FOR PURCHASES OF GOODS AND SERVICES
These terms and conditions of purchase (these “Terms”) are the only terms which govern the purchase of the goods and materials(”Goods”) and services (“Services”) by FABUWOOD CABINETRY CORP (“us”, “our” or “we”) from the seller named on the Purchase Order accompanying these Terms (”Seller” or “you”).
The purchase order provided to you (the “PO”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between us and you, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of your general terms and conditions of sale regardless whether or when you have submitted your sales confirmation or such terms. Any terms or conditions proposed in your acceptanceof this offer that add to, vary from or conflict with any of these Terms (even if referenced in our PO) are deemed material and are hereby rejected. This Agreement expressly limits your acceptance to the terms of this Agreement. Fulfillment of thisPO constitutes acceptance of these Terms.
(a) You agree to deliver the Goods in the quantities and on the date(s) specified in the PO or as otherwise agreed in writing by the parties. If you fail to deliver the Goods in full on the date specified(s), we may terminate this Agreement immediately by written notice to you. You agree to deliver allGoods to the address specified in the PO during our normal business hours or as otherwise instructed by us. You agree to pack all goods in a manner sufficient to ensure that the Goods are delivered in undamaged condition. We will not return any packaging materials unless requested by you prior to delivery and only at your risk of loss and expense. If you deliver more or less than the quantity of Goods ordered, we may reject all or any excess Goods. Any such rejected Goods shall be returned to you at your sole risk and expense. (b) You agree to provide to us the Services as described and in accordance with the PO and the terms and conditions set forth in these Terms. (c) You acknowledge that time is of the essence with respect to your obligations hereunder and the timely delivery of the Goodsand Services.
SELLER’S OBLIGATIONS REGARDING SERVICES
You agree that you will: (a) comply with all of our rules, regulations and policies, including building security procedures and restriction of access to certain areas of our premises or systems, and general health and safety practices and procedures; (c) maintain complete and accurate records relating to the provision of the Services under this Agreement; (d) obtain our written consent prior to entering into agreements with or otherwise engaging any person or entity, including yoursubcontractors and affiliates, other than your employees, to provide us with any of the Services; (e) require any permitted subcontractor to be bound in writingby the confidentiality provisions of this Agreement; (f) ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on your behalf, are properly licensed, certified or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform the Services; and (g) ensure that all equipment used in the provision of the Services is in good working order and suitable for the purposesfor which it is used, and conforms to all relevant legal standards and standards.
TITLE AND RISK OF LOSS
Title and risk of loss remains with you until you have delivered the Goods and we have inspected and accepted them at the address specified. You willbear the cost of any return shipments. Delivery will not be complete until we receive and accept the Goods.
We have the right to inspect all or a sample of the Goods, and may reject all or any portion of the Goods if we determine the Goods are nonconforming or defective. If we reject any portion of the Goods, we have the right, effective upon written notice to you, to: (a) rescind this Agreement in its entirety; (b) accept the Goods at a reasonablyreduced price; or (c) reject the Goods and require replacement of the rejected Goods. If you fail to timely deliver replacement Goods, we may replace them with goods from a third party and charge you the cost thereof and terminate this Agreement for cause. Our payment for non-conforming Goods does not constitute acceptance of the non-conforming Goods and will not limit or affect any of our rights.
The price of the Goods and Services is the price stated in the PO and includes all excise taxes, duties, surcharges and other charges for transportation,packaging and storage. No increase in the stated price is effective, whether due to increased material, labor or transportation costs or otherwise, without our prior written consent. Without prejudice to any other right or remedy we mayhave, we reserve the right to set off at any time any amount you owe us against any amount we owe you.
We may change our order for the Goods at any time, without penalty, by written notice to you. Unless you object to our change in writing, you agree to make the changes we requested. You may not make any changes without our prior written consent.
In addition to warranties you have provided, you warrant to us that (a) all Goods will (i) be freefrom any defects in workmanship, material and design; (ii) conform to applicable specifications, (iii) be fit for their intended purpose and operate as intended; (iv) be merchantable;(v) be free and clear of all liens, security interests or otherencumbrances; and (vi) not infringe or misappropriate any thirdparty’s patent or other intellectual property rights; and (b) you will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet your obligations under this Agreement. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods and Services, are cumulative and inaddition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of our discovery of the noncompliance of the Goods or Services with the foregoing warranties.
If we or you decide or the Consumer Product Safety Commission or other US or foreign governmental agency issues an order requiring us, to recall, replace, repair or make refunds with respect to any of our products included within theGoods or that incorporate the Goods (a “Recall”), you will fully cooperate and assist us in any such recall. If the Goods are the subject of a Recall, howsoever initiated, you will be responsible for all maters and costs associated with the Recall. If you become aware of an initiation of a Recall involving the Goods by any person, entity or governmental agency, you will notify us immediately and take reasonable steps to resolve the matter without exposing us to liability or risk.
Upon our request, you will promptly provide us with copies of any data, materials or other information thatrelate to the Goods, their composition or any component, materials or substances used in the Goods or in connection withtheir production. You will notify us of any inherent hazard related to any material incorporated in the Goods that could expose anyone to hazard during handling, transportation, storage, use, resale, disposal or scrap.
You agree to defend, indemnify and hold us harmless, our subsidiaries, affiliates, successors or assigns and their respective directors, officers, shareholders and employees (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively,“Losses”) arising out of or occurring in connection with the Goods and Services purchased from you or your negligence, willful misconduct or breach of the Terms. In addition, you agree to, at your expense, defend, indemnify and hold us harmless andany Indemnitee against any and all Losses arising out of or in connection with any claim that our or an Indemnitee’s use or possession of the Goods and Services infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. You agree not to enter into any settlement without our prior written consent.
LIMITATION OF LIABILITY
Nothing in this Agreement shall exclude or limit your liability for fraud, personal injury or death caused by your negligence or willful misconduct. Under no circumstances will we or our affiliates be liable for consequential, incidental, indirect, special or punitive or similar damages, whether foreseeable or not. Any claim for relief by you must be commenced within one year after the cause of actionaccrues.
COMPLIANCE WITH LAW
You agree to comply with all applicable laws, regulations and ordinances, including but not limited to all export and import laws of all countries involved in the sale of the Goods and the provision of Services under this Agreement or any resale of the Goods by you. You agree to maintain in effect all the licenses, permissions, authorizations, consents and permits that you needs to carry out your obligations under this Agreement. We may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
In addition to any remedies that may be provided under these Terms, we may terminate this Agreement with immediate effect upon written notice to you, either beforeor after the acceptance of the Goods and Services, if you have not performed or complied with any of these Terms, in whole or in part. If you become insolvent, file a petition for bankruptcy or commence or have commenced against you proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then we terminate this Agreement upon written notice to you. If we terminate the Agreement for any reason, your sole and exclusive remedy is payment for the Goodsand Services received and accepted by us prior to the termination.
Our waiver of any right or remedy can only be made in writing signed by us and such waiver will not affect any of our other right or remedy under this Agreement. Our failure to exercise, or delay in exercising, any of our right, remedy, power or privilege arising from this Agreement will not operateor be construed, as a waiver thereof.
You agree to keep confidential all our non-public, confidential or proprietary information, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential.” You agreethat we are entitled to injunctive relief for any violation by you of this Section.
Neither party shall be liable to the other for any delay or failure in performing its obligations under this Agreement to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (”Force Majeure Event”). If a Force Majeure Event prevents you from carrying out your obligations under this Agreement, we may, at our option, terminate and cancel this Agreement immediately by written notice to you.
We may at any time assign or transfer any or all of our rights or obligations under this Agreement without notice to you. You agree not to assign, transfer, delegate or subcontract any of your rights or obligations under this Agreement without our prior written consent.
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision.
SUBMISSION TO JURISDICTION
Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in the County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
All notices, requests, consents, claims, demands,waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on this PO or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnightcourier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) uponreceipt of the receiving party, and (b) if the party giving theNotice has complied with the requirements of this Section.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.
AMENDMENT AND MODIFICATION
These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.