RP Construction Services, LLC General Terms and Conditions of Sale
1. DEFINITIONS. Capitalized terms that are not otherwise defined in the body of these General Terms and Conditions of Sale shall have the following meanings:
1.1. “Ancillary Costs” means any and all tariffs, levies, duties, freight or importation costs, supplier pricing, and currency exchange rates which Seller accounts for when providing its pricing estimates.
1.2. “Buyer” means the buying entity specified in the Purchase Order or SOW.
1.3. “Buyer Insolvency Event” means that Buyer experiences an adverse change in financial position or becomes a credit risk, or becomes insolvent, is placed in receivership, is reorganized or makes an assignment for the benefit of its creditors.
1.4. “Confidential Information” has the meaning set forth in Section 17.
1.5. “Defect” means any nonconforming part, defect, failure, inadequacy, or breach of any warranty related to a Product or Products.
1.6. “Deliverables” means any work product, reports, or other written materials developed and provided by Seller as part of the Services and required under a Purchase Order or SOW.
1.7. “Existing Agreement” means a mutually executed agreement between Buyer and Seller that governs the purchase and sales of Products and Services.
1.8. “Products” means the products, materials or goods purchased by Buyer from Seller, as more specifically described in the Purchase Order or SOW between Buyer and Seller.
1.9. “Product Return Policy” has the meaning set forth in Section 9.
1.10. “Purchase Order” means the document issued by Buyer and signed by both Buyer and Seller that describes the particular Products and/or Services that Buyer is purchasing from Seller hereunder and the price therefor.
1.11. “Recommendations” means any drawings, designs, suggestions, recommendations, or advice that Seller provides Buyer respecting the installation or use of Products or Services hereunder.
1.12. “Seller” means the selling entity specified in the Purchase Order or SOW.
1.13. “Seller Indemnitees” means Seller and its parent, affiliates, subsidiaries, directors, officers, employees, agents, successors, and permitted assigns.
1.14. “Services” means the specific tasks, functions, and responsibilities to be performed by Seller, and the Deliverables to be provided by Seller, as more specifically described in the Purchase Order or SOW between Buyer and Seller.
1.15. “SOW” means the document issued by Buyer and signed by both Buyer and Seller that describes the particular Services that Seller will provide to Buyer.
1.16. “Special-Order Product” means any Product that (i) Seller procures or specially stocks for Buyer (including Products that are custom made, modified, altered, or includes special features), (ii) is not readily saleable by Seller to other customers, or (iii) is identified by Seller as non-cancelable or non-returnable.
1.17. “Terms” means these General Terms and Conditions of Sale.
1.18. “Transaction Taxes” means any sales, use, and value-added taxes, goods and services taxes, duties, customs, tariffs, and other charges imposes by any national, state, or local government on the sale of the Products and Services however designated.
2. SCOPE OF AGREEMENT. Unless there is an Existing Agreement, these Terms govern the sale, purchase and use of Products and/or Services by Buyer from Seller and, together with the applicable Purchase Order and/or SOW, shall constitute the entire and separate agreement between the parties with respect to the purchase, sale, and use of such Products and/or Services. If a conflict arises between or among these Terms and a Purchase Order and/or SOW, these Terms shall prevail. If Buyer is accepting these Terms on behalf of another party, Buyer represents and warrants that Buyer has full authority to bind such party to these Terms. Any additional, preprinted or different terms contained on any purchase order, portal, or other communication from Buyer purporting to apply shall be deemed void and unenforceable and are expressly rejected. THESE TERMS WILL SUPERSEDE ANY TERMS OR CONDITIONS OF BUYER, WHETHER INCLUDED IN BUYER’S ORDER, IN PRE-ORDER NEGOTIATIONS OR IN ANY OTHER DOCUMENT. Buyer’s placement of a Purchase Order or receipt or acceptance of the Products and/or Services constitute acceptance of these Terms.
3. ORDERS. Seller has the right, in its sole discretion, to accept or reject any Purchase Order, in whole or in part, at any time prior to execution of that Purchase Order, and Seller also has the right to cancel any Purchase Order after that Purchase Order has been executed if there is an increase in Ancillary Costs after that execution date and Buyer is unwilling to agree to adjust the purchase price to offset such increased costs. Any change requested by the Buyer to any aspect of the scope of a Purchase Order and/or SOW must be agreed in writing by both parties and may result in a price and/or delivery adjustment as determined by Seller. Seller reserves the right to implement a minimum order size of $1,000 per Purchase Order. If a Purchase Order or SOW is terminated or suspended by modification, rescission or as otherwise provided in Sections 6 and 16, Buyer shall pay termination charges equal to Seller’s costs associated with the Purchase Order or SOW, as determined by generally accepted accounting principles, plus a reasonable profit on the entire Purchase Order and/or SOW. Seller’s costs shall include any amount Seller must pay to its suppliers and manufacturers relating to the relevant Purchase Order or SOW. Buyer agrees it cannot cancel any Purchase Order for any Special-Order Product without Seller’s consent, except as permitted in Section 16. If Buyer cancels a Purchase Order for Special-Order Product and Seller agrees to such cancellation, Buyer shall pay or reimburse Seller the purchase price of the Special-Order Products plus any associated cancellation fees. Seller retains the right and may, in its discretion, require a non-refundable deposit for any Special-Order Product ordered by Buyer. Purchase Orders for Products which are not Special-Order Products can only be canceled by Buyer if Buyer follows the procedures described in Section 9.
4. SERVICES. Buyer shall provide Seller with reasonable access to its premises and/or the project site as required to provide the Services. Seller may use subcontractors to perform its Services under a Purchase Order or SOW. Buyer shall not supervise or direct the performance of any Seller subcontractors. If Seller’s performance of any of its Services is prevented or delayed by Buyer: (a) Seller shall, without limiting its other rights or remedies under these Terms or as otherwise provided by law or equity, have the right to suspend or terminate performance of the Services; and (b) Buyer shall be liable for any costs and expenses sustained or incurred by Seller as a result thereof. Notwithstanding anything to the contrary contained herein, completion times for Services referenced in a Purchase Order or SOW are only estimates.
5. PRICE. Prices provided by Seller or in Seller estimates are subject to change without notice at any time prior to execution of the Purchase Order or SOW. Additionally, Seller may adjust prices after the execution of the Purchase Order or SOW to account for increases in Ancillary Costs. Unless otherwise extended in writing by Seller, all prices on a Seller estimate will expire and become invalid upon the earlier of the (a) expiration date stated therein, or (b) thirty (30) days from the date of Seller’s estimate, provided however, Seller reserves the right to update its estimate or price after that deadline in the event of an increase in Ancillary Costs. In such event, Seller will provide an updated estimate or price and will not ship Product or provide Services until Buyer receives and executes a Purchase Order with the correct price. Any typographical, clerical or manifest errors made by Seller in any estimate, acknowledgment or publication are subject to correction. Buyer is liable for applicable Transaction Taxes, and any related interest and penalties associated with such taxes, regardless of when such Transaction Taxes are levied or imposed, and subject to Seller’s right to cancel a Purchase Order under Section 3 if Buyer does not agree to pay a tariff increase occurring after the execution of that Purchase Order. Such Transaction Taxes shall be due whether or not included on the estimate, invoice, Purchase Order or SOW. Buyer shall provide Seller with proof of exemption from Transaction Taxes at least fifteen (15) business days before the invoice due date. If Buyer is exempt from any such tax, Buyer shall submit to Seller its certification of exemption in proper form, issued by the applicable taxing authority, prior to the execution of the Purchase Order or SOW. Buyer understands that Seller is not providing any tax advice or making any representation as to whether value added, use, sales, gross receipts and/or similar taxes apply to the purchase and sale of the Products or Services, nor is Seller making any representation about the availability of any federal, state, or local tax credits in connection with such purchase and sale, and that Buyer is solely responsible for engaging its own tax experts and reaching its own conclusion on the applicability of any such taxes or tax credits to the purchase and sale of the Products.
6. PAYMENT. Seller shall submit an invoice equal to twenty-five percent (25%) of the total price shown on the Purchase Order or SOW upon the effective date of such Purchase Order or SOW, and Seller shall submit invoices respecting the remaining seventy-five percent (75%) of the total price shown on the Purchase Order or SOW on a pro rata basis with each shipment of the Products under the Purchase Order or SOW. Buyer shall pay any Seller invoice within thirty (30) days from invoice date without any right to offset, counterclaim, holdback or deduction. Buyer must provide notice of any payment dispute within five (5) days of the date of the invoice or Buyer waives any right to dispute such invoice; however, any such dispute shall not delay timely payment to Seller. Late payments shall also be subject to interest at greater of a) the rate of eighteen percent (18%) per year, and b) the highest rate allowed by applicable law, which amount shall accrue daily on the unpaid balance until such time as the payment is received in full by Seller. All payments from Buyer shall be made via wire transfer of ACH transfer into the bank account of Seller. Seller reserves the right to require guarantees, security or payment in advance of shipment from Buyer. If Buyer fails to make any payment when due under this Agreement, Seller reserves the right to withhold the delivery of Products and/or Services under the Purchase Order or SOW or under any other Purchase Order or SOW between Seller and Buyer until the late payment (including any accrued interest thereon) is remedied in full by Buyer. If Seller determines to withhold any deliveries of Products and/or Services in accordance with the previous sentence, such withholding shall be treated the same as if Buyer had requested a delay or suspension in those deliveries. Seller shall also be entitled, in addition to all other remedies available at law or in equity, to suspend performance of any outstanding Purchase Orders or SOWs and to recover reasonable attorneys’ fees and/or other expenses incurred collecting all outstanding sums from Buyer or otherwise enforcing or successfully defending these Terms. Seller may set off any amount due from Buyer from any amounts due to Buyer.
7. LIEN RIGHTS. In addition to the rights set forth herein, Seller is entitled to pursue any and all lien rights and/or remedies to which it is entitled under applicable law in the event of nonpayment by Buyer. In that regard, Buyer hereby grants Seller a purchase money security interest in all Products sold hereunder and all proceeds therefrom, additions, and accessions thereto, until all charges have been paid in full together with all costs and expenses of Seller incurred in the collection of such indebtedness or the enforcement of this security interest. In the event of any breach of this Agreement, Seller shall have the rights and remedies of a secured creditor under the Uniform Commercial Code. Buyer agrees to provide such assistance as Seller may reasonably request, and authorizes Seller to prepare and file such financing statements or other documents as Seller believes are necessary or desirable, to perfect Seller’s lien rights in the Products.
8. SHIPPING. All Product shipments shall be FOB shipping point and Seller may, in its sole discretion, use any commercial carriers and method and route of transportation for shipment of the Products. Buyer shall be responsible for shipping charges, including all applicable freight, shipping, insurance and handling charges. Title to, and risk of loss of, the Products passes to Buyer upon the Products being made available at Seller’s facility for shipment. Shipping dates or other applicable performance dates are estimated on the basis of prompt receipt of the Purchase Order and all information, drawings and approvals required to be furnished by Buyer. In the event Buyer, verbally or in writing, confirms a delivery date with Seller but subsequently suspends the Purchase Order or is unable to accept delivery, Buyer shall reimburse Seller for all costs and expenses Seller incurs as a result thereof, including, but not limited to, reasonable storage costs. No delay in the shipment or delivery of any Products relieves Buyer of its obligations under these Terms. Seller reserves the right to make partial shipments without liability or penalty. Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of a Purchase Order.
9. ACCEPTANCE. Buyer shall be deemed to have accepted the Products and Services unless written notice of rejection is given to the Seller within five (5) business days from date of delivery of such Products or performance of such Services.
10. RETURNS. Product returns shall be made pursuant to this Section 9, or such other product return policies as Seller may issue to Buyer from time to time (the “Product Return Policy”). Seller reserves the right to apply re-stocking fees to any Product returns. The parties expressly agree that this Product Return Policy shall apply to any and all Products identified in the applicable Purchase Order. If Seller issues a separate Product Return Policy to Buyer, that Product Return Policy is incorporated by reference into these Terms and is binding on Buyer as if set forth in full. If a conflict arises between any such separate Product Return Policy and these Terms, these Terms shall prevail.
10.1. Credit will be issued for Products returned with Seller’s written approval (e.g., e-mail is sufficient) with a current return authorization (RA) number. Prior to returning Product, contact your sales representative for approval and instructions.
10.2. Returns will not be accepted without a predetermined RA number, issued and provided by Seller.
10.3. In order to receive a RA number, a return request must be made within 30 calendar days from the date the Products are delivered to the Buyer’s location specified in the Purchase Order. RA requests beyond such 30-day period may not be approved for return; unless explicitly approved by Seller, at its sole discretion. Products approved for return will be sent to Seller’s designated location within 30 calendar days from the date the RA number is issued, unless otherwise indicated by Seller in writing.
10.4. Seller will only accept the returns for Products that were purchased (i) directly from Seller; and (ii) directly by Buyer. For the avoidance of doubt, Seller will not accept returns from other parties not in privity of contract.
10.5. Products must be returned unopened, unused, unaltered, undamaged, untampered, in its original packaging, including all accessories and parts, and in resaleable condition. Electrical components must be unopened in order to be considered re-sellable. Seller reserves the right to deny any RA for Special-Order Product.
10.6. Seller reserves the right to apply a re-stocking fee for any Product return.
10.7. Once items are received and accepted by Seller as a returned item, Buyer’s refund will be processed within a reasonable timeframe. The refund will consist of the purchase price for the Product and associated sales tax minus the restocking fee. Seller does not refund the freight charge for the cost of shipping at the time of order. Buyer will be notified in the event Seller deems a Product will not receive a RA number. Such Product shall either be scrapped or returned to Buyer, at Buyer’s expense.
11. SHORTAGES. Buyer shall submit all claims for shortages in writing to Seller within five (5) days of receiving the Products; otherwise, such claims will be deemed waived. Quantities are subject to normal manufacturer allowances. In the case of wires and cables, such allowances are plus 10% and minus 5%.
12. RECOMMENDATIONS. Buyer acknowledges and agrees that any Recommendations are for informational and conceptual purposes only. Buyer acknowledges that in the event it follows any such Recommendations, it does so at its own risk and agrees that Seller will not be liable for any damage, claims, liabilities, or losses suffered by Buyer or any third party, directly or indirectly, due to Buyer following any Recommendations. Any legal or regulatory compliance obligations with respect to the use of the Products or Services shall remain Buyer’s sole responsibility, and nothing herein is intended to shift any such burden from Buyer to Seller.
13. WARRANTY.
13.1. Product Warranty. Seller is only a reseller of Products and shall transfer and assign to Buyer any and all transferable warranties made to Seller by the manufacturer of the Products. Seller expressly disclaims any independent warranty for any Products. Buyer’s sole and exclusive remedy for any actual or alleged Defects shall be limited to those warranties and remedies provided by the manufacturers of the Products. Seller is not responsible for obtaining or paying for access to, or uninstalling, installed Products, delivering replacement Products to the installation site, or installing replacement Products. In the event there is a Defect, Buyer shall contact Seller prior to contacting the manufacturer or licensor and involve Seller on any and all discussions and actions to be taken with such manufacturer. For the avoidance of doubt, the warranties described herein do not cover wear and tear and shall be ineffective and not apply to those Products that have been subjected to misuse, abuse, neglect, accident, damage, improper storage, improper installation, unauthorized modification, or improper maintenance or repair, including, but not limited to, use not in accordance with the manufacturer’s or other provider’s specifications, license or instructions. Any description or specification contained on Seller’s website, samples of Products, or other advertising is intended only to present a general description of the Product and do not constitute part of the Terms or any warranty unless expressly provided for in these Terms.
13.2. Buyer’s Information. Buyer acknowledges and agrees that, in performing its obligations under these Terms, Seller will rely upon the accuracy and completeness of the information and documentation Buyer provides, and that Seller’s performance is dependent on Buyer’s provision of complete and accurate information and data. It is Buyer’s responsibility to ensure that the Products and Services are the ones that it has requested and that all specifications and quantities are correct.
13.3. DISCLAIMER. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF, AND SELLER DISCLAIMS AND EXCLUDES, AND BUYER WAIVES, ALL OTHER EXPRESS AND IMPLIED WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AGAINST REDHIBITORY DEFECTS, CONFORMITY TO ANY REPRESENTATION, DESCRIPTION, OR SPECIFICATION, PERFORMANCE, NON-INFRINGEMENT, AND OF ANY OTHER TYPE, REGARDLESS OF WHETHER ARISING BY LAW (STATUTORY OR OTHERWISE), COURSE OF PERFORMANCE, COURSE OF DEALING, OR ANY OTHER LEGAL OR EQUITABLE BASIS. IN THE EVENT DISCLAIMER OF WARRANTY STATEMENTS ARE DISALLOWED BY LAW, SUCH EXPRESS OR IMPLIED WARRANTIES SHALL BE LIMITED IN DURATION TO THE LESSER OF THE APPLICABLE WARRANTY PERIOD OR THE MINIMUM PERIOD REQUIRED BY LAW. EXCEPT AS OTHERWISE SET FORTH HEREIN, THE PRODUCTS, AND SERVICES ARE PROVIDED “AS IS” EXCEPT TO THE EXTENT THE MANUFACTURER OR LICENSOR HONORS ANY WARRANTY EXPRESSLY MADE BY IT.
14. PROPRIETARY RIGHTS. LICENSE.
14.1. Intellectual Property Ownership. Each party shall retain ownership of all right, title and interest in and to its pre-existing intellectual property, Confidential Information, materials and/or Deliverables. Buyer grants to Seller a fully paid-up, non-exclusive, non-assignable, non-transferable, non-sublicensable license to use Buyer’s preexisting intellectual property provided by Buyer for the purpose of a Purchase Order or SOW to perform Seller’s obligations during the term of the applicable SOW or Purchase Order. Upon payment in full of the applicable fees, Seller grants Buyer a fully paid-up, limited, non- exclusive, non-assignable, non-transferable, non-sublicensable, perpetual license to use, for Buyer’s own internal business operations, the Deliverables. Services shall not be interpreted as “work for hire”.
15. INDEMNIFICATION.
15.1. By Seller. Seller hereby transfers any intellectual property indemnity from the manufacturer of Products and Services to Buyer. Seller’s obligation to indemnify Buyer shall not be greater than the intellectual property indemnity provided by the manufacturer of such Products and Services and shall only apply if Buyer complies with Section 14.3 herein. In the event of any such infringement claim, Seller shall, as Buyer’s sole and exclusive remedy, and at Seller’s sole option: (i) procure for Buyer the right to continue using the affected Products or Services; (ii) replace the affected Products or Services with non-infringing Products or Services; (iii) modify the affected Product or Services so they are non-infringing; or (iv) if fees were paid in advance, refund any prepaid fees associated with the affected Product or Services. Seller’s indemnification obligation does not apply if (a) Seller followed Buyer’s specifications, instructions or designs relating to the Products or Services; (b) Buyer continued to use the Products or Services after Seller informed Buyer of modifications required to avoid infringement; or (c) the alleged infringement results from Buyer’s misuse, modification or enhancement of the Products, and/or Services, whatever the case may be, or from the use of such in combination with other products not provided or approved by Seller.
15.2. By Buyer. Buyer shall indemnify and defend all Seller Indemnitees against any claims, demands, damages, liabilities and expenses (including court costs and reasonable attorneys’ fees) that Seller Indemnitees incur as a result of or in connection with: (a) any third-party claims arising from Buyer’s: (i) failure to obtain any consent, authorization or license required for Seller Indemnitees’ use of Buyer’s pre-existing intellectual property; (ii) use of the Product or Services in any manner (e.g., solely or in combination) not expressly permitted by these Terms or the applicable license agreement or specifications provided by the Product manufacturer or provider of Services; (iii) misuse, modifications, enhancements, or programming to the Products and/or Services; (iv) breach of its obligations, representations, and warranties under these Terms; or (v) negligence or other act or omission in connection with the performance of its obligations under these Terms; (b) Seller Indemnitees’ compliance with any technology, designs, instructions or requirements relating to the Products or Services, including any specifications provided by Buyer or a third party on Buyer’s behalf; and (c) any reasonable costs and attorneys’ fees and expenses required for Seller Indemnitees to respond to a subpoena, court order or other official government inquiry regarding Buyer’s use of the Product or Services.
15.3. Notification. The indemnified party shall: (i) provide prompt written notice to the indemnifying party; and (ii) reasonably cooperate in connection with the defense or settlement of the claim, including providing all reasonable information and assistance at the indemnifying party’s cost;, provided that the indemnifying party shall not be entitled to enter into any settlement that (1) fails to contain a complete release by the person asserting the claim as to all indemnity affected by the claim; (2) contains any sanction or restriction upon the conduct of any business by, or contains an injunction or other equitable relief upon, the indemnitee; or (3) involves a finding or admission of wrongdoing, violation of applicable law, or violation of the rights of any person by the indemnitee. Failure to provide timely notice that prejudices the indemnifying party shall relieve the indemnifying party of its obligations under these Terms to the extent the indemnifying party has been prejudiced and the failure to provide timely notice shall relieve the indemnifying party of any obligation to reimburse the indemnified party for its attorney’s fees incurred prior to notification.
15.4. The foregoing indemnities are personal to Seller and Buyer and may not be transferred or assigned to anyone. This section 14 states the parties’ exclusive remedies for any claims arising under sections 14.1 and 14.2, other than any remedies that may be available against third party manufacturers or providers of the Products or Services.
16. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY LOST PROFITS, LOST BUSINESS, LOST REVENUE, DELAY DAMAGES, OR ANY OTHER SPECIAL, INCIDENTAL, LIQUIDATED, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER ARISING, EVEN IF THE PARTIES HAVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE. FURTHERMORE, TO THE FULLEST EXTENT PERMITTED BY LAW, SELLER’S LIABILITY ON ANY CLAIM ARISING OUT OF OR CONNECTED WITH THESE TERMS OR THE MANUFACTURE, SALE, DELIVERY OR USE OF THE PRODUCTS OR SERVICES, WHETHER IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), MISREPRESENTATION, BREACH OF CONTRACT, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID FOR THE PRODUCTS AND/OR SERVICES GIVING RISE TO THE CLAIM.
17. TERMINATION AND SUSPENSION.
17.1. In addition to Seller’s rights set forth in Section 6, in the event of any material breach of these Terms, Purchase Order, or SOW by either party, the non-breaching party may cancel the applicable Purchase Order or SOW by giving thirty (30) days’ prior written notice thereof, provided, however, such termination shall not be effective if the party in breach cures such breach prior to the expiration of the thirty (30) day period. Notwithstanding the foregoing, Seller shall be entitled to terminate this Agreement and all Purchase Orders and SOWs immediately if Buyer is in breach of its payment obligations hereunder beyond seven (7) days of Seller providing notice of such breach and Buyer failing to cure prior to the expiration of such period.
17.2. In the event Seller or Buyer terminates a Purchase Order, Buyer shall not be entitled to any refund or credit of fees paid or payable hereunder. Buyer shall remain liable for payment of invoices for Products already delivered and Services already performed and for the fees and costs described in Section 3 above, and payment of any manufacturer cancellation charges for unshipped items. In the event a Purchase Order is terminated, all licenses granted therein shall also terminate. Subject to the limitations and other provisions of these Terms, any provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of these Terms.
17.3. In addition to any other remedies provided under these Terms or applicable law, Seller may exercise any reclamation rights and/or suspend or terminate a Purchase Order or SOW with immediate effect if there is a Buyer Insolvency Event.
18. CONFIDENTIALITY. “Confidential Information” means information received by the receiving party from the disclosing party which (a) is marked as “Confidential” or “Proprietary”; or (b) would reasonably be considered confidential and/or proprietary under the circumstances surrounding disclosure with the same degree of care as the receiving party normally uses in the protection of its own Confidential Information, but in no case with any less degree than reasonable care. The receiving party shall not disclose to any third party any Confidential Information it receives from the disclosing party. Confidential Information excludes information that: (i) is publicly available other than by an act or omission of the receiving party; (ii) subsequent to its disclosure was lawfully received from a third party; (iii) was known by the receiving party prior to its receipt without any breach of any confidentiality obligations; or (iv) was independently developed by the receiving party without use of the disclosing party’s Confidential Information. If the receiving party becomes legally obligated to disclose any Confidential Information by subpoena, court order or other lawful government action, the receiving party may disclose the Confidential Information only to the extent so ordered and, to the extent permitted by law, after providing prompt written notification to the disclosing party of the pending disclosure. Neither party may use such Confidential Information in any way for any purpose, except as authorized under the Purchase Order or SOW. Either party may disclose Confidential Information to its auditors or attorneys under an obligation of confidentiality no less stringent than that contained herein, or Seller to its affiliates and/or third parties on a need-to-know basis to the extent necessary to provide the Products and Services hereunder. If Seller offers to sell Buyer Product or Services from a specific manufacturer, Buyer shall not purchase such Product or Services directly from said manufacturer unless Seller provides prior written approval.
19. COMPLIANCE WITH LAW. Each party shall comply with all applicable laws, rules and regulations, including but not limited to, export and import, trade restrictions, OFAC restrictions, FARs, anti-bribery and anti-corruption, anti-money laundering, anti-human trafficking and slavery, environmental protection, and health and safety. Products may be subject to export controls under the laws, regulations, sanctions and/or directives of the United States and other countries, in which case, these Products are only authorized for use (e.g., via a government-approved and issued export license, which Buyer must obtain) by the ultimate end-user in the destination identified in the transaction documents between Seller and Buyer. Buyer shall not sell, export, re-export or transfer, or cause a deemed export or re-export of the Products (in their original form or after being incorporated into other items) to any country or person to which/who sell, export, re- export or transfer (actual or deemed) is prohibited without first obtaining all required authorizations or licenses. To the extent permitted by law, Buyer shall indemnify and hold Seller harmless from any loss or damage arising from its violation of any such laws, rules, and regulations.
20. DATA PROCESSING. Buyer acknowledges that Seller is headquartered in the United States and operates globally, and that data collected by Seller from Buyer in connection with these Terms may be transferred into and processed in the United States or other locations and expressly consents to such transfer and processing.
21. FORCE MAJEURE. Seller shall not be liable for any failure to perform its obligations under a Purchase Order or SOW resulting directly or indirectly from, or contributed to or by acts of God, acts of terrorism, civil or military authority, epidemic or pandemic, fires, strikes or other labor disputes, accidents, floods, war, riot, inability to secure raw material or transportation facilities, hacking or other malicious attack, dissolution of the applicable manufacturer’s business, acts or omissions of carriers, or any other circumstances beyond Seller’s reasonable control.
22. GOVERNING LAW AND VENUE. These Terms shall be governed according to the substantive laws of the state of Texas, without regard to principles of conflicts of law and shall not be governed by the U.N. Convention on the International Sale of Goods. If any issue, dispute or controversy, including with respect to contract formation or the interpretation of these Terms, shall arise with respect to these Terms, the parties hereby consent to (i) the exclusive jurisdiction and venue of the state or federal courts located in Harris County, Texas and shall not contest or challenge the personal jurisdiction or venue of such courts, and (ii) extra-territorial service of process. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HERETO EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING ARISING IN OR IN CONNECTION WITH THESE TERMS AND THE TRANSACTIONS CONTEMPLATED HEREIN. Notwithstanding the foregoing, if Seller is sued in any other jurisdiction or forum (including but not limited to, an arbitration proceeding) for matters related to any Products or Services sold to Buyer, Seller reserves the right to join Buyer as a party to any such proceeding, and Buyer hereby consents to such joinder.
23. RELATIONSHIP OF PARTIES. The parties are independent contractors and expressly disclaim any partnership, franchise, joint venture, agency, employer/employee, fiduciary or other special relationship. A person who is not a party to a Purchase Order or SOW shall not have any benefit or rights under or in connection with either.
24. GENERAL. These Terms shall be construed and interpreted without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. No amendments, modifications, waivers, rescission or termination of these Terms can be made through the parties’ course of dealings and no such change can be made except in writing and signed by authorized representatives of the parties. Failure by a party to exercise any right or remedy under these Terms shall not be deemed a waiver of such right or remedy unless in writing signed by the party, nor shall any waiver be implied from the acceptance of any payment. No waiver by a party of any right shall extend to or affect any other right, nor shall a waiver by a party of any breach extend to any subsequent breach. Buyer shall not assign a Purchase Order or SOW, by operation of law, change of control, or otherwise, without the express written approval of Seller. Any attempt to assign or transfer all or any part of these Terms without first obtaining that written consent will be void or voidable, at Seller’s election. Any provision of these Terms that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be limited or eliminated to the minimum extent required by that jurisdiction, and the remaining provisions shall remain in full force and effect. All notices under these Terms must be in writing (e.g., e-mail or physical mail) and addressed to the other party at its address set forth in the Purchase Order or SOW, with email being the preferred method of notice.
Effective August 30, 2024