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1. Scope; Binding Effect
THESE TERMS AND CONDITIONS OF SALE APPLY TO ALL PURCHASE ORDERS ACCEPTED BY POUCHIT, LLC AND ITS AFFILIATED COMPANIES (“SELLER”) AND TO ALL PRICE QUOTATIONS MADE BY SELLER. TO THE EXTENT THAT THESE TERMS AND CONDITIONS CONFLICT WITH OR ARE DIFFERENT FROM THOSE CONTAINED IN ANY PURCHASE ORDER OR OTHER PROCUREMENT DOCUMENTS SUBMITTED BY BUYER, THESE TERMS AND CONDITIONS WILL CONTROL AND ANY ADDITIONAL OR INCONSISTENT TERMS ARE REJECTED BY SELLER. BUYER’S ACCEPTANCE OF OR PAYMENT FOR THE GOODS SHALL CONCLUSIVELY CONFIRM ASSENT TO THESE TERMS.
All prices are exclusive of any sales, use, revenue, or excise taxes, and customs duties, or other similar charges, all of which will be paid by Buyer.
Unless otherwise agreed to by the parties: (a) delivery is FOB Seller’s plant and (b) title and risk of loss will pass to Buyer upon delivery of Products to the carrier at the shipping point. Seller will follow Buyer’s shipping instructions. Absent such instructions from Buyer, Seller will ship by the method it deems most advantageous. Delivery dates are estimates only. Seller will make commercially reasonable efforts to meet specified delivery dates but will otherwise not be responsible for delayed deliveries.
All orders for Products are final and may not be cancelled by Buyer after acceptance by Seller. Upon commencement of production of any order for Products, Buyer shall be responsible to pay the purchase price and all costs and expenses incurred by Seller with respect to such order. Buyer will accept or reject Products within 60 days of delivery. Failure to notify Seller in writing of nonconforming Products within such period shall be deemed an unqualified acceptance. Any use of the Products by Buyer which is not related to acceptance testing shall constitute acceptance.
5. Credit Sales
Prior credit approval and non-delinquent status are necessary before Seller will ship on an open account basis. If at any time the financial responsibility of Buyer, or the credit risk involved, shall become unsatisfactory to Seller, Seller may require cash or satisfactory security prior to shipments or deliveries hereunder. With respect to any credit sale, Buyer grants to Seller a purchase money security interest in the Products sold, and any proceeds thereof, as security for Buyer’s obligation to pay the purchase price, and Buyer agrees to execute any financing statement or other instrument required to perfect such security interest.
5. Credit Memos
Unapplied cash, credit memos or other discounts against future purchases issued by Seller in connection with Products returned by Buyer must be used by Buyer within 90 days of issuance by Seller, and unless applied by Buyer against the purchase of additional Products within such 90-day period, shall expire.
Products are warranted to conform to agreed or Seller’s published specifications, subject to customary tolerances, and to be free from defects in material or workmanship that materially impair use. Seller will repair or replace, at its option, any Product found to be defective or nonconforming, provided that: (a) Buyer gives prompt written notice of the defect or nonconformity; (b) Seller has provided written return authorization to Buyer and Buyer has returned the nonconforming Product to Seller, freight prepaid by Buyer, and; (c) Seller has reasonably verified Buyer’s claim that the Products are defective or nonconforming. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR OBLIGATIONS EXPRESS OR IMPLIED. SELLER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Buyer acknowledges and agrees that the remedies set forth in Section 8 are Buyer’s exclusive remedies for the delivery of defective or nonconforming Products.
7. Hazard Communications
Upon request, seller will provide or make available to Buyer a Material Safety Data Sheet (“MSDS”) for all Products. The Buyer agrees to read and understand the MSDS before using the Products. Buyer will hold Seller harmless from any damage, loss, expense, or claim resulting, directly or indirectly, from use of Products.
8. Limitation of Liability
IN NO EVENT SHALL SELLER BE LIABLE TO BUYER IN AN AMOUNT EXCEEDING THE PURCHASE PRICE OF THE SUBJECT PRODUCT. IN NO EVENT SHALL SELLER BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS OR REVENUES, LOSS OF CUSTOMERS, OR PLANT DOWNTIME) SUSTAINED FROM ANY CAUSE OR ARISING OUT OF ANY LEGAL THEORY, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT TORT LIABILITY, OR OTHERWISE. These limitations include any liability that may arise out of third-party claims. Any lawsuit by Buyer against Seller shall be filed within one year from delivery of the subject Product by Seller. These limitations shall apply notwithstanding any failure of essential purpose or of any limited remedy provided herein. Any technical advice furnished, or recommendation made by Seller or any Seller representative concerning any use or application of any Product is believed to be reliable, but Seller makes no warranty, either express or implied, as to its accuracy or completeness or of the results to be obtained. Regarding any processing of any Product, Buyer assumes full responsibility for quality control, testing, storage and for use of Products provided by Seller in combination with items provided or manufactured by Buyer or by others.
9. Buyer Indemnity
Buyer assumes full liability and responsibility for compliance with all information and precautions provided to Buyer, and with all laws, statutes, ordinances and regulations of any governmental authority applicable to the processing, transportation, delivery, unloading, discharge, storage, handling, sale and use of each Product and United States export control laws. Buyer further agrees to protect, defend and hold harmless Seller from and against all claims, demands, causes of action, damages, losses, liabilities, costs, expenses (including reasonable attorneys’ fees), penalties, and judgments associated with the processing, transportation, delivery, unloading, discharge, storage, handling, sale or use of any Product after delivery which is (i) inconsistent with any Information provided to Buyer; (ii) in violation of any applicable law, statute, ordinance or regulation of any governmental authority or (iii) not the result of Seller’s negligence or willful misconduct.
10. Intellectual Property Infringement
Seller will defend or settle any claim or action brought against Buyer to the extent that it is based upon a claim that Products provided by Seller to Buyer infringe any United States patent, and Seller will pay all costs, damages and attorney’s fees finally awarded against Buyer in any such action; but such defense, settlements, and payments are expressly conditioned on the following: (a) that Seller is promptly notified in writing by Buyer of any such claim; (b) that Seller is granted in writing sole control of the defense of any such claim and of all negotiations for settlement or compromise; (c) that Buyer cooperates with Seller in a reasonable way to facilitate the settlement or defense of the claim; and (d) that the claim does not arise from modifications not authorized in writing by Seller. Should Products become, or in Seller’s opinion be likely to become, the subject of such a claim of infringement, Buyer will permit Seller, at Seller’s option and expense, to procure for Buyer the right to continue using the Products, or to replace or modify the Product so that it becomes non-infringing and substantially equivalent in function, or to refund to the Buyer the purchase price of the Product. THE FOREGOING IS SELLER’S EXCLUSIVE OBLIGATION WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
11. Force Majeure
Seller shall not be responsible for delays caused by acts of God, fires, floods, strikes, war, riot or civil unrest, accidents, delay by suppliers of material or shortages of material, inability to obtain necessary labor, manufacturing facilities, utilities, or transportation, or any other causes beyond Seller’s reasonable control. In the event of Seller’s inability, for any reason, to supply the quantities of Product contemplated by the Agreement, Seller may allocate its available supply among its customers, including affiliates, departments and divisions of Seller, on such basis as Seller may deem commercially reasonable, without liability to Buyer for any failure of performance that may result therefrom.
12. Confidentiality; Intellectual Property
Proposals, drawings, specifications, pricing and technical data furnished to Buyer by Seller shall: (i) be retained in confidence; (ii) remain the exclusive property of Seller; (iii) not be disclosed by Buyer to third parties or used in any manner not authorized by Seller; and (iv) be returned to Seller upon request. Seller does not by entering or performing this Agreement transfer, license, or assign to Buyer or any other person or entity any right, title, interest, or license to or in any of Seller’s intellectual property, including, without limitation, patents, trade secrets and trademarks, and all such rights, titles and interests are reserved by Seller. Unless otherwise agreed by the parties in writing, all developments and improvements to Products made or implemented by Seller shall be the sole and exclusive property of Seller, regardless of Buyer’s participation therein.
13. Additional Terms
The rights and liabilities of the parties arising out of or relating to this Agreement will be governed by the laws of the state of Georgia, excluding application of its conflicts of laws principles and excluding all provisions of the United Nations Convention on Contracts for the International Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods. Venue in any lawsuit between the parties will lie exclusively in state or federal courts in the state of Georgia, and the prevailing party in such litigation will be entitled to recover all reasonable costs, fees and other expenses (in addition to statutory “costs” of litigation), including attorneys’ fees and expenses in connection with any trial, appeal, or petition for review. TO THE FULLEST EXTENT PERMITTED BY LAW, THE PARTIES EXPRESSLY WAIVE TRIAL BY JURY IN ANY ACTION ARISING UNDER THE AGREEMENT. This Agreement may not be assigned by Buyer without Seller’s prior written consent. No waiver of any violation or nonperformance of this Agreement in one instance shall be deemed to be a waiver of any subsequent violation or nonperformance. All waivers must be in writing. If any term or provision of this Agreement shall to any extent be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and each term and provision of the Agreement shall be valid and enforced to the fullest extent permitted by law. Nothing in this Agreement shall be construed as creating any direct or beneficial right in or on behalf of any third party. THIS IS THE ENTIRE AGREEMENT BETWEEN THE PARTIES AND SUPERSEDES ALL PRIOR OR CONTEMPORANEOUS AGREEMENTS, UNDERSTANDINGS, OR REPRESENTATIONS WITH RESPECT TO THE SUBJECT MATTER HEREOF. THIS AGREEMENT MAY NOT BE MODIFIED OR AMENDED EXCEPT IN A WRITING SIGNED BY BOTH PARTIES.17.1. Buyer will be deemed to have notice of and be bound by any change to these Terms and Conditions immediately once updated by the Seller and either notified to the Buyer directly or displayed by the Seller’s website. Such changes will not apply to orders accepted by the Seller prior to the date of the change.