ACCEPTANCE. This form constitutes Seller’s offer to sell the goods described on the face of this form (collectively the “Goods”). Acceptance of this offer is expressly limited to the terms of this form (also referred to herein as the “Agreement”). Acceptance shall occur when Buyer submits a purchase order to Seller. Any terms or conditions in Buyer’s acceptance which are additional to or different from the terms and conditions of this form shall be deemed objected to by Seller and waived by Buyer. Such additional and different terms shall be of no effect.
PAYMENT. Payment is due 30 days after the date of Seller’s invoice, unless otherwise specified by Seller. Seller may invoice each shipment separately. Time is of the essence for payment. All late payments may be charged interest from the due date until paid in full at the rate of (1.5%) per month or the maximum rate permitted by law, whichever is less. Seller may alter the payment terms, or require full or partial payment in advance of shipment at any time when, in Seller’s sole opinion, Buyer’s financial condition or previous payment record makes such alteration or requirement advisable. If Buyer is delinquent in any payment it owes to Seller under this or any other agreement, Seller shall not be obligated to continue its performance under any agreement with Buyer and Seller may, at its option, terminate this agreement or withhold deliveries. Payments due to Seller under this agreement are NOT subject to deduction by Buyer for any setoff or counterclaim arising out of this agreement or any other transactions between Buyer and Seller. Seller owns any Goods shipped or being held for Buyer until Seller is paid in full. Credits are not automatically applied to future invoices. Buyer must request a credit be used toward payment.
PRICE. All prices quoted are exclusive of freight, insurance, pallets and taxes unless otherwise specified. All quoted prices are subject to increase at any time without notice to reflect any increase in Seller’s cost, including without time limit the costs of labor and materials. All figures are quoted in U.S. funds. Payments are to be made in immediately available funds in U.S. dollars or by U.S. bank draft or by U.S. money order unless otherwise specified.
BUYER PROHIBITED FROM SELLING GOODS ONLINE. Buyer may not resell any of the Goods online, whether through its own online sales system or any third party sales platform, unless approved by Seller.
TAXES. Buyer agrees to pay all federal, state, and local taxes which may relate to the Goods or their sale, including without limit sales and use taxes, unless valid documentation is provided to Seller by Buyer. Such taxes shall be added to the price of the Goods by Seller. Buyer agrees to indemnify Seller against any liability (including without limit penalties, interest and legal fees) arising from Seller’s failure to collect or withhold taxes on the sale of the Goods.
SHIPMENT. Buyer is responsible for all shipping charges. All shipments shall be freight collect and F.O.B. Seller’s production facility unless otherwise specified. Title to the Goods shall pass when the truck carrying the Goods leaves Seller’s production facility or warehouse. Thereafter, Buyer assumes all risk of loss. Seller may ship the Goods in several lots and each shipment shall be considered a separate and independent transaction. Shipping rates are approximate and are not guarantee. Any special shipping request should be clearly stated on Buyer’s purchase order to Seller.
INSPECTION AND ACCEPTANCE OF GOODS. Buyer shall inspect all Goods within 15 days of receipt. Goods will be deemed accepted by Buyer upon receipt unless Seller receives written notice from Buyer of claim shortage, defect, or nonconformance within 15 days after Buyer’s receipt of such Goods. Any claims with respect to Goods that are not made by Buyer within 15 days after Buyer’s receipt of such Goods shall be deemed waived by Buyer. Buyer agrees that 15 days is a reasonable amount of time in which to inspect the Goods for shortage, defect, or nonconformance.
RETURNS. Defective Goods consist of Goods that do not meet the product specifications for the Goods. The return of defective Goods is granted ONLY with written authorization from Seller and the further requirement that such Goods are returned within 15 days of the date of the applicable Seller’s written authorization. Absolutely no returns will be accepted after 30 days of the original ship date. Seller will inspect all returns upon receipt. Seller will only honor defect claims verified by Seller.
CANCELLATIONS. In the event of order cancellation, Buyer will be responsible for all raw materials, packaging, work in progress, and finished
goods.
WARRANTY. Buyer understands that SELLER MAKES NO IMPLIED WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PRODUCT AND SELLER MAKES NO OTHER WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE GOODS. With respect to Goods that do not conform to this warranty due to Seller’s fault, subject to Seller’s indemnification obligations, Seller’s sole and exclusive obligation shall be to replace the Goods for up to 6 months after the date of manufacture. Seller shall not be obliged to replace or refund the price of the Goods that have been in any way altered, misused, abused or damaged by Buyer or its agents.
LIMITATION OF SELLER’S LIABILITY. Seller will indemnify, defend, and hold Buyer harmless from and against any and all demands, actions, and causes of action, costs, losses, expenses (including reasonable attorneys’ fees), or damages which are hereafter made or brought against Buyer by any person or representative of such person for the bodily injury, illness, sickness, disease, and/ or death of any person arising out of any breach of the foregoing warranties or any defective and unreasonably dangerous condition of the Goods delivered by Seller hereunder, provided Buyer gives Seller prompt notice in writing of the institution of such suit and permits Seller to have the sole control and conduct of the defense thereof, provided no reservation of rights exist. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFIT, REVENUE, OR USE EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Buyer agrees that this exclusion of consequential damages shall remain in full force and effect even if the remedies for breach of warranty provided in this agreement shall fail in their essential purpose.
SECURITY INTEREST. Buyer grants to Seller (and Seller retains) a security interest in the Goods delivered to Buyer and in their replacement, accessions, and proceeds (including without limit accounts receivable) to secure Buyer’s payment of all amounts due under this agreement. Buyer agrees from time to time, to take any act and execute and deliver any document reasonably requested by Seller to create, perfect, preserve, protect, or enforce this security interest.
INTELLECTUAL PROPERTY. Seller retains all copyright, trademark, and patent rights to the Goods.
PUBLICITY. Buyer may publish notice, advertisements, press releases, or other communications with respect to this agreement, its contents, or the Goods, but Buyer must first obtain Seller’s written consent after opportunity to review the proposed notice, advertisement, press release, or communication.
FORCE MAJEURE. Seller shall not be liable to Buyer for nonperformance or delays in performance due wholly or partly to any cause beyond Seller’s control, including without limit acts of God, acts of Buyer, acts of civil or military authorities, war, terrorism, insurrection, strike labor disputes, accidents, floods, fire, lightning, delay in transportation, and inability to obtain necessary labor, materials or manufacturing facilities. In the event of any delay caused by such acts, the dates for performance shall be extended by a period equal to the time lost by such delay(s).
GOVERNING LAW. The interpretation and performance of this agreement and all transactions hereunder shall be governed by the laws of the State of Delaware applicable to contracts made and performed wholly within Delaware. The captions used in this form are for convenience only and shall not limit or amplify the terms of this form. Any dispute, claim or controversy arising out of or relating to this agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in the State of Vermont before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. Judgment on the award may be entered in any court in the State of Vermont. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court in the State of Vermont and the parties hereby consent to the personal jurisdiction of those courts and waive any objection which they may now or later have to suits, actions, arbitration or proceedings in such courts or in such venue. Buyer shall pay the reasonable attorneys’ fees, collection costs, and court costs incurred by Seller as a result of a breach by Buyer of this agreement, whether or not arbitration or litigation is instituted by Seller to remedy such breach.
ASSIGNMENT. Neither party may assign this agreement in whole or in part without the prior written consent of the other; provided, however, that Seller may subcontract any of its obligations under this agreement to subcontractors.
ENTIRE AGREEMENT. The terms and conditions of this form constitute the entire agreement and understanding between Buyer and Seller concerning the Goods. Seller shall not be required to perform any operations on the Goods to be manufactured except those operations, if any, specifically listed in this form. No change, addition, waiver or termination of any terms or conditions of this form shall be binding upon Seller unless in writing and signed by Seller. Any increased cost to Seller resulting from any such change or addition shall be paid by Buyer to Seller. The rights and remedies granted to Seller in this form are cumulative and additional to any other rights and remedies Seller has in law or equity. Failure by either party at any time to enforce any provision of this agreement against the other shall not be construed as a waiver of such entitlement and shall not affect the validity of this agreement or any part or parts hereof or the right of the relevant party to enforce any provision in accordance with its terms. The rights and/or remedies of either party may only be waived by formal written waiver which is signed by a duly authorized representative of the party waiving its rights and which makes express and unequivocal reference to the waiver being made.