NOTICE:
ALL TRANSACTIONS BETWEEN Dystar L.P.
(d/b/a Color Solutions International) (“SELLER”) AND BUYER, AND ALL DOCUMENTS PERTAINING TO SUCH
TRANSACTIONS, ARE SUBJECT TO AND CONDITIONED UPON THESE TERMS AND CONDITIONS OF
SALE AND SERVICE (“TERMS”) AND THESE
TERMS ARE INCORPORATED BY REFERENCE INTO AND ARE A PART OF ALL TRANSACTIONS
BETWEEN SELLER AND BUYER.
I. Additional or Conflicting Terms
1. “Sales Documents”
include any quotation, proposal, statement of work, order confirmation, order
acceptance and invoice issued in writing (including via email or
electronically) by an authorized representative of Seller. Buyer’s purchase of
Products (defined below) from Seller, and any Services (defined below) provided
by Seller, will be governed solely by these Terms and any applicable Sales
Documents issued by Seller in connection with such Products or Services
(collectively, the “Contract”). In
no event will Buyer’s terms in any purchase order, statement of work,
commercial document, communication or otherwise apply to, nor will Buyer’s
proposed, additional or different terms modify, a Contract unless Seller
expressly accepts Buyer’s specific terms in writing by including such specific
terms in the Sales Documents. Seller
hereby objects to and rejects any additional or different terms or conditions
proposed by Buyer or contained in any purchase order, statement of work,
commercial document or other correspondence from Buyer, regardless of any
knowledge Seller may have of such terms, and such terms will not bind Seller or
be applicable to the transaction (even if Buyer’s purchase order or statement
of work is referenced in the Sales Documents). If any of these Terms
conflict with the Sales Documents, the specific terms in the applicable Sales
Documents will prevail over these Terms. The applicable terms of any revised or
later Sales Document will control over such terms in a prior, similar Sales
Document. No other terms or changes, modifications, amendments or waivers of
any terms in a Contract will apply to Seller unless in writing and signed by an
authorized representative of Seller.
2. All sales of physical standards, master electronic
standards, trend cards, and any other goods, electronic or otherwise, sold by
Seller (individually, “Product” and
collectively, “Products”), and any
services provided by Seller (“Services”)
are contracts entered into in North Carolina and then only in accordance with
the Sales Documents.
II. Order
Process; Acceptance
1. Seller will
sell Products and provide Services to Buyer in the quantities and at the times
set forth in the Sales Documents. Buyer may order Products from Seller by:
Customer Service in Charlotte, NC or via the CSI Web-site, in each case
referencing quantity per Product, and requested delivery date. Buyer may
request Services by submitting a statement of work describing Services and
referencing a performance date. All purchase orders and requests submitted to
Seller for Products or Services, are subject to acceptance by Seller and
notwithstanding Seller’s acceptance, only the terms of the Sales Documents will
apply. Final lead times and delivery dates will be those included in Seller’s
Sales Documents. Seller’s acceptance may be in writing (such as via an order
confirmation, order acknowledgment, invoice, or delivery note), including
electronically or via email, or by delivery of Products to Buyer or performance
of Services for Buyer.
2. Seller may change a Sales Document at any time to
correct mathematical or clerical errors.
III. Prices
1. All prices for
Products and Services will be as specified by Seller in its Sales Documents. If
no price has been specified in the Sales Document, the price will be Seller’s
standard price in its catalogs or price lists in effect at the time of
delivery. Unless otherwise stated in Seller’s Sales Documents, all prices are
in U.S. dollar, calculated by Seller per pound or per unit, and apply to
standard-sized containers. All prices from Seller must be in writing and may be
changed at any time without notice. Buyer will also reimburse Seller for all
reasonable travel and out-of-pocket expenses incurred by Seller in connection
with the performance of Services.
2. The prices do not include any sales, use, personal
property, excise, transfer or other tax, nor any duties or assessment, arising
out of or related to Products, Services, or their purchase and sale which may
be imposed by any governmental authority, all of which will be the obligation
of, and paid by, Buyer. If Seller pays any such tax, duty or assessment, Buyer
will reimburse Seller in accordance with the terms of Section IV(1) below. Buyer is responsible for obtaining and
providing to Seller any certificate of exemption or similar document required
to exempt any sale from sales, use or similar tax liability.
IV. Payment
1. Unless
expressly specified otherwise in the Sales Documents, Buyer will pay all
amounts due in full, and without deduction or setoff within 30 days after the
date of the invoice, regardless of any dispute or controversy that may arise.
Buyer will make all payments under a Contract by wire transfer, cash, credit
card, check, or such other payment method as Seller may specify from time to
time and in U.S. dollars. Buyer is responsible for all credit card fees,
foreign exchange, wire transfer and other bank fees. The date of payment will
be the date Seller receives payment in full.
2. If at any
time, in its sole discretion, Seller has any doubt or concern as to Buyer’s or
an Authorized User’s (as defined below) financial standing, solvency,
creditworthiness or ability to perform its obligations, Seller may decline to
make shipments, discontinue performance of Services, and terminate a Contract
(in whole or in part), except upon receipt of a deposit or other satisfactory
security or advance cash payment shipment.
3. If Buyer fails to make any
payments as and when due or otherwise defaults (a) interest will accrue from
the date the payment was due until payment is received in full at the lower of
1.5% per month or the maximum amount allowed by applicable law and (b) Seller
may take any or all of the following actions: (i) suspend performance under
this Contract or any other Contract with Buyer or a party approved by Buyer to
purchase Products on its behalf or for its benefit (any such party, an “Authorized User”); (ii) terminate this
Contract for default or any other Contract with Buyer or an Authorized User;
(iii) require Buyer or any Authorized User to pay the full Contract price and
any interest, fees and other charges immediately; and (iv) take any other
actions or pursue any other rights or remedies. To the extent allowed by
applicable law, Buyer will further reimburse Seller for all costs incurred in
collecting any late payments, including attorneys’ fees and expenses. Failure
by Seller to charge interest on late payments or to exercise its other rights
and remedies will not be construed as a waiver of any other legal or equitable
remedies.
4. Seller may, in its sole
discretion, apply payments by Buyer to the oldest invoice first and in the
following order: accrued costs, accrued interest, price for Products or
Services.
5. Buyer will not withhold, offset or
recoup any amounts it owes to Seller under a transaction, Contract, or
otherwise against any other amount Buyer claims Seller owes to it, regardless
of any dispute that may arise between the parties.
6. Notwithstanding
anything to the contrary herein, for all credit card transactions, Seller
authorizes Buyer to charge the credit card account entered into the order immediately
for the total amount of products and services ordered plus freight if
applicable.
V. Suspension or Termination. Without limiting Seller’s other rights and remedies
available under a Contract, applicable law or in equity, Seller may suspend or
terminate performance and delivery, if: (1) Buyer or an Authorized User fails
to perform or observe any other obligations under a Contract between Seller and
Buyer or such Authorized User; (2) there is a change in the control or
management of Buyer or an Authorized User; (3) Buyer or an Authorized User
ceases to conduct its operation in the normal course of business; (4) Buyer or
an Authorized User becomes insolvent or files for bankruptcy or has a
bankruptcy proceeding filed against it; or (5) Buyer or an Authorized User
makes an assignment for the benefit of creditors, or a receiver, trustee in bankruptcy
or similar officer is appointed to take charge of all or part of Buyer’s or
such Authorized User’s property. Seller
may also suspend performance or terminate any Contract, without liability or
obligation to Buyer, if Seller reasonably believes that its performance may
violate applicable laws, regulations or orders of a governmental authority.
VI. Delivery
1. Unless otherwise stated in
Seller’s Sales Documents, all deliveries of Products are EXW (Incoterms 2010)
at Seller’s designated warehouse facilities or such other location as
designated by Seller (“Delivery Point”).
Buyer will take delivery of Products when Products have been made available at
or delivered to the Delivery Point. Unless otherwise stated in Seller’s Sales
Documents, the prices do not include any transportation, insurance, or
packaging costs and Buyer is responsible for all such costs. Packaging is at
Seller’s sole discretion, and packaging costs will be calculated at Seller’s
net cost. Seller may make partial or early deliveries.
2. Notwithstanding any requested
delivery dates by Buyer, the delivery date in Seller’s Sales Documents will
control. Any shipping or delivery date, quotation, forecast or commitment is
only an estimate and Seller will not be liable for any delay or failure to
deliver all or any part of any order for any reason. Without limiting the
generality of the preceding sentence, Buyer must give Seller immediate written
notice of any alleged delay in delivery and Seller will have a reasonable
period, but in no event less than 10 days, to cure such alleged delay. Seller
will not be responsible for any damage to Products caused by a carrier and
Buyer’s sole recourse for such damage will be against the carrier. If Buyer
delays, or is behind schedule to take delivery of Products at the Delivery
Point, Seller may, at its sole discretion, store Products at Buyer’s sole risk
of loss until Buyer picks it up and Buyer will be liable for all related costs
and expenses (including storage and insurance).
3. All Product deliveries from Seller
to Buyer are subject to and conditioned on Seller’s receipt of Products or
materials from its suppliers. Should the fulfillment of the Contract be delayed or fail due to the
delay or failure of Seller’s supplier(s), Buyer shall not be entitled to
a claim against Seller for damages or for any other reasons.
4. Digital products shall be
available for immediate download or delivered via email at CSI’s sole
discretion. Buyer shall provide complete and accurate information including,
but not limited to, email, to Seller for the delivery of the Digital Products
and/or notices. Buyer agrees that Seller is not responsible for failure to
deliver any Digital products or notices caused by Seller providing inaccurate
emails or account information. Digital products are delivered via a limited,
non-exclusive, nontransferable, non-sublicensable license to access to use the
digital products solely for Buyer’s internal business purposes. BUYER
ACKNOWLEDGES THAT ANY DIGITAL PRODUCTS MAY VARY FROM THE PHYSICAL PRODUCTS’
TRUE COLOR DUE TO INCONSISTENCIES OF VARIOUS MONITORS, LIGHTING SOURCES,
DIGITAL PHOTOGRAPH, AND DYE LOT VARIATIONS.
VII. Rules for Access and Use of Website and Digital Products.
1. As part of
Seller’s Services, Buyer may elect to access and use Seller’s websites and
related online systems (collectively, the “Website”). Buyer’s
access of the Website constitutes
Buyer’s acceptance of the terms and conditions of use then in effect and
located at https://csicolors.com/terms/ and the End User License Agreement (as may be
amended or replaced from time to time, the “Rules”) and incorporated herein by reference. There may be additional or different terms
and conditions stated elsewhere on the Website that apply to Buyer’s access and
use of the Website. If Buyer does not
agree to the Rules or such additional or different terms and conditions, Buyer
must not access or use the Website.
2. By accessing the Website, Buyer further agrees to access and use the
Website only for lawful purposes, and Buyer shall not access or use the Website
in any manner that could (a) violate any applicable federal, state, local, or
international law or regulation, (b) disable, overburden, damage, or impair the
Website or interfere with any other party’s use of the Website, (c) introduce
any virus, Trojan horse, worm, logic bomb, or other material that is malicious
or technologically harmful, or (d) otherwise interfere with the proper working
of the Website.
3. With regards to digital or
downloaded Products, Buyer agrees that it shall not, nor permit any other
person to: a) copy, modify, translate, adapt, or otherwise create derivative
works or improvements, whether or not patentable, of the Products, in whole or
in part; (b) reverse engineer, disassemble, decompile, decode, adapt, or
otherwise attempt to derive or gain access to the source code of the Products,
or any part thereof; (c) remove, delete, alter, or obscure any trademarks or
any copyright, trademark, patent, or other intellectual property or proprietary
rights notices from the Products, including any copy thereof; (d) rent, lease,
lend, sell, license, sublicense, assign, distribute, publish, transfer, or
otherwise make available the Products, or any features or functionality of the
Products, to any third party; (e) remove, disable, circumvent, or otherwise
create or implement any workaround to any copy protection, rights management,
or security features in or protecting the Products; (f) use the Products in any
manner or for any purpose that infringes, misappropriates, or otherwise
violates any intellectual property right or other right of any person, or that
violates any applicable law; or (g) allow any individual under the age of
eighteen years old to use the Products.
4. Buyer acknowledges and agrees
that all digital Products are provided under license and are not sold to Buyer.
Buyer does not gain any ownership interest in the digital Products and any
other rights thereto other than to use the digital Products in accordance with
these Terms. Seller reservesand shall retain its entire right, title, and
interest in and to the digital Products, including all copyrights, trademarks,
and other intellectual property rights therein.
VIII. Force Majeure
1. Seller will not be liable, and its performance (and delivery
dates and delivery periods) will be deemed extended, for any delays or failure to perform directly or
indirectly resulting from events and causes beyond Seller’s reasonable control
(each, a “Force Majeure Event”).
Force Majeure Events include: accidents; acts of God; lack, failure or
disturbance of production or transportation facilities; fires and natural
calamities (including floods, earthquakes, storms and epidemics); shortage of,
or the failure of a supplier to supply to Seller, Products or materials; delay
or inability to secure Products, materials, fuel, supplies, equipment, power or
utilities at reasonable prices or in sufficient amounts through usual sources
of supply; labor shortages; strikes, lockouts or other labor disputes; acts and
omissions of governmental authority; any amended or new law, regulation or
order of a governmental authority; declared or undeclared wars; terrorism; or
explosions.
2. During any Force Majeure
Event: (a) Seller is not obligated to purchase Products or materials from other
sources to enable it to fulfill any purchase order from Buyer; and (b) Seller
has the right to allocate its available Products among its customers, including
those not under contract, in any manner without liability.
IX. Security Agreement. Buyer grants Seller a continuing first
priority purchase money security interest in all Products sold or delivered to
it and to the proceeds of Products (collectively, “Collateral”) to secure the full payment of the purchase price of
Products and all other obligations of Buyer arising out of a Contract. Buyer
authorizes Seller to file on Buyer’s behalf all financing statements,
continuation statements and other documents necessary or desirable to
establish, perfect, maintain, preserve and enforce Seller’s security interest
in the Collateral.
X. Limitations; Exclusions
1. IN NO EVENT WILL SELLER, OR
ANY AFFILIATE OF SELLER, BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT,
SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND,
INCLUDING LOST REVENUES AND LOST PROFITS, ARISING OUT OF OR RELATING TO
SERVICES, PRODUCTS, OR A CONTRACT, INCLUDING ANY USE OF OR INABILITY TO USE ANY
PRODUCTS OR SERVICES, REGARDLESS OF THE THEORY OF RECOVERY (INCLUDING CONTRACT,
NEGLIGENCE, AND INDEMNITY), AND NOTWITHSTANDING THE FAILURE OF ANY REMEDY OF
ITS ESSENTIAL PURPOSE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF
ANY SUCH DAMAGES.
2. Seller
is not responsible for any injury or damage resulting from the use or
application of Products or Services, alone or in conjunction with other
products or raw materials.
3. IN
NO EVENT, REGARDLESS OF THE THEORY OF RECOVERY (INCLUDING CONTRACT, NEGLIGENCE,
AND INDEMNIFICATION), WILL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR
RELATING TO ANY SERVICES, PRODUCTS, OR A CONTRACT EXCEED THE AMOUNT BUYER PAID
TO SELLER FOR THE PARTICULAR PRODUCT OR SERVICES AT ISSUE.
XI. Acceptance; Rejection of Non-conforming Products or
Services. Buyer will inspect all Products and
Services immediately upon their delivery or performance and prior to use or
resale. Immediately and no later than 3 days after delivery of a Product or
performance of a Service, Buyer must give written notice to Seller of any claim
by Buyer based upon any shortage, defect or discrepancy of Products sold or
Services provided. Such notice must indicate the basis of the claim in detail, color name, serial number, and order number. Buyer’s
failure to comply within the time specified in this Section XI constitutes irrevocable acceptance by Buyer of Products
delivered or Services provided and will bind Buyer to pay to Seller the full
price of such Products or Services. Products sold will not be returned without
Seller’s prior written consent and then only in accordance with Seller’s then
current return policies (for example, Buyer may be required to obtain a return
authorization number, package Products for their return, include the original
packaging slip, and pre-pay freight).
XII. Limited Warranty
1. Subject to the provisions in these Terms and in
Sales Documents, Seller warrants that (a) when Products are delivered to Buyer,
Products will be within 0.5 DE CMC (2:1) of Seller’s Master
Electronic Standard for such Product, based on a color difference calculated
using 10 degree observer and the prescribed illuminant, (b) access and use of
the Website, and information provided in connection with or as a result of such
access and use, is provided “AS IS” AND “AS AVAILABLE”, and (c) any Services
will be performed in a reasonable, workmanlike manner (the warranties provided
in this Section XII are hereinafter
referred to collectively as “Limited
Warranty”). The Limited Warranty will apply for a period of 10 days after
the (i) delivery date of the Product at issue, (ii) date of access to the
Website, or (iii) date of performance of Services at issue, as applicable (“Warranty Period”). The Limited Warranty
is conditioned upon Buyer following the Rules and Seller’s claims process
outlined in Section XIV below, which
Seller may change from time to time.
2. This Limited Warranty extends to
Buyer only, and not to any resale customer of Buyer or end-consumer, and is
non-transferable. In the event of a Product resale by Buyer, Buyer is solely
responsible for any and all warranty and other claims resulting from Products
and for any representations or warranties made by Buyer to its customers and
any end-customers. Buyer will not refer to Seller, including the Limited
Warranty, in any manner in connection with its resale of Products.
3. Buyer is solely responsible for
proper selection of Products and Services as well as for their use, application
and processing, and Buyer has tested Products or otherwise determined their
suitability for Buyer’s intended use. In particular, Seller makes no
representations or warranties regarding a Product’s fitness for human
consumption or use with foodstuffs, products and raw materials. As such, Buyer
should not rely on Seller to ensure that Products purchased will meet any
standards or specifications, including those relating to health, safety, or
particular uses intended by Buyer.
4. Any depictions, statements,
claims, advertising, technical advice, calculations, trials, projections,
diagrams, illustrations, and other descriptions or other information from
Seller or its affiliates, applicable to Products, Services, or a Contract,
whether included in catalogs, the Website, or otherwise, are descriptions or
approximations only, and do not constitute any specifications, representations,
warranties, or guarantees, implicitly or explicitly.
5. EXCEPT FOR THE LIMITED WARRANTY
EXPRESSLY PROVIDED IN SECTION XII ABOVE,
SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, STATUTORY OR OTHERWISE,
REGARDING OR RELATING TO PRODUCTS OR
SERVICES AND SELLER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS AND
IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO PRODUCTS AND SERVICES, INCLUDING THE
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NON-INFRINGEMENT WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF
PERFORMANCE, USAGE OF TRADE OR OTHERWISE. WITHOUT LIMITING THE FOREGOING,
NEITHER THE SELLER NOR ANYONE ASSOCIATED WITH THE SELLER REPRESENTS OR WARRANTS
THAT THE WEBSITE, ITS CONTENT, OR ANY SERVICES OR PRODUCTS OBTAINED THROUGH THE
WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS
WILL BE CORRECTED, THAT SELLER’S WEBSITE OR THE SERVER THAT MAKES IT AVAILABLE
ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY
SERVICES OR PRODUCTS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR
NEEDS OR EXPECTATIONS.
6. No employee, dealer,
distributor, sales representative, or any other person or entity is authorized
to offer any different or additional warranties or remedies, or to change the
Limited Warranty, without the signature of an authorized officer of Seller.
XIII. Limited Warranty Exclusions. The
Limited Warranty does not cover: (1) damage to Products during or after
delivery; (2) use under circumstances or resale for uses exceeding Seller’s
specifications or limitations or contrary to any instructions or information
from Seller, including the “Best Practices“ found on the Website at https://shop.colorsolutionsinternational.com/CSI/documentation/Best%20Practices%20for%20Using%20CSI%20Color%20Standards.htm,
and incorporated herein by reference; (3) Products sold or Services provided
based on Buyer’s instructions or information or other non-Seller
specifications; (4) improper storage of Products or improper access or use of
the Website; (5) any warranties or representations given by Buyer or an
Authorized User on resale of Products or use of Services; (6) repackaging,
rebranding, modification or alteration of Products; and (7) accidents.
XIV. Buyer’s Limited Warranty Claims
1. Buyer must give Seller written
notice of any Products or Services which Buyer alleges do not conform to the
Limited Warranty, specifying the alleged non-conformities, color name, serial
number, and order number (each notice, a “Warranty
Claim”). Any Warranty Claim must be made within the Warranty Period.
Warranty Claims made thereafter are not valid claims. In any event, the Limited
Warranty expires when, and no claims may be made after, the Warranty Period
ends. In addition to the Warranty Claims process described in this Section XIV, Buyer agrees to follow any
additional then current Seller Warranty Claims process, which may include
obtaining from Seller a return authorization number in order to return an alleged
non-conforming Product. Upon Seller’s request, Buyer will provide supporting
documents and information supporting its Warranty Claim and return, at its
expense, any alleged non-conforming Product or sample thereof to a location
designated by Seller for Seller to verify the claimed non-conformity. Seller
will have a reasonable opportunity to evaluate the Warranty Claim, including
inspection of such documents and information, Product or sample thereof, to
evaluate the alleged non-conformity and the alleged non-conforming Services.
2. For any Products which Seller
determines do not conform to the Limited Warranty, Seller’s sole liability and
obligation, and Buyer’s sole and exclusive remedy, will be, at Seller’s choice
to replace such non-conforming Product, or to refund the purchase price for
such non-conforming Product. For any Services which Seller determines do not conform to the Limited
Warranty, Seller’s sole liability and obligation, and Buyer’s sole and
exclusive remedy, will be, at Seller’s choice, to correct or repeat such Services.
XV. Limitation of Actions; Exclusive
Remedy. ANY ACTION OR PROCEEDING AGAINST
SELLER ARISING OUT OF OR RELATING TO SERVICES, PRODUCTS, A CONTRACT OR THE
LIMITED WARRANTY WILL BE FOREVER BARRED UNLESS COMMENCED WITHIN THE EARLIER OF:
(1) ONE YEAR AFTER THE CLAIM OR CAUSE OF ACTION HAS ACCRUED; OR (2) THE PERIOD
PRESCRIBED BY THE APPLICABLE STATUTE OF LIMITATION OR REPOSE. The Contract
contains Buyer’s sole and exclusive remedies relating to the Contract,
Services, Products or the Limited Warranty, regardless of the theory of
recovery.
XVI. Indemnity. Buyer agrees to indemnify, defend and
hold harmless Seller and its affiliates, and their respective officers,
directors, employees and agents, from any and all claims, actions, suits,
damages, liabilities, costs, obligations, and expenses (including attorneys’
fees and expenses) arising out of or relating to: (1) Buyer’s or an Authorized
User’s selection, application, use, resale or incorporation of Products or
Services; (2) any processing or modification of Products in any manner by Buyer
or an Authorized User, or their respective employees, agents or customers; (3)
claims regarding warnings or failure to warn of dangers related to Products;
(4) any violation or failure by Buyer or an Authorized User to comply with
applicable laws and regulations, including those pertaining to health and/or
safety; (5) any intentional or negligent act, or misrepresentation by Buyer or
an Authorized User, or their respective employees or agents; (6) any breach of
warranty or misrepresentation (express or implied) made by Buyer or an
Authorized User, or their respective employees or agents; (7) any violation,
misappropriation, or infringement of any patent, trademark, copyright or other
intellectual property rights of any person or entity arising out of or related
to compliance with Buyer’s or an Authorized User’s design, specifications or
instructions or Buyer’s or an Authorized User’s use of a Product with other
goods; and (8) any breach by Buyer or an Authorized User of any terms of a
Contract.
XVII. Insurance. Buyer will maintain commercial general
liability, personal injury and property damage insurance policies, including
wrongful death coverage, in reasonable amounts consistent with industry
standards with a nationally recognized insurance company.
XVIII. No License. Buyer agrees that Seller’s sale of
Products, provision of Services, and grant of access to, and Buyer’s use of,
the Website does not grant to Buyer any license or intellectual property or
similar right applicable to or in any Products or Services, or in any
information or documents (including estimates, projections, drawings,
calculations, recipes or instructions) Buyer receives, and Buyer waives any and
all such rights. Seller retains ownership in and control over all intellectual
property, including patents, trademarks, copyrights, know-how, and goodwill
applicable to or arising out of a Product, a Service, or use of the Website.
Buyer will not name or designate any Seller information or Product or Service
in any patent application. Buyer may not alter or remove, and will abide by,
any patent, trademark, copyright, trade secrets, proprietary or other notices,
serial numbers, labels, tags or other identifying marks, symbols or legends
contained on or in a Product (including containers or packages) or a Service.
If Buyer acquires any intellectual property or similar rights in or relating to
any Products or Services purchased under a Contract (including any rights in
any trademarks, derivative works or patent improvements relating thereto), by
operation of law, or otherwise, such rights are deemed and are hereby
irrevocably assigned to Seller or its licensors, as the case may be, without
further action by either Seller or Buyer.
XIX. Confidential Information. Any Confidential
Information (as defined below) which Seller provides or allows access to will
not be used by Buyer (except as necessary internally for use or resale of
Products or Services) and will not be disclosed by Buyer to any person or
entity unless the disclosure is agreed to in writing by Seller. “Confidential Information” includes all
information, documents and records Buyer obtains from Seller or its affiliates
or their respective directors, officers, employees, agents or representatives
verbally, electronically, in writing or otherwise, or anything derived in part
or in whole from such material, whether or not marked confidential, relating to
a Contract, the Products, the Services or Seller‘s business. Confidential
Information includes the terms of any Contract, cost and pricing information,
customer information, intellectual property or other similar rights,
information regarding the Services, Product specifications and designs, Product
development information, Product literature, potential product information,
marketing plans and concepts, business strategy, Seller information, drawings,
instructions, methods, processes, techniques, formulae, research data, other
know-how, trade secrets and other proprietary information. Information
generally available to the public is not Confidential Information of
Seller. If Buyer is required by law,
government regulation, subpoena or court order to disclose any Confidential
Information, Buyer will give prompt written notice of the proposed disclosure
to Seller, and Seller may take those actions it deems appropriate to protect
the Confidential Information.
XX. Relationship. Seller is an independent contractor.
Nothing in a Contract will be construed as creating a partnership, association
or joint venture between the parties. Buyer will have no power or authority to
enter into any commitment on behalf of or otherwise bind Seller on any matter
including making any representation or warranty on behalf of Seller. No
employee of either party will be deemed to be an employee of the other party.
XXI. Choice of Law; Venue; Jurisdiction. The
transaction and Contract, and any matter, dispute or controversy arising out of
or relating to the transaction, Contract, Products, or Services will be
governed by North Carolina law, excluding its conflicts of law principles, and
the provisions of the 1980 United Nations Convention on the International Sale
of Goods (“UNCISG”) are expressly
excluded. Buyer and Seller agree that the state and federal courts of
Mecklenburg County, North Carolina, will constitute the sole and exclusive
judicial forum(s) and venue and, therefore, will have sole and exclusive
jurisdiction over the adjudication and resolution of any and all matters,
disputes and controversies arising out of or relating to a transaction,
Contract, Products, or Services; except with respect to Seller’s claim or any
action instituted by Seller (1) for equitable or comparable relief including an
action for temporary or permanent injunctive relief, (2) for recovery of
possession of Products, such as replevin, claim and delivery, attachment or the
like, or (3) to collect any amounts owed by Buyer.
XXII. Compliance With Laws. Buyer will conduct its business in complete compliance with all applicable
Federal, State, foreign and/or local laws, orders, regulations, directions,
restrictions, and limitations. Buyer
will obtain and maintain at all times during the term of any Contract all
required certifications, credentials, registrations, licenses and permits
necessary to conduct its business. Buyer
will comply with all applicable export or import laws and regulations relating
to the Products. In the event the
Products must be registered in a particular country for Buyer to resell them to
its customers, Buyer will notify Seller and Seller will, in its sole
discretion, determine if Seller wishes to seek registration of the Products in
such location. Buyer will have no right
to register the Products in any location.
XXIII. Miscellaneous. A Contract contains the
entire agreement of the parties relating to the subject matter and supersedes
all previous and contemporaneous agreements, understandings, usages of trade
and courses of dealing, whether written or oral. A Contract will be binding on,
and will inure to the benefit of, the parties and their respective successors,
heirs and permitted assigns. Buyer may not assign (including by operation of
law) all or any portion of its rights or obligations under a Contract without
Seller’s prior written consent, and any attempted assignment without that
consent will be void. No assignment will relieve Buyer of any obligations under
a Contract. Any consent, approval or agreement required or allowed by Seller
may be given or withheld by Seller in its sole discretion and must be in
writing and signed by an authorized representative of Seller to be effective.
No delay or failure by Seller to exercise or enforce any of its rights or
remedies under a Contract will be construed as a waiver of such rights or
remedies. The express waiver of any right or remedy in a particular instance
will not constitute a waiver of that right or remedy in any other instance. If
any provisions of these Terms or any Sales Documents are held to be invalid, illegal
or unenforceable by any court of competent jurisdiction, such provision(s) will
be deemed to be severable and these Terms and any Sales Documents will then be
construed and enforced in accordance with the remaining provisions. As used
herein, the words “including”, “include” and “includes” will not be deemed to
be limiting. The Contract and these Terms may be amended or modified only by a
written agreement, signed by both parties, expressly amending or modifying the
Contract or these Terms.