ADVANCED CUTTING SOLUTIONS LLC TERMS AND CONDITIONS
1. Applicability. These Terms and Conditions (the “Terms”) are the only terms that govern the sale of all kits, products and services (collectively, the “Products”) by Advanced Cutting Solutions L.L.C. (“Seller”) to the purchaser named above (“Purchaser”). The accompanying purchase order set forth above (the “Purchase Order”) and these Terms (collectively, the “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral between Seller and Purchaser. These Terms prevail over any of Seller’s general terms and conditions of sale regardless of whether or when Seller has submitted its sales confirmation or such terms. This Agreement expressly limits Seller’s acceptance to the terms of this Agreement. Acceptance of the Products pursuant to the Purchase Order shall constitute acceptance by Purchaser of these Terms. Purchaser warrants that it has received and is familiar with information provided by Seller relating to the safe selection, handling, use, installation and disposal of the Products; and, Purchaser has used its own independent skill and expertise in connection with its selection, use and installation of the Products. Purchaser shall determine the suitability of the Products for its purposes and assume the responsibility for all risks and liabilities which may result therefrom.
2. Delivery. The Products will be delivered on the Delivery Date and to the Delivery Point set forth in the Purchase Order, subject to the availability of the Products. Seller shall not be liable for any delays, losses, or damages which may occur in transit. Title to the Products shipped hereunder and the risk of loss shall pass to the Purchaser upon Seller’s delivery to a carrier or Seller’s delivery of the Products directly to the Delivery Point. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to Purchaser. Each such shipment will constitute a separate sale, and Purchaser shall pay for the units shipped whether such shipment is in whole or a partial fulfillment of the quantity purchased under this Agreement. If for any reason Purchaser fails to accept delivery of any of the Products on the Delivery Date or Seller’s earlier or later delivery date pursuant to Seller’s written notice to Purchaser that the Products have been delivered at the Delivery Point, or if Seller or its designee is unable to deliver the Products at the Delivery Point on such date because Purchaser has not provided appropriate instructions, documents, licenses or authorizations then: (i) the Products shall be deemed to have been delivered; and (ii) Seller, at its option, may store the Products until Purchaser picks them up, whereupon Purchaser shall be liable for all related costs and expenses (including, without limitation, storage and insurance). The quantity of any installment of Products as recorded by Seller on dispatch from Seller’s or its designee’s place of business shall be conclusive evidence of the quantity received by Purchaser on delivery unless Purchaser can provide conclusive written evidence proving the contrary. Seller shall not be liable for any non-delivery of Products (even if caused by Seller’s negligence).
3. Shipping. All shipments hereunder shall be made FOB shipping point.
4. Title and Risk of Loss. Seller shall bear all risk of loss to all Products ordered hereunder until Seller or its designee delivers the Products to the carrier. Title and risk of loss passes to Purchaser upon Seller’s or its designee’s delivery of the Products to the carrier.
5. Inspection. Purchaser shall inspect the Products within three (3) days of receipt and will be deemed to have accepted the Products unless Purchaser notifies Seller in writing of any nonconforming Products during such three (3) day period and furnishes such written evidence or other documentation as required by Seller. The failure of Purchaser to inspect any particular shipment of Products within three (3) days of receipt or Purchaser’s failure to provide written notice to Seller of any nonconformities in the Products shall constitute a waiver of Purchaser’s rights to inspect that shipment and shall constitute an acceptance by Purchaser of all such Products. If Purchaser timely notifies Seller of any nonconforming Products, Seller may, in its sole discretion: (a) replace such nonconforming Products with conforming Products or (b) credit or refund the price for such nonconforming Products at the prorated contract rate. Purchaser shall deliver, at its sole expense and risk of loss, the nonconforming Products to Seller or to Seller’s designee. If Seller exercises its option to replace any such nonconforming Products, Seller shall, after receiving Purchaser’s shipment of such nonconforming Products, ship to Purchaser, at Purchaser’s sole expense and risk of loss, the replaced Products to the Delivery Point set forth in the Purchase Order. Purchaser hereby acknowledges and agrees that the remedies set forth in this Section 5 are Purchaser’s sole and exclusive remedies for Seller’s delivery of nonconforming Products and, except as provided herein, Purchaser has no right to return any Products purchased under this Agreement to Seller, whether or not such Products are nonconforming.
6. Price. The price of the Products is the price stated on the above Purchase Order. Seller's product pricing is subject to change at any time in Seller’s sole discretion and for any reason without prior notice to Purchaser. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Purchaser. Purchaser shall be responsible for all such taxes, charges, and costs. When applicable, sales tax shall be invoiced to Purchaser. All other taxes (other than income or excess profit taxes) which may be imposed by any taxing authority on the sale, delivery, use or installation of the Products and for which Seller may be held responsible for collection or payment, shall be paid by Purchaser to Seller upon demand, unless Purchaser has furnished to Seller an appropriate valid certificate of exemption issued by or acceptable to the tax authority in question.
7. Payment Terms. Purchaser shall pay all invoiced amounts due to Seller within thirty (30) days from the date of Seller’s invoice. All payments shall be made in the currency listed on such invoice or purchase order, as applicable, or, if not so listed, then in U.S. dollars. Seller, or its assignee, may charge Purchaser interest on all amounts overdue at the highest rate permissible under applicable law, calculated daily and compounded monthly. If payments are not paid on time, or if Seller has reason to believe that Purchaser’s financial status is unsatisfactory, then Seller may, in its sole discretion and without limiting any of Seller’s other rights provided by law, defer shipments of Products, accelerate due dates on all amounts owed, and/or require cash or other security for payment. Purchaser shall reimburse Seller for all costs incurred in collecting any late payments, including Seller’s attorneys’ fees. Purchaser has no right to withhold, offset, recoup or debit any amounts owed to Seller or any of its assignee’s or affiliates against any other amount owed to it by Seller or its assignee’s or affiliates.
8. Warranties. SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. PURCHASER SHALL USE THE PRODUCTS CONSISTENT WITH THE LABELING AND END USER INSTRUCTIONS.
9. Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (i) WHETHER SUCH DAMAGES WERE FORESEEABLE, (ii) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (iv) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS SOLD HEREUNDER.
10. Indemnification. Without limiting any other terms provided hereunder, Purchaser hereby agrees that it shall defend, indemnify and hold harmless Seller and its affiliates, successors or assigns and their respective members, managers, shareholders, officers and employees (collectively, the “Indemnified Party”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, the “Losses”) arising out of or occurring in connection with the Products purchased from Seller or as a result of Purchaser’s negligence, willful misconduct, or breach of this Agreement. Purchaser shall not enter into any settlement with respect to any Losses without Seller’s or an Indemnified Party’s prior written consent.
11. Compliance with Laws. Purchaser is in compliance with and shall continue to comply with all applicable laws, rules, regulations, and ordinances. Purchaser has obtained and shall maintain in effect any and all licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
12. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon notice to Purchaser if: (i) Seller is unable to deliver the Products to Purchaser for any reason; (ii) Purchaser fails to pay any amount when due under this Agreement; (iii) Purchaser has not performed or complied with the terms of this Agreement, in whole or in part; or (iv) Purchaser becomes insolvent, files a petition for bankruptcy, or the initiation against it of any proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
13. Miscellaneous. Purchaser shall not act as a wholesaler, distributor or reseller of the Products and shall not offer or sell the Products for sale to any other customer or end user. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. Purchaser shall not assign (including any change of control), transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section 13 shall be null and void. No assignment or delegation shall relieve the Purchaser of any of its obligations hereunder. Seller may at any time assign or transfer any or all of its rights or obligations under this Agreement without Purchaser’s prior consent to any affiliate or to any person acquiring all or substantially all of Seller’s assets. The relationship between the parties is that of independent contractors only and are not partners. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties which would impose vicarious liability to the other, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Louisiana without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Louisiana. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Louisiana in each case located in the City of New Orleans, and each party hereby irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order and shall be delivered by nationally recognized overnight courier (with all fees pre-paid). If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.