NOTICE: ALL TRANSACTIONS BETWEEN COLOR
SOLUTIONS INTERNATIONAL, INC. (“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 Website, 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.
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.
VII. Rules for Access
and Use of Website.
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/ (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.
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/do cumentation/Best%20Practices%20for%20Using%20
CSI%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 nonconformities,
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 nonconformity 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 nonconforming 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.