TERMS & CONDITIONS OF SALE
- ACCEPTANCE OF ORDERS. All orders are subject to acceptance by authorized personnel at Therma-Stor LLC (Seller).
- PRICING GUIDELINES. Pricing categories are based on order destination and quantity. Standard pricing is effective on all orders shipped to a destination other than the customer (Buyer) address on record. Distributor pricing is only available to orders shipped to the Buyer’s address on record. Distributor prices reflect the functional benefit of the Distributor’s inventory investment and related carrying costs.
- INTERNET SALES. No Buyer may sell Seller’s products through online e-commerce channel without the prior written consent from the Seller. Seller reserves the market for internet commerce of its products and the exclusive right to sell to through online e-commerce channel.
- AVAILABILITY. Some products may be not be available in all areas, and some must be purchased through authorized dealers/wholesalers/reps. Please contact Seller or visit Seller’s website for details.
- DELIVERY AND TRANSPORTATION. All prices are F.O.B. Therma-Stor LLC, Madison, WI. Best way freight charges (based on size) will be determined at time of ordering. Seller will evaluate the “best way” for lowest possible shipping costs. UNWRAP PRODUCT AND INSPECT for damage of product before signing for it. If merchandise or boxes are damaged REFUSE SHIPMENT! Seller is NOT responsible for damaged products once delivery is accepted. Rush orders must be placed before Noon, Central Time. Expedited shipping is available for an additional charge. A monthly interest of 1.5% will be charged on any past dues. Orders are subject to product availability.
- TERMS OF PAYMENT. CHARGE (Visa/MasterCard/American Express), PREPAID CHECK, COD OR WIRE TRANSFER. Established businesses may open an account by filling out our credit application. Allow 10 days for processing. On approval, terms are NET 30 days. Prices are subject to change without notice. For prepaid, checks must clear before order is shipped.
- TAXES. Prices do not include foreign or domestic sales, use, excise or similar taxes. Consequently, in addition to the prices specified herein, the amount of any present or future sales, use, excise or other general or specific tax, or export or import duties, tariff or penalties or other governmental charges fixed or imposed by any lawful authority(s) upon or applicable to the production, sale, shipment, delivery or use of the products (or raw materials in the products) sold hereunder shall be added to the price and be paid by Buyer or, in lieu thereof, Buyer shall provide Seller with a tax exemption certificate acceptable to the taxing authorities. If such tax is paid by Seller, Buyer shall reimburse Seller upon presentation of invoice.
- WARRANTY. Warranties provided vary product as detailed on the respective individual warranty documents. Seller warrants that the products will substantially conform to the agreed specifications. THE INDIVIDUAL WARRANY DOCUMENTS STATE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY SELLER TO BUYER AND THERE ARE NO OTHER WARRANTIES EITHER EXPRESSED OR IMPLIED IN FACT OR BY LAW. THE WARRANTIES STATED THEREIN ARE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR VERBAL, STATUTORY, EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE HEREBY DISCLAIMED. SELLER’S WARRANTY DOES NOT APPLY TO ANY GOODS WHICH HAVE BEEN SUBJECTED TO MISUSE, MISHANDLING, MISAPPLICATION, NEGLECT, (INCLUDING BUT NOT LIMITED TO USE OF UNAUTHORIZED PARTS OR ATTACHMENTS), OR ADJUSTMENT OR REPAIR PERFORMED BY ANYONE OTHER THAN SELLER OR ONE OF SELLER’S AUTHORIZED AGENTS.
- LIMITATION OF LIABILITY. Seller shall not be responsible, obligated, or liable for any injury or damage resulting from an application or use of its products, either singly or in combination with other products. SELLER’S SOLE LIABILITY FOR BREACH OF WARRANTY OR ANY OTHER CLAIM SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF THE PRODUCTS OR RETURN OF THE PURCHASE PRICE, AT SELLER’S SOLE OPTION. SELLER SHALL NOT BE LIABLE FOR DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL, INCIDENTAL, PUNITIVE, LIQUIDATED OR SPECIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE PRODUCTS OR ARISING OUT OF ACCEPTANCE OF THIS ORDER. BUYER SHALL INDEMNIFY SELLER AGAINST ALL LIABILITY, COST, OR EXPENSE THAT MAY BE SUSTAINED BY SELLER BECAUSE OF ANY SUCH LOSS, DAMAGE, OR INJURY.
- RETURN OF PRODUCTS. No product may be returned to Seller without Seller’s prior written permission in the form of a return material authorization. Buyer is responsible for freight costs. Products must be clean, in original packaging, and returned within 45 days. All returns are subject to a 25% restocking charge.
- LIMITATIONS OF ACTIONS. All claims, demands or actions must be brought within one (1) year of date of tender of delivery, or eighteen (18) months of Buyer’s order, if no tender of delivery is made, notwithstanding any statutory period of limitation to the contrary.
- INTELLECTUAL PROPERTY. Buyer shall defend, indemnify and hold Seller harmless against all claims, demands judgment, expense or loss resulting from infringement of third-party patents, copyrights or trademarks arising from Seller’s compliance with Buyer’s design, specifications or instructions or Buyer’s distribution or use of the products. Seller retains all intellectual rights, title and interest in the products and its underlying technology, delivered hereunder including Seller’s process, manufacturing and all other technologies used in Seller’s performance hereunder. The sale of products or parts hereof by Seller does not convey any license, rights, title or interest by implication, estoppel, or otherwise, under patent claims, industrial property right, trademark, trade secret or any other intellectual property rights covering combinations of these products or parts with other devices or elements. Buyer agrees that Seller may receive service and condition related data from the products for the purpose of providing support, services, and improving the products. Buyer may opt out of this collection of data by providing Seller with written notice. Seller may share such information with its distributors and service representatives for purposes of providing support to Buyer.
- FORCE MAJEURE. Seller is excused for non-performance caused by any factor beyond its control Including but not limited to events of war, fire, epidemics, quarantine restrictions, epidemic, flood, strike, labor trouble, breakage of equipment, accident, riot, the imposition of any government price control regulation or tariff, or any other act of governmental authority, acts of God or other contingencies (whether similar or dissimilar to the foregoing) beyond the reasonable control of Seller, interfering with the production, cost, supply, transportation, or consumption practice of Seller respecting the products covered by the agreement between the parties or in the event of inability to obtain on terms deemed by Seller to be reasonable or practicable any raw material or required service (Including without limitation energy source) used in connection therewith, quantities so affected shall be deemed to be an excusable delay in Seller’s performance for the duration of time such condition exists. As promptly as practicable Seller will notify Buyer of any force majeure events that delays or threatens to delay Seller’s timely performance hereunder. Seller may during any period of shortage due to any of these causes, allocate its supply of such raw material among its various uses therefore (e.g. manufacturing and sales) in such manner as Seller deems reasonable and practicable and allocate its supply of such products among such various uses thereof in any manner which Seller deems fair and reasonable.
- REASONABLE ATTORNEY’S FEES. In the event suit or other proceeding shall be brought for the recovery of the purchase price, or any unpaid balance or the breach by Buyer of any term of the agreement between Seller and Buyer, Buyer shall pay to Seller in addition to any damages provided by law, reasonable attorney’s fees and costs of collection.
a. The agreement between Buyer and Seller and matter connected with the performance thereof shall be construed in accordance with and governed by the law of the State of Wisconsin, without regard to its conflict of laws principles. The provisions of the United Nations Convention for the International Sale of Goods (“CISG”) shall not govern the rights and obligations of the parties in connection with this order.
b. Any assignment of the agreement between Buyer and Seller or any rights or obligation of the agreement by Buyer without written consent of Seller shall be void.
c. Except as may be expressly provided to the contrary in writing, the provisions of the agreement between Buyer and Seller are for the benefit of the parties hereto and not for any other person.
d. By accepting delivery of any goods sold by Seller, Buyer waives any future claims and rights of setoff or withholding against any payments due hereunder and agrees to pay all sums due regardless of any dispute, setoff, or cross claim.
e. No waiver by Seller of any breach of any provision of the agreement between Buyer and Seller will constitute a waiver of any other breach.
f. The terms and conditions set forth above contain all of the representations, stipulations, warranties, agreements and understandings with respect to the subject matter of the agreement between Buyer and Seller, and its execution has not been induced by any representation, stipulation, warranty, agreement or understanding (Including any course of prior dealings between the parties hereto) of any kind other than those set forth herein.
g. No amendment, addition to, alteration, modification or waiver of all or part of the agreement between Buyer and Seller shall be of any force or effect unless in writing and signed by Seller. If the terms and conditions set forth above conflict with those of any purchase order of Buyer written in connection with the sale of the products or any portion thereof, then the terms set forth above shall govern.
h. In addition to the rights and remedies conferred upon Seller by law, Seller shall not be required to proceed with the performance of any order or contract, if Buyer is in default in the performance of any order or contract with Seller, and in case of doubt as to Buyer’s financial responsibility, shipments under this order may be suspended or sent sight draft with bill of lading attached by Seller.
i. No delay or omission by Seller in exercising any right or remedy provided for herein shall constitute a waiver of such right or remedy and shall not be constituted as a bar to or a waiver of any such right or remedy on any future occasion.
- ENTIRE CONTRACT. The terms and conditions set forth herein constitute the entire expression of all the terms of this agreement and form a complete and exclusive statement as to the agreement between Seller and Buyer notwithstanding any other representations, promises, warranties, statements or agreements to the contrary. Any additional, contradictory or different terms contained in any initial or subsequent order or communication from Buyer pertaining to the products described on the face hereof are hereby objected to. No course of prior dealings between the parties and no usage of trade shall be relevant to supplement or explain any term used in this agreement. Acceptance or acquiescence in a course of performance rendered under this agreement shall not be relevant to determine the meaning of this Agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and the opportunity for objection. No waiver or alteration of terms herein shall be binding unless in writing, signed by an executive officer of Seller.
- COMPLIANCE WITH LAWS. It is the intention of the parties that the transaction covered by these terms and conditions will always, comply with all applicable laws including, without limitation, all export and import laws, regulations and restrictions, foreign corrupt practices and anti-bribery laws.
- EXPORT LICENSING/ITAR REPRESENTATION. Buyer agrees to comply with all applicable US and applicable non-US export and import laws and regulations, including but not limited to the International Traffic in Arms Regulation (ITAR) and the Export Administration Regulations (EAR) governing the export of any product and supporting technical data delivered hereunder. Furthermore, any controlled technical data is not to be placed in the public domain, exported from the US, or given to any Foreign Person in the US without the prior specific written authorization of the Seller and the US Department of State or the US Department of Commerce as applicable. Notwithstanding anything that may be to the contrary Buyer’s obligation as set forth in this provision shall survive the expiration or termination of this agreement. Buyer agrees to defend, indemnify, and hold Seller harmless from all claims or liabilities that may arise from Buyer’s violation of any US or applicable non- US import or export laws.
- ARBITRATION. With respect to sales within the United States, any controversy or claim arising out of or relating to the Agreement between Buyer and Seller, or the breach thereof, shall be finally settled in the City and State of the Seller’s accepting offices, by arbitration in accordance with the Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. With respect to sales outside the United States, any controversy or claim arising out of or relating to the Agreement between Buyer and Seller, or the breach thereof shall be finally settled in New York, NY under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof pursuant to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Award.
PURCHASE Order TERMS AND CONDITIONS
1. TERMS AND CONDITIONS
Unless this order (“Order”) is issued pursuant to an executed procurement agreement between Madison Industries, or the Madison entity issuing the Order (“Madison”) and the person or entity identified as seller (“Seller”), this Order and any attachments are the sole agreement between Madison and Seller with respect to the goods (“Goods”) and /or services (“Services”) specified herein. No other documents, including Seller’s proposals, invoices, quotations or acknowledgements become part of this Order unless approved in writing by Madison. No waiver of a term or condition or modification of this Order shall be binding on either party unless in writing and signed by authorized representative of each party.
2. PRICES/TAXES, PAYMENT TERMS AND ACCEPTANCE
2.1 Price. If pricing is not stated on this Order or in an executed procurement agreement, then Seller’s pricing shall not exceed the lowest prices charged by Seller to other similarly situated customers. Except as otherwise provided in this Order, such prices are inclusive of applicable value added tax and other similar taxes (collectively “VAT”), freight charges and duties. Unless stated otherwise in an executed procurement agreement, all prices shall remain firm for a minimum of one year. No price change shall be effective unless agreed to in writing by Madison.
2.2 Taxes. Madison shall be responsible for all taxes with respect to payments made under this Order to the extent such taxes are included in the price. Madison shall not be responsible for any taxes measured by Seller’s net income or taxes imposed through withholding. A) Withholding Taxes. If Madison is required by law to withhold and remit tax relating to an Order, Madison shall be entitled to reduce the payment by the amount of such tax. B) U.S. Sales and Use Tax. For U.S. purposes, and notwithstanding any language to the contrary above, prices are exclusive of Sales and Use tax.
Such taxes, if applicable, shall be added separately in Seller’s invoice, and Madison shall remit such taxes to Seller. Seller will not invoice or otherwise attempt to collect from Madison any taxes with respect to which Madison has provided Seller with (i) a valid resale or exemption certificate, (ii) evidence of direct payment authority, or (iii) other evidence, reasonably acceptable to Seller, that such taxes do not apply.
2.3 Payment Terms. Madison will initiate payment for valid invoices collected ninety
(90) days following the date Madison receives the invoice. Alternatively, Madison will initiate payment by pCard sixty (60) days following invoice receipt. Any agreed-upon prompt payment discount will be calculated from the date a valid invoice is received by Madison. Payment will be in U.S. currency unless otherwise stated in the Order. Payment will not constitute acceptance of Goods and/or Services or impair Madison’s right to inspect. Acceptance shall be when Madison deems the Goods and/or Services to meet Madison criteria (“Acceptance”). Madison, at its option, and without prior notice to Seller, shall have the right to setoff or deduct from any Seller invoice, any credits, refunds or claims of any kind due Madison.
2.4 Invoicing. Where allowed under the relevant laws, Seller shall invoice Madison electronically, at Seller’s sole expense. Otherwise, hard copy invoices are required. If VAT or U.S. Sales and Use taxes are applicable, Seller will separately state such taxes on Seller’s invoice to Madison. Seller shall also ensure that its invoices to Madison (whether electronically or otherwise) meet the requirements for deduction of VAT by Madison, where applicable. Seller shall, submit invoices and required information as directed by Madison. Madison may utilize contractors to facilitate Madison’s order processing. Such use may entail disclosure or Seller information.
3. SHIPMENT, DELIVERY AND IMPORT/EXPORT
3.1 Late Delivery. Seller shall give Madison prompt notice of any prospective failure to ship Goods or provide Services on the delivery date specified by Madison (the “Delivery Date”).
3.2 Portion of Goods/Services Available. If only a portion of Goods and/or Services is available for shipment or performance to meet the Delivery Date, Seller shall promptly notify Madison and proceed unless otherwise directed by Madison. Seller shall be responsible for any cost increase in the shipment of Goods due to its failure to meet the Delivery Date and/or if such method does not comply with Madison’s shipping instructions.
3.3 Non-Compliant Delivery. Over shipments and/or early deliveries may be returned at Seller’s sole expense, or Madison may delay processing the early delivery invoice until the Delivery Date.
4.1 Change or Cancellation. Madison may, without charge, change or cancel any portion of this Order including, without limitation, quantity required, Madison designs or specifications prior to shipment provided Madison gives Seller notice. If Madison changes or cancels any portion of this Order as provided above, Seller shall provide Madison with a written claim
for adjustment prior to shipment which contemplates Seller’s actual costs incurred as a direct result of such change or cancellation which are not recoverable by either: (i) the sale of Goods or provision of Services to other parties within a reasonable time or (ii) the exercise by Seller, in a commercially reasonable manner, of other mitigation measures. If the parties are unable to agree on the adjustment amount, Madison may, without any liability to Seller, terminate this Order as to all Goods and/or Services affected.
4.2 No Process or Design Changes. Seller shall not make any process or design changes affecting Goods or Services without Madison’s prior written consent.
4.3 Forecasts. Any forecasts provided by Madison shall not constitute a commitment of any type
4.4 Discontinuance of Goods. Seller shall provide at least twelve (12) months written notice to Madison prior to Seller’s discontinuance of manufacturing any Goods. Such notice shall include, at a minimum, Madison part numbers, substitutions, and last date that orders will be accepted for such Goods.
5. QUALITY AND CONTINUOUS IMPROVEMENT
5.1 Quality System. Seller shall maintain a quality system that ensures compliance that all Goods and/or Services set forth in this Order, or otherwise supplied to Madison, will meet the standards specified in Seller’s quality system. If requested, Seller shall provide Madison with a copy of Seller’s quality system and supporting test documentation.
5.2 Continuous Improvement. Seller shall diligently and continuously strive to improve its performance in all areas, including but not limited to quality, delivery time, and pricing. Seller shall continuously evaluate opportunities for cost/price reductions on the Goods and Services and communicate them promptly to Buyer. In the event that implementation of any improvements leads to cost reductions in the development, manufacture, and supply of Goods or Services, such cost reductions shall be shared with Buyer.
6.1 Warranties. Seller warrants that all Goods will (i) be manufactured, processed, and assembled by Seller or its authorized subcontractors; (ii) be free from defects in design, material and workmanship; (iii) conform Madison’s specifications and any requirements and certifications regarding any rules, regulations or laws pursuant to the return of hazardous material; (iv) be new and contain first-quality components and parts; (v) be free and clear of all liens, encumbrances, restrictions, and claims against title or ownership; and (vi) not infringe any patent, trademark, copyright or other intellectual property right of a third party, and (vii) all Services will be performed in a professional manner.
6.2 Survival of Warranties. Except for non-infringement in Section 6.1 (vi). above which shall survive indefinitely, all other warranties specified herein shall: (i) survive any inspection, delivery, Acceptance, or payment by Madison (ii) be in effect for the longer of Seller’s normal warranty period or the one (1) year period following the date of Acceptance of the Goods and/or Services by Madison and (iii) extend to Madison and its successors, assigns, and customers.
6.3 Epidemic Failure Warranty. Seller warrants all Goods against Epidemic Failure for a period of three years after Madison’s Acceptance. Epidemic Failure means the occurrence of the same failure, defect, or non-conformity with an Order in 2% or more of Goods within any three-month period.
6.4 Madison’s Right to Inspect. Madison may, at any time, inspect the Goods and associated manufacturing processes, at Seller’s plant or subcontractor’s plant. Seller will inform its vendors and subcontractors of Madison’s right to inspect and shall secure that right for Madison if necessary.
7. NON-COMPLYING GOODS AND/OR SERVICES
7.1 Non-Compliance. Any Goods or Services that are not in conformity with the requirements of an Order (“Non-Complying Goods” and “Non-Complying Services”, respectively), may be returned at Madison’s option at Seller’s risk and expense. Madison may procure similar Goods or Services in substitution for the Non-Complying Goods or Services, and Seller shall refund the cost of the
Non-Complying Goods and Service and reimburse Madison upon demand for all additional costs incurred by Madison.
7.2 Epidemic Failure Remedy. If an Epidemic Failure occurs, all costs, including but not limited to, replacement Goods, parts, upgrades, materials, labor, transportation and inventory replacement arising from an Epidemic Failure shall be borne by Seller, regardless of whether Madison initiates a field stocking recall or customer based recall or retrofit, including Goods in distributor inventory and Madison’s installed base. Seller, at its expense, will ensure that such Goods, parts or upgrades have the highest shipping priority. Madison reserves the right to procure, upon terms it deems appropriate, similar goods to substitute the affected Goods, and Seller shall promptly reimburse Madison for all costs, charges, prices and fees paid in purchasing the substitute goods.
8.1 If Seller fails to perform or breaches any provision of this Order, or any other order or agreement with Madison, Madison may terminate the whole or any part of this Order, unless Seller cures the breach within ten (10) business days after receipt of Madison’s notice of breach. The term “breach” shall include, without limitation, any: (i) proceeding, whether voluntary or involuntary, in bankruptcy or insolvency by or against Seller; (ii) appointment, with or without Seller’s consent, of a receiver or an assignee for the benefit of creditors; (iii) failure to provide Madison with reasonable assurances of performance on Madison’s request; or (iv) other failure to comply with this Order. In the event that Madison terminates this Order in whole or in part as provided in Section 7.1, Madison may procure, Goods or Services similar to the Goods or Services as to which this Order is terminated. Seller shall reimburse Madison upon demand for all additional costs incurred.
9. INDEMNIFICATION, INSURANCE, AND CONFIDENTIAL INFORMATION
9.1 General Indemnification. Seller agrees to protect, defend, indemnify and save Madison harmless from all sums, costs and expenses as a result of any and all loss, expense, damage, liability, claims, demands, either at law or in equity, resulting from any personal injury or death, or damages to property resulting directly or indirectly from the performance of Seller hereunder.
9.2 Intellectual Property Indemnification. Seller agrees to defend, indemnify, and hold harmless Madison and its affiliates, subsidiaries, assigns, agents, subcontractors, distributors and customers (collectively “Indemnitees”) from and against all claims, losses, demands, fees, damages, liabilities, costs, expenses, obligations, causes of action, suits, or injuries, of any kind or nature, arising from: (i) any claim that Seller’s Goods or Services, or the use, sale or importation of them, infringes any intellectual property right. Without limiting the foregoing, Seller will pay all costs, damages and expenses (including reasonable attorneys’ fees) incurred by Madison and/or its Indemnitees and will pay any award with respect to any such claim or agreed to in settlement of that claim.
9.3 Infringing Goods or Services. If the use of any Goods or Services is enjoined (collectively, “Infringing Goods”), Seller shall at its expense procure the right for Madison to continue using or receiving the Infringing Goods. If Seller is unable to do so, Seller shall at its expense (and at Indemnitees’ option): (i) replace the Infringing Goods with non- infringing Goods or Services of equivalent form, function and performance; or (ii) modify the Infringing Goods to be non-infringing without detracting from form, function or performance; or (iii) if unable to replace or modify the Infringing Goods, refund in full all monies paid by Madison for the Infringing Goods and pay all reasonable costs incurred by Madison in replacing the Infringing Goods.
9.4 Removal of Madison’s Trademarks. Seller shall remove from all Goods rejected, returned or not purchased by Madison, Madison’s name and any of Madison’s trademarks, trade names, insignia, part numbers, symbols, and decorative designs, prior to any other sale, use, or disposition of such Goods by Seller.
9.5 Insurance. During the performance of this Order, Seller will maintain in full force and effect, at Seller’s expense, Workers’ Compensation insurance as required by law or regulation, having jurisdiction over Seller’s employees. If Workers’ Compensation is through a Social Scheme, which is any compulsory insurance program administered and enforced by government, Seller agrees to be in full compliance with such laws. Employer’s Liability insurance in amounts not less than the local currency equivalent of
U.S. $1,000,000. Where permitted by law, such policies will contain a waiver of the insurer’s subrogation rights against Madison. In addition, Seller shall maintain, at its expense, a Comprehensive General Liability insurance policy covering claims of bodily injury, including death, products and completed operations, contractual liability, and property damage that may arise out of use of the Goods or acts of omission of Seller under this Order, and containing such other provisions as may be required by Madison. Such policy or policies shall provide a coverage minimum of U.S. $1,000,000 per occurrence. Each policy shall name Madison, its officers, directors, and employees as additional insureds. All such policies shall provide that the coverage thereunder shall not be terminable without at least thirty (30) days prior written notice to Madison. Upon demand by Madison, Seller shall promptly supply Madison with certificates of insurance of such policies. In no event will the coverage or limits of any insurance maintained by Seller under this Order, or the lack or unavailability of any other insurance, limit or diminish in any way Seller’s obligations or liability to Madison hereunder.
9.6 Confidential Information and Publicity. This section shall apply unless Seller has a separate written confidentiality agreement in place with Madison that covers the same subject matter as this agreement. “Confidential Information” includes all information designated by Madison as confidential, the existence and the terms and conditions of this Order, and including but not limited to, all information or data concerning the Goods and/or Services, general business plans, customers, costs, forecasts, and profits. Except as required for Seller’s performance of this Order, Seller shall not use or disclose any Confidential Information obtained from Madison or otherwise prepared or discovered by either Seller or Madison and shall protect the confidentiality of Confidential Information with the same degree of care as Seller uses for its own similar information, but no less than reasonable care. Publicity. Seller shall not make or authorize any news release, advertisement, or other disclosure to any third party which shall deny or confirm the existence of this Order or reveal the terms of this Order without prior written consent of Madison.
9.7 Personal Data. Seller agrees to comply with all applicable export and personal data protection laws, regulations and rules when collecting, storing, transferring, sharing and/or otherwise processing any Personal Data in connection with this Order. “Personal Data” shall mean any information related to any identified or identifiable natural or legal person, including but not limited to Madison employees and customers, and any other additional data deemed as personal data under any applicable personal data protection laws. Unless expressly agreed otherwise, any Madison employee or customer Personal Data Madison discloses to Seller may only be used by Seller to perform its obligation under this Order, and must not be sold, rented or leased to anyone.
10. GOVERNMENTAL COMPLIANCE
10.1 General. Seller will at all times comply with all federal, state, local and foreign laws, rules and regulations applicable to its obligations under this Order and, if applicable its manufacture of Goods. Seller shall furnish to Madison all information required to enable Madison to comply with such laws, rules, and regulations in its use of the Goods and Services or reasonably requested.
11. TOXIC SUBSTANCES AND MATERIAL DATA SAFETY SHEETS
11.1 Chemical Substances. Seller warrants that: (i) each chemical substance contained in Goods is on the inventory of chemical substances compiled and published by the Environmental Protection Agency pursuant to the Toxic Substances Control Act and (ii) all Material Safety Data Sheets required to be provided by Seller for Goods shall be provided to Madison prior to shipment of the Goods and shall be complete and accurate.
12.1 No Assignment. Seller shall not delegate or assign its rights or obligation without Madison’s prior written consent. Any attempted delegation or assignment by Seller without such consent shall be void.
12.2 Choice of Law. This Order shall be interpreted and governed by the domestic laws of the state of Delaware or the province or country where the Goods or Services are delivered or performed.
12.3 LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MADISON, INCLUDING ITS SUBSIDIARIES, BE LIABLE FOR ANY LOST REVENUES, LOST PROFITS, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES. IN NO EVENT SHALL MADISON’S LIABLITY EXCEED THE AMOUNTS PAID BY MADISON TO SELLER IN THE SIX MONTHS PRIOR TO THE CLAIM.
12.4 Non-Restrictive Relationship. Madison shall not be precluded from independently developing, acquiring from other third parties, distributing or marketing other Goods or Services which may perform the same or similar functions as the Goods or Services provided under this Order.