Terms and Conditions
Please read the following Terms and Conditions Carefully.
THESE TERMS AND CONDITIONS APPLY TO ALL GOODS AND/OR SERVICES (“PRODUCTS”) SOLD AND/OR PERFORMED BY [WURTH ENTITY] AND ITS AFFILIATES (“SELLER”) AND ARE INCORPORATED INTO EACH AND EVERY QUOTATION, CONTRACT, ACKNOWLEDGEMENT, PURCHASE ORDER, OR OTHER DOCUMENT ISSUED BY SELLER. BY PURCHASING PRODUCTS FROM SELLER, BUYER (AS DEFINED IN SECTION 1 HEREIN) INDICATES THAT BUYER HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS WITHOUT MODIFICATION.
1. Offer; Acceptance; Exclusive Terms of Contract
The quotation or other offer document issued by Seller, together with these Terms and Conditions (“Quotation”) constitutes Seller’s offer to the purchaser identified in the Quotation (“Buyer”) to sell the Products identified in the Quotation and otherwise to enter into the agreement the Quotation describes. The Quotation shall be the complete and exclusive statement of such offer and agreement (“Contract”). The Contract shall be formed when Buyer accepts the Quotation. Buyer may accept the Quotation by either (a) written acknowledgement or (b) by issuing a purchase order or other document for the purchase of the Products (“Purchase Order”) to Seller. Acceptance is expressly limited to these Terms and Conditions and the terms and conditions expressly referenced on the face of the Quotation. Any terms and conditions that purport to modify, supersede, supplement or otherwise alter the Quotation, whether contained in Buyer’s Purchase Order or otherwise, are not binding on Seller and shall be deemed rejected and replaced by the Quotation. Notwithstanding any contrary provision in Buyer’s Purchase Order or elsewhere, Seller’s failure to expressly object to Buyer’s terms and conditions, nor Seller’s delivery of Products, commencement of performance, or any other conduct in furtherance of Seller’s supply of the Products to Buyer shall constitute acceptance of Buyer’s terms and conditions. Unless otherwise expressly stated in the Quotation, the Quotation is valid for a period of thirty (30) days after it is issued by Seller. Where a Quotation is not issued as described above, Seller’s order acknowledgement or other confirmation document, together with these Terms and Conditions, shall be the complete and exclusive statement of the Contract described herein.
2. Order Assistance
From time to time, Buyer may request, and Seller may offer, certain order assistance, including, without limitation, advice, recommendations and/or other suggestions as to the use and suitability of certain Products. Buyer acknowledges and agrees that such advice, recommendations and/or other suggestions by Seller with respect to any Products do not constitute any warranties with respect to any Products. Seller disclaims any such warranties and Buyer assumes full responsibility for accepting and/or using such advice, recommendations and/or other suggestions at its own risk.
3. Price Adjustments
Buyer agrees that Seller may present price increases compared to the then current prices for the products due to changes in procurement prices. Changes in procurement prices may result, but are not limited to, general inflation or from changes in the affected material and raw material prices (including alloy content), the relevant exchange rates, foreign and domestic freight costs, inflation, capacity utilization of manufacturers and/or other factors beyond the control of Seller (e.g. anti-dumping duties, wage legislation, epidemics and pandemics, environmental protection requirements, and as otherwise outlined in Section 24 below). If, therefore, Seller’s cost of procuring any of the products shall increase significantly for reasons beyond Seller’s control, the price set forth for such products shall increase proportional to the percentage of increased costs. The adjustment shall become effective 30 days after notification to Buyer in writing of the change in the costs. Upon request by Buyer, Seller shall provide information supporting the increase in the costs of procuring the products. Price changes initiated by external part suppliers specified or directed by Buyer shall be passed on to Buyer immediately. In order to avoid invoicing differences, Buyer shall give adequate advance notification (i.e. at least four (4) weeks before they take effect) of changes to the price conditions on the part of third-party-parts suppliers. Price changes initiated by external part suppliers specified or directed by Buyer (“Directed Suppliers”) shall be passed on to Buyer immediately. In order to avoid invoicing differences, Buyer shall give adequate advance notification (i.e. at least four (4) weeks before they take effect) of changes to the price conditions on the part of Directed Suppliers.
4. Shipping and Delivery
Freight shall be prepaid and added to Buyer’s invoice. In the absence of specific instruction from Buyer, the Company reserves the right to select the carrier. Delivery will be F.O.B. point of shipment at our warehouse. Partial deliveries or failure to deliver on a specified date shall not be sufficient cause or basis for cancellations and the Company shall not be liable for damages or penalties for delay in delivery or in failure to give notice of delay. Deliveries by Seller shall be made in a manner, and by carriers, determined by Seller in its sole discretion unless otherwise expressly stated in the Quotation. Responsibility of Seller shall cease upon delivery to and receipt of the Products by a common carrier at which point Buyer will bear all risk of loss for the Products. Shipment and delivery of Products are subject to availability at the time of order and lead times as determined in Seller’s sole discretion. Premium shipping expenses and/or other related expenses necessary to meet Buyer’s accelerated delivery schedules shall be the responsibility of Buyer. Seller does not guarantee any shipping or delivery date, and no person is authorized to commit to a delivery date except in writing signed by an authorized officer of Seller. Seller may estimate shipping or delivery dates to the best of Seller’s knowledge based on information provided by Buyer and conditions existing at the time of the Quotation. Seller will make commercially reasonable efforts to ship the Products by the estimated shipping date, but will not be liable for any damages, loss or expense arising from a delay in shipment. Deliveries of orders placed by Buyer may be changed, deferred or canceled only upon specific agreement in writing by Seller and Seller may condition such agreement upon Buyer’s assumption of liability and payment to Seller for any or all of: (a) the cost of all completed work at the order price set forth in the Quotation; (b) a sum equal to the costs of work in process (including but not limited to costs accrued for labor and material), (c) any amounts for which Seller is, or for which Seller determines in its sole discretion it may be, liable by reason of commitments made by Seller to its suppliers and/or subcontractors, and (d) any other loss, cost or expense of Seller as a result of such change, deferment or cancellation. Seller shall not have any obligation to maintain any excess inventory of Products, regardless of whether such inventory is designated as a reserve, bank, safety stock, or otherwise. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s Purchase Order. Buyer shall (a) cooperate with Seller in all matters relating to the Products and shall provide access to Buyer’s premises and such other accommodations as may be reasonably requested by Seller; (b) respond promptly to any Seller request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Seller to fulfill its obligations in accordance with the requirements of the Contract; and (c) provide complete and accurate materials and information in a timely manner as requested by Seller.
5. Title & Risk of Loss
Title and Risk of loss or damage to the product sold hereunder pass to Buyer when the products are placed into the possession of the carrier.
The quantity of any installment of Products as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. Seller shall not be liable for any non-delivery of Products, even if caused by Seller’s negligence, unless Buyer gives written notice to Seller of the non-delivery within thirty (30) days of the date when the Products would in the ordinary course of events have been received. Any liability of Seller for non-delivery of Products shall be limited to the replacement of Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered.
7. Payment Terms
Unless otherwise expressly stated in the Quotation, all accounts are due and payable in U.S. currency by check, ACH, or Wire Transfer, within thirty (30) days from the date of Seller’s invoice, with payment to be issued on or before the due date irrespective of Buyer’s internal payment practices that may otherwise be in effect.
Northernsafety.com accepts Cash, MasterCard, VISA, American Express, Discover, Electronic Fund Transfers (EFT's), Prepaid checks, and SmartPay®. Payment terms do not apply to credit card payments. Payment in full is due at the time of order when using credit cards.
If any payment owed to Seller is not paid when due, (i) the amount owed to Seller shall bear interest at the greater of 12% per annum or the maximum rate permitted by law, from the date on which it is due until it is paid; (ii) Buyer shall be liable for any and all costs incurred by Seller (including, but not limited to, attorneys’ fees) in collecting all amounts owed by Buyer; (iii) Seller may repossess the Products and put the same into storage, at Buyer’s expense, or dispose of the Products as Seller deems practicable under the circumstances; and (iv) Seller may exercise or pursue any other remedies it may have under this Agreement or under applicable law or equity. The extension of credit and delivery of Products shall be subject to Seller’s approval. In the event Buyer defaults under its payment terms or Seller in its reasonable discretion deems itself insecure for any reason, Seller may, without notice, suspend deliveries of Products, cancel all credit available to Buyer or modify the terms of credit, require that any invoices outstanding be immediately due and payable in full, and refuse to make any further credit advances. Payment shall not be deemed to have been received by Seller unless and until the respective amounts have been finally credited to Seller. Buyer is prohibited from and shall not setoff against or recoup from or otherwise debit, chargeback or net from any invoiced amounts due or to become due from Buyer or its affiliates any amounts due or to become due from Seller or its affiliates, whether arising under the Contract or under any other agreement.
8. Premier Plus Membership
PREMIER PLUS members receive the following benefits:
- Free ground shipping within the contiguous United States
- No minimum order requirements
- Exclusive Offers
- 30-day-risk-free trial, $149 annual fee
- All products on the Company website are eligible for PREMIER PLUS except custom and safety message items, or other products clearly marked as not qualifying for free shipping or not eligible for the PREMIER PLUS shipping program.
- To be eligible for PREMIER PLUS membership, you must request shipment within the contiguous 48 United States only.
- If only some of the items in your order are eligible for PREMIER PLUS, you will pay the applicable shipping charges for the items that are not eligible
- PREMIER PLUS only provides free ground shipping on eligible products. If you chose a different method of shipping on an eligible product, you will have to pay the associated expedited shipping cost listed on our Site less a discount equal to the ground shipping charge listed on our Site for the same product.
- We may also exclude certain products from PREMIER PLUS to the extent that they have special shipping characteristics. All excluded products will be clearly marked on our Site.
The membership fee for PREMIER PLUS members is $149 per year.
For your convenience, your PREMIER PLUS membership will be automatically renewed each year on the anniversary date of your enrollment. Our membership fees are subject to change. Any change in fees after you have been charged will not affect your current membership, but will be applied at your next auto renewal for the subsequent membership term. We will provide reasonable advance notice to you of the membership fee, the renewal date, and the scheduled date of the transfer.
UNLESS YOU CANCEL YOUR MEMBERSHIP PRIOR TO YOUR AUTORENEWAL, YOU AUTHORIZE US TO AUTOMATICALLY RENEW YOUR MEMBERSHIP AT THE THEN CURRENT LEVEL AND YOU AUTHORIZE US TO COLLECT THE THEN APPLICABLE MEMBERSHIP FEES AND TAXES, IF ANY, FROM ANY METHOD OF PAYMENT WE HAVE ON RECORD FOR YOU. YOU CAN CANCEL AT ANY TIME. PLEASE SEE “CANCELLING YOUR MEMBERSHIP” FOR MORE DETAILS.
You may cancel your PREMIER PLUS membership at any time. To cancel your PREMIER PLUS membership, you can call us at 1-800-631-1246, Mon - Fri: 7:30 am - 7:00 pm ET, or email us at email@example.com and tell us you want to discontinue your membership. If you call or email prior to the expiration of your risk-free trial period, you will receive a complete refund
- We reserve the right to refuse membership to PREMIER PLUS at our discretion.
- We may terminate your membership at any time and for any reason, including for failure to pay our subscription fees or any other amounts due to us. If we do terminate your paid PREMIER PLUS membership without cause, you will be entitled to a pro-rated refund based on the days remaining in your membership.
- We may change, add or remove benefits of PREMIER PLUS membership at our discretion and without notice to you. If you do not like the changes we make, you can cancel at any time. Please see “CANCELLING YOUR MEMBERSHIP” above. If you do not cancel your membership, your continued use of PREMIER PLUS constitutes your unconditional acceptance of the change.
- You may not transfer your PREMIER PLUS membership to any other person or company.
We may send you notices or emails regarding your membership in PREMIER PLUS. These are separate from promotional offers and not subject to our opt-out policy.
IN NO EVENT WILL THE COMPANY, ITS EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, PREMIER PLUS, OUR WEBSITE, ANY CONTENT ON THE WEBSITE OR ANY ITEMS OBTAINED THROUGH THE WEBSITE, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE. OUR TOTAL LIABILITY ARISING OUT OF OR RELATED TO PREMIER PLUS WILL NOT EXCEED THE AMOUNT YOU PAID FOR A ONE YEAR SUBSCRIPTION TO YOUR MEMBERSHIP. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW OR ANY OTHER LIMITATION OF LIABILITY UNDER THESE TERMS AND CONDITIONS.
Seller is not responsible for the design of any Products and will not have any warranty, indemnification or other liability or obligations for any actual or alleged defects, quality issues, intellectual property infringement or other nonconformities with respect to any Products to the extent related to or arising out of the design and/or specifications for such Products.
Customer agrees, by purchasing any products from Seller, to abide by any and all warnings attached, associated or otherwise applicable to the Products, whether contained on the label of the Products or on any associated invoice or other paperwork supplied with the Products or contained in any description of the Products.
- By Both Parties. Each party represents and warrants to the other that (i) it is a valid legal entity that is duly organized, validly existing and in good standing under the laws of the state of its incorporation or formation; and (ii) has the full right, power and authority to enter into the Contract and to perform its obligations as set forth in the Contract without the need for additional waiver, consent or permission from any person or entity;
- By Seller. Seller is a re-seller of unfinished goods. Some products handled or distributed by Seller may be warranted to the final consumer by the manufacturer. If a manufacturer warranty is available, Seller will reasonably assist with obtaining and verifying warranty information concerning the Product(s) and confirming application or extension of such warranties to the Buyer. Seller is not responsible or obligated to enforce or honor the warranties extended by the manufacturer to the final consumer, which are in addition to the limited warranties provided herein. Buyer shall hold and make available for inspection and testing by Seller all Products claimed by Buyer to be defective or nonconforming. “Non-conforming goods” means only the following: (a) Products shipped that are different from those identified in a Purchase Order or Quotation; or (b) Product’s label or packaging incorrectly identifies its contents. Notwithstanding the foregoing, Seller may in its sole discretion require Buyer to ship, at Buyer’s expense and risk of loss, any such Products that Buyer claims to be defective or nonconforming to such address as Seller may designate. Any claim for defective or nonconforming Products must be verified by Seller and, upon verification, Seller’s liability shall be limited to the replacement or repair, at Seller’s election, of such part of the Product in question as Seller may determine is defective or nonconforming. Buyer shall provide Seller with immediate notice of and the opportunity to participate in any and all meetings or other communications between Buyer and its customer concerning actual or alleged defects with respect to the Products. Products which have been altered or modified, improperly installed or applied, improperly stored or exposed to the elements, or which have failed due to abuse or inadequate maintenance after installation or application, have been used in violation of instructions for use, installation or application, or which were damaged due to malfunction of other parts not supplied by Seller, are not covered by this warranty. In addition, this warranty specifically excludes the replacement or repair of Products with a limited shelf life.
THE FOREGOING WARRANTIES AND REMEDIES ARE EXCLUSIVE AND ARE EXPRESSLY IN LIEU OF ANY AND ALL OTHER WARRANTIES AND SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY REPRESENTATION OR WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. SELLER SPECIFICALLY, BUT NOT BY WAY OF LIMITATION, DISCLAIMS ANY AND ALL LIABILITY FOR THE USE OR PERFORMANCE OF THE PRODUCTS IN THE APPLICATION(S) SELECTED BY BUYER AND BUYER’S CUSTOMERS. SELLER FURTHER DISCLAIMS ANY AND ALL LIABILITY FOR PRODUCTS THAT ARE FURTHER PROCESSED BY BUYER OR ANY THIRD PARTY OR IN ANY WAY CHANGED BY BUYER OR ANY THIRD PARTY FROM THE PRODUCTS DELIVERED BY SELLER OR THAT ARE DAMAGED OR CAUSE DAMAGE AS A RESULT OF MISUSE, ACCIDENT, NEGLECT, OR IMPROPER INSTALLATION, ALTERATIONS OR REPAIRS ON THE PART OF BUYER OR ANY THIRD PARTY.
No person is authorized to give any additional warranties on Seller’s behalf or to assume for Seller any other liability, except in writing signed by an authorized individual of Seller.
- By Buyer. Buyer represents and warrants that (i) Buyer will not and will not cause Seller to violate any agreement applicable to it or violate any law, rule, ordinance, court order or governmental regulation (“Laws”) and will not violate the rights of any third party; and (ii) Buyer is solvent and has the ability to pay its debts and meet its payment obligations under this Agreement when due.
No returned Products will be accepted for any reason unless an authorized representative of Seller first issues valid return authorization for such Products and such return is shipped in accordance with Seller’s instructions. Any returns received without a valid return authorization issued by Seller shall, at Seller’s option, be: (a) immediately returned to Buyer at Buyer’s sole expense, or (b) ten (10) days after notification to Buyer, disposed of at Buyer’s sole expense. Buyer shall be responsible for all damage to returned Products resulting from improper packing or handling of the Products.
Seller shall have the right to terminate the Contract at any time upon six (6) months’ prior written notice to Buyer. Seller shall have the right to suspend or terminate this Agreement immediately (i) in the event that Buyer fails to pay any invoice within thirty (30) days of the due date or (ii) in the event that Buyer’s breach of this Agreement causes Seller to be in violation of any applicable Law. Upon any such termination by either party, (a) Seller shall be relieved of any further obligation to Buyer (including, without limitation, any obligation with respect to production, delivery or transition of supply), (b) Buyer shall be liable to Seller for the immediate payment of amounts then billed to date by Seller to Buyer, (c) Buyer shall purchase and pay Seller immediately for all raw materials, components, work in process and finished goods acquired or produced by Seller in connection with the Contract, and (d) Buyer shall immediately reimburse Seller for all claims of Seller and/or Seller’s subcontractors for unamortized investments involved in preparing to produce or provide or producing or providing Products and for all other loss, cost or expense of Seller and/or Seller’s subcontractors as a result of the termination of the Contract.
To the fullest extent permitted by applicable law, Buyer shall, at its expense, indemnify, defend and hold harmless Seller, its parent, affiliates, successors and assigns, subcontractors and the shareholders, members, managers, officers, directors, employees and agents of each of the foregoing (each an “Indemnified Party”), from all claims, actions, demands, settlements, suits, proceedings, judgments, costs, losses, liabilities, damages and expenses (including without limit court costs and reasonable attorneys fees) (each a “Claim”) arising out of (i) actual or alleged infringement of any patent, copyright, trademark, trade secret or other intellectual property right; (ii)the actual or alleged violation of any applicable Laws; (iii) or the rights of any third party; (iv) the use of the Products to the extent attributable to or arising out of the specifications, designs, drawings, engineering or other information or materials furnished by Buyer; (v) Buyer’s breach of the Contract; or (vi) Buyer’s or its customers’ use of the Products or any component thereof (including without limitation damage to property or injury or death to any person). Each Indemnified Party shall have the right to conduct the defense of any Claim at Buyer’s sole expense.
15. Liability Limitation
BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT SELLER IS NOT DESIGN RESPONSIBLE AND IS NOT THE MANUFACTURER OF THE PRODUCTS AND THAT THE FOLLOWING LIMITATION OF LIABILITY IS A MATERIAL INDUCEMENT FOR SELLER TO ENTER INTO THE CONTRACT UPON THE TERMS AND CONDITIONS AGREED TO (INCLUDING BUT NOT LIIMITED TO, PRODUCT SPECIFICATIONS AND/OR PRICE). THEREFORE, IN NO EVENT SHALL SELLER’S LIABILITY ARISING OUT OF OR RESULTING FROM ANY CONTRACT, INCLUDING, WITHOUT LIMITATION, FOR THE DELIVERY, SALE, REPAIR, REPLACEMENT, INSTALLATION OR USE OF ANY PRODUCT, EXCEED THE AMOUNTS ACTUALLY PAID BY BUYER FOR THE PRODUCTS THAT ARE ALLEGED TO BE DEFECTIVE OR NONCONFORMING OR THE CAUSE OF ANY LOSS OR DAMAGE, WHETHER FOUNDED IN CONTRACT, WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR INJURIES TO OR DEATH OF PERSONS, DAMAGES TO PROPERTY, LOSS OF FUTURE BUSINESS OR REPUTATION, LOSS OF ANTICIPATED PROFITS, LOSS OF USE, LOSS OF REVENUE AND COST OF CAPITAL) ARISING OUT OF OR RELATING TO ANY CONTRACT OR ANY PRODUCTS. ANY CLAIM BY BUYER AGAINST SELLER ARISING OUT OF OR RELATING TO ANY CONTRACT OR ANY PRODUCTS CANNOT BE FILED, MADE OR MAINTAINED, AND SHALL BE DEEMED WAIVED, UNLESS FILED WITHIN TWELVE (12) MONTHS AFTER SELLER HAS SHIPPED OR PROVIDED THE PRODUCTS IN QUESTION. THE LIMITATIONS ON SELLER’S LIABILITY UNDER THIS SECTION 13 SHALL APPLY NOTWITHSTANDING ANY PROVISIONS OF ANY MANUFACTURER OR OTHER VENDOR WARRANTY ASSIGNED TO BUYER UNDER SECTION 12 HEREOF.
16. Seller’s Property
Unless otherwise expressly stated in the Quotation, all facilities, materials, components, tooling, molds, jigs, dies, patterns, fixtures, equipment and related items used in the manufacture of Products belonging to Seller must be reasonably cared for by Buyer. Buyer shall not have any rights in or to any of Seller’s property, including, without limitation, any option to purchase such property.
17. Information and Documentation
Seller shall only be responsible to provide Buyer with such information, disclosures, warnings, labels, instructions and other documentation made available to it by the manufacturer of the Product(s), as well as any documentation concerning (a) Products and their ingredients, materials and components, (b) the shipping, handling, delivery, use and disposal of such Products, ingredients, materials and components, and (c) any import, export, customs, rules of origin, tax or related matters, as are, in each such case, reasonable under the circumstances and specifically identified by Buyer to Seller in writing. Buyer shall reimburse Seller for any cost to Seller of providing any such information, disclosures, warnings, labels, instructions and other documentation.
Buyer shall be solely responsible for compliance with any federal, state or local or laws, rules, regulations and ordinances or any industry standards that may be applicable to the Products.
Unless otherwise expressly stated in the Quotation, in no event shall any Product or Product component be used on any safety critical applications and Buyer should, in all cases, consult its own experts regarding susceptibility for embrittlement.
20. Proprietary Materials
Seller shall have and retain all rights, title and interest, including all intellectual property rights, in and to all Products and associated materials, including, without limitation, all related reports, specifications, drawings, designs, computer programs and any other property, tangible or intangible, owned by Seller in connection with or under the Contract (“Proprietary Materials”). No Proprietary Materials created by Seller in connection with or pursuant to the Contract shall be considered “works made for hire” as that term is used in connection with the U.S. Copyright Act. Buyer shall not have any license to use any intellectual property rights of Seller except to the extent expressly agreed to in a separate license agreement mutually agreed in writing between Seller and Buyer.
21. Logos and Trademarks
Buyer shall not use Seller’s trademarks, service marks, logos or trade name on any Products, publications, or advertisements without Seller’s prior written consent.
22. Service and Replacement Parts
Unless otherwise expressly stated in the Quotation, Seller shall not have any liability or obligation to fulfill Buyer’s and its customer’s requirements for service and replacement parts except as specifically agreed in writing by Seller, at the prices and for such term as are set forth in such writing.
- Each party acknowledges and agrees that during the term of the Agreement, the other party may have access to certain Confidential Information (as defined herein). Each party acknowledges and agrees that it will not, (i) without the prior written consent of an authorized representative of the other party, directly or indirectly disclose any Confidential Information to any third party; or (ii) directly or indirectly use, exploit, copy or summarize any Confidential Information in any way except as necessary in performing its duties and obligations as required by this Agreement. If requested by a party, the other party shall require its employees to execute confidentiality agreements prohibiting use or disclosure of Confidential Information.
- “Confidential Information” means all information (regardless of medium) that is disclosed or otherwise made available to a party (the “Receiving Party”) by the other party (the “Disclosing Party”) or its representatives or subcontractors and that concerns the Disclosing Party, its customers, personnel, or the business, programs and Products covered by this Agreement, including without limitation, pricing and other terms of this Agreement; design concepts, blueprints, specifications, and engineering data; manufacturing, packaging and shipping processes and technology; reference manuals; any knowledge, data, or records concerning the operations, policies, procedures, personnel matters, finances, business and marketing plans, strategic and/or operational plans, company contracts or any other information relating to the ownership or operation of the Disclosing Party; and any and all information, knowledge, data or records concerning any officer, director, owner, shareholder, employee, agent, representative, consultant, client or customer of the Disclosing Party. Confidential Information also includes information received from third parties that the Disclosing Party has agreed to treat as confidential.
- Confidential Information does not include information that: is now or subsequently becomes generally available to the public through no fault of the Receiving Party; the Receiving Party can demonstrate was rightfully in its possession prior to disclosure by the Disclosing Party; is independently developed by the Receiving Party without the use of or reference to any Confidential Information; or was rightfully obtained by the Receiving Party from a third party who had the right to disclose the information. A party’s Confidential Information is, and shall remain, the property of such party.
- Nondisclosure and Nonuse. The Receiving Party will not disclose to others or use any Confidential Information, except as required to perform its obligations under this Agreement and to the extent required by a court of competent jurisdiction. If the Receiving Party is required by judicial or administrative process to disclose Confidential Information, the Receiving Party will promptly notify the Disclosing Party and allow the Disclosing Party a reasonable time to oppose such disclosure, including but not limited to obtaining a protective order. Receiving Party shall fully cooperate with Disclosing Party in its efforts to oppose disclosure or obtain a protective order. If disclosure is nonetheless required, the Receiving Party will use reasonable efforts to limit the dissemination of Confidential Information that is disclosed and to obtain, at the Disclosing Party’s expense, confidential treatment for any Confidential Information that is so disclosed. The Receiving Party may disclose Confidential Information to its employees who need to know the information in connection with this Agreement, who are made aware of its confidential nature, and who are obligated to comply with the restrictions imposed by this Confidentiality Section
- Duration. The obligations stated in this Confidentiality Section will continue during the term of the Agreement and for a period of five (5) years thereafter.
- Return of Information. Upon the expiration or termination of this Agreement for any reason, the Receiving Party will promptly return or destroy, as the Disclosing Party may direct, all tangible materials provided to the Receiving Party by the Disclosing Party that embody Confidential Information and will erase or delete all such Confidential Information embodied in any magnetic, optical, or similar medium or stored or maintained on any information storage or retrieval device.
- Buyer hereby acknowledges that, due to the unique nature of the Confidential Information, the unauthorized disclosure or use of such Confidential Information, will cause irreparable harm and significant injury for which monetary damages may be difficult to ascertain and will not be adequate. Accordingly, in such event, Seller shall be entitled to seek immediate injunctive relief and to an order compelling specific performance, without a requirement to post bond, as well as the recovery of direct damages, which shall include reasonable attorneys’ fees, but which shall not otherwise include indirect, special or consequential damages.
24. Force Majeure
Seller shall not be responsible for any delay or failure in performance if such delay or failure to perform is caused by circumstances not wholly within its control, including without limitation: earthquakes, lightning, storms, floods, hurricanes, tropical weather systems, disease or virus outbreaks, pandemics, or other acts of God of any kind; acts of public authority; governmental acts or orders; riots or other public disturbances; strikes, lockouts, work stoppages or other labor or industrial disturbances of any kind; power failures; failure of Buyer to provide information reasonably requested by Seller or necessary to provide adequate containers; wars; blockages; quarantine restrictions; embargoes; insurrections; epidemics; fire; civil disturbances; explosions; partial or entire failure of production facilities or supplies; inability to obtain transportation; change in cost or availability of raw materials, components or services based on market conditions, supplier actions or contract disputes; or change in any Laws. During any such delay or failure to perform by Seller, Seller’s obligations under the Agreement shall be suspended and Seller shall not have any obligation to provide Buyer with Products from other sources or to pay or reimburse Buyer for any additional costs to Buyer of obtaining substitute Products. Seller may, during any period of shortage due to any of the above circumstances allocate its available supply of Products among itself and its customers in any manner that Seller deems fair and reasonable in its sole discretion.
25. Excess Order Quantities
Seller shall not be liable for failure to perform where Buyer requires, in any calendar month, more than 120% of the planned shipping quantity and Buyer agrees to reimburse Seller for overtime and other costs incurred due to Buyer requiring more than 100% of the stated production capacity in any calendar month
Buyer shall not assign any of its rights or delegate any of its obligations under the Contract without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under the Contract. Seller reserves the right to assign and delegate its obligations under the Contract with thirty (30) days prior written notice to Buyer.
27. Compliance with Laws
Without limiting any of its other obligations hereunder, Buyer acknowledges and agrees to comply with all federal, state, local and foreign laws, orders, rules, regulations and ordinances (“Laws”) that may be applicable to Buyer’s performance of its obligations and duties required by this Agreement or that are otherwise applicable to the manufacture and sale of any Products, and this Agreement shall include and incorporate by reference all the clauses required by the provisions of said Laws.. Buyer agrees to comply, and will ensure that its subcontractors, employees and agents comply, and will take all necessary steps to assist Seller in complying, with any standards of business conduct prescribed by Law as may be in effect from time to time and incorporated herein by this reference. Without limiting the generality of the foregoing, Buyer warrants that it shall not utilize child, slave, prisoner or any other form of forced or involuntary labor, or engage in abusive employment or corrupt business practices. At Seller's request, Seller shall certify in writing its compliance with the foregoing and will provide Buyer with whatever information or documentation is necessary for Buyer to comply with applicable Laws.
28. Dispute Resolution and Arbitration
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, U.S.A. without giving effect to its conflict of laws provisions. The relationship between Buyer and Seller is that of independent contractors. Neither party will do anything, which has the effect of creating an obligation by the other party to a third party. If one party breaches this commitment, it shall indemnify the other party for all damages and costs the injured party incurs which arise from the breach.
- Dispute Resolution and Arbitration. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Bergen County, New Jersey before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The prevailing party in any arbitration proceeding shall be entitled to its attorneys’ fees and costs.
- To the extent not resolved pursuant to Section 28(b), any dispute, claim or controversy arising out of or relating to the Contract or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Bergen County, New Jersey before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures [and in accordance with the Expedited Procedures in those Rules] or [pursuant to JAMS’ Streamlined Arbitration Rules and Procedures]. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The prevailing party in any arbitration proceeding shall be entitled to its attorneys’ fees and costs.
29. Injunctive Relief
In the event that either party seeks injunctive relief, the arbitration process set forth in these Terms and Conditions shall not apply to any proceedings with respect to the injunctive relief sought, and either party may commence any proceeding for injunctive relief in any court of equity with jurisdiction over this case. The prevailing party in a proceeding for injunctive relief shall be entitled to its attorneys’ fees and costs.
During the duration of the Contract and for a period of one (1) year thereafter (the “Post-Termination Non-Solicitation Period”), Buyer shall not, directly or indirectly engage in Solicitation Activities. “Solicitation Activities” is defined as directly or indirectly encouraging, soliciting, or inducing, or in any manner attempting to encourage, solicit, or induce, any person or entity (a “Person”) employed by, or providing goods and/or services to, any Seller, to terminate such Person’s employment or provision of goods and/or services (or in the case of a person or entity providing goods and/or services to Seller, materially reducing such goods and/or services) with the, or hiring any such Person. Seller acknowledges and agrees that if it violates any of the provisions of this Section 28, the running of the Post-Termination Non-Solicitation Period will be extended by the time during which it engages in such violation(s).
31. Import/Export Controls
Buyer acknowledges and agrees to observe and adhere to the relevant national import and/or export control regulations applicable to its importation of goods from Seller and its exportation of goods to its customers, if applicable. Buyer will maintain all required licenses, permits, and registrations with governmental authorities and agencies, commercial registries, chambers of commerce or other applicable offices.
32. Social Responsibility; Anti-Corruption
Buyer shall ensure that its working conditions are healthy and safe. Buyer shall pay its employees the legally required minimum wage in accordance with applicable laws and regulations. Buyer shall not engage in child labor. Buyer shall dispose of hazardous or dangerous waste in an environmentally safe, responsible and legal manner. Buyer shall at all times exercise best efforts to comply with all applicable Laws.
Buyer agrees not to provide or offer any representative, officer, director, employer of Seller, any favors, gifts, gratuities or favorable treatment for the purpose of securing any business opportunities with Seller.
34. Governmental Contracts
Buyer shall provide written notice to Seller of (i) whether the Products will be used by Buyer to satisfy any agreement between Buyer or Buyer’s customer(s) with any governmental entity and (ii) whether Buyer and/or Seller are subject to any applicable Laws or requirements by virtue of such sale of Products (or products incorporating the Products) by Buyer or its customers’ to such governmental entity. In the event that Buyer fails to so notify Seller prior to Seller’s agreement to sell such Products to Buyer, Buyer shall indemnify and hold harmless Seller from any costs attributable to complying with such applicable Laws or requirements.
Waiver by Seller of any of the terms or conditions of the Contract shall be effective only if in writing and signed by Seller, and shall not constitute a waiver of such terms as to any subsequent events or conditions, whether similar or dissimilar. No course of dealing or custom in the trade shall constitute a modification or waiver by Seller of any right.
These Terms and Conditions shall survive and continue in full force and effect following the expiration, cancellation or termination of any Contract.
Any notices which may be required to be given under the Contract shall be in writing and may be made personally or sent by first class mail, certified mail or by a nationally recognized overnight courier. Notices shall be deemed to be received (a) in the case of personal delivery, when such personal delivery is made; (b) in the case of delivery by first class mail or certified mail, on the earlier of three (3) business days after the post-mark date or upon receipt; and (c) in the case of delivery by nationally recognized overnight courier, upon notice of delivery by such courier. Notices to Buyer shall be sent to the address set forth for Buyer on the Quotation. Notices to Seller shall be sent to:
Northern Safety Co., Inc.
Office of the General Counsel
93 Grant Street
Ramsey, New Jersey 07446
38. Electronic Transmission
Buyer and Seller agree that this Purchase Order, if transmitted electronically and the electronic signatures thereon are authenticated, that neither party shall contest the validity of such on the basis that this Purchase Order was electronically submitted or contains an electronic signature.
39. Entire Agreement
These Terms and Conditions of Sale and any other terms and condition, attachments, exhibits or supplements expressly referenced on the face of the Quotation, constitute the entire agreement and Contract between Seller and Buyer with respect to the matters contained herein and therein and supersede all prior oral or written representations and agreements. Except as otherwise provided in these Terms and Conditions, the Contract may only be modified by a written agreement signed by Seller.
40. Order of Precedence
In the event of any discrepancy related to this business transaction, the order of precedence of related documents shall be as follows: (a) Master or Framework Supply Agreement; (b) these Terms and Conditions; and (c) Statement of Work.