CONDITIONS OF PURCHASE
1. THIS CONTRACT SUPERSEDES ALL CORRESPONDENCE, ORDERS OR CONFIRMATIONS OF SELLER OR ANY AGENT THEREOF WITH RESPECT TO THE MATERIAL COVERED BY THIS CONTRACT.
There are no additional terms or specifications not expressly contained in this contract. No modification or waiver of this contract or any right of Buyer hereunder shall be binding upon Buyer unless it is in writing and signed by an officer of Buyer. No waiver by Buyer of any default or breach shall be deemed a waiver of any other default or breach.
2. Where applicable, any and all taxes of the United States or Canada or any state or subdivision thereof now or hereafter imposed with respect to the sale, processing or transportation of the material shall be for the account of Seller and payable by Seller.
3. The time or times specified for shipment and delivery on the face hereof shall be of the essence. If the material is not shipped and delivered within the time or times so specified, Buyer shall have the right, in its sole and absolute discretion, to cancel this contract with respect to all or any undelivered part or installment of the material and may hold Seller liable for all damages. Unless otherwise specified on the face hereof, all expenses and risk of the material are for the account of the Seller until delivery of such material is made to Buyer at the destination shown on the face hereof. Seller agrees to pay all excess charges or expenses resulting from its failure to ship and route the material as instructed by the Buyer and to reimburse Buyer for any such charges paid by Buyer. Unless otherwise provided on the face hereof, the material may not be transhipped or delivered in installments without the prior written consent of Buyer in each instance.
4. If this contract provides for delivery in installments, or if Buyer agrees in writing to accept delivery in installments and Seller defaults in making timely delivery of any such installments or there is a non-conformity in any such installments, Buyer may cancel this contract or any undelivered portion thereof if such default or non-conformity substantially impairs the value of the whole contract and such other contracts as may exist between Buyer and Seller. In the event of any such cancellation by Buyer, Buyer shall have the right to recover damages against Seller by reason of Seller’s default or prior breach of this contract. Whenever Buyer shall have the right to recover damages under any term of this contract, such damages shall include all losses of Buyer of every kind and nature, including but not limited to loss of profits, special, direct, indirect, and consequential damages.
5. Buyer may inspect the goods in order to determine conformity of the goods to the terms of the contract either before or after tender or delivery and, in the event of non-conformity, may reject all or any part thereof. Buyer’s taking physical possession of all or a part of the goods upon tender or delivery, prior to testing, or for the purpose of testing to determine conformity, shall not be deemed to be Buyer’s acceptance. Any delay in inspecting the material, in giving notice of rejection to Seller or in returning any rejected material to Seller shall not be deemed an acceptance of such material by Buyer or be deemed a waiver of Buyer’s right to inspect, make any claim or reject or return such material. If Buyer rejects and/or returns any material or makes any claim with respect to such material, Buyer shall have the right to withhold any payment due to Seller under this or any other contract between buyer and Seller until such claim or rejection is settled. The payment by Buyer of Seller’s invoice shall not constitute acceptance of the material covered by such invoice and shall not be deemed a waiver of any rights of Buyer, including but not limited to, Buyer’s right thereafter to inspect, accept, reject or make claim with respect to all or any part of the material covered by such invoice or to revoke its acceptance thereof.
6. If the material covered by this contract shall be purchased by Buyer for export from the United States, Seller shall, at its own cost and expense, comply with all laws, rules and regulations relating to and/or governing all such exports and shall, at its expense, procure and deliver to Buyer all necessary documents, and Seller shall pay all export fees, duties and taxes in connection with such export.
7. THIS AGREEMENT IS A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED IN ACCORDANCE THEREWITH. SELLER AGREES THAT ANY SUIT RELATING TO OR ARISING OUT OF THIS CONTRACT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN. SELLER HEREBY CONSENTS TO THE JURISDICTION OF SUCH COURTS.
8. This contract and Buyer’s performance thereunder are subject to all contingencies beyond Buyer’s control and beyond the control of Buyer’s customer, (whether or not now in contemplation of either of the parties hereto); including but not limited to force majeure, strikes, labor disputes, floods, civil commotion, war, riot, act of God, rules, laws, orders, restrictions, embargoes, quotas or actions of any government, foreign or domestic or any agency or subdivision thereof, casualties, fires, accidents, shortages of transportation facilities, detention of material by customs authorities, loss of material in public or private warehouses, or other casualty or contingency beyond Buyer’s control or the control of Buyer’s customer. In any such event, Buyer shall have the right, at its election and without any liability to Seller to (a) cancel or delay the performance of all or any portion of this contract, or (b) perform the contract as so cancelled or delayed to the extent determined by Buyer in its sole and absolute discretion or (c) perform the contract within a reasonable time after the causes for non-performance or delay have terminated.
9. This contract shall be deemed to have been made in, and its interpretation and performance there under shall be governed by, the domestic laws of the State of New York.
10. ANY ACTION OF ANY KIND AGAINST BUYER BY SELLER MUST BE COMMENCED WITHIN ONE YEAR OF THE DATE THAT ANY RIGHT, CLAIM, DEMAND OR CAUSE OF ACTION SHALL FIRST ACCRUE TO SELLER.
11. Under no circumstances shall Buyer be liable for any indirect, incidental, special, or consequential damages or any loss of profit in the event of Buyer’s breach.
12. This contract may not be assigned or transferred by Seller without the express written consent of Buyer. Any transaction by which the controlling ownership interest in Seller shall be sold, conveyed or assigned by the equity owners of Seller shall be deemed to be an assignment prohibited by this Section 12.
13. If the material covered by this contract (a) has been the subject of an Importer Security Filing (“ISF”) submitted to the U.S. Customs and Border Protection Agency by the Seller, or any person from or through whom the Seller has purchased the material, a true and complete copy of such ISF has been or will be provided to Buyer prior to payment; or (b) has not been the subject of an ISF, Seller will furnish to Buyer, not later than 48 hours prior to vessel loading, an Importer Security Filing Compliance Certificate (“ISF Compliance Certificate”) in the form provided by Buyer to Seller duly completed and signed by Seller. Seller represents to Buyer that, in the case of clause (a), the ISF is accurate and complete and filed in accordance with applicable rules and regulations and in the case of clause (b), the information provided to Buyer in the ISF Compliance Certificate will be true and correct. Seller agrees to indemnify and hold Buyer harmless from and against any claims, causes of action, complaints, proceedings, damages, fines, penalties, costs, and expenses (including legal fees) which Buyer may incur or become subject to arising out of a breach of the foregoing representation.
14. Seller hereby warrants that the merchandise covered by this agreement is not subject to antidumping and/or countervailing duties imposed by the United States, and agrees to pay on behalf of or reimburse to Buyer any such duties imposed to the extent permitted by 19 CFR 351.402 (f)(ii).
15. In the event that the product is to be packaged in or on a solid wood packing material (as defined by International Plant Protection Convention (IPPC) Guidelines), including, but not limited to pallets, crates, boxes, dunnage, packing blocks, drums, cases, and skids, Seller shall cause the wood packaging material to be either heat treated or fumigated with methyl bromide in accordance with IPPC Guidelines and legibly and permanently marked to that effect according to IPPC Guidelines.