These Terms and Conditions of Purchase (“Terms and Conditions”) apply to purchase orders (“Orders”) by CPG International LLC, or one of its affiliates, including CPG Building Products LLC, Scranton Products, Inc., Vycom Corp., Return Polymers, Inc., WES, LLC, UltraLox Technology, LLC, Versatex Holdings, LLC, Versatex Building Products, LLC, INTEX Millwork Solutions, LLC and StruXure Outdoor, LLC, and in any event as identified on the applicable Order (each a “BUYER”) for products and/or services (“Goods”) supplied by seller (“SELLER”). SELLER’S ACCEPTANCE OF ANY PURCHASE ORDER ISSUED BY BUYER IS EXPRESSLY MADE CONDITIONAL ON SELLER’S ASSENT TO THESE TERMS AND CONDITIONS AND BUYER HEREBY OBJECTS TO ANY ADDITIONAL OR DIFFERENT TERMS IN ANY RESPONSE TO THIS OFFER.
Subject to Section 2 below, the parties intend that these Terms and Conditions, together with the description of Goods and other information on BUYER’s Order, constitute the final, complete, exclusive and fully integrated terms of the contract. Any other prior or contemporaneous agreements, oral or written, are hereby negated. Any modification to or waiver of these Terms and Conditions, whether evidenced by language or conduct, shall be null and void unless they are evidenced by a writing signed by an authorized representative of BUYER. BUYER hereby rejects all pre-printed terms and conditions proposed by SELLER in any quotation issued by SELLER, even if there is a reference in an Order to SELLER’s quotation or other form related to the Goods. SELLER’S WRITTEN ACKNOWLEDGMENT OF AN ORDER, COMMENCEMENT OF WORK ON THE GOODS, OR DELIVERY OF ANY GOODS HEREUNDER WILL CONSTITUTE ITS UNCONDITIONAL ACCEPTANCE OF THESE TERMS AND CONDITIONS.
2. SEPARATE SUPPLY AGREEMENT
Notwithstanding the above, in the event and to the extent of any conflict or inconsistency between these Terms and Conditions and any supply agreement duly executed and delivered by an authorized representative of both BUYER and SELLER (“supply agreement”) with respect to the subject matter hereof, the provisions of such supply agreement shall control.
3. CHANGE ORDERS
BUYER reserves the right at any time to make changes in any one or more of the following; (a) specifications, drawings and data for items to be specially manufactured by the SELLER for the BUYER, (b) methods of shipment or packing, (c) place of delivery, and (d) times of delivery. If any such change causes an increase or decrease in the cost of or the time required for delivery of the Goods pursuant to this Order, SELLER shall notify BUYER in writing (with sufficient supportive detail and documentation) within five (5) days after receipt of BUYER’s notice of the fact that and the extent to which SELLER believes such changes so affect the cost or time of performance. BUYER and SELLER shall mutually agree in writing to an equitable adjustment of the price or delivery date, as the case may be, to reflect the effect of such change. SELLER’s failure to so notify BUYER shall be deemed a waiver of any right to claim any adjustment as provided hereunder or otherwise.
4. SUSPENSIONS, CANCELLATIONS AND TERMINATIONS
BUYER shall have the option to terminate, cancel or suspend by written notice, in whole or in part, this Order or parts thereof for its convenience. If BUYER exercises the option to terminate, cancel or suspend, SELLER shall discontinue all work and shall not incur any additional costs in connection with the Order or the portion thereof cancelled or suspended. BUYER agrees that it will promptly negotiate an equitable adjustment of the price with SELLER, including compensation for actual costs incurred due to the termination, cancellation or suspension; provided that it receives a claim for adjustment, in writing, specifying the amount claimed with supporting cost figures, within thirty (30) days from the date of receipt by SELLER of the notification of the exercise of the option. The amount claimed shall not exceed the price set forth herein, less the cost of SELLER’s performance to complete and any other cost savings realized as a result of termination, cancellation or suspension. SELLER acknowledges that the amount specified in any claim for adjustment shall in all cases constitute the maximum due from BUYER to SELLER under this Order and shall constitute the sole and exclusive remedy for termination or cancellation by BUYER. SELLER shall not be entitled to relief under this paragraph if the Order has been terminated because of SELLER’s breach of this Order or another agreement with BUYER. This provision does not limit BUYER’s right to terminate or cancel this Order in the event of a material breach of this Order by SELLER.
5. HAZARDOUS MATERIALS
SELLER will properly classify, describe, package, mark, label, ship and provide Material Safety Data Sheets for any Goods that contain a hazardous chemical or hazardous material in strict compliance with applicable hazardous materials laws, regulations, ordinances and orders.
6. SPECIAL TOOLING
All dies, jigs, fixtures, drawings, molds, patterns, templates, gauges and the like that are either expressly identified in this Order as BUYER’s property or made or acquired by SELLER for use in manufacturing or assembling Goods which are proprietary to BUYER constitute “Special Tooling.” All Special Tooling will belong solely to BUYER, subject to payment of the purchase price (if any) for the Special Tooling which is set out in the Order. No such payment will be due until SELLER has provided an itemized list of the Special Tooling and BUYER has accepted the Special Tooling or the first run of Goods manufactured or assembled with it. SELLER will maintain adequate cost records for all Special Tooling and make such records available for review or audit by BUYER. If SELLER fails to maintain such records, BUYER’s sole obligation to SELLER will be to pay the fair market value of the Special Tooling in lieu of the Price (defined below) set out in the Order. While the Special Tooling is in its possession or custody, SELLER will be responsible for any loss or damage to it and for all taxes, assessments, and similar charges levied with respect to or on it. SELLER shall insure the tools for the replacement value of the Special Tooling. SELLER will label the Special Tooling in such manner as to permit accurate identification of it at all times and will segregate it from other tooling in SELLER’s possession. SELLER will repair and maintain the Special Tooling to keep it in good working condition and will replace it at SELLER’s expense as necessary. SELLER will use the Special Tooling exclusively to produce Goods for BUYER hereunder and for no other use. SELLER shall furnish to BUYER a certificate of insurance evidencing SELLER’S compliance with the provisions of this Section 6. BUYER may remove the Special Tooling at any time. Upon expiration, cancellation, or termination of the Order, SELLER will hold the Special Tooling and any operation sheets, process data, or other information necessary to show its use, at no charge, pending receipt of BUYER’s instructions about its removal or disposition, which will be at BUYER’s expense.
TIME IS OF THE ESSENCE in SELLER’s performance of this Order. Delivery must be effected within the time stated on this Order or otherwise agreed upon in writing. If no delivery date is specified, SELLER shall deliver the Goods within fourteen (14) days of SELLER’s receipt of the Order. Unless otherwise specified by BUYER in writing, all shipments under this Order shall be FOB Destination (BUYER’s specified location), and SELLER shall arrange for shipping and insurance. If BUYER specifies a method of shipment or specific carrier, SELLER shall use such method of shipment or specific carrier. Any Goods delivered thereafter may be rejected or returned at SELLER’s risk and expense unless BUYER has authorized such late shipment in writing for each instance. SELLER shall promptly notify BUYER of any actual or anticipated delay in delivery and shall take all reasonable steps to avoid or end such delay without additional cost to BUYER. BUYER reserves the right to reject or return at SELLER’s risk and expense all nonconforming Goods, shipments made in excess of BUYER’s Order, or shipments in advance of delivery schedules. BUYER may defer payment on advance deliveries until scheduled payment dates. SELLER shall not backorder any Goods unless directed to do so by BUYER in writing. SELLER shall insure all shipments for full value for the benefit of BUYER. If SELLER fails to deliver any shipment of Goods in accordance with BUYER’s instructions, BUYER may cancel the Order for such Goods and/or purchase substitute goods, in which event, SELLER will reimburse BUYER for its costs in procuring the substitute goods. SELLER shall indemnify BUYER and its affiliates against any claims, demands, causes of action, losses, damages, direct and indirect costs and expenses or other liability, including reasonable attorney fees attributable to the SELLER’s failure to deliver the Goods. If applicable, these costs shall also include any charges incurred by BUYER from any customer of BUYER.
8. DELIVERY LOCATION; SHIPPING DOCUMENTS
Immediately upon shipment of the Goods, SELLER shall provide to BUYER an invoice for the Goods shipped, which shall accurately set forth the date, place and mode of shipment (including, in the case of carload, identification of the car and routing thereof), the number of packages or other containers shipped, the contents of each package or other container, and the Order number. Such invoice shall be provided to BUYER via email or such other method as specified by BUYER. There shall be included with such invoice a copy of each shipping document, including express receipts, and the applicable purchase order number(s). Deliveries shall be made to BUYER’s receiving area as specified in the Order, during BUYER’s normal business hours or as otherwise instructed by BUYER in writing.
BUYER may inspect, test or audit, with reasonable advance notice, at SELLER’s expense, the Goods and the facilities SELLER uses to produce, manufacture or store the GOODS, including work in progress, components, and intermediate assemblies to be used in the Goods, and SELLER, at no charge, will make its premises available for this purpose and provide any necessary assistance to make the procedures safe and convenient. No inspections and/or tests by BUYER will relieve SELLER of its obligations to inspect and test the Goods. Records of all inspections performed by SELLER shall be made available to BUYER during the performance of an Order and for seven (7) years after completion of an Order. Goods are subject to final inspection and acceptance at BUYER’s plant, notwithstanding any other inspection, unless stated otherwise in the Order. Inspection and acceptance by BUYER shall not relieve SELLER of its other obligations hereunder, including but not limited to the warranty terms. If BUYER finds any Goods to be defective or not in conformity with its specifications or requirements, it may return them at SELLER’s risk for a refund of the purchase price, require SELLER to repair or replace them, or correct the defects itself or through third parties, and SELLER will reimburse BUYER for all resulting costs. SELLER is responsible for all inspection and any costs related to non-conforming Goods.
BUYER may also, at SELLER’s expense, examine the books and records of the SELLER (and/or its subcontractors and sub-tier manufacturers and supplier) to verify compliance with its obligations under these Terms and Conditions. SELLER will procure from each subcontractor and/or sub-tier manufacturer and/or supplier such agreement, permission, right and consent to enable BUYER to perform such inspections and audits.
10. ACCEPTANCE OF GOODS
BUYER’s acknowledgement of the receipt of any Goods will not constitute acceptance of such Goods and/or the acknowledgement of the quantity of the Goods received.
11. PAYMENT AND PRICE
The price of the Goods is the price stated in the Order (the “Price”). If no Price is specified in the Order, the Price will be the lowest of the following: (i) the price set out in SELLER’s published price list in force as of the date of the Order, (ii) the price last quoted or billed by SELLER to BUYER; or (iii) the price specified in any separate supply agreement between BUYER and SELLER. Payment by BUYER for Goods supplied hereunder shall not constitute acceptance thereof if subsequent inspection discloses defective material or workmanship or a failure to meet the specifications or instructions of BUYER, or a breach of SELLER’s warranties (express or implied). Unless the payment term is specially agreed or specified in Order, invoices will be paid within sixty (60) days of the later of: (i) date of the invoice; or (ii) receipt of the Goods with a two percent (2%) discount for payment within fifteen (15) days of the later of: (i) date of the invoice; or (ii) receipt of the Goods. SELLER shall invoice BUYER for Goods only after SELLER has shipped such Goods. BUYER may withhold or set off from any payment any amount as to which a dispute exists under any Order or against any amount due BUYER or any affiliate of BUYER under any transaction with SELLER.
SELLER warrants that the Price for the Goods to be provided are not less favorable than those currently extended to any other purchaser from SELLER for the same or similar Goods. In the event SELLER reduces its prices for the Goods prior to accepting the Order or during the term of performance of the Order, SELLER agrees to reduce the Price charged to BUYER accordingly. If SELLER fails to meet the lower price, BUYER, at its option, may terminate the Order without liability.
12. REIMBURSEMENT OF EXPENSES
Any reimbursement of SELLER’s expenses must be agreed upon in advance in writing by BUYER.
13. REJECTION AND CANCELLATION
BUYER reserves the right to reject any Goods and to cancel all or any part of this Order if SELLER fails to deliver conforming Goods as specified, or if SELLER breaches these Terms and Conditions. Acceptance of any part of the Goods covered by this Order shall not obligate BUYER to accept future shipments nor deprive it of the right to revoke any acceptance previously given. In the event of such cancellation, BUYER may complete the performance of the Order by such means as BUYER selects, and SELLER shall be responsible for any additional costs incurred by BUYER in so doing in addition to any other rights or remedies BUYER may have, at law or in equity. SELLER shall deliver or assign to BUYER any work-in-progress as BUYER may request together with any equipment, information and manufacturing materials specifically provided, produced or acquired for performance of this Order.
SELLER makes the following warranties for the Goods to the BUYER, its successors, assigns, customers and the users of the Goods, and all such warranties shall be in addition to any and all other warranties, express or implied, which may be prescribed by law or in equity: (a) SELLER shall, at the date of delivery, have full, good and marketable title to the Goods; (b) the Goods shall be free and clear of any and all liens, restrictions and encumbrances; (c) the Goods shall be new, fit and sufficient for their intended uses, and conform to specifications, drawings, samples, formulas, data, and other descriptions supplied by BUYER or BUYER’s customer and shall be free from defects (patent or latent) in materials and workmanship; (d) the Goods will be free from defects in workmanship, materials, and design; (e) SELLER has complied with all quality standards and procedures furnished by BUYER and all applicable laws, regulations, standards, ordinances and orders in performing the Order; (f) the Goods satisfy or exceed all applicable legal requirements established by federal or state law, and/or applicable engineering, environmental or material standards, including, but not limited to, any recognized standards with respect to quality and fitness; and (g) the Goods, and BUYER’s use of the Goods will not infringe the intellectual property rights of any third party. Such warranties, including warranties prescribed by law, shall run for a period of one (1) year after delivery unless otherwise stated in the Order or a separate supply agreement with SELLER.
SELLER warrants that all services that are part of the Goods will be performed in a professional manner and consistent with the highest standards in the industry for similar services. SELLER will not assign any person to perform work under the Order unless he or she is (a) qualified to perform all of the essential functions of the assigned duties for the provision of the Goods under the Order (subject to any duty to accommodate under applicable law); (b) legally entitled to work in the country in which he or she is employed; and (c) has met SELLER’s standard criminal background check requirements (subject to restrictions imposed by applicable law).
In the event of breach of the warranty, BUYER, at its option, may: (i) cancel the Order as to such Goods, in which case SELLER will refund to BUYER all amounts paid for such Goods within thirty (30) days of BUYER’s cancellation; (ii) require SELLER to promptly replace such Goods with conforming Goods without additional charge to BUYER; (iii) repair or replace the Goods in which case SELLER shall reimburse BUYER for all costs related to such repair or replacement. Goods shall be removed after notification of rejection. SELLER shall bear all risk of loss of rejected Goods.
BUYER may reject an entire lot of Goods based on a sampling, and any such lot shall be returned to SELLER for one hundred percent (100%) retesting at SELLER’s cost. Rejected Goods will be held by BUYER for a reasonable time for disposition at SELLER’s risk and expense, and BUYER will take a credit against future amounts due to SELLER at full billing price, including freight, packaging, and a reasonable charge to cover inspection and handling, with respect to such Goods.
15. TITLE; RISK OF LOSS
Unless otherwise noted in the Order, title to the Goods covered by the Order passes to BUYER upon delivery of the Goods to the place of delivery, notwithstanding any agreement to the contrary, including, but not by way of limitation, any agreement to pay freight, express or other transportation or insurance charges. SELLER bears all risk of loss or damage to the Goods until delivery of the Goods to the place of delivery. Delivery of the Goods is not complete until such Goods have actually been received and accepted by BUYER.
To the fullest extent permitted by law, SELLER will, at its own expense, indemnify, defend and hold BUYER, its affiliates, and its customers, and its and their successors, assigns, employees, agents, and users (collectively, the “Indemnified Parties”), harmless from and against any and all claims, liabilities, losses, fines, penalties, damages and expenses (including reasonable attorneys’ fees and court costs) which the Indemnified Parties may sustain or incur as a result of any claim of damage, loss, injury or death to any person or entity or property of any person or entity relating to or resulting from (i) the Goods; (ii) claimed infringement of any patent, trademark, trade secret, copyright, or other proprietary right of any other party based on use of the Goods; or (iii) any other act or omission of SELLER or its subcontractors related to the Order, including any agents or employees engaged in the manufacture, installation, delivery, erection, repair, or operation of any Goods. SELLER’s indemnification obligations shall not apply to claims which are caused solely by the negligence of BUYER.
17. LIMITATION OF LIABILITY
IN NO EVENT WILL BUYER BE LIABLE TO SELLER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES REGARDLESS OF THE LEGAL THEORY ON WHICH ANY LIABILITY CLAIM IS MADE. In no event will BUYER’s liability to SELLER exceed the amount due under the applicable Order for the specific Goods which are the subject of any claim.
18. CONFIDENTIAL INFORMATION
Except as required by law (upon prior written notice to BUYER), or with BUYER’s prior written consent, SELLER will, at all times, keep confidential all information, drawings, specifications, customer information and data furnished by BUYER (whether in writing, electronically, orally, or visually) or derived or developed by SELLER for the purpose of performing this Order (collectively, “Confidential Information”). SELLER agrees to take all reasonable steps to protect the confidentiality of BUYER’s Confidential Information. SELLER will not disclose such Confidential Information, use such Confidential Information for its own benefit or for the benefit of any other party, copy it, or permit copies to be made without the prior written consent of BUYER. Upon termination of this Order, and, at any time upon written request, SELLER will return all copies of BUYER’s Confidential Information to BUYER. These confidentiality obligations do not apply to information lawfully known by SELLER at the time of disclosure by BUYER or obtained by SELLER from a third party entitled to disclose it, or to information that becomes public knowledge other than through disclosure by SELLER. SELLER will not publish or advertise the existence or nature of this Order without BUYER’s prior written consent. SELLER acknowledges that a breach of this Section may cause irreparable harm and money damages would not be a sufficient remedy and that BUYER may seek injunctive relief in addition to other remedies available at law or equity. SELLER’s obligations under this Section shall survive termination or completion of an Order. Confidential Information shall not include: (a) any information which is in the public domain or enters the public domain, other than through breach of this Section by SELLER, after disclosure to SELLER; or (b) is received by SELLER from a third party without any obligation of confidentiality provided that such third party had a right to disclose such information to SELLER without any obligation of confidentiality.
19. TAXES AND OTHER CHARGES
The prices specified in this Order include all federal, state, local or foreign taxes, levies, duties or other government charges upon the manufacture, sale, or transportation of the Goods described herein. SELLER shall be responsible for the payment of (i) all applicable local, state and federal taxes, including, but not limited to, excise, sales, use and value-added taxes regardless of which party such taxes are imposed upon; (ii) all governmental charges, including, but not limited to, customs, import/export fees and duties; and (iii) insurance for the delivery of the Goods to BUYER.
20. GOVERNMENT CONTRACTS; ADDITIONAL TERMS
If this Order bears a U.S. Government contract number or if SELLER is otherwise informed that the Goods or services covered by this Order are to be supplied directly or indirectly to the United States Government, any terms and conditions which may be required to be agreed to by SELLER as a condition to supplying Goods or services pursuant to such United States Government contract are hereby incorporated by reference. In the event of any inconsistency between the required terms of such United States Government contract and the terms of this Order, the required terms of such United States Government contract shall apply.
21. DATA SECURITY STANDARDS
SELLER shall implement and maintain appropriate physical, technical and administrative security measures to protect and secure its networks, systems, and any information provided by BUYER to SELLER. At all times, SELLER will remain strictly liable for the security of its networks and systems, and for any damages, costs and/or losses (collectively, “Losses”) resulting from SELLER’s failure to implement such security measures, including any and all Losses related to security incidents, cyberattacks, wire fraud schemes/phishing attacks, and/or breaches of such systems and/or networks (collectively “Data Security Incident”). In no event will BUYER be liable for Losses of any kind, under any legal theory, arising out of or in connection with a Data Security Incident caused by SELLER’s violation of this section of the Agreement.
22. APPLICABLE LAWS
SELLER represents and agrees that the Goods herein described have not been and will not be manufactured, sold, priced, packaged, labeled or transported in violation of any federal, state, or local law, or any lawful order, rule or regulation issued thereunder, any permit, certificate or license which may be required for SELLER’s performance hereunder, nor any code or standard applicable thereto. None of SELLER or any of its officers, directors or employees is on any list of prohibited countries, individuals, organizations or entities that is administered or maintained by the U.S. Office of Foreign Assets Control (“OFAC”), including but not limited to the List of Specially Designated Nationals and Blocked Persons, or on any similar list not maintained by the OFAC, nor will SELLER cause or allow any funds received pursuant to this Agreement to be provided to any country, individual, organization or entity on any such list. SELLER is in compliance with all of its Policy and Regulations.
23. CONFLICT MINERALS
SELLER warrants and certifies that it complies with Section 1502 of the Dodd Frank Act and the Conflict Minerals Regulations and Final Rules issued by the U.S. Securities and Exchange Commission, and any subsequent rules and regulations related thereto (“Conflict Minerals Regulations”), and has implemented compliant processes to ensure its suppliers are in compliance with the Conflict Minerals Regulations. Where SELLER does not have direct and formal reporting requirements under the Conflict Minerals Regulations, and upon request by BUYER, SELLER agrees to provide due diligence and Responsible Country of Origin Inquiry (“RCOI”) information under the Order to BUYER in support of BUYER’s reporting requirements (the “RCOI Requirements”). Further, SELLER shall promptly comply with all requests by BUYER to provide documentation, and other substantiating data and assurances with respect to its compliance with Conflict Minerals Regulations and the RCOI Requirements as BUYER may deem necessary from time to time. In the event: (a) BUYER deems SELLER is not in compliance with the Conflict Minerals Regulations or the RCOI Requirements, (b) BUYER is not satisfied with the outcome of any review of SELLER documentation and/or data or otherwise, or (c) SELLER does not provide the documentation, other data and/or other further assurances to BUYER as requested by BUYER, BUYER shall have the right to terminate any Order or any portion thereof without penalty or further liability to SELLER. SELLER shall flow the requirements of this Section 23 to its subcontractors and suppliers at any tier for the performance under any Order.
SELLER and its lower-tier subcontractors are required to comply with BUYER’s code of conduct available at https://s2.q4cdn.com/941338550/files/doc_downloads/governance_documents/21/AZEK-Supplier-Code-of-Conduct.pdf. SELLER shall include the substance of this provision in all subcontracts issued at all tiers pursuant to this Order.
SELLER agrees to maintain in full force and effect workers’ compensation, comprehensive general liability, broad form extended casualty, employer’s liability, automobile liability, product liability, completed operations coverage and insurance against any and all losses, damages, liabilities, claims, lawsuits, demands, costs and expenses (including attorneys’ fees and expert expenses) that arise out of or are alleged to have arisen, directly or indirectly, in whole or part, from SELLER’s design, manufacture, sale, transportation, or distribution of any Goods. The insurance provided hereunder shall include contractual liability coverage to cover SELLER’s obligations under this Agreement. SELLER shall provide coverage for any acts of omission or commission, negligence, willful or wanton conduct or otherwise of SELLER, its subcontractors, employees, workmen, servants, or agents, with limits of not less than US$1,000,000 for each person and US$2,000,000 for each occurrence, and property damage limits of not less than US$3,000,000. SELLER shall maintain BUYER as an additional insured on all such policies required under this Agreement. The coverage afforded to BUYER as additional insured under such policies shall be primary insurance. If SELLER has other insurance, including self-insurance, which is also applicable to the coverage, such other insurance shall be considered only as excess coverage over and above any and all of SELLER’s insurance. SELLER shall obtain an endorsement to its policy to effect this priority of coverage. BUYER may, at its sole discretion, request that SELLER provide certificates of insurance evidencing coverage as set forth herein.
SELLER shall not assign or delegate this Order or the contract formed as a result of accepting this Order in whole or in part without the prior written consent of BUYER. BUYER is entitled, without restriction, to delegate, subcontract, transfer or assign an Order or any of its rights or obligations, whether in whole or in part, without the prior written consent of SELLER. This Order will bind and inure to the benefit of the parties hereto and their respective successors, permitted transferees, and permitted assigns.
27. RELATIONSHIP BETWEEN THE PARTIES
SELLER is an independent contractor for all purposes, without express or implied authority to bind BUYER by contract or otherwise. Neither SELLER nor its employees, agents or subcontractors are agents, employees or joint venturers of BUYER, and are therefore not entitled to any employee benefits of BUYER, including but not limited to, any type of insurance. SELLER will be responsible for all costs and expenses incident to performing its obligations under the Order and these Terms and Conditions and will provide SELLER’s own supplies and equipment.
BUYER’s remedies herein are cumulative and in addition to any other or further remedies available to it at law or equity. BUYER’s waiver of any default, breach or failure to enforce any of the terms, conditions, instructions or specifications related to this Order shall not in any way affect, limit or waive BUYER’s right thereafter to enforce and compel strict compliance with every term, condition, instruction and specification hereof or any subsequent default or breach. In the event any provision of an Order is found to be invalid or unenforceable, the parties hereby agree that the court shall enforce such provision to the extent permitted by law and, to the extent such provision is not enforceable, shall enforce the remainder of an Order as if such provision were not included in the Order. All Orders will be interpreted and enforced under the laws of the State of Delaware, without regard to its conflicts of law provisions. The federal courts in Chicago, Illinois or the state court located in Cook County, Illinois will have exclusive jurisdiction to resolve any dispute related to this Order unless BUYER, in its sole discretion, brings a claim against SELLER in another court of competent jurisdiction. SELLER consents to the jurisdiction of such courts and agrees to appear in any such action upon written notice thereof. In no event will the provisions of the U.N. Convention on the International Sale of Goods apply to this Order. In the event it becomes necessary for BUYER to enforce these Terms and Conditions or the requirements of the Order, or to defend or prosecute any litigation arising out of or as a result of the Order, BUYER shall be entitled to recover from SELLER, in addition to any other relief granted, reasonable attorneys’ fees, expert fees, costs and expenses of litigation to the extent BUYER is the substantially prevailing party.