In these Terms and Conditions of Sale (these “Terms”) of Coflex, SA de CV (“Company”), the following terms have the following meanings:
“Acceptance” or “Accept” means Company’s acceptance of an Order for a Product or Products or a part of such Order.
“Buyer” means the person(s), firm, or company who purchases a Product from Company.
“Order” means any communication in which Buyer, or a third party on behalf of Buyer, orders from Company a product or service made available by Company for purchase, generally or specifically to Buyer.
“Parties” means collectively both, and “Party” means individually each, of Company and Buyer.
“Price” means, for a Product, the price at which Company agreed to sell such Product to Buyer pursuant to Company’s Acceptance.
“Product” means any good or service ordered by Buyer from Company in an Order Accepted by Company.
“Sale” means the agreement or contract concluded by Company as a result of Company’s Acceptance of an Order.
“Taxes” means any tax arising from or in connection with the order, sale, purchase, supply, shipment or delivery of any Product or payment of any Price or other amount hereunder or under the Sale, including, without limitation, value added taxes, sales taxes, other taxes, imposts, and custom duties of any kind (excluding only any income taxes assessed against Company for receiving the Price or such other amount).
In these Terms: (i) “Section” means any of the numbered sections of these Terms; (ii) any reference to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time; (iii) the principle ejusdem generis shall not apply to any provision in this Agreement or any schedule or any exhibit attached hereto; (iv) the provisions shall not be interpreted against the drafter, and for purposes of any interpretation, both Parties shall be deemed to be drafters of this Agreement; (v) where these Terms state that a Party “shall” or “will” perform, act, or omit to act, it means that such Party is legally obligated to do so in accordance with these Terms; (vi) all article and section headings or titles herein are intended solely for the convenience of the Parties, and none will be deemed to affect the meaning or construction of any provision hereof; and (vii) words of any gender used in this Agreement are intended to include any other gender, and words in the singular number include the plural, and vice versa, unless the context clearly indicates otherwise.
1.3 The Sale and all performance thereunder will be under and subject to these Terms to the exclusion of all other terms and conditions (including, without limitation, any terms or conditions included or referenced in any Order, set forth on Buyer’s website, or purported to apply under any correspondence, notification, specification, document, or communication) none of which shall apply to any Sale or be included in these Terms. These Terms set forth the complete and entire agreement and understanding between Company and Buyer regarding the Sale. If Company and Buyer are parties to any other agreement related to the Sale or pursuant to which Buyer orders any Product, these Terms and its provisions shall prevail in the event of any inconsistency or conflict between these Terms or any provision hereof and such other agreement or a provision thereof.
ORDER OF PRODUCTS
Each Order for any Product by Buyer from Company shall be deemed to be an offer by Buyer to purchase Products from Company subject to these Terms. Buyer is solely responsible for ensuring that the details of the Order, including, without limitation, identification of the Product and quantity, are complete and accurate and will be bound by the Order with the details set forth therein.
No Order placed by Buyer shall be deemed to be Accepted by Company until Company either provides a written Acceptance of such Order to Buyer or Accepts by shipment of such Product by Company to Buyer, in each case such Acceptance shall be under these Terms, including, without limitation, Section 1.3. Any Order Accepted by Company is non-cancellable, and any Product purchased is non-returnable other than as provided in these Terms.
Should, notwithstanding the foregoing, an Acceptance be deemed to be an offer by Company for a Sale rather than an acceptance by Company of an offer of Buyer, such offer of Company is expressly limited to these Terms and any additional or different terms in Buyer’s acceptance of such offer are hereby expressly rejected.
SHIPPING AND DELIVERY; INSPECTION; PRODUCT ACCEPTANCE
All Products are sold, shipped and supplied by Company to Buyer from the facility of Company or a supplier to Company (“Shipping Location”) to the address provided by Buyer in its Order of such Products or other place where Company agrees to ship such Products (the “Destination”) DAF (INCOTERMS 2010). Company may use any reasonable means of shipment to ship Products to the Destination. The risk of loss for any Product shall transfer to Buyer, and Buyer bears the full risk of loss for any Product, from the time Company makes available such Product to the shipping carrier at the Shipping Location. Title to any Product shall transfer to Buyer upon the transfer of the risk of loss for such Product to Buyer. Company shall have fulfilled all of its shipping, delivery, supply and tender obligations regarding the Products upon providing such Products to the shipping carrier for its loading of such Products.
Any time or date agreed by Company for shipment or delivery of Products is intended to be an estimate only and shall not be of the essence, whether implicitly or by notice. Company is not responsible for, and shall not be liable for, the duration or time of shipment or delivery or any delay during shipment, or for any direct, indirect, incidental or consequential damages, losses (including, without limitation, any lost profits, lost business, depletion of goodwill, and the like), costs, charges or expenses caused directly or indirectly by any delay in the delivery of the Products.
Buyer will take delivery of the Products at the Destination. The quantity of any shipped Products as recorded by, or by a third party for, Company upon shipment of such Products from the Shipping Location shall be conclusive evidence of the quantity received by Buyer on delivery unless and to the extent Buyer proves by conclusive evidence a different quantity.
Company shall not be liable for any non-delivery of any Products, any shipment, or any part thereof, regarding which Buyer does not give Company written notice within five (5) days of the date on which the Products would in the ordinary course of events have been received. In any event, any liability of Company for non-delivery of any Products shall be limited to either shipping a replacement of such non-delivered Products within a reasonable time or issuing a credit note for the Price of the non-delivered Products against any invoice by Company for such non-delivered Products.
Upon arrival of a shipment of Products to Buyer, Buyer shall conduct a reasonable inspection of all Products in such shipment to verify (i) the quantity of the Products in such shipment, and (ii) the existence of any damage, destruction, defect, loss or other non-conformity of any such Products, including, without limitation, whether any seal of any packaging or wrapping of any Product is broken or has been tampered with. Buyer shall notify Company promptly in writing of any discrepancy in the actual quantity of the Products in such shipment compared with the quantity of Products stated on the packing list or shipping manifest for such shipment, and of any damage, destruction, defect, loss or other non-conformity regarding any such Products. Buyer shall be deemed conclusively to have accepted any Products and shipment if or to the extent that Buyer fails to provide Company with any written notice, and identification in reasonable detail, of any discrepancy, damage, destruction, defect, loss or other non-conformity regarding such Products or shipment within five (5) days of arrival of such shipment at the Destination. Buyer shall have the burden to prove the date of arrival of such shipment through written documentation. Buyer shall bear, and Company shall not be liable for, any discrepancy, damage, destruction, defect, loss or other non-conformity that Buyer has discovered, or would reasonably have discovered, in the inspection pursuant to this Section 3.5 and that Buyer failed to timely notify to Company hereunder. Upon Company’s request, Buyer shall provide Company with any information, documentation, proof or assistance requested by Company in connection with any discrepancy, damage, destruction, defect, loss and other non-conformity.
Buyer shall pay all Prices and other amounts due to Company as directed by Company. Time of payment shall be of the essence. Buyer shall be liable for, and pay to Company, or reimburse Company for, any and all Taxes. Company may invoice Buyer for any Taxes, together with the Price for such Product, or may require Buyer to make any pre-payment or direct payment thereof.
All payments to Company shall be made at Buyer’s cost, in immediately available, unconditional, and irrevocable funds, in U.S. dollar currency (or such currency as the Parties expressly agree in writing). No payment shall be deemed to have been received until Company has received cleared funds.
Buyer shall make all payments due under or for the Sale without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless Buyer has a valid court order requiring an amount equal to such deduction to be paid by Company to Buyer.
If Buyer fails to make any payment due to Company by the time such payment is due, Company shall be entitled (in addition to and without prejudice to any other right or remedy it may have) to (i) cancel or suspend any further delivery to Buyer under any Order and/or (ii) sell or otherwise dispose of any Products which are then the subject of any Order, whether or not appropriated thereto, and apply the proceeds of sale to the overdue payment and/or (iii) Buyer will be liable to pay interest to Company on such sum from the due date for payment at the rate of 1% for any full or partial month that such sum remains unpaid in accordance with these provisions, whether before or after any judgment.
SECURITY INTEREST. Buyer hereby grants to Company, and Company hereby retains, a continuing purchase money security interest in all Products sold and delivered by Company to Buyer, whether presently in the possession of Buyer or hereafter acquired, and all spare parts and components therefore, together with any and all proceeds of sale or other disposition of the Products , including, without limitation, cash, accounts, contract rights, and chattel paper. Upon Company’s request, Buyer shall promptly complete and deliver to Company UCC-1 Financing Statements for perfecting Company’s security interest in the Products. Buyer agrees also to execute, file, and record such other statements, notices, and agreements, take such action and obtain such certificates and documents, in accordance with all applicable laws, statutes, and regulations as may be as may be required by Company, in its sole discretion, to perfect, evidence, and continue Company's security interest in the Products. Buyer shall keep the Products free from any adverse lien, security interest or encumbrance and will not store the Products or any part thereof or use the Products in violation of any statute or ordinance. If Buyer is in default or breach regarding the Sale or any Order or purchase of any Product by Buyer, Buyer expressly agrees that Company shall have the remedies of a secured party under the Uniform Commercial Code. Company may enter the Buyer’s premises and remove the Products. Buyer agrees to pay Company's reasonable attorney’s fees and court costs for the collection of any amounts owing to Company hereunder or incurred in the repossession of Products.
WARRANTIES AND REPRESENTATIONS; REMEDIES
Company warrants that a Product delivered to Buyer upon an Accepted Order under these Terms (i) is free from any manufacturing defects at the time at which the risk of loss for Product transfers to Buyer under these Terms and for a period of one (1) year immediately following such transfer of risk of loss to Buyer (the “Warranty Period”), all except for any non-conformance or defect that, or to the extent it, is caused or arises (i) from an event or occurrence resulting from the Buyer or any of its employees, agents, contractors, or direct or indirect customers or (ii) at a time at which the Buyer bears the risk of loss for such Product.
If any Product delivered by Company to Buyer upon an Accepted Order under these Terms is in breach of the warranty set forth in Section 6.1, on the condition that Buyer notifies Company of such breach within thirty (30) days of the time at which Buyer or its agents knew or should reasonably have known of the defect giving rise to such breach (but in no event later than thirty (30) days after the end of the Warranty Period, Company will, as its sole obligation and liability and as Buyer’s sole right and remedy, either, at Company’s sole option, (i) repair or replace such Product for another Product of the same kind free-of-charge to Buyer or (ii) return of the Price for such Product (excluding any Taxes), provided that the foregoing rights and remedies in the event of a breach of warranty are on the condition that (aa) Buyer requests a return merchandise authorization (“RMA”) from Company as, and providing the information, directed by Company on its website, and (bb) within thirty (30) days after Company’s issuance of the RMA, returns the defective Product as directed by Company on its website. If it is shown or discovered that Company is not liable under these Terms for such defect, Buyer shall be responsible for Company’s costs in connection with the RMA and any return of such Product as well as for any repair and replacement.
DISCLAIMER. WITH THE SOLE EXCEPTION OF COMPANY’S WARRANTY EXPRESSLY SET FORTH IN SECTION 6.1, COMPANY DOES NOT MAKE ANY REPRESENTATION OR WARRANTY OR CONDITION, AND COMPANY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS, IMPLIED, AND STATUTORY, RELATED TO PRODUCTS, ANY SALE, THESE TERMS, ANY PERFORMANCE RELATED HERETO, AND/OR ANY PRODUCT, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OR WORKMANSHIP.
In no event shall Company be liable for any damaged, destroyed, lost, defective, or otherwise non-conforming Product if: (i) Buyer or any end user makes any further use of such Products after any defect is discovered, known or suspected by Buyer or such end user; or (ii) the damage, destruction, loss, defect, or other non-conformity is caused or arose during shipment or otherwise after the risk of loss to such Product transferred to Buyer or is the result of any use of such Product for any unintended purpose or in an unintended manner, misuse, abuse, unreasonable treatment, handling, storage, or failure to follow Company’s oral or written instructions as to the storage, installation commissioning, use, or maintenance regarding such Product; or (iii) any alteration, modification, repair, or change of any Product not made by Company.
LIMITATION OF LIABILITY
IN NO EVENT SHALL COMPANY OR ANY OF ITS AFFILIATES, OWNERS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BY LIABLE TO BUYER OR ANY AFFILIATE, OWNER, OFFICER, DIRECTOR, EMPLOYEE, OR AGENT OF BUYER OR ANY THIRD PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, LIQUIDATED OR EXEMPLARY DAMAGES OR LOSSES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF INFORMATION OR DATA, BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OR DEPLETION OF GOODWILL, LOSS OF BUSINESS OPPORTUNITIES, AND LOSS OF BUSINESS INFORMATION), OR HAVE ANY LIABILITY OR OBLIGATION OF INDEMNITY, DEFENSE, OR CONTRIBUTION TO BUYER OR A THIRD PARTY, EVEN IF FORESEEABLE OR ANY OF THEM HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, WHETHER AS A RESULT OF ANY PRODUCT, ITS USE, ANY PRODUCT DEFECT, OR IN CONNECTION WITH THIS AGREEMENT OR ANY PERFORMANCE HEREUNDER, OR BASED ON ANY ACT OR OMISSION, OR OTHERWISE.
IF AND TO THE EXTENT THAT COMPANY IS LIABLE FOR ANY DAMAGES OR LOSSES (WHETHER FOR DIRECT DAMAGES OR LOSSES OR IF ANY OF THE FOREGOING PROVISIONS OF THIS CONDITION 7 IS IN VALID OR UNENFORCEABLE UNDER APPLICABLE LAW), COMPANY’S AGGREGATE AND CUMULATIVE LIABILITY (i) ARISING FROM ANY PRODUCT SHALL IN NO EVENT EXCEED THE PRICE PAID BY BUYER TO, AND ACTUALLY RECEIVED BY, COMPANY IN IMMEDIATELY AVAILABLE, UNCONDITIONAL AND IRREVOCABLE FUNDS FOR SUCH PRODUCT AND (ii) SHALL IN NO EVENT EXCEED THE SUM OF ALL PRICES PAID BY BUYER TO, AND ACTUALLY RECEIVED BY, COMPANY IN IMMEDIATELY AVAILABLE, UNCONDITIONAL AND IRREVOCABLE FUNDS WITHIN THE SIX (6) MONTH-PERIOD IMMEDIATELY PRECEDING THE EVENT, ACT, OMISSION OR CIRCUMSTANCE ON WHICH SUCH LIABILITY OF COMPANY IS BASED OR FROM WHICH IT ARISES.
LEGAL RESTRICTIONS. Some states, countries or jurisdictions do not allow the disclaimer, exclusion or limitation of warranties or remedies, or the exclusion and limitation of liability. Only in the event, and solely to the extent, that any part or provision of Sections 6 and/or 7 is invalid or unenforceable under the applicable law of any particular state, country or jurisdiction, for the purpose of such state, country or jurisdiction only, such part or provision shall be interpreted or deemed revised so as to be valid and enforceable under such law while preserving, to the greatest permissible under such law, the disclaimers, exclusions and limitations set forth in Sections 6 and 7.
FORCE MAJEURE. Company shall not be in breach of its obligations under these Terms or any Sale, or otherwise be liable to Buyer, for any delay in performance any non-performance of any of its obligations under any Sale to the extent that such delay or non-performance is due to circumstances beyond Company’s reasonable control, including, without limitation, acts of God, governmental actions, war, national emergency, acts of terrorism, protests, riots, civil commotion, fire, explosions, floods, epidemics, lock-outs, strikes, other labor disputes (whether or not relating to a Party's workforce), restraints or delays affecting carriers, or inability or delay in obtaining supplies of adequate or suitable materials.
EXPORT REGULATIONS. The Products may be subject to the U.S. Export Administration Regulations, trade embargo regulations, or other export or foreign trade controls or limitations under U.S. law. Accordingly, Buyer agrees that it will not, directly or indirectly: (i) reexport, sell, or otherwise transfer or make available any Product, or any part or information thereof, to any country or person in violation of any of the foregoing law or other law in the U.S.A.; or (ii) provide any Product, or any party or information thereof, to any person that Buyer knows or has reason to suspect will cause any Product, or any part or information thereof, to be reexported, sold, or otherwise transferred or made available to any country or person in violation of any of the foregoing law or other law in the U.S.A.
Each right or remedy of Company under the Sale is without prejudice to any other right or remedy of Company whether under the Sale or not. Failure or delay by Company in enforcing or partially enforcing any provision of the Sale will not be construed as a waiver of any of its rights under the Sale. Any waiver by Company of any breach of, or any default under, any provision of the Sale by Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Sale.
BUYER UNDERSTANDS AND AGREES THAT ANY CAUSE OF ACTION OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH ANY SALE OF A PRODUCT MUST COMMENCE IN A COURT OF LAW UNDER THESE TERMS WITHIN ONE (1) YEAR AFTER (i) IF OR TO THE EXTENT SUCH CAUSE OF ACTION IS FOR BREACH OF THE WARRANTY IN SECTION 6.1 REGARDING SUCH PRODUCT, THE DEFECT IN SUCH PRODUCT UNDERLYING SUCH BREACH IS OR WOULD REASONABLY HAVE BEEN DISCOVERED OR THE END OF THE WARRANTY PERIOD FOR SUCH PRODUCT, WHICHEVER IS EARLIER, AND (ii) IF OR TO THE EXTENT SUCH CAUSE OF ACTION IS FOR ANYTHING OTHER THAN A BREACH OF THE WARRANTY IN SECTION 6.1, THE RISK OF LOSS FOR SUCH PRODUCT TRANSFERS TO BUYER UNDER THESE TERMS; ANY CAUSE OF ACTION NOT COMMENCING WITH IN THE FOREGOING APPLICABLE TIME IS PERMANENTLY BARRED.
If and to the extent that any provision of these Terms, or any part thereof, is found by any court, tribunal or agency of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable: (i) it shall be deemed replaced by a provision that is valid and enforceable and comes closest to expressing the intention of the invalid, illegal or unenforceable provision, and (ii) it shall otherwise be deemed severable and the remaining provisions or remaining part shall continue in full force and effect.
The parties do not intend any third party to be a third party beneficiary under the Sale, these Terms or any sale, purchase and transaction hereunder, and nothing in the Sale and these Terms shall be construed for any third party to be a third party beneficiary or to confer any third party beneficiary rights or status on any third party.
Any Sale and these Terms shall be construed and governed in accordance with, and any dispute related to these Terms or any Sale shall be resolved in accordance with and under, the laws of the State of New York, U.S.A. without regard to conflicts of laws principles that would result in the application of the law of any other jurisdiction. Buyer consents and submits to the exclusive jurisdiction of competent state and federal courts in the State of New York, U.S.A. for any litigation or proceeding, and to the venue of such litigation or proceeding in the Borough of Manhattan, New York City, New York, U.S.A.