The order for goods described in the order acknowledgement (“goods”) issued by MonoSol (“Acceptance”) is accepted on and subject to only the following terms. Unless and until MonoSol sends an Acceptance, MonoSol has no obligation to Buyer. Buyer may not cancel the order after Acceptance. The entity named on the Acceptance (“Buyer”) agrees that all other terms are rejected and this and the Acceptance are the entire agreement regarding the goods (“Agreement”) unless changed by a writing signed by MonoSol, including an existing supply agreement. “MonoSol” is MonoSol, LLC or MonoSol AF, Ltd. depending on which company issued the Acceptance.
Price, delivery and quantity of goods stated in the Acceptance shall be maintained by the parties in confidence, and are not guaranteed for any other order. Stated prices exclude Value Added Tax, which shall be added to the price, if applicable. Title for the goods shall pass to Buyer upon MonoSol’s receipt of payment for the goods. If the Acceptance permits payment following delivery, and Buyer fails to pay for any goods when due, MonoSol may thereafter require pre-payment.
Unless the Acceptance states otherwise: (a) Buyer shall pay MonoSol the amount invoiced for the goods within 30 days of such invoice date; (b) MonoSol is not responsible for charges for freight, transportation, insurance, shipping, storage, handling, demurrage or other similar charges, nor for notifying Buyer of any impending transportation; (c) all import permits and licenses and the payment of all import duties and custom fees are the sole responsibility of Buyer; and (d) all sales, excise and similar taxes that MonoSol may be required to pay or collect with respect to the goods are for the account of Buyer.
Where the goods contain an aversive agent, Buyer is solely responsible for selecting its amount for the specification and all resulting use thereof, regardless of whether MonoSol certifies that the goods contain a certain amount. Notwithstanding anything to the contrary, nothing regarding the aversive agent shall constitute MonoSol’s performance, negligence, misconduct, recklessness or breach, including failure to meet legal, regulatory or quality requirements and/or the specification, or a defect in the goods.
MonoSol is not responsible for delays or failure to deliver goods due to causes beyond MonoSol’s control, including acts of God, war, mobilization, civil commotion, riots, embargoes, governmental regulations, laws or orders, fires, floods, strikes, lockouts or other labor difficulties, and shortages of or inability to obtain materials, shipping space or transportation. Buyer shall not reject installment deliveries, and each such installment shall be regarded as full performance for the installment amount. Installments invoiced separately shall be each paid as billed. Failure to make payment when due excuses MonoSol from further performance. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept remaining installments.
MonoSol warrants that the goods supplied pursuant to the Acceptance meet their respective specifications as of shipment to Buyer (“Warranty”). MONOSOL DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING, USAGE, TRADE PRACTICE AND NON-INFRINGEMENT. Weights, sizes and quantities as determined at MonoSol’s factory or other source of supply on behalf of MonoSol are conclusive. MONOSOL’S TOTAL AGGREGATE LIABILITY IN CONNECTION WITH THE GOODS AND/OR THIS AGREEMENT SHALL NOT EXCEED THE PAYMENT IT RECEIVED FOR THE EFFECTED GOODS HEREUNDER. IN NO EVENT SHALL MONOSOL BE LIABLE FOR LOSS OF PROFITS, LOSS OF USE, CONSEQUENTIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES OR BUYER’S USE OF THE GOODS. Nothing in this Agreement excludes liability for that may not be excluded under applicable law.
If goods are defective, then upon evidence that MonoSol has failed to comply with its Warranty and the failure is not due to improper use, storage or handling, MonoSol in its sole discretion and as Buyer’s sole remedy therefor, shall either replace the defective goods or refund the payment made by Buyer for those goods. Buyer must give written notice to MonoSol of any claim promptly upon receipt of goods, and in any event prior to processing the goods. MonoSol shall be permitted to inspect goods alleged to be defective. No goods shall be returned to MonoSol.
Goods not processed into Buyer’s products, including end-rolls, cut-offs and the like, shall be disposed of or recycled solely as authorized by MonoSol. Buyer shall remove all MonoSol’s identifiers on the goods and ensure they are not used for any unauthorized purpose, including resale, illegal disposal and reverse engineering.
Buyer agrees to indemnify, defend and hold MonoSol harmless from and against all liabilities, losses, costs and damages, including attorneys’ fees arising from or related to: (a) Buyer’s use of the goods, including product liability regarding products made from the goods, except to the extent attributable to MonoSol’s breach of the Warranty; and/or (b) any aversive agent in the goods.
This Agreement is binding on and inures to the benefit of the parties and their respective successors and assigns. The delay or failure to assert a right or to insist upon compliance with this Agreement shall not constitute a waiver of that right or excuse a similar subsequent failure to perform. A valid waiver must be executed in writing and signed by the party granting the waiver except Buyer’s acceptance of delivery of the goods shall constitute a waiver of any delay in delivery beyond the specified shipment date. Any unenforceable term shall be reformed by the parties and not affect the other terms. This Agreement shall be governed and construed, in the English language, according to the laws of the state of Delaware where MonoSol, LLC issued the Acceptance, and English law where MonoSol AF, Ltd. issued the Acceptance; without regard in any case to any conflicts of law principles. If MonoSol requests information from Buyer to comply with legal requirements, then Buyer shall promptly provide such information. Buyer was provided an opportunity to seek advice of counsel and as such this Agreement shall not be strictly construed against the drafter. All disputes relating to this Agreement shall be settled solely by the then-current rules of binding arbitration: (a) of the American Arbitration Association in Chicago, Illinois where MonoSol, LLC issued the Acceptance; and (b) of the London Court of International Arbitration, London, U.K. where MonoSol AF, Ltd. issued the Acceptance. The award, including reimbursement of reasonable and documented attorneys’ fees incurred in connection therewith may be entered in any court of competent jurisdiction.
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