quotation for such Goods on the date of Buyer’s Order; Buyer agrees, however, that prices for Goods are contingent upon geopolitical crises, pandemics, raw material price volatility, mill surcharges, or other exigencies beyond Seller’s control, and may change without notice, through the end of the respective crisis, unless otherwise agreed to in writing. If there is a period of more than two (2) months between the date of the Order and delivery, unless otherwise agreed in writing between Buyer and Seller, the price for the Goods shall be the price indicated in the Quotation on the date of delivery, subject to the same contingencies and qualifications noted in the foregoing sentence. Unless otherwise stated in the Quotation, the prices in Seller’s Quotation are valid through the end of the business day on which the Quotation is issued, and all Quotations are subject to mill confirmation and approval, and to the quantities, specifications, and conditions received by Seller at the time of the Quotation. Seller may revise its quotation based on any special sourcing requirements of Buyer. Any agreed-upon cash discounts reflected in the Seller’s proposal, Quotation, or Order Confirmation are subject to the Buyer fulfilling the terms and conditions applicable to any such discounts. If Seller incurs any additional costs in packaging or performing any special tests or inspections as requested by Buyer, in addition to those that may be regularly supplied or performed by Seller, Seller will charge such costs to Buyer. If Buyer requests any changes to its Order after Seller has issued an Order Confirmation, Seller will, in its sole discretion, determine whether it will accept such requested change and reserves the right to separately invoice Buyer for the additional costs and/or charges relating to the requested change to the Order.
c. Taxes, Duties, And Government Fees. All prices are exclusive of all taxes, duties, or government fees. In addition to the stated prices and any other charges due, Buyer shall reimburse Seller for all sales, use, excise, value-added, goods and services, or other taxes that Seller must at any time either pay or collect in connection with the Goods or Services sold by Seller to Buyer. If, under any laws applicable to Buyer, Buyer is required to withhold any tax on such payments, then the amount of the payment will be automatically increased to totally offset such tax, so that the amount actually remitted to Seller, net of all taxes, equals the amount invoiced or otherwise due. If exemption from any tax, duty, fee, or permit is claimed, Buyer shall promptly furnish Seller with proof of exemption satisfactory to Seller and the governing authority, and shall reimburse Seller for any cost or expense, including attorneys’ fees, incurred as a result thereof. Any estimate of import duties, tariffs, taxes, government fees, or any other charge relating to Goods that Seller provides to Buyer in a Quotation or Seller Confirmation is merely an estimate and may change between the time provided by Seller and the time of delivery of Goods to Buyer. Buyer shall be solely and exclusively liable for, and shall indemnify and hold Seller harmless from, the obligation to pay any such import duties, tariffs, taxes, government fees, or any other charge relating to Goods.
d. Terms of Payment. Seller accepts payment from Buyer through ACH electronic transfer, certified check, or wire transfer. Unless otherwise agreed, Seller shall invoice Buyer upon shipment, and Buyer shall pay Seller net 100% payment in advance, if not otherwise agreed, from the invoice date, subject to credit approval. If Buyer has not been granted credit by Seller, Buyer shall make full prepayment prior to shipment of the Goods. The effective date of Buyer’s payment shall be governed by the date Supplier receives the full, unencumbered payment from Buyer. Seller, in its sole discretion, may require either that (1) Buyer provide an irrevocable Letter of Credit at sight drawn on a bank acceptable to Seller (in such case all banking charges outside Seller’s location shall be for Buyer’s account, and delivery lead time will commence from Seller’s receipt of the Letter of Credit, to be advised through Seller’s preferred bank); or that (2) Buyer make 100% payment in advance by wire transfer to Seller’s preferred bank (in such case delivery lead time will commence from receipt of Buyer’s payment by Seller’s preferred bank). For a Buyer whose credit is established or who can furnish satisfactory credit references, upon the Seller’s sole discretion, terms will be net 30 days from invoice date, not to exceed 90 days. If Buyer fails to pay when any payment is due, the Buyer will default for all outstanding invoices without further notice. Without prejudice to any other rights or remedies of Seller, Seller shall have the right to cancel further deliveries and to charge interest on all overdue amounts at the rate of one and one-half percent (1.5%) per month. In addition, Buyer shall reimburse Seller for all administrative and legal expenses incurred by Seller in collecting the amounts payable. All payments shall be in United States currency, unless otherwise specified in writing by Seller, and shall be made by means acceptable to Seller. The price is payable on the terms set forth herein without deductions, set-offs, counterclaims, back-charges, or any other charges or claims of Buyer whatsoever, and the obligations of Buyer to Seller shall remain unimpaired regardless of disputes which may arise between Buyer and third parties. Pro-rata payments shall become due as shipments are made. If Buyer delays shipments, the date Goods are ready for shipment shall be deemed the date of shipment for payment purposes. If the manufacture is delayed by the Buyer, which is subject to the Seller’s approval at the Seller’s sole discretion, payment will be made based on the purchase price and the percentage of completion, with the balance payable in accordance with the terms stated.
e. Continued Creditworthiness of Buyer. Seller will determine extension of credit in its sole discretion. If, in Seller’s judgment and sole discretion, Buyer’s financial responsibility is or becomes impaired or unsatisfactory, or if Buyer has failed or fails to perform under any contract, Seller shall have the right to demand. Buyer shall provide advance cash payment or security satisfactory to Seller, and Seller may withhold shipment until receipt thereof. Overdue payments shall bear interest at the lesser of five percent (5%) per annum or the maximum permitted by law. In addition, Buyer shall pay Seller all collection costs on overdue accounts, including but not limited to reasonable attorney’s fees, whether or not litigation is commenced in aid thereof.
f. BUYER WAIVES ANY RIGHT OF SET-OFF AND SHALL MAKE NO DEDUCTIONS FROM PAYMENTS DUE TO SELLER OR FOR ANY DAMAGES OF ANY TYPE CLAIMED BY BUYER AGAINST SELLER.
3. SHIPPING, DELIVERY & ACCEPTANCE:
a. Schedule. All shipping and delivery dates or schedules stated by Seller are good faith projections only and are not warranties, unless specifically agreed in writing by Seller. If Seller has agreed in writing to a specific delivery or shipping schedule, (i) it shall commence on the date of Seller’s Order Confirmation, but not before Buyer’s delivery of other necessary documents or, where applicable, advance cash payment or tender of security satisfactory to Seller; and (ii) end on the date on which Seller delivers the Goods to the common or contract carrier in accordance with Section 3(c) hereof. Partial shipments will be made by Seller when ready and invoiced absent a written agreement to the contrary. IN NO EVENT SHALL SELLER BE IN BREACH OF AGREEMENT, LIABLE FOR DAMAGES OF ANY KIND, LIQUIDATED OR UNLIQUIDATED, INCLUDING CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF USE OR LOST PROFITS, DUE TO FAILURE TO MAKE TIMELY DELIVERY OR MEET SHIPPING SCHEDULES. Delay in delivery of any installments of Goods shall not relieve Buyer of its obligation to pay for any shipments received before such delay or its obligation to accept the remaining deliveries. If Buyer is unable to receive the Goods when tendered, Buyer shall be liable to Seller for any loss, damage, or additional expense incurred or suffered by Seller as a result thereof.
b. Quantity & Weight. Seller shall not be responsible for the accuracy of shipping weights, which are correct only within the limits necessary for estimating freight charges.
c. Terms of Shipment & Title. All Goods are shipped pursuant to the applicable Incoterms® 2020 delivery term specified in Seller’s Quotation or Order Confirmation. Title and risk shall pass to Buyer in accordance with such delivery term. To the extent risk has passed to Buyer under the applicable delivery term, Seller is not responsible for any shipment loss or damage thereafter. Shipments are contingent on strikes, or other labor trouble, failure on the part of suppliers to deliver, interruption of or delay in transportation, embargos, war, riot, fires, accidents, any order or regulation of any governmental entity, pandemics, epidemics, acts of God, or any other delays unavoidable or beyond Seller’s control. Buyer shall pay or reimburse Seller for all shipping and handling charges. Any claims for damage to or loss of Goods in transit shall be filed by Buyer directly with, and shall be the sole responsibility of, the carrier. Buyer shall effect and maintain at its cost insurance for the Goods with a reputable insurer, and shall produce a certificate of insurance upon request by Seller.
d. Inspection. Every effort is made to ensure that the Buyer’s Order is delivered trouble-free; however, all freight must be inspected at the delivery point for freight damage. Any damage must be noted on the bill of lading and signed by the driver. A copy of the bill of lading must be retained by Buyer for submission during the freight claim process. Pictures should be taken in all instances. Buyer must submit all freight claims. Seller will lend assistance when necessary to help resolve freight damage claims. There is a short time for filing claims with transport companies, and paperwork should be expedited. In no instance should the freight be refused. Unless otherwise agreed, Buyer shall conduct a reasonable and complete inspection of the Goods after Buyer’s actual receipt. All claims for errors, defects (other than warranty defects), or any other nonconformity in any shipment of Goods delivered to Buyer must be made in writing to Seller’s office as specified in the invoice within a period of ten (10) days after Buyer’s receipt of such Goods. Buyer’s failure to make such claims within such time shall constitute an irrevocable acceptance of the particular shipment and an admission that such shipment fully complies with all terms, conditions, and specifications contained in the terms of sale for such Goods. Buyer’s right to reject a shipment is limited to the timely identification of errors, defects (other than warranty defects), or any other nonconformity in any shipment of Goods. If Buyer rejects a shipment of Goods or any part thereof, Seller shall have the right to cure in any reasonable manner the error, defect, shortage, or other nonconformity giving rise to the rejection. All Goods should be examined and counted to ensure they agree with the carrier bill of lading. Any shipping shortages or damages must be noted on the delivery receipt before the truck leaves the delivery site. The Goods should not be removed from the crate or from the area where they were received. All packaging material must be retained for carrier inspection. Regardless of the extent of any shipping damage, the Goods must be accepted and unloaded at the delivery site. After documentation of shipping damage is completed at the site, a phone call (with written follow-up submitted) must be made to the Seller’s office for further direction concerning the freight damage claim process. Notwithstanding the foregoing, if the Goods are so substantially damaged as to be unusable or pose a safety hazard, Buyer shall immediately notify Seller by phone and email, and Seller shall provide prompt direction regarding disposition of such Goods.
4. TITLE AND RISK:
a. Although title & risk of loss of Goods passes to Buyer in accordance with the applicable Incoterms® 2020 delivery term specified in Seller’s Quotation or Order Confirmation, as collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all the right, title and interest of Buyer in, to and upon the Goods, wherever located, and whether presently existing or thereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision shall constitute a purchase money security interest under the Uniform Commercial Code as adopted by the State of Wisconsin.
5. DELIVERY TERMS:
a. Unless otherwise provided in the applicable delivery term, transportation costs are the responsibility of the Buyer. The Goods shall be delivered pursuant to the applicable Incoterms® 2020 delivery term specified in Seller’s Quotation or Order Confirmation, unless other delivery terms have been specifically agreed in writing between the parties. Seller reserves the right to make delivery of Goods in installments, and each such installment shall be paid for as invoiced. Delivery dates are only indicative and will be observed as far as the circumstances reasonably permit. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept remaining deliveries and shall not give rise to any liability on the Seller’s part. Unless otherwise expressly agreed, delivery times shall not be regarded as binding, and delays in delivery shall not entitle Buyer to claim damages.
b. If any Mill Direct Orders or Blanket Orders are not accepted for delivery upon arrival at Buyer’s facility (i) risk of loss to the Goods shall pass to Buyer at the time the carrier arrives at Buyer’s facility; (ii) the Goods shall be deemed to have been delivered to Buyer at such time.
c. Given the volatile and unpredictable ocean freight market for Items shipped in whole or part by ocean freight, the Customer acknowledges and understands it is responsible for the full cost of ocean freight charges when incurred for the shipment of Items including without limitation any associated costs that may arise from the shipment of Items by ocean freight, such as drayage costs and late fees for containers delayed at docks. Accordingly, to the extent any freight costs based on ocean shipment exceed any prepaid amounts or estimates, the Customer understands that it will be responsible for and pay promptly the same upon invoicing/notification from Seller.
6. DISCLAIMER OF LIABILITY: Seller assumes no liability for Goods which are improperly handled, stored, or damaged in transit. Seller assumes no liability for Goods not timely picked up by Buyer or Buyer’s carrier at the location specified in the Seller Confirmation. Buyer becomes obligated to pay for the Goods when they are available and tendered at the location of shipment specified in the Seller Confirmation.
7. TECHNICAL ADVICE: Seller assumes no liability for any technical advice given or results obtained therefrom, all such advice being given and accepted at Buyer’s risk. Buyer shall be responsible for making its own tests and verifications before applying such technical advice.
8. WARRANTIES:
a. Seller warrants that the Goods will be sold free and clear of all liens and that the Goods provided or service performed shall conform to Seller’s written specifications for the types of Goods involved. Buyer understands and agrees that none of Seller’s agents, employees, or representatives has the authority to make any promise, representation, or warranty related to the Goods sold or services performed by Seller other than those warranties contained in this contract.
b. THE WARRANTIES AND CONDITIONS PROVIDED IN THIS SECTION 8 ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, SELLER HEREBY DISCLAIMS, AND BUYER HEREBY WAIVES, ALL OTHER WARRANTIES, CONDITIONS AND LIABILITIES OF SELLER AND ALL CLAIMS AND REMEDIES OF BUYER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY DEFECT IN THE GOODS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE, AND RECOVERY BASED UPON TORT, WHETHER OR NOT ARISING FROM SELLER’S NEGLIGENCE AND ANY RECOVERY BASED UPON DAMAGED PROPERTY, OR OTHERWISE BASED UPON LOSS OF USE OR PROFIT OR OTHER INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES.
9. CANCELLATION AND RETURN POLICY.
a. All sales are final except as expressly provided in this Section 9 and in Seller’s Return Policy, as published and amended by Seller from time to time (the “Return Policy”), which is incorporated herein by reference. A copy of the then-current Return Policy is available from Seller upon request. To the extent of any conflict between these Terms and the Return Policy, these Terms shall control.
b. Defective Goods. Buyer must notify Seller in writing of any claim for defective Goods within ten (10) days after Buyer discovers or reasonably should have discovered the defect, but in no event later than sixty (60) days after Buyer’s receipt of the Goods. Claims for latent defects not reasonably ascertainable before treating or processing must be submitted within ten (10) days after the defect becomes apparent. All claims not made within these time periods shall be deemed waived. Returns of defective Goods are subject to the procedures and conditions set forth in the Return Policy, including Seller’s right to test returned material and reject the claim if the Goods meet specifications.
c. Non-Defective Returns. Standard open stock, non-defective Goods ordered in error or no longer needed may be returned within six (6) months of the invoice date, subject to the conditions in the Return Policy, including a restocking fee. Drop shipment, surplus, contract, VMI, Mill Direct, and processed Goods are not eligible for return.
d. Remedies. Seller’s sole obligation and Buyer’s exclusive remedy for any returned Goods accepted by Seller shall be, at Seller’s option, repair, replacement, or credit at the original invoice price for the actual returned quantity. In no event shall Seller be liable for lost production time, freight (except as provided in the Return Policy for defective Goods), late shipments, lost business, or any other indirect or consequential damages.
10. LIMIT OF LIABILITY:
a. Seller’s liability for any and all losses or damages to Buyer resulting from defective Goods or services performed or from any other cause shall be limited in all cases to the repair or replacement of Goods, at Seller’s option, up to a maximum amount equal to the amount received by Seller from Buyer for the Goods or services provided. Transportation charges for the return of Goods shall be paid by Seller only if such return is requested by Buyer and Seller agrees, in writing, to said return. Buyer assumes responsibility for and shall indemnify Seller against liability for any personal injury and/or property damage arising out of the handling, possession, or use of the Goods by the Buyer.
b. EXCEPT AS PROVIDED EXPRESSLY ABOVE AND TO THE MAXIMUM EXTENT ALLOWED BY LAW, SELLER WILL HAVE NO LIABILITY TO BUYER OR ANY OTHER PERSON FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER ARISING OUT OF BREACH OF WARRANTY OR BREACH OF ANY OTHER PROVISION HEREOF, NEGLIGENCE OR OTHER SORT, OR OTHERWISE, INCLUDING WITHOUT LIMITATION LOST PROFITS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF POTENTIAL LOSS OR DAMAGE.
c. The purchase price for the Goods or services was determined considering the limitation of liability in this Section 10 of the Terms.
11. DISPOSITION OF GOODS SUBJECT TO BLANKET ORDER: For Goods that are subject to a Blanket Order Contract (“BOC”) with a date by which all Goods subject to the BOC and remaining in the possession of Seller (“Remaining Inventory”) must be purchased by Buyer (“Sunset Date”), pursuant to the BOC Seller shall invoice Buyer for the applicable price for all such Remaining Inventory. If Buyer does not make arrangements in accordance with the BOC to take delivery and possession of the Remaining Inventory within 30 days of the Sunset Date, upon not less than 10 days written or electronic notice to Buyer, Seller shall be entitled to dispose of the Remaining Inventory in whatever manner Seller deems appropriate. If Seller receives any compensation for the disposition of the Remaining Inventory, any amount remaining after reimbursement of Seller for the costs of the disposition of the Remaining Inventory shall be applied to the invoiced price to Buyer for the Remaining Inventory. Buyer recognizes that the above remedy for disposition of the Remaining Inventory is final and conclusive.
12. TERMINATION:
a. Termination for Cause. Upon failure or refusal of Buyer to accept conforming Goods, make timely payment of amounts due to Seller, or upon any other default by Buyer, including if Buyer’s financial responsibility is or becomes impaired or unsatisfactory in Seller’s sole discretion, Seller shall be entitled to terminate Buyer’s Order and exercise all remedies to which Seller may be entitled by law or in equity, including accelerating all payments due Seller and/or seeking specific performance. In the event of any such termination, Seller may request that Buyer segregate the Goods from its other equipment and/or inventory, have the Goods shipped to Seller at Buyer’s expense and/or enjoin Buyer from selling or otherwise encumbering the Goods. Seller shall also be entitled to recover all costs incurred by it in connection therewith, including reasonable attorney’s fees.
b. Seller’s Remedies. The remedies for Seller set forth in these Terms are cumulative and in addition to any other remedies provided in law or equity. No delay or failure by Seller to exercise any right or remedy shall impair in any manner whatsoever any of such rights or remedies, or be construed to be a waiver of any breach or acquiescence therein, and any single or partial exercise of any such right or remedy shall not preclude other or further exercise thereof or the exercise of any other right or remedy. The terms, conditions, and limitations herein may be enforced by Seller at any time in whole or in part. Buyer shall pay all costs and expenses paid or incurred by Seller in enforcing its rights hereunder, including, without limitation, reasonable attorneys’ fees and court costs.
c. Assignment & Delegation. Neither party may assign its rights or delegate its obligations under any contract of which these Terms form a part except with the written permission of the other party.
13. FORCE MAJEURE: If Seller is unable carry out its obligations under any contract of which these Terms form a part either wholly or in part due to a cause described in this Section 13, such obligations shall be suspended during the continuance of such hindrances and the obligations of any contract of which these Terms form a part shall be extended for such periods as may be necessary for the purpose of making good any suspension of deliveries so caused. Seller shall not be liable for loss or damage resulting from delay or failure of delivery or performance due to plant conditions, accident, equipment breakdown or equipment malfunction; strike, differences with workmen, lockout, or any labor shortage or difficulty; fire, flood, accident, quarantine restrictions, earthquake, tornado, epidemic, or other casualty or act of God; act of terrorism, war, riot, civil disobedience, or other emergency, or acts of civil or military authorities; compliance with orders, priorities, or requests of any government agencies or courts or arbitrators; embargoes; failure of suppliers of Seller to meet delivery schedules, or any shortage of raw materials however caused; increase in the price of raw materials greater than 10%; inability or delay in obtaining labor or materials; inability or delay in obtaining cars, trucks, fuel, or machinery necessary for transportation; or any cause, condition, or contingency beyond the reasonable control of Seller, whether similar to those enumerated or not. In the event of any of the foregoing, Seller may apportion the Goods among its customers as it considers equitable. Except to the extent of cancellation of deliveries or allocation of supply hereunder, the contract shall remain unaffected.
14. LAWS & REGULATIONS:
a. Compliance with Law. Buyer shall comply with all local, state, and federal statutes and laws and all other requirements having force of law applicable at any time which affect in any manner Buyer’s Order or Buyer’s performance thereunder. Buyer shall notify Seller immediately of any governmental action, prohibition, or limitation that affects Buyer’s Order in any manner.
b. Export Compliance. By placing its Order with Seller, Buyer represents and warrants that it is neither subject to any U.S. embargo or trade prohibition or limitation, nor subject to any embargo or trade prohibition or limitation in which the U.S. participates. Buyer agrees that it will not resell or distribute any Goods to any individual or entity prohibited from receiving Seller’s Goods or from dealing with Seller under U.S. law or under any embargo or trade prohibition or limitation in which the U.S. participates. Buyer shall indemnify and hold Seller harmless from and against any and all claims, demands, losses, costs, or liability incurred by Seller due to Buyer’s breach of this provision. Seller reserves the right to cancel Buyer’s Order, suspend, or terminate Seller’s performance, or take any other action it deems necessary due to Buyer’s breach of this provision. This includes selling to any country or entity listed in the Treasury Department’s Office of Foreign Assets Control list (http://www.treas.gov/offices/enforcement/ofac/) or the Commerce Department, Bureau of Industry and Security (http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm).
c. Governmental Taxes And Fees: Buyer shall be solely responsible and hold harmless Seller for the payment of any applicable sales and use taxes, duties or fees, export duty or tariff, import duty or tariff, excise tax, documentary tax or any other charge imposed by any country, state, local government or any governing body or community, at the time of its imposition on the sale of any Goods by Seller to Buyer. This provision is not intended to deal with freight, which is dealt with elsewhere herein, but is intended to deal with governmental imposition of any nature, kind, or description.
d. Controlled Unclassified Information: Buyer shall be solely responsible for identifying any Controlled Unclassified Information (“CUI”) or other regulated sensitive information disclosed or made available to Seller. Buyer agrees to provide prior written notice before transmitting any CUI and to clearly mark or otherwise designate such information in accordance with applicable laws and regulations. Unless Buyer expressly identifies information as CUI in writing prior to disclosure, Seller has no obligation to treat such information as CUI or to implement CUI-specific safeguarding requirements.
15. APPLICABLE LAW – ENTIRE AGREEMENT: These Terms, and the rights and obligations of the Parties arising hereunder, shall be construed in accordance with the laws of the State of Wisconsin without regard to conflicts of law principles and without regard to the United Nations Convention on Contracts for the International Sale of Goods. The Parties hereby submit to the exclusive jurisdiction of the state or federal courts whose jurisdiction includes Sheboygan County, Wisconsin, in relation to any dispute or claim arising out of, or in connection with, this Agreement or in relation to its existence or validity (including non-contractual disputes or claims). The Parties waive any argument that any such court is an inconvenient forum. Each party waives any right to a trial by jury in any action or proceeding arising out of or relating to these Terms. In connection with any litigation between the Parties arising out of this Agreement, the prevailing Party shall recover all reasonable attorneys’ fees and expenses incurred by it, in addition to such other awards made by the court.
16. THESE TERMS, TOGETHER WITH ANY APPLICABLE SUPPLY AND STOCKING AGREEMENT, CONSTITUTES THE FULL UNDERSTANDING OF THE PARTIES, AND NO TERMS, CONDITIONS, UNDERSTANDING, OR AGREEMENT PURPORTING TO MODIFY OR VARY THESE TERMS SHALL BE BINDING UNLESS HEREAFTER MADE IN WRITING AND SIGNED BY THE PARTY TO BE BOUND. ANY TERMS AND CONDITIONS CONTAINED IN ANY BUYER ORDER OR OTHER DOCUMENT THAT ARE NOT CONSISTENT HEREWITH, OR CONTAIN ADDITIONAL OR DIFFERENT TERMS, SHALL BE DEEMED REJECTED ABSENT A MUTUALLY EXECUTED WRITTEN AGREEMENT BY THE PARTIES TO THE CONTRARY.