These Terms and Conditions are accessible through hyperlinks on certain pages of various websites owned and operated by or for Vivion LLC, a California limited liability company (“Seller”), including without limitation, Seller’s websites at:
and through hyperlinks contained in or URL addresses otherwise specified in quotations, purchase orders, due diligence information forms and invoices promulgated by Seller (collectively, the “Ordering Document(s)”, and each an “Ordering Document”), which apply to the sale and purchase of (i) tablet presses, capsule fillers, mixers and such other equipment as Seller may sell from time to time (collectively, “Equipment”); (ii) binding agents, flowing agents, lubricants, super-disintegrants and other excipients (collectively, “Excipients”); and (iii) such other products as Seller may manufacture and/or otherwise offer for sale from time to time (“Extras”). “Equipment”, “Excipients” and “Extras” are sometimes hereinafter collectively referred to herein as the “Products”, whether one or more). AS NOTED IN THE ORDERING DOCUMENT(S), THESE TERMS AND CONDITIONS ARE INCORPORATED THEREIN BY REFERENCE AND GOVERN THE PARTIES’ RESPECTIVE RIGHTS AND OBLIGATIONS RELATING TO ANY AND ALL SUCH PRODUCTS YOU AND/OR THE BUYER MAY PURCHASE FROM SELLER.
As used herein, “You”, “your” or “Buyer” means the individual and/or legal entity identified as being the buyer in the applicable Ordering Document(s), and “we”, “our” or “Seller” means the Seller identified above, its successors or assigns.
AFFIRMATION OF YOUR AGREEMENT TO BE BOUND
BY YOUR CONDUCT IN SUBMITTING AN ORDERING DOCUMENT TO SELLER, AND EACH TIME YOU DO SO, YOU SHALL AND DO THEREBY:
1. REPRESENT AND WARRANT to Seller, its affiliates, and their respective officers, managers, members, successors and assigns that:
2. COVENANT AND AGREE THAT YOU WILL NOT USE, OR OTHERWISE PERMIT OR ALLOW ANY PRODUCTS YOU PURCHASE FROM SELLER TO BE USED FOR ANY UNLAWFUL PURPOSE OR IN ANY MANNER WHICH IS IN VIOLATION OF APPLICABLE FEDERAL, STATE AND LOCAL LAWS, RULES, REGULATIONS AND ORDINANCES OF ANY KIND, INCLUDING WITHOUT LIMTATION, THE CONTROLLED SUBSTANCES ACT (Title 21, U.S. Code Ann. §811 et. seq.), THE COMPREHENSIVE DRUG ABUSE PREVENTION AND CONTROL ACT OF 1970, AND RULES AND REGULATIONS PROMULGATED BY THE U.S. JUSTICE DEPARTMENT, DRUG ENFORCEMENT ADMINISTRATION, DIVERSION CONTROL DIVISION, AS AMENDED FROM TIME TO TIME (COLLECTIVELY, “APPLICABLE LAWS”).
3. ACKNOWLEDGE AND AGREE THAT (1) SELLER IS REQUIRED BY LAW TO PROVIDE, AND WILL PROVIDE ANY INFORMATION YOU AND/OR BUYER PROVIDE TO SELLER, TO THE DEA AND OTHER AUTHORITIES AS REQUESTED AND/OR AS NECESSARY FOR SELLER TO COMPLY WITH APPLICABLE LAWS; (2) you have reviewed, understand and agree to be bound by these Terms and Conditions, (3) Seller may modify such Terms and Conditions from time to time without notice to you, (4) the Terms and Conditions which will apply to each ordering document you submit will be the Terms and Conditions which were in effect as of
the date you submitted the particular Ordering Document in question to Seller, and (5) Seller has not made any representations or warranties, whether express or implied, regarding the equipment or any component parts (as defined below) or its suitability for any particular purpose, except those representations and warranties which are expressly set forth herein in writing.
Additional Details
For and in consideration of the matters discussed above and the parties’ respective obligations herein and under the Ordering Document(s), Buyer and Seller each hereby agree as follows:
1. Delivery; Shipping Terms.
a. Products will be delivered to you within a reasonable period of time after Seller’s receipt and acceptance of your Ordering Document(s), subject to availability of finished goods and products which are ready for shipment. SELLER SHALL NOT BE LIABLE FOR ANY DELAYS, LOSS OR DAMAGE TO THE
PRODUCTS WHICH OCCURS WHILE IN THE POSSESSION OR CONTROL OF A COMMON CARRIER (DEFINED BELOW) OR ANYONE OTHER THAN SELLER, OR FOR DELAYS CAUSED BY YOUR FAILURE TO TIMELY SUBMIT ALL ORDERING DOCUMENT(S) WHICH SELLER MAY REASONABLY REQUIRE AS A PRE-CONDITION TO ITS DELIVERY OF THE PRODUCTS.
b. Seller shall deliver any Products sold hereunder FOB Shipping Point at Seller’s warehouse located at 6601 Will Rogers Blvd., Fort Worth, Texas 76410 (“Seller’s Warehouse”) using Seller’s standard methods for packaging and shipping. You shall take delivery of the Products within fourteen (14) days after your receipt of Seller’s written notice that the Products are ready for pick up at Seller’s Warehouse (the “Delivery Notice”), or otherwise provide Seller with shipping information and a bill of lading from a nationally recognized common carrier (each, a “Common Carrier”) of your choosing. If you fail to take delivery of such Products at Seller’s Warehouse or to otherwise provide Seller with your shipping information and a bill of lading from your chosen Common Carrier within such period of time, then Seller may, but shall have no obligation to arrange for shipment of the Products through a Common Carrier of Seller’s choosing to the location specified in the applicable Ordering Document(s) (the “Shipping Destination”), at your sole cost and expense. In either event, you will be solely responsible for all shipping costs and all risk of loss once the Products leave the Seller’s Warehouse.
c. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to you. In such event, each separate shipment will constitute a separate sale and you shall pay for each unit of Products shipped, regardless of whether such shipment is in whole or partial fulfillment of the Products described in the particular Ordering Document at issue.
d. If Buyer fails for any reason to accept delivery of the Products or any portion thereof on the date specified in the Seller’s Delivery Notice or if Buyer otherwise fails to provide appropriate access, instructions, documents, licenses or authorizations, the absence of which prevents or renders Seller unable to deliver the Products to the specified Shipping Destination (if applicable), then the Products shall be deemed to have been delivered to you for all purposes, and in good and acceptable condition. In such event, (i) the Seller may, but shall have no obligation to, retake possession of the Products from Buyer’s Common Carrier and store such Products at Buyer’s sole cost and expense until such time as Buyer makes alternate arrangements for pickup or delivery, and (ii) Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance costs), and subject to risk of loss in the event that the Products are lost, stolen or damaged by fire or other casualty loss of any kind, in whole or in party, and whether in storage, in transit, or otherwise.
2. Non-Delivery.
a. The quantity of any shipment of Products as recorded by Seller on dispatch from Seller’s Warehouse is conclusive evidence of the quantity you actually received upon delivery, unless you provide conclusive evidence proving the contrary within five (5) business days after the date upon which the Products were delivered or should have been delivered in due course. Seller shall not be liable for any non-delivery of Products unless you give Seller written notice of such non-delivery within five (5) business days after the date upon which the Products should have been received in due course. In such event, Seller’s liability for non-delivery of any Products shall be limited to
replacing the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered.
3. Title and Risk of Loss. Title and risk of loss passes to Buyer upon Seller’s delivery of the Products to you or a Common Carrier at the Seller’s Warehouse. As collateral security for the payment of the purchase price of the Products, you hereby grant Seller a lien on and security interest in and to all of your right, title and interest in and to the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Texas Uniform Commercial Code.
4. Amendment and Modification. These Terms and Conditions may only be amended or modified in a writing which specifically states that it amends the Terms and Conditions that were in effect as of the date of the particular Ordering Document(s) to which the amendment or modification purports to apply, and which is signed by an authorized representative of each party. In no event, however, should the foregoing be construed as prohibiting Seller from amending or modifying the Terms and Conditions that will apply to any Ordering Document(s) which you may hereafter submit in the future.
5. Inspection and Rejection of Nonconforming Products.
a. BUYER MUST PERFORM A DETAILED, INITIAL INSPECTION AT THE TIME
OF DELIVERY (EACH, AN “INSPECTION UPON DELIVERY”) OF THE BOX, CRATE OR OTHER PACKAGING IN WHICH ANY PRODUCTS ARE SHIPPED (“PACKAGING”) AND BEFORE SIGNING FOR THE SHIPMENT OR OTHERWISE ACKNOWLEDGING ITS RECEIPT AND ACCEPTANCE OF SUCH PRODUCTS FROM THE COMMON CARRIER. As part of this detailed, initial inspection, Buyer must inspect and take note of the condition of any shock-recorders, drop sensors and/or similar impact detection sensors (each, an “Shock Recorder”) which Seller may have affixed to the Packaging and notify Seller immediately if the Shock Recorder indicates that the Packaging has been dropped or suffered some other form of impact or the Packaging otherwise shows evidence of mishandling by the Common Carrier. IF THE BUYER HAS ANY REASON TO
BELIEVE THAT THE PACKING OR PRODUCTS MAY HAVE BEEN DAMAGED WHILE IN THE POSSESSION OR CONTROL OF A COMMON CARRIER, THEN BUYER MUST AFFIRMATIVELY REJECT THE SHIPMENT AND PROMPTLY NOTIFY SELLER IN WRITING OF ITS REJECTION OF THE SHIPMENT AND THE REASONS FOR SUCH REJECTION.
If Buyer fails to perform an inspection upon delivery or to otherwise reject any shipment which it should have rejected according to the terms set forth above, then Buyer shall be deemed to have accepted such Products in their “AS IS” condition upon delivery and shall have no further right to reject such Products because of any damage which may have occurred while in the possession or control of a Common Carrier, whether patent, latent or otherwise, on grounds that the Products are Non-Conforming Products (defined below). Nor shall any such Products be regarded as being defective, to the extent that the alleged defect could have reasonably been caused by being dropped or by some other impact, or some other damage which occurred while the Products were in the possession or control of a Common Carrier.
b. Unless Buyer rejects a shipment of Products as provided above, it must perform a more detailed inspection of the Products within seven (7) days after its receipt thereof (the “Inspection Period”). Buyer must further notify Seller in writing before the expiration of the Inspection Period of any Non-Conforming Products and provide Seller with such photographs or other evidence and documentation as Seller may reasonably require. For purposes of this provision, “Non-Conforming Products” means any Products that differ from the Products described in the applicable Ordering Document or shipping manifest. If Buyer fails to notify Seller of any Non-Conforming Products in a timely manner, then it will be deemed to have accepted the Products for all purposes. Time is of the essence with regard to Buyer’s notification obligations hereunder.
c. If Buyer notifies Seller of any Nonconforming Products in a timely manner, then Seller shall, at its sole discretion, either (i) replace such Nonconforming Products with conforming Products, or (ii) issue a credit or refund to Buyer for the purchase price for such Nonconforming Products; provided, that in either case, Buyer has first shipped the Nonconforming Products back to Seller’s Warehouse at Seller’s sole cost and expense, and according to Seller’s written instructions. If Seller exercises its option to replace any Nonconforming Products as
opposed to issuing a credit or refund, then once it is in receipt of the Nonconforming Products, Seller shall ship the replacement Products to Buyer according to the same terms set forth in Section 1 above.
d. Buyer acknowledges and agrees that the remedies set forth in this Section are Buyer’s exclusive remedies for the delivery of Nonconforming Products, and that Buyer has no right to return Products purchased under this Agreement to Seller except as otherwise expressly provided above.
6. Price. Buyer shall purchase the Products from Seller at the prices specified in the applicable Ordering Document(s) (the “Prices”). Prices are exclusive of any and all applicable sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
7. Payment Terms.
a. Buyer shall pay all invoiced amounts due to Seller in advance upon receipt of Seller’s invoice and prior to Seller’s fulfillment of the applicable Ordering Document. Buyer shall make all payments hereunder in US dollars by wire transfer or other means of payment acceptable to Seller.
b. To the extent that Seller ever delivers Products to Buyer without otherwise requiring full payment in advance, and that Buyer does not thereafter pay Seller’s invoices for such Products within ten (10) days after the dates thereof, Buyer shall pay interest on all late payments at the lesser of 1.5% per month or the highest rate permissible under applicable law, compounded monthly. In addition, Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, Seller’s attorneys’ fees, court costs and fees of collection agencies. In addition to the remedies available under these Terms and Conditions, Seller reserves the right to pursue such other remedies to which Seller may be entitled at law or in equity, and to further suspend or delay the delivery of any Products which Buyer has not paid for in full in advance, and any other Products which Buyer may order so long as Buyer has any amounts due and payable under any other Ordering Document(s). Amounts payable to Seller hereunder shall not be subject to off-set or reduction due to any claim or dispute with Seller, whether relating to Seller’s breach or otherwise, and Buyer covenants and agrees not to withhold payment of any amounts due and payable to Seller hereunder on account of any such offsets or reductions.
c. Much of the Equipment offered for sale by Seller is built to order and requires various parts and tooling to be custom-made to the Buyer’s particular specifications and requirements. Due to the customized nature of such Equipment, such parts and tooling will have little or no value or utility to Seller or anyone other than Buyer. As a result, Seller expressly reserves the right to require Buyer to submit a non-refundable prepayment or deposit (each, a “Non-Refundable Deposit” or “NRD”) to Seller as condition precedent to Seller’s acceptance of any particular Ordering Document(s) and to the Seller’s performance of its obligations thereunder. BUYER ACKNOWLEDGES AND AGREES THAT (I) NRD’S WILL ONLY BE APPLIED TO THE PURCHASE PRICE OF THE PRODUCT(S) TO WHICH THEY ARE INITIALLY APPLIED; (II) NRD’s CANNOT BE TRANSFERRED TO OTHER ORDERING DOCUMENT(S) OR OTHERWISE APPLIED TO OTHER ORDERS OR PRODUCTS; AND (III)THE AMOUNT OF NRD’S MAY VARY AS BETWEEN DIFFERENT PRODUCTS, AND WILL BE IN SUCH AMOUNTS AS SELLER MAY DETERMINE FROM TIME TO TIME IN ITS SOLE DISCRETION, WHICH MAY BE AS HIGH AS ONE HUNDRED PERCENT (100%) OF THE PURCHASE PRICE FOR SOME PRODUCTS, INCLUDING WITHOUT LIMITATION, CUSTOM TOOLING. BUYER FURTHER SHALL AND DOES HEREBY WAIVE ALL RIGHTS RELATIVE TO NRD’S PAID IN RESPECT OF ANY PARTICULAR ORDERING DOCUMENT(S), IF BUYER CANCELS THE UNDERLYING ORDER OR OTHERWISE REFUSES TO ACCEPT DELIVERY OF EQUIPMENT WHICH SELLER REASONABLY DETERMINES TO BE IN CONFORMANCE WITH ANY SPECIFICATIONS OR REQUIREMENTS SET FOR IN AND AGREED TO BY BUYER IN THE APPLICABLE ORDERING DOCUMENT(S).
8. Limited Warranties.
a. Seller warrants to Buyer that for a period of twelve (12) months from the date of shipment of any Equipment (the “Equipment Warranty Period”), such Equipment will materially conform to Seller’s published
specifications in effect as of the date of shipment and will be free from material defects in materials and workmanship (the “Limited Equipment Warranty”); provided, however, that the foregoing Limited Equipment Warranty does not include labor costs, and nor does it cover reasonable wear and tear of tooling and other parts which are subject thereto, and which may reasonably require replacement from time to time after so many hours of use, even during the Equipment Warranty Period.
b. Seller warrants to Buyer that for a period of thirty (30) days from the date of shipment of any of the Excipients or Extras (the “Excipient/Extras Warranty Period”), such Excipients or Extras will materially conform to Seller’s published specifications in effect as of the date of shipment and will be free from material defects in materials and workmanship (the “Limited Excipient/Extras Warranty”); provided, however, that the foregoing Limited Excipient/Extras Warranty will not apply unless (i) the Buyer personally takes delivery of the Excipients or Extras in question at the Seller’s Warehouse and thereafter transports, stores and maintains such Excipients or Extras at such temperatures and other environmental variables as are consistent with Seller’s recommended guidelines; or
(ii)the Buyer pays to have the Excipients or Extras in question shipped to Buyer by Common Carrier in a refrigerated box truck and/or a thermally insulated shipping container or other packaging, if necessary in order to conform with Sellers’ recommended shipping guidelines for such Excipients or Extras, within three (3) days after leaving the Seller’s Warehouse, and upon Buyer’s receipt, thereafter transports, stores and maintains such Excipients or Extras at such temperatures and other environmental variables as are consistent with Seller’s recommended guidelines.
c. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 8.a. AND 8.b.
ABOVE, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE EQUIPMENT, EXCIPIENTS OR EXTRAS, INCLUDING WITHOUT LIMITATION, ANY (I) WARRANTY OF MERCHANTABILITY; (II) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (III) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE; AND BUYER SHALL AND DOES HEREBY WAIVE ANY CLAIMS TO THE CONTRARY.
d. TO THE EXTENT THAT ANY COMPONENT PARTS OF ANY PARTICULAR ITEM(S) OF EQUIPMENT ARE MANUFACTURED BY A THIRD PARTY AND COVERED BY A WARRANTY (EACH, A “THIRD-PARTY MANUFACTURER’S WARRANTY”) WHICH IS ASSIGNABLE TO THIRD PARTIES), SELLER SHALL, UPON BUYER’S WRITTEN REQUEST, EXECUTE SUCH DOCUMENTS AS BUYER MAY REASONABLY REQUEST EVIDENCING SELLER’S TRANSFER AND ASSIGNMENT OF SUCH THIRD-PARTY MANUFACTURER’S WARRANTY TO BUYER IN RESPECT OF THE EQUIPMENT AT ISSUE, AND SHALL FURTHER PROVIDE SUCH COOPERATION AND ADMINISTRATIVE ASSISTANCE AS BUYER MAY REASONABLY REQUEST IN CONNECTION WITH THE TRANSFER AND ASSIGNMENT OF SUCH THIRD-PARTY MANUFACTURER’S WARRANTY FROM SELLER TO BUYER, IN RESPECT OF THE EQUIPMENT AT ISSUE. EXCEPT AS AFORESAID, HOWEVER, SELLER SHALL HAVE NO LIABILITY IN REGARD TO ANY THIRD-PARTY MANUFACTURER WARRANTIES.
e. The Seller shall have no liability whatsoever for any breach of the Limited Equipment Warranty or the Limited Excipient/Extras Warranty unless: (i) Buyer gives written notice of the defect, within thirty
(30)days after the date upon which Buyer discovers or ought to have discovered the defect; (ii) Buyer provides Seller with such additional information, photographs, videos and other evidence as Seller may reasonably request within five
(5)business days after Buyer’s receipt of Seller’s request; (iii) Seller is afforded reasonable opportunity to examine the allegedly defective Equipment, Excipients or Extras in person after receiving such notice of defect, and to the extent requested by Seller, Buyer has further shipped the Equipment, Excipients or Extras to Seller’s Warehouse in order to allow for such comprehensive examination using the same shipping method by which Products were originally received by Buyer; and (iv) Seller has verified Buyer’s claim that the Equipment or particular Excipient or Extras at issue is/are defective.
f. The Seller shall not be liable for a breach of the Limited Equipment Warranty if Buyer: (i) continues to use the Equipment at issue after having actual knowledge or good cause to believe that the Equipment is or may be defective, or otherwise having notified Seller that the Equipment is or may be defective; (ii) fails to follow Seller’s written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment; (iii)
alters or modifies or attempts to alter or modify the Equipment in any way, (iv) repairs or otherwise attempts to repair any Equipment, or otherwise permits or allows anyone other than Seller to repair or attempt to repair the Equipment; or (v) claims or contends that the Equipment fails to satisfy Buyer’s requirements, but is nonetheless determined by Seller to be in compliance with Seller’s published specifications and without material defects in materials or workmanship. Similarly, the Seller shall not be liable for a breach of the Limited Excipient/Extras Warranty if Buyer:
(i)continues to use the Excipient or Extras at issue after having actual knowledge or good cause to believe that the Excipients or Extras are or may be defective, or otherwise having notified Seller that the Excipients or Extras are or may be defective; (ii) fails to follow Seller’s written instructions or guidelines relating to the storage, installation, commissioning, use or maintenance of the Excipients or Extras; or (iii) claims or contends that the Excipients or Extras fail to satisfy Buyer’s requirements, but is nonetheless determined by Seller to be in compliance with Seller’s published specifications and without material defects in materials or workmanship.
g. Subject to the limitations set forth in Subsections 8.d., 8.e. and 8.f. above, Seller shall, in
its sole discretion, either: (i) repair or replace any Equipment, Excipients or Extras which it has verified to be defective, or (ii) credit or refund the purchase price actually paid by Buyer for such Products; provided, that (1) Seller’s obligation to replace any such Products or credit or refund the purchase price shall be conditioned upon the Buyer’s return of such Products to Seller, at the Seller’s cost and expense, and (2) the amount of any credit or refund shall be determined by amortizing the cost of any Equipment at issue on a straight-line basis over a period of twelve (12) months, and subtracting the amount of the amortized costs allocable to the period from the date upon the Equipment was delivered through the date upon which the warranty claim was made. THE REMEDIES SET FORTH IN THIS SECTION 8.f. SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDIES AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY.
9. LIMITATION OF LIABILITY.
a. IN NO EVENT SHALL SELLER, ITS AFFILIATES, AND THEIR RESPECTIVE
OFFICERS, MANAGERS, MEMBERS, SUCCESSORS AND ASSIGNS BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
b. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), STRICT LIABILTY OR OTHERWISE (COLLECTIVELY, “CLAIMS”), EXCEED THE AMOUNT ACTUALLY PAID TO SELLER BY BUYER UNDER THE APPLICABLE ORDERING DOCUMENT(S) FOR THE ITEM(S) OF EQUIPMENT WHICH ARE THE SUBJECT OF SUCH CLAIMS. The foregoing limitation of liability shall not apply, however, to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s affirmative acts.
10. Insurance Requirements. During the term of this Agreement and for a period of two (2) years thereafter, Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than One Million and No/100 Dollars ($1,000,000) with financially sound and reputable insurers. Upon Seller’s request, Buyer shall provide Seller with a certificate of insurance from Buyer’s insurer evidencing the insurance coverage specified in these Terms and Conditions. Buyer shall provide Seller with not less than thirty (30) days’ advance written notice in the event of a cancellation or material change in Buyer’s insurance policy. Except where prohibited by law, Buyer shall require its insurer to waive all rights of subrogation against Seller’s insurers and Seller.
11. Compliance with Law. Buyer covenants and agrees to (i) comply with all Applicable Laws in its use of any Products purchased from Seller, (ii) procure and maintain in effect all licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement, and/or in connection with its use of any Products purchased from Seller, and (iii) comply with all export and import laws of all countries involved in
the sale of the Products under this Agreement or any resale of the Products by Buyer. Buyer further represents and warrants, and further covenants and agrees, that it will not use any Products purchased from Seller hereunder in violation of any Applicable Laws. Buyer assumes all responsibility for shipments of Products requiring any government import clearance.
12. Termination. In addition to any remedies that may be provided under these Terms and Conditions, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) fails to perform or comply with any of its obligations under these Terms and Conditions, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
13. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
14. Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be used, copied or otherwise disclosed to any third party without Seller’s prior written request in each instance. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
15. Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond the Seller’s reasonable ability to control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) governmental orders, laws, or actions, including without limitation, those affecting public health in the event of a pandemic, pestilence or other public health emergency of any kind; (e) delays in delivery resulting from seizures or holds placed on any Products sold hereunder by U.S. customs, DEA or any other governmental officials of any kind, whether in the U.S. or of those countries to which any such Products are shipped;
(f) transportation difficulties, embargoes or blockades of any kind, whether in effect on or after the date of this Agreement; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns, or other industrial disturbances; (i) black-outs, brown-outs, shortages, failures and/or disruptions of electrical or other utilities of any kind, or the means and infrastructure used to deliver them to Seller; and (j) other events or occurrences of any kind beyond Seller’s ability to reasonable control. Upon the occurrence of a Force Majeure Event which prevents Seller from performing any of its obligations hereunder, it shall promptly give notice to Buyer stating the period of time that the event is expected to continue to prevent Seller from doing so. Seller shall use commercially reasonable, diligent efforts to perform its obligations hereunder notwithstanding the occurrence of the Force Majeure Event(s), and to minimize any disruption caused by the Force Majeure Event(s), and to resume the performance of its obligations as soon as reasonably practicable as the effects of the Force Majeure Event(s) diminish over time, or otherwise cease to prevent it from performing its obligations hereunder. In the event that Seller’s failure or delay remains uncured for a period of twelve (12) months following written notice given hereunder, the Buyer may terminate this Agreement and the associated Ordering Document(s) upon written notice to Seller. In such event, Seller shall promptly refund Buyer the full amount of its otherwise Non-Refundable Deposit, unless the failure or delay on any Products sold hereunder is the result of a seizure or hold on such Products by U.S. customs, DEA or any other governmental officials of any kind, whether in the U.S. or of those countries to which any such Products are shipped, in which case Buyer shall be deemed to have forfeited any and all right thereto.
16. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller, which may be withheld or denied by Seller in its sole and absolute discretion. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under these Terms and Conditions or the associated Ordering Document(s).
17. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
18. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
19. Governing Law and Jurisdiction. These Terms and Conditions and the associated Ordering Document(s) shall be governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Texas. Any lawsuit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Texas in each case located in the City of Fort Worth, Texas and County of Tarrant, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
20. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) must be in writing and addressed to the parties at the addresses set forth on the face of the applicable Ordering Document(s) or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only upon receipt of the receiving party, and if the party giving the Notice has complied with the requirements of this Section.
21. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
22. Survival. Provisions contained within these Terms and Conditions, which by their nature should apply beyond the expiration of earlier termination hereof, will remain in force after any termination or expiration of this Agreement including, without limitation, the following provisions: Insurance, Compliance with Laws, Confidential Information, Governing Law, Jurisdiction and Venue; and Survival.
23. Entire Agreement. These Terms and Conditions and Ordering Document(s) Buyer signs and submits to Seller, whether separately or together with these Terms and Conditions, comprise the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, relating to the Products and transactions contemplated therein. These Terms and Conditions prevail over any terms and conditions set forth in any alternate form of purchase order or other document that you may submit to Seller for its review and consideration, regardless of when or how you submit such purchase order or other document to Seller, and in no event will Seller’s fulfillment of alternate form of purchase order or other document order be construed as constituting or otherwise evidencing Seller’s acceptance of or agreement to be bound by any terms and conditions set forth therein, or as otherwise modifying or amending these Terms and Conditions, which shall govern and prevail over any and all such alternate forms, which shall be void and of no force or effect.