All Sales By Simple Stuff Works Inc., Its Affiliates or Parents (“Seller”) Are Made Subject To The Following
TERMS AND CONDITIONS
1. GOVERNING TERMS AND CONDITIONS:
a. These General Conditions of Sale shall be applicable to all sales contracts, offers, order acknowledgements, purchase orders, invoices and deliveries by Simple Stuff Works, Inc. (“Seller”) to the buyer in the purchase order or agreement referenced hereby (“Buyer”), for the referenced Products. References herein to “the Contract” relate to any sales contracts, offers, order acknowledgements, purchase orders, confirmations, invoices and deliveries (as applicable) to which these Terms and Conditions apply.
b. Seller hereby expressly rejects and refuses any general or specific purchase conditions or any additional or inconsistent terms or conditions offered by Buyer at any time and irrespective of Seller’s acceptance of payment, delivery of product, performance hereunder, or receipt or acknowledgement of receipt of any such conditions. No other agreements or general conditions shall be applicable or shall set aside these Terms and Conditions of Sale unless expressly agreed to in writing by an authorised officer of Seller. Buyer represents that Buyer has reviewed and accepted these Terms and Conditions prior to or simultaneously with initiation of the Contract to which these Terms and Conditions relate and acceptance of Products by Buyer shall constitute confirmation of such acceptance of these Terms and Conditions. Unless otherwise agreed in writing signed by an authorised officer of Seller, these Terms and Conditions contain the complete and exclusive agreement between Seller and Buyer concerning the Product and merges and supersedes all prior understandings and representations (oral or written) between the Parties concerning any Contract to which they relate.
2. ENTIRE AGREEMENT. Except as otherwise agreed to by Seller in writing, the terms and conditions set forth herein, together with the applicable Seller order acknowledgement or accepted purchase order, shall constitute the complete and final agreement between Seller and Buyer, superseding completely any prior oral or written communications. Terms or conditions contained in any document issued by Buyer which in any manner purport to alter, modify, change, suspend, or add to any term or condition contained herein shall be deemed excluded from such Buyer document and waived by Buyer. Seller and Buyer expressly agree that Seller may modify these terms and conditions from time to time, and such modifications shall be binding upon Buyer.
3. PURCHASE PRICE. The purchase price of the Product shall be as stated on the applicable Seller order acknowledgement or accepted purchase order; provided, however, that if Seller announces a surcharge, such surcharge shall become effective for Product scheduled for shipment beginning on the date set forth in Seller’s announcement of such surcharge or, if there is no such date, immediately upon such announcement. Seller reserves the right to change all quotations at any time. Seller shall be bound only upon issuance of an order acknowledgment or shipment and acceptance of all or any part of the Product ordered.
4. PURCHASE ORDER MODIFICATION/CANCELLATION. Buyer cannot modify, cancel, or otherwise alter purchase orders after receipt of purchase order by Seller without Seller’s written consent. Any such modification, cancellation, or alteration shall be subject to conditions as negotiated at such time, which shall include protection of Seller against loss.
5. LIMITED WARRANTY. EXCEPT FOR THE LIMITED EXPRESS WARRANTIES AS MAY BE INCLUDED IN SELLER’S ORDER ACKNOWLEDGEMENT, (A) NEITHER SELLER NOR ANY PERSON ON SELLER’S BEHALF HAS MADE OR MAKES AND HEREBY DISCLAIMS ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, EITHER ORAL OR WRITTEN, INCLUDING ANY WARRANTIES OF (i) MERCHANTABILITY OR (ii) FITNESS FOR A PARTICULAR PURPOSE OR (iii) NON-INFRINGEMENT OR (iv) PERFORMANCE OF GOODS TO STANDARDS SPECIFIC TO THE COUNTRY OF IMPORT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER PERSONS ON SELLER’S BEHALF.
6. LIMITATIONS OF LIABILITY.
A. NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. IN NO EVENT IS SELLER OR ITS REPRESENTATIVES OR AFFILIATES LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER THE DAMAGES WERE FORSEEABLE, (B) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) ON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENIAL PURPOSE.
B. MAXIMUM LIABILITY FOR DAMAGES. SELLER’S LIABILITY, WHETHER IN CONTRACT, IN TORT, UNDER WARRANTY, IN NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCT AGAINST WHICH CLAIM IS MADE. BUYER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THE PORTION OF ANY PRODUCT PROVEN TO HAVE FAILED TO MEET IN MATERIAL RESPECT THE SPECIFICATIONS ON THE SELLER’S ORDER ACKNOWLEDGEMENT AT THE TIME OF SHIPMENT FROM THE SELLER’S FACILITY SHALL BE LIMITED TO : (1) REPLACEMENT OF PRODUCT AT THE POINT OF SHIPMENT FROM THE SELLER’S FACILITY, (2) REPAIR OF THE PRODUCT AT A LOCATION TO BE DETERMINED BY THE SELLER, OR (3) REPAYMENT OF OR CREDIT AGAINST THE PURCHASE PRICE OF SUCH PRODUCT UPON AUTHORIZED RETURN THEREOF. SELLER AND BUYER EXPRESSLY AGREE TO THIS ALLOCATION OF RISK AND THE PRICE STATED FOR THE PRODUCT IS CONSIDERATION IN LIMITING SELLER’S LIABILITY.
7. LIMITATION OF LIABILITY FOR DELIVERY DELAYS. Delivery dates are approximate. In no event shall Seller be liable for any claims for labor or for any special, indirect, incidental, or consequential damages including, but not limited to, demurrage charges, cost of shipment, downtime, lost profits, lost sales, or any other damages resulting from delay in delivery. ACCEPTANCE OF PRODUCT BY BUYER SHALL CONSTITUTE A WAIVER BY BUYER OF ANY CLAIM FOR DAMAGES ON ACCOUNT OF DELIVERY DELAY.
8. TRANSPORTATION CHARGES. Delivery prices are computed by adding the cost of transportation to destination, along with insurance charges and any taxes paid by the Seller. If Product are shipped freight prepaid Seller reserves the right to ship without further notification at any time after the ten (10) day period following payment for the order.
9. PAYMENT TERMS. Payment by Buyer in full and in cleared funds of the purchase price, shipping charges, insurance and all other attendant costs and expenses is a condition to Seller shipping the product to Buyer
10. PASSAGE OF TITLE, RISK OF LOSS. All deliveries are CIP (Incoterms 2010) Seller’s plant or shipping point, at which time both title and risk of loss to the products shall pass to the Buyer at the point of shipment from Seller’s facility. Seller reserves the right to select the mode of transportation.
11. TAXES AND DUTIES. Prices quoted do not include any taxes or other assessments that may be levied or charged by the federal, state or local governments within the United States. All taxes of any kind levied by any federal, state, municipal or local government entity relating to the sale of the Product to Buyer which Seller is required to collect or pay with respect to the sale, purchase, delivery, storage, use, consumption, or shipment of Product sold hereunder shall be the responsibility of Buyer. Buyer agrees to pay all such taxes and further agrees to reimburse Seller for any such payments made by Seller.
12. PACKAGING. Seller shall comply with Seller’s standard packaging and shipping procedures customarily applied to the method of transportation used for such Product. Product will be packed to internationally recognized packing regulations – ISPM15.
13 INSPECTION AND ACCEPTANCE: Upon arrival at the destination point or Buyer’s receipt of any order shipped hereunder, whichever first occurs, Buyer shall immediately inspect said order and shall notify Seller in writing within ten (10) days of such date of any claims of shortages, defects, damages or any other respect in which Buyer alleges the Product to be non-conforming and shall safely hold such order for Seller’s written instructions concerning disposition. If Buyer fails to notify Seller in writing within the said ten (10) day period, then such order shall be conclusively deemed to conform with these Terms and Conditions and to have been irrevocably accepted by Buyer. BUYER’S FAILURE TO NOTIFY SELLER OF ANY CLAIM WITHIN THE TIME PERIOD SPECIFIED BY THIS SECTION SHALL CONSTITUTE A WAIVER OF AND BAR SUCH CLAIM.
14. FORCE MAJEURE. Seller shall not be responsible for cancellation or delay in delivery or performance resulting, in whole or in part, from causes beyond its reasonable control, including, but not limited to: acts of God; acts of Buyer; strikes or other labor disturbances regardless of whether or not Seller is capable of settling such strike or disturbance; mill conditions; temporary or permanent mill closures; equipment failure; inability to obtain fuel, material, or parts; war; acts of terrorism; riot; delays in transportation; repairs to equipment; epidemics; floods; fires; unusually severe weather conditions; accidents; or other contingency the non-occurrence of which was a basic assumption on which the purchase order was made.
15. TECHNICAL ADVICE. Seller assumes no obligation or liability for any technical advice furnished to Buyer, including without limitation technical advice with respect to the use of Seller's Product and services, all such technical advice being given and accepted at Buyer's risk. Seller will not be liable for any damages of any kind arising out of or relating to the use of or the inability to use the information provided, including but not limited to any special, indirect, incidental or consequential damages, whether foreseeable or not, and even if Seller has been advised of the possibility of damages.
16. GOVERNING LAW. This agreement shall be governed by, construed, and enforced in accordance with the laws of the state of Delaware, including the Delaware Uniform Commercial Code, without regard to conflict of law principles.
17. MEDIATION. Buyer and Seller will attempt in good faith to resolve promptly through negotiation any dispute arising from or related to this sale. If a dispute should arise, representatives of the Buyer and Seller shall meet at least once and will attempt in good faith to resolve the dispute. For such purpose, Buyer or Seller may request a meeting which shall be held within fifteen (15) days of the request at a mutually agreed upon time and place, or by electronic video means. The meeting shall be attended by representatives of each party with authority to resolve the dispute. IF BUYER AND SELLER ARE NOT ABLE TO CONDUCT A MEETING WITHIN SAID FIFTEEN (15) DAY PERIOD, OR IF BUYER AND SELLER DO NOT RESOLVE THE DISPUTE WITHIN THIRTY (30) DAYS AFTER THEIR FIRST MEETING, BUYER AND SELLER AGREE TO SUBMIT THE DISPUTE TO MEDIATION. BUYER AND SELLER FURTHER AGREE THAT THEIR PARTICIPATION IN MEDIATION IS A CONDITION PRECEDENT TO ANY PARTY PURSUING ANY OTHER AVAILABLE REMEDY IN RELATION TO THE DISPUTE. Mediation involves each side of a dispute sitting down with an impartial person, the mediator, to attempt to reach a voluntary settlement. Mediation involves no formal court procedures or rules of evidence, and the mediator does not have the power to render a binding decision or force an agreement on the parties. Buyer and Seller agree that the entire mediation procedure will be confidential. Buyer or Seller must give written notice of their desire to commence mediation, and a mediation session must take place within forty-five (45) days after the date such notice is given. Buyer and Seller will jointly appoint a mutually acceptable mediator. If Buyer and Seller are unable to agree upon the appointment of a mediator within seven (7) days after notice of desire to mediate is given, Buyer or Seller may apply to the American Arbitration Association for appointment of a mediator. The mediation shall be held in Washington D.C. Buyer and Seller agree that the expenses of mediation shall be borne equally by both parties.
18. JURISDICTION. BUYER, ACTING FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS, HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY LITIGATION ARISING FROM OR RELATED TO THIS AGREEMENT. BUYER EXPRESSLY AND IRREVOCABLY CONSENTS TO THE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN DELAWARE, AND WAIVES THE RIGHT TO ASSERT THAT ANY ACTION IN ANY SUCH COURT IS IN THE IMPROPER VENUE OR SHOULD BE TRANSFERRED TO A MORE CONVENIENT FORUM.
19. INTELLECTUAL PROPERTY. Unless otherwise specifically agreed to in writing by an authorised officer of Seller, all drawings, techniques, processes, inventions, patents, patent applications and other intellectual property (i) now owned by Seller, (ii) created or owned hereafter by Seller outside the scope of the Purchase Order or the agreement under which a Purchase Order is submitted (the “Agreement”) or (iii) created by Seller or jointly by Seller and Buyer in connection with the Purchase Order or Agreement (collectively, “Seller’s Intellectual Property”) shall be and remain Seller’s property. Seller grants no license or other right to Buyer in Seller’s Intellectual Property, whether now owned or hereafter created.
20. BUYER WARRANTIES; SUITABILITY; APPROPRIATENESS OF PRODUCTS
a. Buyer represents and warrants that he/she is a licensed therapist in the field of Occupational Therapy or Physical Therapy and will be registered with the Rehabilitation Enginseering Society of North America (RESNA),has expertise and shall remain so for so long as Buyer uses the Product. Buyer further represents and warrants that he/she has the requisite knowledge and experience required to safely and effectively determine a program for the use of and to use the Product. Buyer shall not permit any person not so licensed, experienced or expert as above use the Product in conjunction with patient treatment or use.
b. Buyer expressly warrants to Seller that it will properly use, transport, apply and in all respects handle any products purchased from Seller and/or materials produced with products purchased from Seller in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with all applicable laws and regulations now and/or hereinafter enacted and in accordance with best practices.
c. Buyer is solely and independently responsible for determining the adequacy, suitability and appropriateness of products for their applications and end use. Seller makes no warranties as to any suggestions or technical assistance provided by it and no such suggestion or assistance shall be construed as an express or implied warranty.
d. Buyer acknowledges that it has consulted Seller’s catalogues, specifications and other information, including information and any other technical bulletins and publications whether or not produced by Seller, containing safety, health, handling and environmental hazard information applicable to the Products and their properties, that it has read and it understands such information, and that it agrees to incorporate such information into its safety programs. Buyer shall fully and adequately inform itself and its employees, contractors, agents and other third parties who may become exposed to Products after delivery to Buyer hereunder, of any hazards associated with Products, and of the proper storage, handling and use procedures for Products, whether disclosed in such documents or in additional documents which are transmitted to Buyer. Buyer acknowledges its independent obligation to fully and adequately incorporate available information into its product safety program and to provide to all of its employees, contractors, agents and customers copies of such hazard communication documents. If Product is further processed, mixed or incorporated into another product, Buyer shall likewise disseminate appropriate health and safety information to all persons Buyer foresees may be exposed.
e. Buyer shall be and remain at al times solely and completely liable and responsible for any breach of the representations and warranties of this Section __ and shall indemnify and hold harmless Seller, its directors, officers, employees and affiliates for any and all costs, expenses or losses, including attorney’s fees, related to or arising from any such breach.
21. STATUTE OF LIMITATIONS. BUYER AND SELLER AGREE THAT ANY ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS SALE MUST BE BROUGHT WITHIN ONE YEAR AFTER PRODUCT ARE DELIVERED TO BUYER.
22. NONWAIVER. Seller reserves the right to enforce these terms and conditions at any time and none shall be deemed waived unless such waiver is in writing and signed by an authorized officer of Seller.
23. SEVERABILITY. If any provision or part of a provision of this agreement is declared invalid, illegal, or unenforceable under applicable law, the affected provision will be considered omitted or modified to conform to applicable law. The validity, legality, and enforceability of all other remaining provisions or parts of provisions will remain in full force and effect.
24. INDEMNIFICATION. Buyer shall indemnify, defend and forever hold Seller and its directors, officers, employees, agents, suppliers, parents, affiliates, subsidiaries, successors and assigns harmless from any and all fines, penalties, suits, actions, claims, liabilities, judgments, costs, and expenses (including attorneys' fees and expenses) resulting or arising from: (a) Buyer's negligent actions or omissions hereunder, or breach of any of the terms, warranties or representations of this Contract; (b) Buyer's use, handling, storage, or disposal of the Products or any product or waste derived therefrom; or, (c) any damage or loss occasioned by the lack of suitability of the Product to its application or end use. The foregoing indemnification shall apply, but shall not be limited to, injury to person (including death) or damage or harm to property or the environment. Buyer shall not be obligated to indemnify Seller for that portion of any fine, penalty, suit, action, claim, liability, judgment, cost, or expense to the extent attributable to the failure of the Product to meet specifications.
25. ASSIGNMENT OR DELEGATION. BUYER SHALL NOT ASSIGN OR DELEGATE ANY OR ALL OF ITS DUTIES OR RIGHTS HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF SELLER.
26. MISCELLANEOUS. Seller and Buyer are independent parties and nothing in the terms and conditions herein, accepted purchase order or order acknowledgment shall make either party agent, partner, joint venturer, or legal representative of the other.
27. INTEGRATION, MODIFICATION. This is the entire agreement between the parties and is intended to be the complete and final statement of the agreement between Buyer and Seller. All proposals, negotiations, and representations, if any, made prior to the date hereof, whether oral or in writing, are merged and superseded by these Terms and Conditions. These terms and Conditions can be modified only by a writing signed by the Seller and Buyer.