Westlake Compounds Mexico General Terms for Product Sales
Westlake Compounds General Terms and Conditions of Sale (Mexico)
1. Definitions. “Buyer” means a party purchasing any Product from Westlake Compounds. “GTC” means these Westlake Compounds General Terms and Conditions of Sale (USA and Canada). “Parties” collectively refers to Westlake Compounds and Buyer. “Product” means any product or service sold by Westlake Compounds. “SDS” means Safety Data Sheet. “Westlake Compounds” means Westlake Compounds Mexico, S. de R. L. de C.V.
2. Applicability of these GTC; language versions. Unless otherwise mutually agreed to in writing (through a sales contract, the "Contract"), these GTC shall apply to any transaction between the Parties. Any conflict between an existing Contract and these GTC shall be resolved in favor of the Contract. Westlake Compounds hereby expressly rejects any Buyer’s general terms and conditions or modifications to these GTC. Unless the Parties have an existing contract, otherwise mutually agreed to in writing through an executed Contract, these GTC, without any modification, will govern the agreement between Westlake Compounds and Buyer even if Westlake Compounds does not expressly object against any such other form of agreement Buyer’s general terms and conditions or modifications to these GTC. Neither course of performance or dealing, nor usage or trade, nor prior writings or agreements shall be used to qualify, explain or supplement any of these GTC. The invalidity, in whole or in part, of any provision of these GTC shall not affect any other provision of these GTC, each of which shall be enforced to the full extent permitted by law. Only the English version of these GTC shall be legally binding. Any translations of these GTC into other languages have been prepared for convenience purposes only. In case of any discrepancy between the English version of these GTC and any other language version, the English version of these GTC shall prevail.
3. Offer and Contract Conclusion. Westlake Compounds offers are non-binding and subject to change. Only purchase orders that have been confirmed by Westlake Compounds either electronically or in writing, or implicitly accepted by delivering on them, will be binding. Likewise, any additional oral agreements, supplements or amendments to purchase orders will only enter into effect after express electronic or written confirmation by Westlake Compounds.
4. Products. The Products sold are those described in Westlake Compounds’ order confirmation, unless, in the event of a discrepancy between Buyer’s order and Westlake Compounds’ confirmation, Buyer notifies Westlake Compounds in writing of its disagreement, within a period of ten (10) days from the date of receipt of Westlake Compounds’ order confirmation. The Products shall only be used for industrial use and NOT for consumer uses.
5. Price and payment. Unless otherwise agreed in writing, Product Base Prices are determined by Westlake Compounds order confirmation provided to Buyer or, in the absence of such confirmation, by Westlake Compounds’ list prices in effect at the time of planned delivery date. In addition to the Base Prices, Westlake Compounds may invoice Buyer for any actual cost increase incurred by Westlake Compounds in logistical costs (e.g. transportation costs, freight costs, carrier fuel charges or demurrage) on deliveries hereunder from those logistical costs included as part of the then Base Prices. In the event that Westlake Compounds’ costs of the Products has increased as a result of an increase of external costs or increase in Westlake Compounds’ raw material or input buying prices, taxes, duties or other levies imposed by public authorities, Westlake Compounds has the right to increase the prices accordingly for all orders not yet shipped to Buyer, provided that Westlake Compounds provides Buyer with at least fifteen (15) days prior written notice. All orders for such Products that are confirmed but not shipped as of the effective date of such increase shall be repriced accordingly. Unless otherwise agreed in writing, terms of payment will be net cash (in United States dollars) within thirty (30) days from the date of Westlake Compounds’ invoice. Payment terms shall be subject to Buyer’s continued credit worthiness/financial condition evaluation; if credit terms are not satisfied or credit/financial conditions become materially impaired or Buyer files a voluntary petition for relief under Title 11 of the United States Code (the “Bankruptcy Code”) or any similar law, or has an involuntary petition for such relief filed against it which is not dismissed within thirty (30) days, in Westlake Compounds reasonable opinion, Westlake Compounds may change the terms including, without limitation, the right to change the payment terms for any further shipments to “cash in advance” or “cash on delivery” or suspend deliveries hereunder as Westlake Compounds may determine to be appropriate in its sole and exclusive discretion and until such time as Buyer’s credit has been reestablished to Westlake Compounds’ satisfaction. Westlake Compounds, at its sole election, may add a surcharge from one percent (1%) up to the maximum legally allowable interest rate for late payment of any invoice not made by the required due date. Buyer shall not be entitled to make any deduction from payments due to Westlake Compounds on account of any alleged set-off or counter claim. As security for the performance of all of Buyer’s obligations, Buyer hereby grants to Westlake Compounds a security interest under the Uniform Commercial Code in all inventory and goods sold by Westlake Compounds to Buyer, including without limitation all goods in transit from Westlake Compounds to Buyer, and all monies owed by Westlake Compounds to Buyer in Westlake Compounds’ possession, including, without limitation, any monies due for goods purchased by Westlake Compounds from Buyer under any other contract or agreement between them, and any rebates or other customer incentives coming due and owing by Westlake Compounds to Buyer under the terms of these GTC or any other agreement. To the extent that Westlake Compounds determines in its sole discretion that it is desirable to do so, Buyer hereby authorizes Westlake Compounds to execute on its behalf and file it in all appropriate governmental offices such UCC-1 Financing Statements (or similar filings in foreign jurisdictions) as may be deemed necessary and appropriate by Westlake Compounds to perfect such security interest. Westlake Compounds shall have the right to terminate a confirmed order upon fifteen (15) days’ notice to Buyer in the event Westlake Compounds desires to revise the price or prices pursuant to this section or as otherwise permitted, but is restricted to any extent against so doing by reason of any law, decree, order or regulation of Government or in the event the price or prices currently effective hereunder are deemed to be in excess of those allowed under any law, decree, order or regulation of Government.
6. Delivery. Unless expressly agreed otherwise, any delivery dates set out in Westlake Compounds’ order confirmation or acceptance are estimates and subject to change. Westlake Compounds cannot guarantee delivery on a specific date. Unless otherwise agreed in writing, variation of up to 10% in quantity is acceptable to Buyer. Buyer will be invoiced for the quantity actually delivered. The quantity recorded on Westlake Compounds’ officially calibrated weighing equipment at the point of loading shall be accepted by both Parties as correct. Unless expressly agreed otherwise, all delivery dates are subject to change. Unless otherwise mutually agreed to in writing by the Parties, all shipments of Products are CPT (Buyer’s plant) Incoterms® 2020 freight prepaid and allowed to Buyer’s plant. A freight surcharge will apply for less than full truckload shipments of Product (40,000 pounds minimum). Shipments will be by the means indicated on the confirmed order in full capacity carloads, truckloads or barges as the case may be in approximately equal monthly quantities over the order term. Unless otherwise mutually agreed in writing by the Parties, Buyer shall purchase and accept the Products in reasonably uniform monthly quantities or installments and per a monthly delivery schedule to be agreed upon by Westlake Compounds and Buyer from time-to-time. If such proportionate part of said maximum quantity is not taken by Buyer in any month, the undelivered part may, at the option of Westlake Compounds, be cancelled or be added at Buyer’s request to subsequent deliveries. There shall be no obligation on Westlake Compounds to tender to Buyer delivery of any quantity as to which Buyer has not given Westlake Compounds shipping instructions. Deliveries may be suspended as long as Buyer is delayed in the performance of any obligation to Westlake Compounds. Westlake Compounds shall not in any circumstance be liable for any loss or damage whatsoever due to delay in delivery however occasioned. If Buyer refuses to accept delivery of Products or any instalment thereof, Westlake Compounds may, without prejudice to its other rights, arrange for the storage of the Products at the expense and risk of Buyer. Risk of loss or damage passes to Buyer at the time Products are first transferred to a commercial transportation carrier for shipment. No reconsignment of transportation equipment owned, furnished or controlled by Westlake Compounds shall be made and same shall be immediately returned to Westlake Compounds after the Product has been removed therefrom in as good condition as received, reasonable wear and tear excepted. Demurrage or extra detention charges on such equipment of Westlake Compounds are for Buyer’s account in accordance with Westlake Compounds’ then standard policies with respect to allowed Free Time and detention charges. If Buyer is responsible for the transport of Products, Buyer shall ensure that the means of transport is clean and dry, suitable for loading and carrying the Products, and complies with applicable legal standards for such means of transport. In case of non-compliance with the above requirements, Westlake Compounds will be entitled not to load or cause to load the relevant means of transportation. Westlake Compounds shall retain title to the Products delivered to Buyer until Buyer has performed all its obligations under any sale agreement with Westlake Compounds.
7. Warranty. Westlake Compounds only warrants Product title and that all Products sold to Buyer will conform to the manufacturer’s specifications. Westlake Compounds makes no other warranty of any kind, express or implied, by contract, statute or otherwise, or arising otherwise in law from a course of dealing or usage or trade, including and Westlake Compounds expressly excludes and disclaims all implied warranties of merchantability or fitness for a particular purpose or otherwise. Products that conform to the manufacturer’s specifications shall never be considered defective. Buyer will inspect all Products for damage, defect or shortage promptly after Buyer receives them, and will give Westlake Compounds prompt notice of any damage, defect or shortage that Buyer detects. Buyer must give Westlake Compounds notice of any defect within thirty (30) days after the date of receipt of the relevant Product(s) under penalty of forfeiture. If any Product is determined not to conform to the warranty set forth above, Westlake Compounds shall, at its option, either replace the defective Product or refund the purchase price thereof. Defective Products shall not be returned by Buyer until authorized by Westlake Compounds. This remedy is Buyer’s exclusive remedy for breach of warranty and defects in the Products. EXCEPT AS PROVIDED IN THE IMMEDIATELY PRECEDING SENTENCE, IN NO EVENT WILL WESTLAKE COMPOUNDS BE LIABLE UNDER ANY THEORY OF RECOVERY (WHETHER BASED ON NEGLIGENCE OF ANY KIND, STRICT LIABILITY, TORT OF ANY KIND, CONTRACT OR WARRANTY) FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO, ARISING FROM OR RESULTING FROM THE DELIVERY OF THE PRODUCT BY THE CARRIER HEREUNDER, OR ANY USE MADE OF THE PRODUCT, OR ANY SERVICES PROVIDED BY Westlake Compounds WHICH ARE RELATED TO THE PRODUCT, EVEN IF WESTLAKE COMPOUNDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. These warranties are given only to the original Buyer and does not extend to any subsequent purchaser or transferee of Products. Buyer is not entitled to extend or transfer these warranties to any other party.
8. Limitation of claims; Indemnity and Consequential Damages Waiver. Westlake Compounds will not be responsible and Buyer indemnifies Westlake Compounds for, and Buyer releases Westlake Compounds and holds Westlake Compounds harmless from, any losses and harm arising out of Buyer’s loading, storage, handling, purchase, possession, distribution, disposal or use of any Products, Buyer’s use of any technical or Product handling advice Westlake Compounds may offer, except in case of gross negligence or willful misconduct by Westlake Compounds. Westlake Compounds will not be liable for damages whether indirect, special, incidental, punitive, exemplary or consequential damages or losses of any nature whatsoever (whether or not foreseeable) or otherwise, including, but not limited to, loss of goodwill, profits or turnover, equipment downtime, repair or material cost, cost of any substitute for the Products Buyer bought, losses from business interruptions, losses resulting from failure to meet other contractual commitments or deadlines, claims of third parties or injury to person or property. Westlake Compounds shall not be liable for any damage, injury, contamination or loss in case of breach by Buyer of its obligations under Section 15 of these GTC and Buyer shall indemnify and hold Westlake Compounds, its employees, suppliers and sub-contractors harmless against all claims, costs, loss or damages in connection with such breach. Conditions limiting, excluding or establishing liability, which can be invoked by suppliers or independent contractors of Westlake Compounds against Westlake Compounds in respect of the goods delivered, may also be invoked against Buyer REGARDLESS OF THE CAUSE OR CAUSES THEREOF, INCLUDING THE SOLE, JOINT OR CONCURRENT NEGLIGENCE (IN ANY AMOUNT), GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, STRICT LIABILITY, BREACH OF WARRANTY, BREACH OF DUTY (STATUTORY OR OTHERWISE), BREACH OF CONTRACT, OR ANY OTHER LEGAL FAULT, LIABILITY, OR RESPONSIBILITY OF ANY MEMBER OF WESTLAKE COMPOUNDS GROUP.
10. Downstream Products. The Products are intended to be transformed into new downstream products (“Downstream Products”). By contrast, the Products are not intended to be used in their original form. Westlake Compounds will not be responsible for compliance of Downstream Products with applicable laws, regulations and standards, including but not limited to laws, regulations and standards related to environmental dispersion and waste management.
11. Technical and other services. Buyer is responsible for the design, processing, testing and labelling of any product produced using Westlake Compounds’ Products and Buyer will not rely on anything on Westlake Compounds’ website or any statement by Westlake Compounds about the suitability of Products Westlake Compounds provides. Buyer is responsible for testing and investigating Products sold by Westlake Compounds to form an independent judgment concerning their suitability for the use, conversion or processing intended by Buyer. Buyer assumes all risk and liability and will not make any claim against Westlake Compounds based on Westlake Compounds’ technical advice, statements, data, services or recommendations or results obtained by Buyer/
12. Intellectual property. Buyer’s purchase of the Product does not grant any license, immunity or any other right to Buyer under any of Westlake Compounds’ patents or other intellectual property rights relating to the manufacture or use of the Product in combination with other materials or apparatus or in the operation of any process or apparatus. Any suggestions Westlake Compounds makes about possible applications, designs or uses of Westlake Compounds’ Products do not give Buyer a license under any intellectual property right covering such applications, designs or uses, nor are they a recommendation for use of such Products, applications or designs which may infringe any intellectual property right. Westlake Compounds only warrants that the Product shall be delivered free of the rightful claim of any third person for infringement of any U.S. or Canadian patent covering the manufacture of the Product. Westlake Compounds does not warrant against infringement by, and assumes no responsibility by reason of, the use of the Product in combination with other materials or apparatus or in the operation of any process or apparatus or in any other manner or for any purpose whether or not specified by or disclosed to the Westlake Compounds. Westlake Compounds does not warrant that the use of the Products, or articles made therefrom, either alone or in conjunction with other materials, will not infringe another person’s valid patent rights. In the event of the commencement of any suit or proceeding against Buyer for infringement covered by the above warranty of Westlake Compounds, Westlake Compounds will indemnify, hold harmless and defend Buyer against direct damages including court costs and reasonable attorneys’ fees incidental thereto, provided Buyer: notifies Westlake Compounds promptly (but no later than five (5) business days after Buyer receives notice of any such suit or proceeding), in writing, of the commencement of such suit or proceeding; allows Westlake Compounds to take sole control of the defense of such suit or proceeding in Buyer’s name; renders to Westlake Compounds, at Westlake Compounds’ cost, all reasonable assistance for the defense or settlement thereof; and, does not settle or compromise any such suit or proceeding without the prior written consent of Westlake Compounds. Buyer will have the right to be represented in the defense thereof by counsel of its own selection and at its own expense. Except as expressly set forth in this section above concerning Westlake Compounds’ indemnity obligations to Buyer, Buyer will indemnify, hold harmless and defend Westlake Compounds from and against any claim, suit, damage, cost, expense, fine, liability or cause of action whatsoever, including reasonable attorneys’ fees, on account of, relating to, or arising out of any claimed infringement of the rights of any third party due to the use of the Product by Buyer, or any toll producer of Buyer, or the use, distribution or sale of any product made therefrom.
13. Events beyond Westlake Compounds’ control (force majeure). Westlake Compounds shall not be responsible if Westlake Compounds’ performance of any obligation towards Buyer becomes, in whole or in part, temporarily or not, impossible or commercially unreasonable due to any cause or event beyond Westlake Compounds’ control, including, without limitation, extreme weather conditions, natural catastrophe, warfare, terrorist activity, fire, acts of any governmental authority, site or building blockades, breakdown of utilities, transport interruptions, strikes, specific work interruptions or work-to-rule slowdowns and lock out, machine breakdown, emergency repair or maintenance, delay in the provision to Westlake Compounds of parts, goods or services ordered from third parties, accidents, epidemics, pandemics and/or interruptions of business operations. If such event occurs on the part of Westlake Compounds, Westlake Compounds shall not be liable and its obligations are suspended. If the event lasts longer than 90 days, both Westlake Compounds and Buyer may in writing rescind the non-feasible parts of any agreement between Westlake Compounds and Buyer. In addition, Westlake Compounds will be excused if Westlake Compounds is unable to acquire from its usual sources and on terms it deems reasonable, any material necessary for manufacturing the Product. If, because of such circumstances, there is a shortage of Product, Westlake Compounds will not be obligated to purchase Product from a third party in order to perform its obligations and it may apportion its available Product among all its customers and its own internal use in such manner as Westlake Compounds, in its sole discretion, finds fair and reasonable; provided, however, that Westlake Compounds will not be obligated to apportion or otherwise make available to Buyer, Product which Westlake Compounds obtains by purchase or exchange for its own internal use. Quantities of Product consequently not shipped will be deducted from the applicable remaining quantity obligation, unless the Parties agree otherwise.
14.Product Stewardship; SDS. Westlake Compounds will provide Buyer with SDSs applicable to the Product and Buyer will provide the most recent SDSs, as received from Westlake Compounds, to all persons required by law to receive them. Buyer will take all such precautions to protect human health and the environment as may be appropriate for hazards identified in the SDSs or otherwise identified to Buyer by Westlake Compounds. Buyer will use, handle and process the Products, and manage and dispose of all wastes and residues resulting from use, handling and processing of Products, including any packaging, in accordance with applicable laws and regulations.
15. Environment & Safety. In the event either Party ceases or suspends (a) the operation of any facility where it is producing or consuming any quantity of material deliverable hereunder or (b) the use or manufacture of material deliverable hereunder, and such termination or suspension is made because said facility, the operation thereof and/or the product there from violates or fails to comply with or becomes uneconomical by virtue of compliance with any applicable governmental law, regulation, ordinance, standard, order or decree relating to pollution, ecology, environmental matter, health, or safety, either Party shall have the right to terminate this Agreement in its entirety or suspend deliveries hereunder in whole or in part by written notice to the other Party without liability resulting to either Party. The aforesaid right to terminate or suspend deliveries may be exercised by either Party at any time while such violation or failure continues and such cessation or suspension of operations is in effect. In no event shall Westlake Compounds be obligated to purchase material from others in order to enable it to deliver material to Buyer hereunder nor shall Buyer be obligated to sell material to others to enable it to receive material from Westlake Compounds hereunder. Deficiencies in deliveries hereunder due to any such cause may, at the option of either Party, be canceled from the contract with no liability to either Party therefore. Each Party agrees to notify the other seasonably in writing of any decision to terminate or suspend deliveries, for reasons specified in this section.
16. Export control compliance. The Parties acknowledge that they as well as the Product sold or otherwise transferred under these GTC may be subject to U.S. and Canadian export controls (including deemed export and re-export) requirements, laws and regulations and U.S. laws and regulations regarding embargoes, sanctions and similar laws, regulations and requirements applicable to exports (“Export Requirements”). Westlake Compounds is subject to application of United States, European Union and national export control laws. In this capacity Westlake Compounds is prohibited from directly or indirectly exporting and/or selling products, or allowing third parties to directly or indirectly sell and/or export products, into certain embargoed countries and to certain restricted or denied customers under the export control laws of the United States, the European Union and/or the United Nations. Prohibited transactions include any transaction in which Products are shipped to or through the embargoed countries or which involve the restricted or denied customers. Penalties for violation of these laws are severe. Buyer shall not directly or indirectly, sell or export the Products purchased from Westlake Compounds to any of these embargoed, restricted or denied persons, entities or countries, nor sell or otherwise transfer any such Product to any customer under circumstances where it has knowledge or reason to believe that the Product will be sold or exported to any such embargoed, restricted or denied person, entity or country. Buyer further certifies that to the best of its knowledge, the Product sold and delivered by Westlake Compounds will not in any way be used for purposes that are prohibited under national and international regulations, including without limitation, the manufacture of weapons or materials used in the weapons industry.
17. REACH. It is expressly understood by the Parties that pursuant to the terms of these GTC, Westlake Compounds is not the importer (as defined in and for the purposes of REACH) of the Product and Westlake Compounds, as a legal entity incorporated in the United States of America, has no legal obligations under Regulation (EC) No. 1907/2006 (“REACH”) or related European Union legislation. For the avoidance of doubt, this includes but is not limited to the Westlake Compounds having no obligation under REACH or these GTC to obtain either itself or through its affiliated companies or any Only Representative (as defined in REACH) any requested pre-registration, registration or authorization for any substance(s) in its Product or in any raw materials required for production of its Product, unless the Parties have agreed to specific compliance terms and conditions related to each substance. Buyer shall comply with its obligations arising from REACH and in any other laws, rules and regulations applicable to the Products and its chemical elements from time to time.
18. Termination for default. If Buyer does not fulfill its obligations, does not fulfill them timely or adequately, requests (temporary) moratorium, or proceeds with the liquidation of its business, as well as when its assets are attached in whole or in part, Westlake Compounds has the right to suspend the performance of any obligation hereunder or to rescind the agreement in whole or in part, without prior notice or default, by written declaration, at its option and always reserving any rights to which it is entitled with respect to compensation for costs, damage and interest. In these cases, all of Westlake Compounds’ claims against Buyer are immediately and totally due. Buyer is authorized to rescind the agreement only in case Westlake Compounds does not fulfill its obligations contained therein and/or in the events referred to in these GTC, and then only after payment to Westlake Compounds of all amounts owed to Westlake Compounds at that time, whether due or not.
19. Data protection. Buyer acknowledges that Westlake Compounds will process personal data of Buyer’s employees, directors and collaborators for the purposes related to the execution of its contractual obligations, to comply with a legal obligation to which Westlake Compounds is subject or for the establishment, exercise or defense of legal claims, in accordance with applicable law.
20. Taxes. Any tax, or other governmental charge, or increase in any such tax or governmental charge, including but not limited any Superfund Tax, on the production, sale and/or shipment of the Product sold by Westlake Compounds or Westlake Compounds’ affiliate under this Agreement (other than taxes based upon Westlake Compounds’ net income), or entering into the costs thereof, whether by federal, state, provincial or municipal/local authorities, imposed, or becoming effective, on or after the date of this Agreement, will be added to the price then in effect for the Product and will be paid to Westlake Compounds by Buyer.
21. No Liens. Buyer hereby represents, warrants, covenants and agrees that it shall neither permit nor suffer any liens or other security interests to be filed against or attach to the Product shipments or any other goods sold to Buyer until Buyer has paid Westlake Compounds for them in full. Westlake Compounds reserves the right to condition any and all sales of goods to Buyer upon a waiver of liens on same by any of Buyer’s secured creditors with record liens against Buyer’s assets. In the event that a petition for relief under the Bankruptcy Code is filed by or against the Buyer, Buyer acknowledges Westlake Compounds’ right of reclamation with respect to any goods delivered to Buyer within forty-five (45) days prior to the filing of such bankruptcy petition, and hereby waives the right to assert as a defense to Westlake Compounds’ reclamation claims that any of Buyer’s secured creditors have a lien on such goods.
22. Notice. All documents, notices and communications to be given hereunder or in connection herewith shall be in writing, signed (signing may be by an electronic signature) by the Party giving or making the notice or communication and shall be deemed given when: (i) (x) delivered in person or by messenger or (y) sent by facsimile or electronic mail on the date of receipt of a facsimile or electronic mail, provided that the sender can and does provide evidence of successful transmission and that such day is a business day (and if it is not, then on the next succeeding business day) or (z) three (3) business days after being deposited in the mail in a sealed envelope with sufficient postage affixed, registered or certified, return receipt requested or deposited with a nationally recognized next-day delivery service, such as Federal Express or United Parcel Service, and (ii) addressed as set forth below, or to such other addresses or designee(s) as may be hereafter designated by a Party after providing written notice thereof to the other Party.
To Westlake Compounds:
Westlake Compounds Mexico S. de R.L. de C.V.
Calle Pedro Hinojosa S/N, Colonia Cd. Industrial
H. Matamoros, Tamaulipas, 87499 - Mexico
Attention: Automotive Business Director, Americas, Jean-Francois Vautrin
Email: jvautrin@westlake.com
With a copy to:
Westlake Global Compounds
2801 Post Oak Blvd., Suite 600
Houston, Texas 77056
Attention: General Counsel
Facsimile: 713-629-6239
Email: legaldepartment@westlake.com
23. Dispute Resolution.
23.1 Except to the extent of a claim to enforce intellectual property rights or confidentiality obligations (which nevertheless shall be subject to the choice of venue provision contained in the second sentence of Section 23.4), and as a precondition to instituting any legal action permitted by the provisions below, any controversy, claim or dispute between the Parties arising out of or relating to the provision of these general terms or the breach, termination or a validity thereof shall, upon written request of either Party, immediately be referred jointly for resolution to senior executives of each of the Parties who have authority to settle the controversy and who are at a higher level of management than the person(s) with direct responsibility for day-to-day administration of these general terms. Within fifteen (15) days after delivery of the written request of a Party, the receiving Party shall submit to the other a written response. The request notice and the response shall each include: (a) a statement of the respective Party’s position and a summary of arguments supporting that position; and (b) the name and title of any other person who will accompany the senior executive. Within thirty (30) days after delivery of the disputing Party’s request notice, the senior executives of both Parties shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary, to attempt in good faith to resolve the controversy. The Parties agree to honor all reasonable requests for information. All negotiations pursuant to these provision are confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence.
23.2 If the controversy has not been resolved by negotiation within forty-five (45) days of the disputing Party’s request notice, or if the Parties failed to meet within thirty (30) days of such request, the Parties agree to attempt to settle the dispute by mediation under any mediation rules mutually agreed upon by the Parties by one Party serving a written request on the other. Unless otherwise agreed, the Parties shall select a neutral mediator that is mutually agreed upon by the Parties. The mediation shall be held in a location in the United States mutually agreed to by the Parties. All mediation proceedings are non-binding.
23.3 This mediation must be concluded within any period mutually agreed upon by the Parties or if there is no such agreement, then within forty-five (45) days of the selection of the mediator. Unless the Parties expressly agree otherwise, each Party shall bear its own costs, legal and expert fees incurred in mediation, and evenly share the costs of the mediator. If after proceeding in good faith (i) the Parties are unable to agree on a neutral mediator within thirty (30) days of the failure of the senior executives to meet as required in Section 23.2 or the failure of the senior executives to resolve the dispute in accordance with Section 23.2, whichever is earlier; or (ii) with the assistance of a neutral mediator, the Parties do not resolve the dispute within the period prescribed in these Section 23.3, the Parties may proceed in accordance with Section 23.4 below.23.4
23.4 After exhausting the procedures set forth above, either Party may initiate litigation to resolve the dispute. The litigation shall be commenced only in the state court or federal court located in the State of Tamaulipas, Mexico and each Party hereto submits to the jurisdiction of the court in which such litigation is commenced.
24. Reformation. If any provision of these general terms is determined to be illegal or unenforceable for any reason, that provision shall be reformed to the maximum extent permitted to preserve the Parties’ original intent. If the provision cannot be reformed in a way that preserves the Parties’ original intent, it will be deleted and severed from these general terms with the balance of these general terms continuing in full force and effect.
25. Medical Application Disclaimer Policy.
25.1 NOTICE REGARDING MEDICAL APPLICATION RESTRICTIONS. Under these general terms, Westlake Compounds supplies only raw materials. Westlake Compounds does not design, manufacture, or sell any medical devices hereunder. Westlake Compounds does not endorse or claim suitability of its products (including the Products) for specific medical applications. Westlake Compounds has not and does not routinely conduct any tests or studies to assess the safety, suitability, or efficacy of its Products in medical uses or applications. It is the responsibility of the medical device or pharmaceutical manufacturer to determine that the Westlake Compounds raw materials (including the Products) is safe, lawful, and technically suitable for BUYER’s or other downstream user’s intended application or use.
25.2 WESTLAKE COMPOUNDS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SUITABILITY OF ANY WESTLAKE COMPOUNDS PRODUCT FOR USE IN MEDICAL APPLICATIONS INVOLVING HUMANS.
25.3 The Parties intend for this section to afford Westlake Compounds the fullest protection of the Biomaterials Access Assurance Act of 1998, 21 U.S.C. § 1601, et seq., as permitted thereunder.
25.4 IN NO EVENT WILL WESTLAKE COMPOUNDS BE LIABLE UNDER ANY THEORY OF RECOVERY (WHETHER BASED ON NEGLIGENCE OF ANY KIND, STRICT LIABILITY, TORT OF ANY KIND, CONTRACT OR WARRANTY) FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO, ARISING FROM OR RESULTING FROM ANY USE MADE OF THE PRODUCT BY BUYER, OR ANY SERVICES PROVIDED BY WESTLAKE COMPOUNDS WHICH ARE RELATED TO THE PRODUCT, EVEN IF WESTLAKE COMPOUNDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
26. No Violation; Consents. Buyer warrants that the execution, delivery and performance by Buyer of this general terms and the consummation of the transactions contemplated hereby will not (with or without the giving of notice or the lapse of time, or both) conflict with, result in a breach of, constitute a default under, or accelerate or permit the acceleration of the performance required by, or require any consent, authorization or approval under any agreement, contract, commitment, indenture, lease or other instrument, document or undertaking to which Buyer is subject.
27. Reproduction. These general terms, and all documents relating hereto and thereto, may be stored and/or reproduced by any means or process including electronic or mechanical means. Any reproduction that reproduces the signatures of the Parties shall be admissible into evidence as the original in any litigation without regard to whether the original is in existence. If a Party signs this general terms and then transmits an electronic facsimile of the signature page (including, without limitation, in PDF format), the receiving Party may rely upon such electronic facsimile as an originally executed signature page without any modification or change to this general terms, unless such modification or change is noted on such electronic facsimile by the transmitting Party.
28. Compliance With Federal, State and Local Laws. Each Party warrants that in performance of obligations set forth any order subject to these GTC, it has complied with all applicable federal, state, and local laws, rules, regulations, ordinances and other requirements of any governmental entity, including, but not by way of limitation, the Fair Labor Standards Act of 1938 as amended (29 USC 201-219) (collectively "Laws"). Without limiting the generality of the foregoing, each Party agrees to perform all work under this Agreement in compliance with the Occupational Safety and Health Act of 1070 and all other applicable state and local statutes. regulations and ordinances relating to health, safety and workplace hazards, as in effect at the time of such work is performed (collectively, the "Health and Safety Laws").
29. Code of Conduct. The Parties declare and pledge to each other that they know and will fully comply with the provisions of all applicable anti-corruption legislation, including legislation regarding money laundering, administrative misconduct, the defense of competition, and applicable international legislation on human rights and environment. They maintain and will maintain during their respective performance obligations pursuant to any order issued under these GTC full compliance with their respective company Code of Conduct. The Parties declare and pledge to each other that they know and will fully comply with the provisions of all applicable anti-corruption legislation, including legislation regarding money laundering, administrative misconduct, the defense of competition, and applicable international legislation on human rights and environment. Each Party undertakes that in the performance of any order issued under these GTC, it shall (i) respect the protection of human rights and internationally accepted labor standards, (ii) not use child or forced labor or (iii) discriminate in respect of employment, (iv) avoid conflicts of interest and respect the environment. Each Party undertakes that it will not make, offer or authorize any undue payment, gift, promise or other undue advantage, in relation to subject matter of this any order issued under these GTC, whether directly or indirectly, to or for the benefit of any public official, third party or personnel of Buyer in order to obtain or retain business.
30. Sanctions The parties will be released from their duty to fulfil their contractual obligations in concordance with these General Terms and Conditions of Sale, and will not be liable for failure in performance of an order, if it becomes impossible to fulfil the agreement, in whole or in part, or if performance of the agreement is considerably hindered by revocation or sus- pension of export or import licenses, embargoes or other sanctions imposed by the United Nations (“UN”), the European Union (“EU”), the United Kingdom (“UK”) or the United States of America (“USA”), particularly where the performance of the agreement may expose the parties or any of their affiliates and/or vicarious agents involved in performance of the agreement to sanctions, penalties or other actions of government authorities detrimental to them (“Sanctions”). If a party wishes to claim relief by reason of the Sanctions, this party shall, without undue delay, submit written notice to the other party specifying the reason and estimated duration for claiming hindrance to or impossibility of performing the order. If the Sanctions last for a period that exceeds 3 (three) months, the parties are entitled to rescind this agreement in whole or in part by written notice, including a statement as to the extent to which the contractual obligations are affected by the Sanctions.
31. Allocation. If for any reason Westlake Compounds is unable to supply the total demand for Product specified herein, Westlake Compounds may distribute its available production of such Product among any or all purchasers, including divisions, affiliates and subsidiaries of Westlake Compounds, on such basis as it may deem fair and practical, without liability for any failure of performance which may result therefrom. Westlake Compounds shall have no obligation to cause its feedstocks to be allocated to the Product covered hereby or to produce such Product as opposed to other product produced by Westlake Compounds.
32. Survival. The terms and provisions of these GTC regarding payment and indemnity and any other terms and provisions, which by their nature are meant to survive, shall survive the termination of this general terms for any reason.
33. Miscellaneous
33.1. Cancellations of and changes to orders; refusal and return of conforming Products. Any cancellation of or changes to any order, refusal to take delivery or return of any conforming Product purchased hereunder, will require express acceptance by Westlake Compounds and will be subject to a cancellation fee in accordance with Westlake Compounds’ policy then in effect.
33.2. No waiver. Failure by either Party, at any time or from time to time, to require the performance by the other of any term or provision of these GTC shall not constitute a waiver of such term of provision.
33.3. Electronic communication. Buyer specifically agrees that Westlake Compounds may issue electronic order acceptances or confirmations and electronic in- voices for any purchases of Products made using the Internet, email or any other electronic communications method, and agrees to honor such order acceptances or confirmations and invoices as if they had been delivered in writing.
33.4. Assignment. Buyer shall obtain the written consent of Westlake Compounds prior to and as a condition of the assignment, transfer, encumber or novation of any right, benefit and/or obligation (including rights to receivables) under any agreement governed by these GTC. Westlake Compounds is entitled to assign, transfer, encumber or novate its receivables in whole or in part without obtaining written consent of Buyer.
33.5. Letters of credit. If payment is to be made by letter of credit, Buyer shall immediately establish an irrevocable letter of credit in favor of Westlake Compounds through a prime bank acceptable to Westlake Compounds. Such letter of credit shall be in a form and upon terms satisfactory to Westlake Compounds and shall authorize reimbursement to Westlake Compounds for such sums, if any, as may be advanced by Westlake Compounds for consular invoices, inspection fees and other expenditures for the account of Buyer. If the letter of credit is not honored by the bank immediately upon Westlake Compounds’ presentation of the corresponding draft, Buyer shall, upon notice from Westlake Compounds, immediately make payment by electronic funds transfer in immediately available funds to the account of Westlake Compounds directly and unconditionally. All bank charges incurred, including collection charges and stamp duties, if any, within the country of Buyer shall be for the account of Buyer and any bank charges incurred outside Buyer’s country shall be for Westlake Compounds, unless the Parties agree other- wise.
33.6. Governing law. These GTC and any agreement between Westlake Compounds and Buyer for the sale of the Products shall be governed and construed in accordance with the internal laws of the State of Tamaulipas, Mexico without giving effect to the conflict of law principles thereof that would cause the application of the laws of any jurisdiction other than those of the State of Matamoros, Tamaulipas, Mexico. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the appropriate state or federal court in Matamoros, Tamaulipas, Mexico, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. The United Nations Convention on the International Sale of Goods shall not apply. In the event either Party institutes suit to enforce any right or obligation against the other arising from or incidental to this Agreement, the prevailing Party shall be entitled to recover, in addition to any damages or other relief awarded to it, reasonable attorney’s fees, court costs, fees of testifying experts or consultants, and other expenses related thereto. THE PARTIES HERETO KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THEIR RIGHT TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON, ARISING OUT OF OR RELATED TO THIS AGREEMENT.
34. Acknowledgement and Acceptance. Buyer acknowledges that Westlake Compounds may revise and post updates to these GTCs from time-to-time, and that any future orders will be subject to the most recently posted version of the General Terms. In accepting a sales order from Westlake Compounds, Buyer shall be deemed to have accepted these General Terms For Product Sales, unless Westlake Compounds and Buyer have entered into a separate, written, sales contract.