Doing Business with Monadnock Non-Wovens
Terms and Conditions
Terms & Conditions of Sale
Products furnished and services rendered by Monadnock Non-Wovens LLC (“MNW”) are sold only on the Terms and Conditions stated herein. Notwithstanding any Terms and Conditions on Buyer’s order, MNW’s performance of any contract is expressly made conditional on Buyer’s agreement to MNW’s Terms and Conditions of Sale unless otherwise specifically agreed to in writing by MNW. In the absence of such agreement, commencement of performance and/or delivery shall be for Buyer’s convenience only and shall not constitute an acceptance of Buyer’s Terms and Conditions. If the parties have not previously entered into a written contract, acceptance of any Product or service shall be deemed acceptance of the Terms and Conditions stated herein.
All orders are subject to acceptance by MNW, with acceptance becoming effective upon receipt by the Buyer of MNW’s written and/or electronic Order Acknowledgment.
Quotations and Prices
All quotations are subject to the Terms and Conditions stated herein as well as any additional Terms and Conditions that may appear within MNW’s quotation or proposal form. In the case of a conflict between the Terms and Conditions stated herein and those appearing within MNW’s quotation or proposal form, the Terms and Conditions on the face of MNW’s quotation or proposal form shall control.
MNW’s prices and quotations are subject to the following:
(a) All published prices are subject to change without prior notice.
(b) Unless otherwise specified in writing, all quotations constitute offers, and are valid for and expire thirty (30) days after the date the quotation is issued or until revoked or revised, whichever is sooner; provided that budgetary quotations and estimates, indicated as such on the quotation, are for preliminary information only and shall neither constitute offers, nor impose any responsibility or liability upon MNW.
(c) All shipments will be billed at the prices in effect on the date of acceptance of Buyer’s order(s).
(d) Unless otherwise stated by MNW in writing, all prices quoted shall be exclusive of transportation, insurance, taxes, (including without limitation, any use tax, sales tax, excise or similar tax), license fees, customs fees, duties, and other charges related thereto, and Buyer shall report and pay any and all such shipping charges, premiums, taxes, fees, duties and other charges related thereto in a timely manner, and shall hold MNW harmless therefrom.
(e) Stenographical, typographical and/or clerical errors are subject to correction so as to give the terms the meaning the parties originally intended.
(f) Unless expressly agreed to in writing by MNW, prices quoted are for Products contained in normal domestic commercial packaging.
(g) The start date of the delivery term is the date of MNW’s order acceptance as indicated in the written order acknowledgment.
Shipment dates are approximate. MNW will make all reasonable efforts to meet its shipment schedule. MNW is not liable for any defaults, damages or delays in fulfilling any order caused by conditions beyond its control, including but not limited to, Acts of God, labor troubles, riots, fire, flood, and delays in supply of materials and components, and transportation. If conditions arise which prevent compliance with such schedules, MNW shall not be liable for any damage or penalty for failure to give notice or delay, and such delay shall not constitute grounds for cancellation.
(h) Quoted delivery dates are those in effect on the date of the quotation and are subject to change without prior notice.
Terms of Payment
All Products will be invoiced when shipped. Invoices are due and payable in U.S. funds in accordance with the terms specified on the face of the invoice, subject to proper credit approval. For any balance resulting from late or non-payment as reflected in the terms of the invoice, interest shall accrue at the rate of one and one-half percent (1½%) per month commencing the 31st day after the date of the invoice. Should any portion of any invoice be disputed, the undisputed portion(s) of the invoice and other invoices not in dispute shall be paid when due without offset. If any payment is not made when due, MNW may, in its discretion, defer the performance of any further work to be performed by MNW, including loss of reasonable profits in the event any payment hereunder is not made when due. Buyer hereby grants to MNW a purchase money security interest in the Products, which security interest shall extend to all parts or accessories now or hereafter attached to the Products and proceeds therefrom. Buyer hereby agrees to perform all acts necessary to perfect MNW’s security interest. A copy of this Terms and Conditions of Sale (along with any form of written acceptance) may be filed on MNW’s behalf with appropriate state authorities at any time as a financing statement in order to protect MNW’s security interest. MNW shall have all rights and remedies of a secured party under the Uniform Commercial Code and, if the account is referred for collection and/or litigation for non-payment, Buyer agrees to pay MNW’s reasonable attorney’s fees and all other costs and expenses of collection. MNW shall have the continuing right to review Buyer’s credit and at any time (without prior notice) to require full payment in advance, progress payments, satisfactory security or a guarantee of prompt payment. United States government contracts or subcontracts are subject to applicable regulations concerning termination and payment.
Transportation and Risk of Loss
Unless otherwise agreed to in writing by MNW, all transportation shall be at Buyer’s expense. MNW reserves the right to ship Products freight collect and to select the means of transportation and routing. Unless otherwise advised, MNW may, but is not obligated to, insure the Products at full value or declare full value thereof to the transportation company at the time of delivery and any freight and insurance costs shall be Buyer’s responsibility. Title and risk of loss or damage shall pass to Buyer upon delivery of the Products to the transportation company at the FOB point. Confiscation or destruction of, or damage to Products shall not release, reduce or in any way affect the liability of Buyer therefor. Notwithstanding any defect or nonconformity, or any other matter, such risk of loss shall remain with Buyer until the Products are returned at Buyer’s expense to such place as MNW may designate in writing. Buyer, at its expense, shall fully insure Products against all loss or damage until MNW has been paid in full therefor, or the Products have been returned, for whatever reason, to MNW in their original condition. All Products must be inspected upon receipt by Buyer and claims should be filed immediately with the transportation company when there is evidence of damage, either concealed or external. As used in the clauses appearing herein or attached hereto, “delivery” shall occur when Products are delivered at the FOB point, which shall be the point of manufacture or such other place, as MNW shall specify in writing.
MNW shall not be liable in any way as a result of any delay in performance hereunder due to unforeseen circumstances or to causes beyond its control, including, without limitation, strike, lockout, riot, war, fire, act of God, accident; failure or breakdown of components necessary for order completion; subcontractor, supplier or Buyer caused delays; inability to obtain labor, materials or manufacturing facilities; or compliance with any law, regulation or order, whether valid or invalid, of any competent governmental body or any instrumentality thereof whether now existing or hereafter created. Performance shall be deemed suspended during and extended for such time as any such circumstances or causes delay its execution. Whenever such circumstances or causes have been remedied, MNW will make and Buyer shall accept performance hereunder. In addition, MNW’s inventories and current production may be allocated so as to comply with applicable Government regulations.
Whenever MNW accepts an order for any catalog-listed Product, and Buyer cancels said order prior to delivery MNW shall assess a cancellation charge of not less than fifteen percent (15%) of the order value or a minimum charge of ($50) fifty dollars, which ever is greater, to cover costs of processing and order handling; cancellation and return of Product within thirty (30) days after delivery shall be subject to a charge of not less than ($20) twenty dollars per/cwt value or a minimum charge of ($100) one hundred dollars, which ever is greater; no such order may be terminated after fifteen (15) days except by mutual written agreement of the Parties. Before any Products may be returned to MNW due to such cancellation, Buyer must obtain written authorization from MNW or its authorized representative for such return, with specific instructions as to how and where these Products should be returned. Any Product returned to MNW shall be undamaged and salable, and shall be sent prepaid via the means of transportation indicated as acceptable by MNW in the written return authorization. Buyer is solely responsible for all freight and transportation costs relating to any return. No order for any non-catalog or non-standard products may be terminated by Buyer except by mutual agreement in writing. Terminations by mutual agreement are subject to the following conditions: (1) Buyer will pay, at applicable contract prices, for all Products which are completely manufactured and allocable to Buyer at the time of MNW’s receipt of notice of termination; (2) Buyer will pay all costs, direct and indirect, which have been incurred by MNW with regard to Products which have not been completely manufactured at the time of MNW’s receipt of notice of termination plus a prorated portion of normal profit on the contract; (3) Buyer will pay a cancellation charge on all Products affected by the cancellation. MNW’s normal accounting practices shall be used to determine costs and other charges.
Confidential and Proprietary Information – OK
The Buyer agrees not to disclose to any person outside of its employ any confidential and/or proprietary information, which may be disclosed to it relating in any way to any MNW Products. Upon termination of any order or relations between the parties, Buyer shall return to MNW, upon MNW’s request, all drawings, descriptions, and/or other material received from MNW and all other materials containing confidential information relating to the Products. Buyer shall not allow persons outside of its employ to inspect such portions or components of the Products identified by MNW to be confidential or proprietary without MNW’s prior written consent.
Any warranty contained herein or in any quotation or acceptance shall be to the original Buyer only, and may not be assigned or transferred to any third party. Products manufactured by MNW are warranted against defects in materials and workmanship for 180 days from date of shipment thereof to Buyer. MNW’s liability under valid warranty claims is limited, at the option of MNW, to replacement or refund of an equitable portion of the purchase price of the Product. MNW shall have no liability for any defect in material or workmanship unless notice of such defect is received by MNW within 180 days from the date of shipment. Items consumed in normal use are not covered by this warranty. All warranty replacement or repair shall be limited to Product malfunctions which MNW determines are due to defects in original materials or workmanship. All of MNW’s obligations under this warranty shall cease in the event of abuse, accident, alteration, misuse or neglect of the Product. In-warranty repaired or replaced materials are warranted only for the remaining unexpired portion of the original warranty period applicable to the repaired or replaced product. After expiration of the applicable warranty period, Buyer shall be charged at prevailing market prices for raw materials, labor, and transportation.
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Warranty Replacement and Adjustment
All claims under warranty should include the Product lot number, the date of shipment, and a full description of the circumstances giving rise to the claim. Before any Products are returned for repair and/or adjustment, Buyer must obtain written authorization from MNW or its authorized representative for the return, and instructions as to how and where the Products should be returned via a Return Authorization number. Any Product returned to MNW for examination shall be sent prepaid via the means of transportation designated by MNW. MNW reserves the right to reject any warranty claim not promptly reported and any warranty claim on any item that has been altered or has been returned by non-acceptable means of transportation. When a Product is returned for examination and inspection, or for any other reason, Buyer shall be responsible for all damage resulting from improper packing or handling, and/or for loss in transit, notwithstanding any defect or non-conformity in the Product. In all cases, MNW will be solely responsible for determining the actual cause and nature of failure, and MNW’s determination with regard thereto shall be final. Any Products returned to MNW, for whatever reason, must be free from hazardous substances including, but not limited to, corrosive, radioactive, or toxic substances.
If it is determined that MNW’s Product has been returned without cause and is not defective, Buyer will be notified and the Product will be returned at Buyer’s expense. In addition, a charge for testing and examination may be assessed in connection with Products so returned.
Limitation of Remedies
MNW’s entire liability and the Buyer’s exclusive remedy for any defects in materials or workmanship or non-performance of the Products shall be as set forth above under “Warranty”. For any other claim related in any way to the subject matter of the sale of MNW’s Products, MNW’s liability, regardless of the form of action, whether in contract or tort, including negligence, shall be limited to the dollar amount MNW actually receives for the Products furnished, or to be furnished, or services rendered, or to be rendered as the case may be, which is the subject of claim or dispute.
In no event will MNW be liable for any damages caused by the Buyer’s failure to fulfill the Buyer’s responsibilities, or for lost profits or other consequential damages, even if MNW has been advised of the possibility of such damages, or for any claim against the Buyer by any other party.
If any provision or provisions of these Terms and Conditions are held to be invalid, illegal, or unenforceable; the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
No action, regardless of form, arising out of, or in any way connected with, the Products furnished or services rendered by MNW, may be brought by Buyer more than one (1) year after the cause of action has occurred. This contract between MNW and the Buyer shall be construed under and governed by the laws of the State of New Hampshire. Venue for any dispute arising from this contract shall be in New Hampshire.
Purchase Order Terms & Conditions
The terms and conditions of this Purchase Order, including those on the face hereof and those set forth below and in the Supplemental Terms and Conditions attached hereto, if any, represent the entire agreement between Seller and Monadnock Non-Wovens LLC (“MNW”). Acceptance is limited to the terms and conditions of this Purchase Order, and no purported revisions of, additions to, or deletions from this Purchase Order shall be effective, whether in Seller’s proposal, invoice, acknowledgment or otherwise, and no local, general or trade custom or usage, shall be deemed to effect any variation herein unless expressly agreed to in writing by MNW’s authorized representative. The deliver of any goods or the furnishing of any services pursuant to this Purchase Order shall constitute acceptance by Seller of this Purchase Order subject to, and in strict accordance with, all of its terms and conditions. To the extent that terms appearing on the face of this Purchase Order are inconsistent with those set forth herein, the terms on the face shall govern. Any reference on the face of this Purchase Order to Seller’s proposal shall be exclusive of any terms and conditions attached to or referred to therein.
All goods and services furnished pursuant to this Purchase Order shall strictly conform to the specifications, descriptions and warranties set forth in this Purchase Order. No change in this Purchase Order shall be made except upon written application to, and subsequent written authority of, MNW.
3. Time and Place of Deliver; MNW’s Inspection; Acceptance
Time is of the essence of this Purchase Order. Delivery will be made as specified on the face of this Purchase Order. MNW reserves the right to reject goods and to cancel all of any portion of this Purchase Order in the event of failure to deliver at the time and place specified. MNW’s acceptance of any part of a shipment not delivered as specified herein shall not obligate MNW to accept the remainder of that shipment or any future shipments. If Seller is required to provide Material Safety Data Sheets, they will be delivered to MNW prior to delivery of any goods under this Purchase Order. All goods shall be received subject to MNW’s inspection and acceptance, and subject to MNW’s right to reject and return at Seller’s expense goods, which fail to conform strictly to the requirements of this Purchase Order. All materials are subject to inspection and testing by MNW at manufacturer’s plant.
4. Extension of time of Deliver
MNW shall not be liable to Seller for any failure of MNW to take any delivery hereunder when due, if occasioned by any event beyond MNW’s reasonable control, including without limitation fire, flood, earthquake, lightning or other acts of God; acts of, or compliance with the directions of, civil or military authority, including any federal, state or local agency or authority; wars; riots; insurrections; sabotage; accident; embargo; strike or other labor trouble; interruption of or delay in transportation; shortage or failure of supply of materials; or equipment breakdown. At MNW’s option, the time for delivery hereunder shall be extended to the extent of the delay occasioned by any such circumstance and the deliveries so omitted shall be made during the period of such extension.
5. Risk of Loss
Risk of loss of any goods sold hereunder shall transfer to MNW at the time and place of delivery; provided that risk of loss prior to actual receipt of the goods by MNW shall nonetheless remain with Seller.
Goods must be shipped by the particular route, method and carrier as stated in this Purchase Order. In the event that Seller fails to ship goods on or before any scheduled shipping date, MNW shall have the right to specify a more rapid method of shipment than was specified originally and Seller shall bear, at no additional cost to MNW, any increased costs occasioned thereby.
7. Packing, Marking, and Invoicing
A packing list shall be included with each shipment. Two copies of Seller’s invoices, together with original bills of lading, properly signed by carrier’s representative, shall be forwarded to MNW not later than the day after shipments are made. Individual invoices shall be issued for each separate shipment. MNW shall not be charge for packaging, boxing, crating or cartage. All invoices, packing lists, bills of lading, and each separate package within each shipment shall clearly reference piece number, MNW’s Purchase Order number and Seller’s packing slip number. Partial shipments must be identified as such on the shipping memoranda and invoices.
8. Payment; Waiver of Liens
Payment will be made following receipt and acceptance of the goods and receipt, in proper form and substance, of all documentation required by this Purchase Order. MNW shall not be obligated to pay any seller invoice submitted greater than twelve months following the delivery of goods or services unless agreed to in writing in advance. Seller shall furnish to MNW any analysis or breakdown of the price as MNW may reasonably request. This Purchase order shall not be filled at prices higher than last quoted or charged by Seller, except as expressly agreed by MNW. As a condition to any payment hereunder, Seller shall furnish to MNW, upon request, an executed waiver of liens and claims in form reasonably satisfactory to MNW. Seller agrees to indemnify, defend and hold harmless MNW from and against any and all liens and encumbrances arising out of Seller’s performance of this Purchase Order or rising out of any claim for payment by any laborer, subcontractor or supplier of Seller
9. Seller’s Warranties
Seller expressly warrants that for a period of one year after MNW’s acceptance of the goods or services hereunder, or for such longer period as may be expressly provided in the Purchase Order or under applicable law, all goods and services covered by this Purchase Order will (a) strictly conform to Seller’s specifications, drawings, samples and other written materials and descriptions, or, to the extent the goods were purchased to MNW’s specifications and drawings as set forth or refereed to in this Purchase Order, that the goods strictly conform with those specifications and drawings; (b) be free from defects in design, material and workmanship; (c) be of merchantable quality and suitable for the particular purposes intended, whether express or reasonably implied; and (d) bear all warnings, labels, and markings required by applicable laws and regulations. In addition, Seller warrants that: (e) none of the goods covered hereby, to the extent they are subject to laws prohibiting adulteration or misbranding, is adulterated or misbranded within the meaning of such laws as of the date of delivery to MNW; (f) all goods covered hereby may be introduced into interstate commerce without violation of applicable laws and regulations; (g) all services have been performed in a good and workmanlike manner; and (h) all goods and services furnished or rendered pursuant to this Purchase Order have been produced, sold, delivered or rendered to MNW in compliance with all applicable laws and regulations, including those set forth in Section 14.
10. MNW’s Remedies
MNW’s acceptance of all or any part of the goods or services provided hereunder shall not be deemed a waiver of the failure of such goods or services to conform to all of the warranties set forth in Section 9. MNW retains the right to cancel any portion of the remaining order, to reject any portion of the goods or services delivered, or to revoke acceptance as to any portion of the goods or services accepted, and return such goods to Seller and to recover the purchase price, costs of removal or recall, transportation and custodial expenses, injury to person or property incurred by MNW, all in addition to MNW’s other remedies under this Purchase Order or applicable law. If Seller becomes insolvent or makes an assignment for the benefit of creditors, or files or has filed against it any petition in bankruptcy, MNW shall have the right to cancel this Purchase Order immediately.
11. Patent, Copyrights, Trademarks
Seller warrants that the goods furnished under or used in connection with this Purchase Order (except those furnished according to MNW’s specific design) and MNW’s express or reasonably implied intended use thereof, do not and will not infringe any patent, copyright, trademark, trade secret or other proprietary right of any third party. If any claim, suit or proceeding is made or instituted against MNW alleging any such infringement, Seller shall indemnify, defend and hold MNW harmless from and against any damages, liabilities, judgments, costs and expenses (including without limitation reasonable attorney’s fees) if may incur in connection with any such claim, suit or proceeding. In the event that the goods or MNW’s use is held in any suit or proceeding to constitute an infringement, of if Seller determines that there is a substantial risk of a finding of such infringement, Seller agrees, as appropriate, and at its expense to: (a) procure for MNW, at no expense to MNW, the right to continue using the goods, (b) replace the goods with equivalent goods that meet the requirements of this Purchase Order and that do not infringe any such rights, or (c) modify the goods so that they become non-infringing.
To the fullest extent permitted by law, Seller agrees to indemnify, defend, and hold harmless MNW, its affiliates, and their respective directors, officers, employees and agents (the “Indemnified Parties”) from and against all claims, demands, causes of action, losses, costs and expenses (including without lamination reasonable attorneys’ fees and costs of defense) (collectively, “Losses”) arising out of or incident to Seller’s performance hereunder, or the presence of Seller, its employees, agents or invitees (“Seller Parties”) on MNW premises, provided that such Losses are attributable to (a) the negligence or willful misconduct of the Seller Parties, (b) the failure of the Seller Parties to comply with applicable laws, or (c) bodily injury, sickness, disease or death (including employees of Seller or MNW), or to damage to or destruction of tangible property (including the loss of use thereof); in each case regardless of whether or not caused in part by the negligence or other fault of any Indemnified Party hereunder; provided that Seller shall not be liable for Losses caused by the sole negligence or willful misconduct of any Indemnified Party.
Seller’s indemnification obligations under this Section 12 shall not be limited by applicable Workers’ Compensation or other disability or employee benefit laws, and, solely as respects the indemnities set forth in this section, Seller hereby expressly waives any rights it may have to assert any immunities or defenses that it may have under such laws against any Indemnified Party.
13. Labor, Work and Services; Insurance
In supplying any services hereunder, Seller warrants that it is, and undertakes such performance as, an independent contractor, with sole responsibility for the payment of all federal and/or state unemployment insurance, social security and/or other similar taxes incurred hereunder. Any performance by Seller under this Purchase Order on MNW’s premises shall be in full compliance with MNW’s safety and other rules and procedures and with all federal and state laws and regulations regarding workplace safety, including without limitation, laws pertaining to occupational premises and until the satisfactory completion thereof, Seller shall, at its expense, maintain the following minimum insurance coverages on an “occurrence” basis (and not on a “claims made” basis)
> Kind of Insurance
> Workers’ Compensation
> Employer’s Liability
> Commercial General Liability including Contractual Liability
and Products/Completed Operations
> Business Auto Liability
> Symbol 1 (Any Auto) including
> Hired and Non-Owned Autos
$1,000,000 bodily injury by accident, each accident
$1,000,000 bodily injury by disease, policy limit
$1,000,000 bodily injury by disease, each employee
Combined Single Limits:
$2,000,000 General Aggregate
$2,000,000 Products/Completed Operations
Combined Single Limits:
- $1,000,000 per accident
Sell shall furnish MNW certificates of insurance showing the above coverages with an insurer with an AM Best rating of “A VIII” or better and providing for at least thirty (30) days prior written notice of cancellation or modification resulting in a reduction below the required minimum coverages and naming MNW as an additional insured under Commercial General Liability using ISO from CG 20 26 or its equivalent, or in the case of MNW’s distribution of Seller’s products, ISO form CG 20 15 or its equivalent, If Seller fails to furnish such certificates or maintain such insurance, MNW shall have the right to cancel this Purchase Order Immediately. Seller, for itself and its insurers, hereby waives subrogation against MNW, and Seller agrees that, with respect to claims against MNW arising out of Seller’s performance hereunder, Seller’s insurance shall be primary and MNW’s insurance shall be excess and non-contributory. Seller’s obligations to maintain such insurance shall in no way limit the liability or obligations assumed by Seller hereunder.
14. Laws and Regulations
All goods furnished or services rendered pursuant to this Purchase Order shall be produced, sold, delivered, or rendered to MNW in compliance with all applicable laws and regulations, including without limitation, the Federal Fair Labor Standard Act of 1938, as amended, Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, Section 503 of the Rehabilitation Act of 1973, Executive Order 11246, Section 402 of the Vietnam Veterans’ Readjustment Assistance Act of 1974, the Occupational Safety and Health Act of 1970, as amended (“OSHA”), (in the event of a conflict between the requirements of OSHA and any industry codes or standards applicable to this Purchase Order, the more stringent requirement shall apply), the Noise Control Act of 1972, all applicable environmental laws and regulations, including without limitation, the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, and the standards of accessibility set forth in Section 402 of the Americans with Disabilities Act, and the rules, regulations and orders pertaining to the above.
Seller also agrees that the following clauses from the Code of Federal Regulations shall also apply to this Purchase Order and shall be incorporated herein by reference: the Equal Employment Opportunity Clause, the Certification of Nonsegregated Facilities required by paragraph (7) of Executive Order 11246, the Utilization of Minority Business Enterprises and the Minority Business Enterprises Subcontracting program clauses, the Affirmative Action for Handicapped Worker’s clause, and the Affirmative Action for Disable Veterans and Veterans of the Vietnam Era clause are, by this reference, incorporated herein and made part hereof.
MNW may at any time, without cause, terminate this Purchase Order in whole or in part upon written notice to Seller. In such event, Seller shall be entitled to a reasonable termination fee consisting of a percentage of the Purchase Order price reflecting the percentage of the work, goods delivered or services properly performed prior to termination. Payment of such termination fee shall be Seller’s sole remedy. Upon MNW’s request, Seller shall preserve, protect and deliver to MNW, at MNW’s expense, materials on hand, work in progress, and completed work, both in its own and in its suppliers’ plants.
16. Assignment and Set-Off
Seller shall not assign its rights or delegate its performance hereunder, nor any interest herein, without MNW’s prior written consent and any attempted assignment or delegation without such consent shall be void. MNW shall be entitled at all time to set-off any amount owing from Seller to MNW, whether under this Purchase Order or otherwise, against any amounts otherwise payable to Seller.
Seller and its directors, officers, employees and agents shall not disclose to any third party any information pertaining to the goods provided or services performed hereunder, or pertaining to MNW’s business or operations which Seller obtains or has access to in connection herewith, without the prior written consent of MNW.
18. No Waiver of Defaults
No failure by MNW to enforce at any time any of the terms or conditions of this Purchase Order shall constitute a waiver thereof or in any way impair MNW’s right at any time to avail itself of such remedies as it may have to enforce such terms or conditions. No waiver by MNW hereunder will be effective unless in writing and signed by MNW.
19. Survival; Remedies Cumulative
All agreements and representations of Seller herein (including those regarding, confidentiality, indemnification and warranties) shall survive delivery and final payment hereunder, or any earlier termination hereof. All of the rights and remedies available to MNW hereunder are in addition to, and not in limitation of, the rights and remedies otherwise available at law or in equity.
Any provision of the Purchase Order that is unenforceable in any jurisdiction shall be ineffective to the extent of such unenforceability (but shall be enforced to the maximum extent permissible) without invalidating the remaining provisions hereof.
21. Governing Law; Attorney’s Fees
Unless otherwise agreed to by the parties, any controversy or claim arising out of or relating to this Contract or any applicable Supply Purchase Agreement or Order shall be interpreted and enforced in accordance with the laws, other than the Choice of Law rules, of the State of New Hampshire. The prevailing party will be entitled to reimbursement from the other party of all reasonable expenses, costs and attorneys fees incurred in any legal proceeding.