Fabricolor Holding Int'l LLC (hereafter referred to as ( FHI ) warrants that any product sold is of the quality set forth in FHIíS published specifications, if any, or as may be otherwise expressly stated in any negotiated contract, and (b) the title conveyed is good and the product is free from any lawful security interest, lien or encumbrance.
2. PRICE AND TERMS
If the product is not subject to a negotiated contract, the price and/or terms of sale are those in effect at the time of acceptance of said order.
3. DELIVERY TERMS
The terms FOB, COD,DDP, or such similar terms are, except as may be agreed to in any negotiated contract, only terms that express delivery terms and payment terms and are not an agreement as to passage of title.
FHI may recover for each shipment made as a separate transaction, without reference to any other shipment. If Purchaser fails to pay any invoice, whether in accordance with the terms of any applicable contract or after a single transaction, FHI may, at its option, defer further shipments until payment has been made (in which event FHI may elect to extend such contract period for a time equal to that for which shipments were so deferred), or, in addition to any other legal remedy, FHI may decline further performance of such contract. If at any time, in the sole judgment of FHI, the financial responsibility of Purchaser is impaired, FHI may change the terms of payment, require payment as a condition of shipment, and take any other steps it believes are necessary to protect its interests in the transaction.
FHI may, at its option, deliver from points other than that specified in any contract or sales agreement (hut shall not be obligated to do so) provided that such delivery shall be at the contract price. Where the contract or sales price provides for absorption by FHI of freight charges, wholly or in part, FHI shall have the right to select the route, mode and carrier. If Purchaser requires a route, mode or carrier other than that selected by FHI, any extra cost incurred shall be paid by Purchaser. If freight or other transportation costs are increased, whether by Purchaser's requirement of route, mode or carrier, or by any other decision, action or inaction of Purchaser, FHI may add any increase to the contract price. All sales are based on and are subject to all present and future tariff, import and export duties, border taxes and similar imports, surcharges and taxes which shall be solely at the cost and risk of Purchaser. If any such rates or changes are included in the unit price (whether shown as a separate charge or not) and should be increased pending delivery, Purchaser shall pay such increased rates or charges in addition to the unit price.
If the product is subject to a negotiated contract, and the contract does not specify the passage of title and risk of loss, or in the absence of a negotiated contract, title to and risk of loss on all products sold shall pass to Purchaser at FHI's point of shipment whether or not FHI pays all or any part of the freight, and notwithstanding any designation of FOB or any other delivery term elsewhere in any invoice or document evidencing the sale.
7. FORCE MAJEURE
Neither party shall be liable for its failure to perform if due to any contingency beyond the reasonable control of the party affected, including but not limited to acts of God, war, fire, bad weather, flood, accident, labor trouble or shortage, civil disturbance, plant shutdown, equipment failure, issues involving national security, or voluntary or involuntary compliance with any applicable governmental act, regulation or order. FHI shall not be liable for its failure to perform if such failure is due to any shortage or inability to obtain (on terms deemed economically practicable by FHI) any raw material (including energy), equipment or transportation. Any quantities not delivered or accepted because of any such contingency shall be eliminated from any contract or sales agreement. FHI shall not be obligated to deliver the product from other than the production or shipping points designated and there shall be no obligation to rebuild or repair any damage or destruction to such production or shipping points in order to fulfill the contract or sales agreement. During any period when FHI is unable to supply the contract quantity of the product, whether caused by the circumstances above or otherwise, FHI may allocate any available product among its customers, including its own subsidiaries, divisions and departments, on such basis as FHI deems fair and reasonable.
8. GOVERNMENTAL REGULATION
Should FHI elect to discontinue, curtail or limit the production or sale of the product in consequence of the application of any governmental act, regulation or order (including but not limited to those relating to national security, environment, ecology, energy, occupational safety and health, toxic substances, product safety, packaging, sale, use or application, consumer protection or transportation), compliance with which will, in the sole judgment of FHI, render the production, marketing or transportation of the product economically, technically or commercially infeasible, FHI may terminate the contract or sales agreement upon written notice to Purchaser.
The weights, tares and tests fixed by FHIs' invoice shall govern unless proved to be incorrect. Claims relating to quantity, quality, weight, condition and loss of or damage to any of the product sold hereunder shall be waived by Purchaser unless made within fifteen (15) days after receipt of product by Purchaser.
10. LIMITATION OF LIABILITY
Purchaser's exclusive remedy and FHIís exclusive liability under a contract or sales agreement (including negligence) shall be for, at FHIs' option, either replacement of nonconforming goods at the FOB point stated in this contract or damages which shall in no event exceed so much of the purchase price as is applicable to that portion of the particular shipment with respect to which damages are claimed. In no event shall FHI be liable to Purchaser for any incidental or consequential damages arising in connection with the contract or sales agreement or the product sold. Purchaser assumes all risks and liability, and FHI assumes no liability, with respect to unloading and discharge of the product (including failure of discharge or unloading implements or materials used by Purchaser, whether or not supplied by FHI), storage, handling, sale and use of the product (including its use alone or in combination with other substances or in operation of any process), and the compliance or non-compliance with all federal, state and local laws and regulations applicable to the product.
FHI's or Purchaser's waiver of any breach or failure to enforce any of the terms or conditions of a contract or sales agreement at any time shall not in any way affect, limit or waive such party's right thereafter to enforce strict compliance with every term and condition of a contract or sales agreement..
12. APPLICABLE LAW
All contracts and sales agreements shall be governed by and construed in accordance with the laws of the State of NEW JERSEY without giving effect to its conflict of laws provisions. The parties agree that venue for any cause of action brought by either shall be in Bergen County, NEW JERSEY.
The titles contained in these Terms and Conditions are for reference purposes only and shall not affect in any way the meaning or interpretation of this document.
If any provision of this document shall be prohibited or invalid, that provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of that provision and the remaining provisions of the contract.
In the absence of a negotiated contract, or if same is silent, these Terms and Conditions are intended as the final expression of the parties' agreement and are the complete and exclusive statement of the terms thereof. No statements or instructions, oral or written, except as part of a negotiated contract, shall vary or modify these written terms; and neither party shall claim any amendment, modification or release from any provision hereof by reason of (a) a course of action or mutual agreement unless such agreement is in writing signed by the other party and specifically stating it is an amendment to this contract, (b) course of performance or (c) usage of trade. No modification or addition to any contract or sales agreement shall be effected except by the prior written acknowledgement and acceptance by FHI of any purchase order, acknowledgement, release or other forms submitted by Purchaser containing other or different terms or conditions.