Sale conditions
Kyp Inc Standard Sale Conditions (May 2010 version)
THESE TERMS AND CONDITIONS OF SALES APPLY TO AND GOVERN ALL SALES OF GOODS (AS DEFINED BELOW) BY KYP INC. EXCEPT AS OTHERWISE AGREED IN WRITING, EACH ORDER OR ACCEPTANCE OF A QUOTATION FOR GOODS SHALL BE DEEMED TO BE AN OFFER BY THE BUYER (AS DEFINED BELOW) TO PURCHASE GOODS SUBJECT TO THESE TERMS AND CONDITIONS.
1. DEFINITIONS AND INTERPRETATION
1.1 The definitions and rules of interpretation in this Section 1.1 apply to these terms and conditions.
Advertisement: any advertisement, information, announcement or other copy or material (in typographical, pictorial, telephonic, radio transmitted or any other form) printed, published, inserted or otherwise included within or on the Goods (or any part of them) at the request of the Buyer;
Advertiser: in relation to an Advertisement, means the person, firm or company who is the advertiser of the product or service promoted thereby or the maker of the announcement or provider of the information contained therein;
Buyer: the person, firm or company who purchases the Goods from the Company and, where relevant, who places the order for any Advertisement whether such person be the Advertiser or the Advertiser’s advertising agent, media buyer or other agent;
Buyer Specified Component: any component or other physical article of whatever nature included within or on the Goods (or any part of them) at the specific request of the Buyer;
Company: Kyp Inc, a corporation incorporated under the laws of the Commonwealth of Pennsylvania;
Contract: any contract between the Company and the Buyer for the sale and purchase of the Goods whether containing any Advertisement or not, incorporating these conditions.
Delivery Point: the place where delivery of the Goods is to take place pursuant to Section 4;
Deposit: the deposit payable by the Buyer pursuant to Section 7.3.
Goods: any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them);
Special Conditions: any other special terms and/or conditions specifically agreed in writing by the Company and which are stated in the Company’s Order Confirmation under the heading “Special Conditions”.
1.2 A reference to applicable law is a reference to it as then in effect and as it may be amended from time to time.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Section and subsection headings do not affect the interpretation of these terms and conditions.
2. APPLICATION OF TERMS
2.1 Subject only to any Special Conditions and to any variation under Section 2.3, the Contract shall be on these terms and conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These conditions apply to all the Company’s sales and any variation to these conditions and any representations about the Goods shall have no effect unless they comprise Special Conditions. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract.
2.4 Each order or acceptance of a quotation for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to purchase Goods subject to these terms and conditions and the Special Conditions (if any).
2.5 No order placed by the Buyer shall be deemed to be accepted by the Company until a written Order Confirmation is issued by the Company or (if earlier) the Company delivers the Goods to the Buyer.
2.6 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate. To ensure the correct supply of Goods it is the Buyer’s responsibility to check that the Order Confirmation issued by the Company is consistent with the Buyer’s order for the Goods.
2.7 Any quotation is given on the basis that no Contract shall come into existence until the Company issues an Order Confirmation to the Buyer. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
3. DESCRIPTION
3.1 The quantity and description of the Goods shall be as set out in the Company’s Order Confirmation issued by the Company.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and no sale of Goods shall be deemed a sale by sample.
4. DELIVERY
4.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the location specified in the Order Confirmation issued by the Company.
4.2 The Buyer (or its agent) shall take delivery of the Goods within 7 days of the Company giving it notice that the Goods are ready for delivery.
4.3 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time from approval by the Buyer of the final proof of the Goods and of the content of the Advertisement in accordance with the Company’s procedures in force from time to time.
4.4 Subject to the other provisions of these conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 45 days.
4.5 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer (or its agent) has not provided appropriate instructions, documents, licenses or authorizations or has failed to comply with the Company’s procedures then in force (including any applicable deadlines provided therein) to enable the Buyer to approve a final proof of the Goods and to check and confirm the correctness of the content of any Advertisement (in accordance with the procedures referred to in Section 11.3):
(a) risk of loss in the Goods shall pass to the Buyer (including for loss or damage caused by the Company’s negligence);
(b) the Goods shall be deemed to have been delivered; and
(c) the Company may store the Goods until actual delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.6 The Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labor for loading or unloading the Goods.
4.7 If the Company delivers to the Buyer a quantity of Goods of up to 5% more or less than the quantity accepted by the Company, the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.
4.8 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.9 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
5. NON-DELIVERY
5.1 The quantity of any consignment of Goods as recorded by the Company upon dispatch from the Company’s place of business or its agent’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Buyer gives written notice to the Company of the non-delivery within 7 days of the date when the Goods would in the ordinary course of events have been received.
5.3 Any liability of the Company for non-delivery of the Goods shall be limited to (at the option of the Company) replacing the Goods within a reasonable time or issuing a credit at the pro rata Contract rate against any invoice for such Goods.
6. RISK/TITLE
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to the Company from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
(a) hold the Goods on a fiduciary basis as the Company’s bailee;
(b) store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(d) maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request, the Buyer shall produce the policy of insurance to the Company.
6.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
(a) any sale shall be effected in the ordinary course of the Buyer’s business at full market value;
(b) any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale; and
(c) in the event that ownership of the Goods does not passto the Buyer, the Company shall be entitled to the proceeds of any such resale of the Goods.
6.5 The Buyer’s right to possession of the Goods shall terminate immediately if:
(a) any proceeding in liquidation, bankruptcy, reorganization, arrangement, debtor rehabilitation, creditor adjustment, or insolvency, State or Federal, is commenced by or against Buyer;
(b) Buyer makes an assignment for the benefit of creditors or enters into a composition agreement with all or a part of Buyer’s creditors;
(c) a judgment not adequately covered by insurance is recorded against Buyer;
(d) Buyer ceases operations other than in the ordinary course of business;
(e) Seller reasonably deems itself insolvent or unable to pay its debts as they become due; or
(f) a trustee, receiver, conservator, liquidator, administrator, or other judicial representative, similar or dissimilar,
is appointed for Buyer or any of Buyer’s assets.
6.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.7 The Buyer grants the Company, its agents and employees an irrevocable license at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
6.8 Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
6.9 On termination of the Contract, with or without cause, the Company’s (but not the Buyer’s) rights contained in this Section 6 shall remain in effect.
7. PRICE
7.1 Unless otherwise agreed by the Company in writing, the price for the Goods shall be the price set out in the Order Confirmation issued by the Company.
7.2 Unless otherwise expressly stated in the Order Confirmation issued by the Company, the price for the Goods shall be exclusive of any sales, use, value added tax or other tax or other imposition by any Government of any jurisdiction payable in respect of the supply, importation or exportation of the Goods and of all costs or charges in relation to unloading at the Delivery Point, all of which amounts(excluding any tax based on the net income of the Company) the Buyer shall pay in addition when it is due to pay for the Goods.
7.3 Unless otherwise expressly agreed with the Company, at the time of the issue by the Company of the Order Confirmation the Buyer shall pay the Company a deposit equal to 30 percent (30%) of the price for the Goods set out therein for which the Company shall submit an invoice. The balance of the Price shall be payable in accordance with Section 8.1.
8. PAYMENT
8.1 Subject to condition 8.4, payment of the price for the Goods is due in U.S. Dollars and the Price less the amount of any Deposit already paid shall be paid by the Buyer within 30 days from the date of the invoice issued by the Company.
8.2 Time for payment shall be of the essence.
8.3 No payment shall be deemed to have been received until the Company has received cleared or immediately available funds.
8.4 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
8.5 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
8.6 If the Buyer fails to pay the Company any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to the Company on such sum from the due date for payment at the rate of one and one half percent (1½%) per month or the maximum rate allowable under applicable law, whichever is less, compounded on a daily basis until payment is made, whether before or after any judgment.
8.7 Unless the company expressly agrees otherwise, if the Buyer cancels all or part of an order for Goods once the Company has issued an Order Confirmation in respect thereof, the Company shall be entitled to retain the Deposit (or such portion of it as it considers reasonable in light of the circumstances of the cancellation and the costs already incurred by the Company in connection with such order) by way of liquidated damages for breach by the Buyer of the Contract.
9. QUALITY
9.1 The Company warrants that (subject to the other provisions of these conditions) upon delivery the Goods shall reasonably conform with the approved proof of the Goods in accordance with the approval procedures referred to in Section 11.3.
9.2 The Company shall not be liable for a breach of any of the warranties in Section 9.1 unless:
(a) the Buyer gives written notice of the defect to the Company, and, if the defect is as a result of damage in transit to the carrier, within seven days of the time when the Buyer discovers or ought to have discovered the defect; and
(b) the Company (or its duly authorised agent) is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company or its duly authorised agent) returns such Goods to the Company's (or its duly authorised agent’s) place of business at the Company's cost for the examination to take place there.
9.3 The Company shall not be liable for a breach of any of the warranties in Section 9.1 if:
(a) the Buyer makes any further use of such Goods after giving such notice; or
(b) the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) reasonable trade practice; or
(c) the Buyer alters or repairs such Goods without the written consent of the Company.
9.4 Subject to Section 9.2 and Section 9.3, if any of the Goods do not conform with any of the warranties in Section 9.1 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall, at the Company's expense, return the Goods or the part of such Goods which is defective to the Company. Any Goods replaced shall belong to the Company
9.5 If the Company complies with Section 9.4 it shall have no further liability for a breach of any of the warranties in Section 9.1 in respect of such Goods.
9.6 THE LIMITED WARRANTY SET FORTH ABOVE IS GIVEN IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED. THE COMPANY MAKES NO WARRANTY AS TO CONDITION, DESIGN, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR ANY OTHER MATTER WHATSOEVER. ALL IMPLIED WARRANTIES AS TO CONDITION, DESIGN, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR ANY OTHER MATTER WHATSOEVER ARE HEREBY DISCLAIMED BY THE COMPANY AND EXCLUDED.
10. LIMITATION OF LIABILITY
10.1 Subject to Sections 4, 5 and 9 above, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
(a) any breach of these terms and conditions;
(b) any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in these conditions excludes or limits the liability of the Company:
(a) for death or personal injury caused by the Company’s negligence; or
(b) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
(c) for fraud or fraudulent misrepresentation.
10.4 Subject to Sections 10.2 and 10.3, the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise (including pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever, howsoever caused) arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price.
11. ADVERTISEMENTS
11.1. The Buyer (and the Advertiser, if applicable) hereby grant(s) the Company the right to publish the Advertisement within or on the Goods.
11.2. The Buyer warrants that:
(a) in relation to an Advertisement, the Buyer contracts with the Company as a principal notwithstanding that the Buyer may be acting directly or indirectly for an Advertiser as an advertising agent or media buyer or in some other representative capacity;
(b) the reproduction and/or publication of the Advertisement as originally submitted or as amended pursuant to condition 11.5 will not breach any contract or infringe or violate any copyright, trademark or any other personal or proprietary right of any person or render the Company liable to any claim or proceedings whatsoever;
(c) any information supplied by the Buyer in connection with the Advertisement is accurate, complete and true;
(d) in respect of any Advertisement submitted for publication which contains the name or pictorial representation (photographic or otherwise) of any living person and/or any part of any living person and/or any copy by which any living person is or can be identified, the Buyer or the Advertiser has obtained any necessary consent of such living person to make use of such name, representation and/or copy;
(e) the Advertisement, all advertising copy submitted to the Company, the display or use of the Advertisement and the distribution of the Goods complies with the requirements of all applicable laws and regulations; and
(f) all Buyer Specified Components and the use of them in relation to the Goods complies with the requirements of all Laws and Regulations; and the Advertisement or the Goods contains all necessary instructions or safety warnings in relation to the Buyer Specified Components required by any all Laws and Regulations.
11.3 It is the Buyer’s responsibility to check and confirm to the Company its approval of the final electronic and color proofs of the Goods including the correctness and color of the content of each Advertisement and to comply with the Company’s procedures in force for obtaining such confirmations by the deadlines required for production and delivery of the Goods in accordance with the Contract. The Company will give the Buyer reasonable notice of such procedures and deadlines. The Company assumes no responsibility for the correctness of a published Advertisement if the content of the published Advertisement is in accordance with the content of the Advertisement confirmed by the Buyer under the procedures referred to above
11.4 Unless otherwise agreed by the Company and the Buyer, the Company shall submit to the Buyer one set of production quality digital color proofs for the Goods including the Advertisement before production commences for which the Buyer shall pay the Company a charge of $ 350. In the event that the proofs need to be PMS (Pantone Matching System) color proofs, the Buyer shall incur additional charges to be notified by the Company to the Buyer. The Buyer shall within a reasonable period after submission of the proofs (such period to be notified by the Company to the Buyer) notify the Company in writing of its approval of the proofs. Should the Buyer request any alterations to the color of the Goods (including the Advertisement) which are consistent with the specifications for the Goods set out in the Order Confirmation issued by the Buyer the Company shall use its commercially reasonable efforts to make such alterations as soon as reasonably practicable. Should the Buyer request any other alterations to the color or the content of the copy contained within the Goods (including the Advertisement) the Buyer shall pay the Company an additional charge to be notified by the Company to the Buyer.
11.5 The Company may reject, or require to be amended, any artwork, materials and copy for or relating to an Advertisement so as (i) to comply with all legal or moral obligations placed on the Company or the Buyer or any Advertiser under applicable law or regulation; or (ii) to avoid infringing a third party’s rights or the production and quality specification stipulated or referred to in the Company’s specification manual. In the case of any such rejection or amendment the Buyer shall continue to be liable to pay the Company the price for the Goods affected by such rejection or amendment.
11.6 The Company will not be liable for any loss of copy, artwork, photographs or other materials, which the Buyer warrants that the Buyer has retained in sufficient quality and quantity for whatever purpose.
11.7 Where the Buyer is the Advertiser’s advertising agency, the Buyer warrants that the Buyer is authorized by the Advertiser to place the Advertisement with the Company and the Buyer will indemnify the Company against any claim made by the Advertiser against the Company arising from the publication or use thereof.
11.8 The Buyer will indemnify the Company and any publisher of an Advertisement and agree to keep the Company and any such publisher indemnified against all claims, costs, proceedings, demands, losses, damages, expenses or liability whatsoever arising directly or indirectly as a result of any breach or non-performance of any of the representations, warranties or other terms herein contained or implied by law.
12. DATA PROTECTION
12.1 The Buyer and the Company agree and acknowledge that they deal with Goods in the course of their businesses, that the Company needs to be able to assess and monitor the Buyer’s ability to remain solvent and to pay for, market and sell Goods supplied to it and to discharge its obligations generally to the Company, and to assist the Company in carrying out such assessments and monitoring it needs to seek, acquire, collate, manipulate, process, delete and act upon data relating to the Buyer including without limitation data concerning the Buyer’s creditworthiness held by credit rating agencies and/or credit reporting services.
12.2 The Buyer authorizes the Company to:
(a) apply to credit rating agencies and/or credit reporting services for such data and at such times as the Company shall consider reasonable concerning the Buyer, its business, financial standing, trading history and its assets and liabilities;
(b) to receive, retain, record and duplicate all responses to each such application in such form format and medium as the Company shall consider prudent;
(c) to create data recording all the Buyer’s orders for Goods, their value and volume, compliance or otherwise with applicable credit or payment terms and these provisions and all returns;
(d) to collate, manipulate, sort, process and delete all such material in such manner as the Company shall consider prudent and to record all decisions made by it in relation to the Buyer; and
(e) do each and every one of the foregoing in respect of each parent, affiliate, or subsidiary of the Buyer and each partner of Buyer (in the case of a partnership) and each member or participant in Buyer (in the case of a joint venture, limited liability company, or other unincorporated association).
12.3 The Buyer agrees and acknowledges that the Company may transfer any such data to another person or entity which is providing services to, or carrying out certain functions on behalf of, the Company and in those circumstances the Company shall require such other person or entity to limit the use or disclosure of such data to that which is necessary to the purpose for which it was disclosed to such person or entity.
12.4 The Company agrees with the Buyer that in the exercise of each and every one of the foregoing functions it will limit its use or disclosure of such data to that which is necessary to the purpose for which it was disclosed.
12.5 The Buyer agrees that the Company shall be permitted to use examples of the Goods ordered by the Buyer and refer to the Buyer by name as part of the Company’s own marketing and promotional activities from time to time and grants the Company all necessary licenses to do so.
13 ASSIGNMENT
13.1 The Company may assign the Contract or any part of it to any person, firm or company.
13.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
14. FORCE MAJEURE
The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of [60] days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
15. GENERAL
15.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
15.2 All of the terms and conditions contained in this Acknowledgement are in addition to, and are not intended to and shall not, negate or replace any of Company’s rights or remedies provided by the Uniform Commercial Code, as applicable, at law, or in equity.
15.3 Any of these terms or conditions or any provision of the Contract which is determined to be invalid or unenforceable under the law of any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without invalidating the remaining terms and conditions or the Contract.
15.4 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
15.5 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
15.6 In the case of Goods ordered and/or any Advertisement placed by an advertising agent, media buyer or other agent (herein together referred to as an “agent”) on behalf of an Advertiser, the Advertiser and the agent shall each be a party to the Contract and shall be jointly and severally liable to the Company in respect of all matters arising under the Contract. The agent shall be responsible for making the Advertiser aware of such liability and shall be deemed for all purposes in connection with the Contract the agent of the Advertiser.
15.7 Except as provided in Section 15.6, nothing in these terms and conditions or the Contract is intended to confer upon any person, other than the Buyer and the Company and their respective successors and permitted assigns, any rights under the Contract.
15.8 Company and Buyer are each acting as an independent contractor and not as an agent of the other party and nothing in this Agreement shall be construed as creating a partnership, joint venture or similar relationship of any kind between the parties. Neither party shall hold itself out as having authority to create binding obligations for the other party.
15.9 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Pennsylvania applicable to agreements made, delivered and to be performed entirely therein, without reference to its conflict of laws rules or principles. Any action arising out of these terms and conditions or the Contract shall be instituted only in a state or federal court located in the Commonwealth of Pennsylvania. Buyer and Company each waives any objection which it may have to the laying of the venue of any such action, and irrevocably submits to the jurisdiction of any such court in any such action.
16. NOTICES
16.1 All notices between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class mail or sent by fax:
(a) (in the case of notices to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company in writing; or
(b) (in the case of the notices to the Buyer) to the registered office of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Buyer in writing.
16.2 Notices shall be deemed to have been received
(a) if sent by pre-paid first class mail, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
(b) if delivered by hand, on the day of delivery; or
(a) if sent by email or fax on a working day prior to 4.00 pm local time of the recipient, at the time of transmission and otherwise on the next working day.
16.3 Communications addressed to the Company shall be marked for the attention of the Sales Director.
© Kyp Inc 2010 Edition: May 2010