Terms and Conditions of Supply

KARNDEAN INTERNATIONAL LLC TERMS AND CONDITIONS OF SALE

 

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1.    DEFINITIONS

1.1. In these Terms and Conditions, the following terms will have the meanings set forth below unless inconsistent with the context.

 

“Business Day” means any day other than a Saturday, Sunday or legal holiday in the United States of America.

 

“Buyer” means the person, firm, organization, company or association, whose order for Products is accepted by Karndean.

 

“Confidential Information” means all information related to the business of Karndean including (but not limited to) know-how or other matters connected with Products and information concerning Karndean’s relationships with actual or potential clients, customers or suppliers and the needs and requirements of Karndean and of such persons and any other information which, if disclosed, is likely to cause harm to Karndean.

 

“Contract” means these Standard Terms and Conditions together with any special terms agreed to in writing between the Buyer and Karndean as specified in the Order Acknowledgment.

 

“Design Components” means the specialty tiles in Karndean’s product range known as decorative, metallic, feature and design strips, decorative borders and corners which are installed with Karndean’s tile and plank to enhance them.

 

“Destination” means the place where delivery of the Products is to take place as specified in the Order Acknowledgment.

 

“Force Majeure” means anything preventing a party from performing any obligations which arise by reason of circumstances outside its reasonable control including, without limitation, strikes, lockouts or other industrial disputes, protests, acts of God, war, national emergency, terrorism, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, explosion, flood, storm, epidemic or default of suppliers or subcontractors.

 

“Intellectual Property Rights” means all intellectual and industrial property rights including patents, know-how, registered trademarks, registered designs, utility models, applications for and rights to apply for any of the foregoing, unregistered design rights, unregistered trademarks, rights to prevent passing off for unfair competition and copyright, database rights, topography rights and any other rights in any invention, discovery or process, in each case in the United States of America and all other countries in the world and together with all renewals and extensions.

 

“Karndean” means Karndean International, LLC whose headquarters are located at the Bushy Run Corporate Park, 1100 Pontiac Court, Export, PA 15632.

 

“Limited Warranty” means the manufacturer’s limited warranty included with the Products.

 

“Order Acknowledgement” means the written acknowledgment sent by Karndean to the Buyer formally accepting a Purchase Order.

 

“Price” means the price of the Products, calculated in accordance with Clause 4.

 

“Products” means any products which Karndean supplies to the Buyer (including any of them or any part of them) under a Contract.

 

“Purchase Order” means the written order approved by Karndean for the sale of Products to the Buyer.

 

“Retail Agreement” means a standard agreement approved by Karndean for the sale of Products from the Buyer to the Buyer’s customers.

 

“Settlement Discount” means any discount agreed to in writing by Karndean and the Buyer for payment of invoices by the Standard Due Date.

 

“Shipping Point” means the place where Karndean will deliver the Products as specified in the Order Acknowledgment for shipping by a third party.

 

“Standard Due Date” means thirty (30) days from the invoice date unless otherwise agreed to in a written document executed by the Buyer and an authorized officer of Karndean, in which case “Standard Due Date” shall mean such date agreed to in writing by the Buyer and such authorized officer of Karndean.

 

“Standard Terms and Conditions” means the terms and conditions set forth herein.

 

1.2. The headings in these Terms and Conditions are for convenience only and will not affect their construction or interpretation.

 

2.    SCOPE

 

2.1. All Products sold by Karndean are subject to the terms of the Contract to the exclusion of all other terms and conditions and all previous oral or written representations.

 

2.2. Each order or acceptance of a quotation for Products will be deemed to be an offer by the Buyer to purchase Products upon these Terms and Conditions. The Contract is formed when the order is accepted by Karndean as evidenced by an Order Acknowledgement. No Contract will come into existence until an Order Acknowledgement is issued by Karndean.

2.3. All prices quoted by Karndean are estimates only and are not binding on Karndean until formalized in a Purchase Order and accepted in an Order Acknowledgement.

 

2.4. The Buyer must ensure that the terms of its order and any applicable specifications are complete and accurate.

 

2.5. Acceptance of delivery of Products will be deemed conclusive evidence of the Buyer’s acceptance of these Terms and Conditions.

 

2.6. Subject to Clause 11, the Buyer may not cancel the Contract.

 

2.7. The Contract may only be amended in a writing signed on behalf of Karndean by one of its authorized officers.

 

3.    THE PRODUCTS

 

  3.1. The quantity and description of the Products will be as set out from time to time in Karndean’s trade catalog.

 

3.2. All samples, drawings, descriptive matter, specifications and advertising issued by Karndean and any descriptions or illustrations contained in Karndean’s catalogs or brochures are issued or published for the sole purpose of giving an approximate idea of the Products represented by or described in them. They will not form part of the Contract and the Products are not sold by way of sale by sample.

 

3.3. Karndean may make any changes to the specifications, designs, materials or finishes of the Products which:

 

3.3.1. are required to conform with any applicable safety or other statutory or regulatory requirements; or

 

3.3.2. do not materially affect their quality or performance.

 

3.4. The Buyer will indemnify and keep indemnified Karndean against all claims, losses, expenses, actions, liabilities, costs (including legal costs and increased administration costs) and any other losses and/or liabilities arising out of Karndean’s use of specifications, details, or drawing supplied by the Buyer.

 

4.    PRICE

 

  4.1. The Price for the Products will be:

 

4.1.1. the price set out in Karndean’s published price list current on the date of the Purchase Order; plus

 

4.1.2. any applicable sales tax or duty; plus

 

4.1.3. any applicable surcharges.

 

4.2. Karndean will be entitled to increase the Price to cover Karndean’s increased costs, expenses and/or materials following:

 

4.2.1. one calendar month passing between the order being placed and the date of delivery;

 

4.2.2. any changes in the specifications made both at the request of the Buyer and agreed to by Karndean or to cover any extra expense as a result of the Buyer’s instructions or lack of instructions; or

 

4.2.3. complying with the requirements referred to in Paragraph 3.3.1;

 

4.3. Karndean will give the Buyer thirty (30) days notice before an increase in price is made pursuant to Paragraph 4.2.

 

5.    PAYMENT

 

  5.1. Karndean may invoice the Buyer for the Products on or at any time after delivery. Payment is due in United States Dollars as provided for in Paragraphs 5.4 and 5.8 of these Standard Terms and Conditions.

 

5.2. Time for payment will be of the essence.

 

5.3. No payment will be deemed to have been received until Karndean has received cash or cleared funds.

 

5.4. All sums payable to Karndean under the Contract will become due immediately upon termination of the Contract.

 

5.5. All payments to be made by the Buyer under the Contract will be made in full without any set-off, restriction or condition and without any deduction or withholding for or on account of any counterclaim or any present or future taxes, levies, duties, charges, fees, deductions or withholdings of any nature, unless the Buyer is required by law to make any such deduction or withholding.

 

5.6. Karndean may allocate any payment made by the Buyer to Karndean to such of the invoices for the Products as Karndean thinks fit, despite any purported allocation by the Buyer.

 

5.7. If any sum payable under the Contract is not paid by the Standard Due Date then, without prejudice to Karndean’s other rights under the Contract, that sum will bear interest from the due date until payment is made in full, both before and after any judgment, at 4% per annum over LIBOR and payable on a daily basis. Karndean will be entitled to suspend deliveries of Products until all outstanding amounts on whatever account have been received by Karndean from the Buyer.

 

5.8. Unless agreed to in writing executed by the Buyer and an authorized officer of Karndean, terms of payment under the Contract are net Standard Due Date.

 

5.9. The Buyer shall pay to Karndean, on demand, all costs and expenses incurred by Karndean in protecting or enforcing any of its rights to payment for the Products purchased by the Buyer under the Contact, including, but not limited to, court costs and expenses, reasonable attorneys’ and legal fees and/or fees, costs and/or expenses of any outside collection agency retained by Karndean.

 

5.10. Karndean may charge the Buyer (a) a fee, as determined by Karndean, if payment is made by check and such check is returned to Karndean due to lack of sufficient funds or any other reason; or (b) a credit card processing fee, as determined by Karndean, on any payment the Buyer makes by way of credit card after Standard Due Date, and the Buyer shall pay any such fee to Karndean on demand of Karndean.

 

5.11. Karndean may give the Buyer a credit limit.

 

5.12. Notwithstanding Karndean exercising its discretion under Paragraphs 5.10 and 5.11, Paragraphs 5.1 to 5.9 will apply and pursuant to Paragraph 15.4 this will not be deemed to be a waiver of Karndean’s rights under this Agreement.

 

6.    INSTALLMENTS

 

  6.1. Karndean may deliver the Products in separate installments. Each separate installment may be invoiced separately and, if so, will be paid for in accordance with the provisions of the Contract.

 

6.2. Each installment will be a separate Contract and no cancellation or termination of any one Contract relating to an installment will entitle the Buyer to cancel any other installment.

 

6.3. If payment is not made by the Buyer in full by the Standard Due Date, Karndean may withhold or suspend future deliveries of Products and delivery under any other agreement with the Buyer.

 

7.    DELIVERY

 

  7.1. Karndean will use commercially reasonable efforts to deliver the Products to the Buyer on the date agreed.

 

7.2. Deliveries will normally be made between 9:00 am and 5:00 pm on Business Days.

 

7.3. Karndean will use commercially reasonable efforts to deliver each of the Buyer’s orders for Products when agreed to when the Buyer places an order and, if no time is agreed to, then within a reasonable time. Time of delivery will not be of the essence. If Karndean is unable for any reason to fulfill any delivery or performance on the specified date, Karndean will not be deemed to be in breach of the Contract, nor (for the avoidance of doubt) will Karndean have any liability to the Buyer for direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) however caused (including as a result of negligence) by any delay or failure in delivery.

 

7.3.1. Karndean will refund to the Buyer any sums which the Buyer has paid to Karndean in respect of an order or part of an order which has been cancelled in accordance with these Terms and Conditions.

 

7.4. Karndean may, in its discretion, accept a postponement of delivery by the Buyer. Where Karndean accepts postponement of delivery of Products at the Buyer’s request, the Buyer will pay Karndean any resulting charges for storage, transportation and insurance and the Buyer will pay for the Products as if the delivery had not been postponed.

 

7.5. If the Buyer refuses to accept delivery for any reason, Karndean will be entitled to treat the Contract as terminated.

 

7.6. The Buyer will provide at its expense at the Destination or the Shipping Point, as applicable, adequate and appropriate equipment and manual labor for off-loading the Products.

 

7.7. If the Buyer fails to take delivery of any of the Products when they are ready for delivery or to provide any instructions, documents, licenses or authorizations required to enable the Products to be delivered on time (except solely on account of Karndean’s default), the Products will be deemed to have been delivered on the due date and (without prejudice to its other rights) Karndean may:

 

7.7.1. store or arrange for storage of the Products until actual delivery or sale in accordance with Clause 7.7.2 and charge the Buyer for all related costs and expenses (including, without limitation, storage and insurance); and/or

 

7.7.2. following written notice to the Buyer, sell any of the Products at the best price reasonably obtainable in the circumstances and charge the Buyer for any shortfall below the price under the Contract, taking into account any costs related to the sale.

 

8.    RISK/OWNERSHIP

 

  8.1. For Products to be delivered within the 48 contiguous United States of America, risk of damage to or loss of the Products will pass to the Buyer on delivery of the Products to the Destination (or deemed delivery in accordance with Paragraph 7.7).

 

8.2. For Products to be delivered to Alaska, Hawaii or outside of the United States of America, risk of damage to or loss of the Products will pass to the Buyer on delivery of the Products to the Shipping Point.

 

8.3. Ownership of the Products will not pass to the Buyer until Karndean has received in full (in cash or cleared funds) all sums due to it in respect of:

 

8.3.1. the Products; and

 

8.3.2. all other sums which are or which become due to Karndean from the Buyer pursuant to these Terms and Conditions or under any agreement with Karndean.

 

8.4. Until ownership of the Products has passed to the Buyer, the Buyer must:

 

8.4.1. hold the Products on a fiduciary basis as Karndean’s bailee;

 

8.4.2. store the Products (at no cost to Karndean) separately from all other products of the Buyer or any third party in such a way that they remain readily identifiable as Karndean’s property;

 

8.4.3. maintain the Products in satisfactory condition;

 

8.4.4. not destroy, deface or obscure any identifying mark or packaging on or relating to the Products;

 

8.4.5. insure the Products against all risk, on Karndean’s behalf, in an amount at least equal to the price at which they were sold to the Buyer and, whenever requested by Karndean, produce a copy of the insurance policy; and

 

8.4.6. hold all proceeds received by the Buyer on account of any policy insuring the Products in trust for Karndean.

 

8.5. The Buyer may resell the Products before ownership has passed to it solely on the following conditions:

 

8.5.1. any sale will be effected in the ordinary course of the Buyer’s business under a Retail Agreement at full market value and the Buyer will account to Karndean accordingly; and

 

8.5.2. any such sale will be a sale of Karndean’s property on the Buyer’s behalf and the Buyer will deal as principal when making such a sale.

 

8.6. The Buyer’s right to possession of the Products will terminate immediately if any of the circumstances set out in Paragraph 11.1 occurs.

 

8.7. Karndean will be entitled to recover payment for the Products notwithstanding that title in any of the Products has not passed from Karndean.

 

8.8. The Buyer grants Karndean, its agents and employees an irrevocable license at any time until title passes to the Buyer to enter any premises where the Products are or may be stored in order to inspect them or, where the Buyer’s right to possession has terminated, to recover them.

 

8.9. Where Karndean is unable to determine whether any or which products are the Products in respect of which the Buyer’s right to possession has terminated, Karndean’s decision in the matter will be final and binding on the parties.

 

9.    LIMITED WARRANTY, EXCLUSIONS AND INDEMNITY

 

  9.1. The Products will be covered by, and to the extent set forth in, the Limited Warranty.

 

9.2. TO THE EXTENT ALLOWABLE BY APPLICABLE LAW, THE LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT IN RELATION TO ANY PRODUCTS. IN NO EVENT SHALL KARNDEAN BE LIABLE TO THE BUYER FOR CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES IRRESPECTIVE OF WHETHER SUCH DAMAGES ARE ALLEGED TO ARISE IN TORT, CONTRACT, WARRANTY, LAW, EQUITY OR BY STATUTE.

 

9.3. Claims under the Limited Warranty must be made by the Buyer to Karndean in writing within fourteen (14) days of the discovery of the alleged defect where such alleged defect is not one which would be apparent upon proper inspection of the pallets and Products. Claims may be made orally, but must also be made in writing and sent via certified mail, return receipt requested, to Karndean at the address listed in the “Definitions” section of these Terms and Conditions for Karndean. Any claim submitted must include a detailed description of the alleged defect. The Buyer will give Karndean reasonable access to the Products for sixty (60) days after receipt of the claim or, at Karndean’s request, ship the allegedly defective Products to Karndean, at the Buyer’s expense, to determine whether the alleged defect is covered by the Limited Warranty.

 

9.4. If Karndean determines, after inspection, that the alleged defect is covered by the Limited Warranty, Karndean will, at its option, repair, replace without charge or refund the Price paid for any defective Products. Karndean will refund to the Buyer the cost of shipping for the return of any Products determined by Karndean to be defective, and will deliver any repaired or replacement Products to the Buyer at Karndean’s own expense. In no event shall Karndean be liable for installation, labor, reinstallation, removal or disposal charges or any other charge related to defects.

 

9.5. THE REMEDY PROVIDED IN PARAGRAPH 9.4 SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF THE BUYER FOR ANY BREACH OF THE LIMITED WARRANTY, IRRESPECTIVE OF WHETHER THE CLAIMS OF THE BUYER ARE MADE IN TORT, CONTRACT, WARRANTY, LAW, EQUITY OR BY STATUTE.

 

9.6. No person is authorized to extend or in any way alter the Limited Warranty. Any representation or warranty made by any sales representative, distributor or other agent or representative of Karndean which is not specifically set forth in the Limited Warranty shall not be binding upon Karndean.

 

9.7. The Limited Warranty will be null and void where:

 

9.7.1. the Products were not installed strictly in accordance with the manufacturer’s and/or Karndean’s recommendations and instructions;

 

9.7.2. the Products were altered in any way, or have been subject to misuse or unauthorized repair;

 

9.7.3. any maintenance requirements relating to the Products were not complied with;

 

9.7.4. any instructions as to storage of the Products were not complied with; or

 

9.7.5. the full Price for the Products has not been paid to Karndean by the Stated Due Date.

 

9.8. Karndean will have no liability for:

 

9.8.1. any defect in the Products caused or contributed to by the Buyer or by any third party, or as a result of the Products being used for display purposes or being handled by the Buyer’s customers;

 

9.8.2. defects in the Products caused by or contributed to by the fitting or laying of the Products including, without limitation, any failure to follow the installation guide which is either contained in or referred to on each package containing Product; or

 

9.8.3. any defect caused by willful damage, abnormal working conditions, failure to follow the manufacturer’s and/or Karndean’s recommendations and instructions, misuse, alteration or repair of the Products without Karndean’s prior written approval, failure to use the recommended adhesive, design or feature strips, cleaning or maintenance system, improper maintenance or negligence on the part of the Buyer or any third party.

 

9.9. Karndean will refund the Price of, or replace free of charge, any Products missing from a delivery, or Products damaged during shipment, provided that Karndean is notified of the existence of missing or damaged Products within forty-eight (48) hours of delivery, or if a total non-delivery occurs, within forty-eight (48) hours of receipt by the Buyer of the invoice for the Products.

 

9.10. Any Products which have been replaced under this Clause 9 will belong to Karndean. Any Products that have been repaired or replaced under this Clause 9 will continue to be covered by the Limited Warranty for the remaining term of the Limited Warranty.

 

9.11. Each of Karndean’s employees, agents and sub-contractors may rely upon and enforce the exclusions and restrictions of liability of Karndean under the Contract in that person’s own name and for that person’s own benefit, as if the words “its employees, agents and sub-contractors” followed the word Karndean wherever it appears.

 

9.12. The Buyer acknowledges that the above provisions of this Clause 9 are reasonable and reflected in the price which would be higher without those provisions, and the Buyer will accept such risk and/or insure accordingly.

 

9.13. Except as specifically provided in these Terms and Conditions, Karndean will, to the extent permissible by law, have no liability to the Buyer (whether in tort, contract, warranty, law, equity or by statute) for any losses, whether direct or indirect, of any nature arising out of or in connection with:

 

9.13.1. any of the Products, or the manufacture, sale or supply, or failure or delay in supply, of the Products by Karndean, or on the part of Karndean’s employees, agents or subcontractors;

 

9.13.2. any breach by Karndean of any of the express or implied terms of the Contract;

 

9.13.3. any use made or resale by the Buyer of any of the Products, or of any product incorporating any of the Products;

 

9.13.4. any statement made, or advice given or not given, by or on behalf of Karndean, or

 

9.13.5. otherwise under the Contract.

 

9.14. The Buyer agrees to indemnify, keep indemnified and hold harmless Karndean from and against all costs (including the costs of enforcement), expenses, liabilities (including any tax liability), injuries, direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, impairment of goodwill and like loss), damages, claims, demands, proceedings or legal costs (on a full indemnity basis) and judgments which Karndean incurs or suffers as a consequence of a direct or indirect breach or negligent performance or failure in performance by the Buyer, its agents, employees and customers, of the terms of the Contract.

 

10.    FORCE MAJEURE

 

  10.1. Neither party will be in breach of its obligations under the Contract to the extent that it is precluded from performing its obligations by reason of Force Majeure.

 

10.2. A party whose performance of its obligations under the Contract is affected by Force Majeure will give written notice to the other, specifying the nature and extent of the Force Majeure, as soon as reasonably practicable after becoming aware of the Force Majeure and will at all times use commercially reasonable efforts to bring the Force Majeure event to an end and, while the Force Majeure is continuing, mitigate its severity, but without being obligated to incur any expenditure.

 

10.3. Subject to the provisions of Paragraph 10.2, the date for performance of such obligation will be deemed suspended only for a period equal to the delay caused by such event.

 

10.4. If the Force Majeure in question continues for more than three months, either party may give written notice to the other to terminate the Contract. The notice to terminate must specify the termination date, which must not be less than fifteen (15) calendar days after the date on which the notice is given, and once such notice has been validly given, the Contract will terminate on that termination date.

 

11.    TERMINATION

 

  11.1. Karndean may by notice in writing served on the Buyer terminate the Contract forthwith if the Buyer:

 

11.1.1. fails to make payment by the Standard Due Date;

 

11.1.2. is in material breach of any of the terms of the Contract and, where the breach is capable of remedy, the Buyer fails to remedy such breach within fourteen (14) calendar days of receipt of a written notice from Karndean specifying the breach and requiring it to be remedied;

 

11.1.3. breaches one or more terms of the Contract more than twice in any period of twelve (12) months;

 

11.1.4. pledges or permits a lien on any Products which are Karndean’s property;

 

11.1.5. becomes bankrupt or has a bankruptcy petition presented against it, becomes insolvent, or makes any settlement with its creditors or has a receiver appointed for the Buyer’s benefit;

 

11.1.6. dies or is dissolved;

 

11.1.7. has any process levied on any of its property;

 

11.1.8. appears in the reasonable opinion of Karndean, due to its credit rating, to be financially incapable of meeting the Buyer’s obligations under the Contract;

 

11.1.9. ceases to do business or appears in the reasonable opinion of Karndean likely or is threatening to cease to do business;

 

11.1.10. the equivalent of any of the above occurs to the Buyer under the jurisdiction to which the Buyer is subject; or

 

11.1.11. Karndean reasonably anticipates that one of the above set of circumstances is about to occur.

 

11.2. The termination of the Contact however arising is without prejudice to the rights, duties and liabilities of either the Buyer or Karndean accrued prior to termination of these Terms and Conditions which expressly or impliedly have effect after termination and will continue to be enforceable notwithstanding termination.

 

11.3. Karndean will be entitled to suspend any deliveries otherwise due to occur following service of a notice specifying a breach under Paragraph 11.1.1, until either the breach is remedied or the Contract terminates, whichever occurs first.

 

12.    CONSEQUENCES OF TERMINATION

 

  12.1. If any of the events in Paragraph 11.1 occurs, Karndean may:

 

12.1.1. enter the Buyer’s premises where Products owned by Karndean may be and repossess and dispose of or sell any Products found which are owned by Karndean so as to discharge any sums due to Karndean under the Contract or any agreement Karndean has with the Buyer;

 

12.1.2. require the Buyer not to re-sell or dispose of any Products owned by Karndean until the Buyer has paid in full all sums due to Karndean under the Contract and under any other agreements;

 

12.1.3. withhold delivery of any undelivered Products and stop Products in transit;

 

12.1.4. cancel any other agreement with the Buyer; and

 

12.1.5. declare all monies due to Karndean immediately payable.

 

13.    INTELLECTUAL PROPERTY

 

  13.1. The Buyer will not make any modification to the Products or their packaging, nor later remove or tamper with any trademarks used on or in relation to the Products.

 

13.2. Any display equipment supplied to the Buyer whether under these Terms and Conditions or pursuant to any other contract or arrangement involving Karndean and the Buyer will not be used for any purpose other than the display, promotion or sale of the Products.

 

13.3. No right or license is granted to the Buyer in respect of the Intellectual Property Rights of Karndean, except the right to use or re-sell the Products in the Buyer’s ordinary course of business.

 

13.4. The Buyer will not without Karndean’s prior consent allow any trademarks of Karndean or other words or marks applied to the Products to be obliterated, obscured or omitted nor add any additional marks or words. 

 

14.    CONFIDENTIALITY

 

  14.1. The Buyer will keep confidential any and all Confidential Information that it may acquire.

 

14.2. The Buyer will not use the Confidential Information for any purpose other than to perform its obligations under the Contract. The Buyer will ensure that its officers, employees and agents comply with the provisions of this Clause 14.

 

14.3. The obligations of the Buyer set out in Paragraphs 14.1 and 14.2 will not apply to any information which:

 

14.3.1. is publicly available or becomes publicly available through no act or omission of the Buyer; or

 

14.3.2. the Buyer is required to disclose by order of a court of competent jurisdiction.

 

15.    GENERAL

 

  15.1. Time for performance of all obligations of Karndean under the Contract is not and may not be made by notice of the essence.

 

15.2. Each right or remedy of Karndean under any Contract is without prejudice to any other right or remedy of Karndean under this or any other Contract.

 

15.3. If any provision of the Contract is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then such court, tribunal, administrative body or authority of competent jurisdiction shall exercise its discretion to reform such provision to the extent necessary to render it enforceable, and such reformation will not affect any other provisions of the Contract which will remain in full force and effect.

 

15.4. No failure or delay by Karndean to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same, or of some other right, power or remedy.

 

15.5. Karndean may assign, delegate, license, hold in trust or sub-contract all or any part of its rights or obligations under the Contract.

 

15.6. The Contract is personal to the Buyer who may not assign, delegate, license, hold in trust or sub-contract all or any of its rights or obligations under the Contract without Karndean’s prior written consent.

 

15.7. The parties to the Contract do not intend that any of its terms will be enforceable by any person not a party to it.

 

15.8. The Contract contains all the terms which Karndean and the Buyer have agreed to in relation to the Products and supersedes any prior written or oral agreements, representations or understandings between the parties relating to such Products. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Karndean which is not set out in the Contract.

 

16.    COMMUNICATION

 

  16.1. Any notice, demand or communication in connection with the Contract will be in writing and may be delivered by hand, first class United States mail or facsimile, addressed to the recipient at its registered office or its address or facsimile number as the case may be stated in Paragraph 16.4 below (or such other address or facsimile number or person which the recipient has notified in writing to the sender in accordance with this Clause 16, to be received by the sender not less than seven Business Days before the notice is sent). Any such notice will be marked for the attention of the company Secretary where the party to be served is a company or the principal in any other case 16.2. The notice, demand or communication will be deemed to have been received:

 

16.2.1. if delivered by hand, at the time of delivery;

 

16.2.2. if delivered by first class United States mail, five (5) Business Days after being deposited in the mail;

 

16.2.3. if delivered by facsimile, at the time of transmission, provided that a confirming copy is sent by first class United States mail to the other party within twenty-four (24) hours after transmission; provided that in the case of delivery by hand or transmission by facsimile after 4:00 pm on a Business Day or on a day other than a Business Day, service will be deemed to occur at 9:00 am on the next following Business Day (such times being local time at the address of the recipient).

 

16.3. Service by facsimile is a valid means of service only where service of the original notice, demand or communication is not required.

 

16.4. The addresses and facsimile numbers for the parties are as detailed on any Purchase Order and/or invoice relating to the Products and the Contract. 

 

17.    DISPUTES AND VENUE

 

 The Buyer and Karndean agree that the exclusive jurisdiction of any dispute relating to the Contract shall be vested in either the Court of Common Pleas of Allegheny County, Pennsylvania, or in the United States District Court for the Western District of Pennsylvania and the venue of any such action shall be in the County of Allegheny. Each of the Buyer and Karndean hereby consents to the jurisdiction over it of the aforementioned courts in any such action or proceeding and agrees that the venue provided above is the most convenient forum for it. Each of the Buyer and Karndean waives any objection to venue or jurisdiction and any objection based on a more convenient forum in any action instituted under the Contract. 

 

18.    GOVERNING LAW

 

 The Contract, and the rights and remedies under the Contract, shall be governed by the substantive laws of the Commonwealth of Pennsylvania, without regard to its conflict of law principles. 

 

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