TERMS AND CONDITIONS OF SALE
1. Governing Terms. The terms and conditions set forth herein, as may be changed, amended or modified as provided herein (the “Terms”), shall govern and control the provision of all goods (the “Products”) by Act CORP., a Delaware corporation (“Supplier”), to Buyer, and all purchase orders of Buyer shall be subject to these Terms. Supplier agrees to provide the Products to Buyer only in accordance with these Terms. Any language in Buyer’s purchase order, if one exists, or other writing or oral representation previously or hereafter received by Supplier purporting to amend, modify or replace the Terms with any different or additional terms is hereby expressly rejected. SUPPLIER’S AGREEMENT TO PROVIDE THE PRODUCTS IS EXPRESSLY CONDITIONED ON BUYER’S ASSENT TO ALL OF THESE TERMS.
2. Acceptance. All purchase orders of Buyer shall be subject to the written acceptance of Supplier, which acceptance shall be conditioned upon the receipt of Buyer’s written acknowledgement of these Terms by formal supply agreement or purchase order.
3. Specifications; Changes. Supplier shall produce the Products in accordance with the specifications and requirements as expressly set forth in Buyer’s purchase order as accepted by Supplier (the “Specifications”). Any changes, modifications or amendments to the Specifications or any purchase order must be agreed to in writing by Supplier. If any change, modification or amendment to the Specifications or any purchase order causes an increase in the price of the Products or affects the delivery schedule, then Supplier shall effect such price increase on the applicable invoice and notify Buyer in writing of the new delivery schedule. In addition, Buyer shall compensate Supplier for all resultant costs of any modification.
4. Delivery. Upon the acceptance by Supplier of a purchase order, Supplier shall provide Buyer with an approximate date of delivery. All delivery dates provided by Supplier are approximate and not binding upon Supplier; provided, however, that Supplier shall use its reasonable efforts to meet approximate delivery dates. All Products shall be delivered by Supplier F.O.B. Supplier’s facility located at Del Rio, Texas. Title to and risk of loss of the Products shall pass to Buyer upon delivery in accordance with this Section 4. Supplier shall use its reasonable efforts to utilize a carrier specified by Buyer in writing on the applicable purchase order. Partial deliveries shall be permitted. Supplier shall pack the Products for delivery in its usual and customary manner or as Supplier deems appropriate under the circumstances. If Buyer desires special packaging, Buyer must request the same from Supplier at least five (5) business days prior to the estimated shipping date. Any such special packaging shall be at Buyer’s sole cost, and Buyer agrees to promptly reimburse Supplier for any such costs paid by Supplier on Buyer’s behalf.
5. Price. All prices for the Products shall be quoted by Supplier to Buyer prior to acceptance of a purchase order by Supplier. All prices shall be in U.S. dollars. Supplier may increase the price of the Products for any increase in raw materials or components costs beyond Supplier’s reasonable control that occurs after quotation and prior to shipping date of the Products. Supplier shall notify Buyer in writing of any such increase as soon as reasonably practicable. Except as specifically stated in Supplier’s price quote, any manufacturer’s tax, retailer’s occupation tax, use tax, sales tax, excise tax, value-added tax, duty, customs agent or broker fees, inspection or testing fee, freight costs, insurance, counselor fees, or any other tax, fee or charge of any nature whatsoever imposed on, in connection with or measured by any transaction between Supplier and the Buyer shall be paid by the Buyer in addition to the prices quoted or invoiced.
6. Invoice and Payment Terms. All Products shall be invoiced by Supplier on the date of delivery in accordance with Section 4 herein. Payment of all invoices shall be made by Buyer net thirty (30) days from the date of the invoice. Buyer shall be charged interest at the rate of 1.5 % per month, or the maximum rate allowable by law, for any past due invoices.
7. Security Interest. Buyer acknowledges and agrees that these Terms shall constitute the Security Agreement of Buyer required by the Uniform Commercial Code (“UCC”) of the appropriate state, and Buyer hereby agrees that it grants to Supplier a security interest in the Products, wherever located, and all proceeds thereof, to secure Buyer’s payment in full for the Products. Buyer hereby authorizes Supplier to execute any UCC financing statement, or any other document Supplier deems necessary or appropriate, to protect Supplier’s security interest in the Products.
8. Cancellation. Buyer may not cancel any purchase order, except as may be agreed in writing by Supplier. In the event that Buyer cancels any purchase order, Buyer shall remain liable for payment for all finished Products and any work in process produced pursuant to such order and all raw materials or components purchased for the production of Products pursuant to such order.
9. Delays; Force Majeure. Supplier shall not be liable to Buyer for any loss or damage due to delays in or failure of delivery resulting from causes beyond Supplier’s reasonable control, including, without limitation, delays in transportation, equipment breakdowns, delays of suppliers, freight forwarders or customs forwarders, inabilities to obtain necessary labor, materials or facilities, accidents, actions of governmental or civil authority, energy failure, acts of terrorism, fire, flood, hurricane or other acts of God. Supplier shall immediately notify Buyer of any such occurrence and the estimated duration of delay.
10. Proprietary Information. Any sketches, models, samples or other proprietary information of Supplier disclosed to Buyer shall remain the sole property of Supplier, and Buyer agrees that it shall treat such proprietary information as Supplier’s confidential information. No use or disclosure of such sketches, models, samples or other proprietary information, or any design or production techniques revealed thereby, shall be made without express written consent of Supplier. All right, title and interest in and to any proprietary or confidential information of Supplier and all intellectual property rights, whether or not capable of being patented or copyrighted, relating to the Products, including, but not limited to, any developments, improvements or modifications of the Products, shall remain with and inure to Supplier. Buyer recognizes Supplier’s exclusive ownership of the trademarks, trade names, logos, symbols and other proprietary information related to the Products and agrees not to take any action inconsistent with such ownership.
11. Warranties and Remedy. Supplier warrants that at the time of delivery as provided in Section 4 herein, all Products shall conform to the Specifications. THIS WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES NOT EXPRESSLY SET FORTH HEREIN, WHETHER EXPRESS OR IMPLIED BY LAW, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF MERCHANTABILITY OR THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
12. Indemnification. Buyer agrees to indemnify, defend and hold Supplier and its officers, directors, employees, agents and customers harmless from and against any and all liability, damage, cost or expense (including reasonable attorneys’ fees and costs of any action or threatened action or costs of collection), resulting from (i) Buyer’s breach of these Terms; (ii) any manufacture, sale, promotion, distribution or use of the Products by Buyer, including, without limitation, product liability or strict liability; (iii) Buyer’s exercise of control over the manufacturing of the Products, to the extent that Buyer’s instructions or directions violate applicable laws or regulations; (iv) any actual or alleged infringement or violation of any patent, trade secret, copyright, trademark or other proprietary rights used by Supplier in the manufacturing of the Products; or (v) Buyer’s (or any of Buyer’s agents’, employees’ or subcontractors’) negligence or intentionally wrongful acts or omissions.
13. Limitation of Liability. Supplier shall not be liable to Buyer for any claim for lost profits, indirect, incidental or consequential damages, or multiple damages. In addition, Buyer’s damages for any action against Supplier shall be capped at the amount of the applicable purchase order.
14. Governing Law; Arbitration. Any controversy or claim arising out of or relating to these Terms shall be determined by binding arbitration by a single arbitrator in accordance with the International Arbitration Rules of the American Arbitration Association. The place of arbitration shall be St. Louis, Missouri. These Terms shall be exclusively construed, applied and performed, according to the internal laws of the State of Missouri, U.S.A. (including, if and when applicable, the Uniform Commercial Code as adopted in the State of Missouri, and not the United Nations Convention on Contracts for the International Sale of Goods), without regard to the conflicts of laws provisions thereof. The language of arbitration shall be English. Judgment on any award rendered by the arbitrator may be entered by any court of competent jurisdiction. Buyer hereby submits to the jurisdiction of any state or federal court located in Missouri. The English version of these Terms shall govern and control any translation of the Terms into any other language.
15. Import Licenses; Compliance with Law. Buyer shall obtain, at its sole cost and expense, any import licenses and governmental approvals that may be necessary to permit the sale and the purchase of Products hereunder, comply with all Product and distribution registration requirements in all territories where it sells such Products and comply with any and all applicable laws, regulations, and orders of the Buyer’s own jurisdiction or any jurisdiction of distribution or sale and of the U.S. Without limiting the foregoing, Buyer shall comply with all U.S. export (including the Treasury Department’s Office of Foreign Assets Control regulations which prohibit U.S. persons transshipping products to embargoed countries), antiboycott and foreign corrupt practice laws including, without limitation, the Foreign Corrupt Practices Act, Executive Order No. 13224, the USA Patriot Act and any regulations promulgated pursuant to the foregoing acts. At Supplier’s request, Buyer shall complete any forms or take other action that Supplier deems necessary for the parties to comply with applicable export laws in connection with these Terms. Buyer shall (i) prepare and file at its sole cost and expense all reports required by any governmental body in its territory, and (ii) pay all taxes and other similar charges imposed upon the Products.
16. Miscellaneous. Supplier reserves the right to change, amend or modify these Terms at any time and from time to time in its sole and absolute discretion, without notification to Buyer. Invalidity or unenforceability of any Term shall not affect the validity or enforceability of any other Term. Failure of Supplier to insist, in any one or more instances, upon performance of any Term shall not be construed as a waiver or relinquishment of any right granted hereunder or the future performance of such Term. Supplier’s rights under these Terms shall be in addition to any other rights Supplier may have and shall not prejudice any such right.
17. Entire Agreement. THE TERMS SET FORTH HEREIN TOGETHER WITH ANY FORMAL SALE AGREEMENT AND PURCHASE ORDER CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES AS TO THE SALE(S) OF PRODUCT BETWEEN THE PARTIES AND SUPERSEDES ALL PRIOR AGREEMENTS, CONDITIONS OR COMMUNICATIONS, WRITTEN OR ORAL. IN CASE OF CONFLICT IN TERMS AMONG DOCUMENTS PERTAINING TO THIS TRANSACTION, THE ORDER OF AUTHORITY OF TERMS SHALL BE (1) THE TERMS OF THE PURCHASE ORDER, (2) THE TERMS OF THE SALES OR SUPPLY AGREEMENT, (3) THESE TERMS, AND (4) APPLICABLE STANDARD TERMS OF THE PURCHASER ACCEPTED AS A PART OF THE TRANSACTION.