1. Buyer’s Acceptance of Terms. By placing an order with Seller through the Purchase Order, Buyer accepts these T&Cs and these T&Cs prevail over any of Buyer's general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or other documents containing any such terms. Fulfilment of Buyer's Purchase Order by Seller does not constitute acceptance of any of Buyer's terms and conditions in the Purchase Order or elsewhere and does not serve to modify or amend these T&Cs. If there is any inconsistency between these T&Cs and terms and conditions contained in any other document submitted by Buyer or exchanged by Seller (including purchase orders, acknowledgments, requests for proposal, invoices, etc.), these T&Cs shall control even if Buyer's documents expressly limit acceptance to use of Buyer's terms and conditions. These T&Cs and any basic Purchase Order terms (i.e. list of the Products, quantity, UPC or item number, requested delivery date; price, billing address and delivery location) constitute the entire agreement between the parties as to any particular purchase by Buyer of Products.
2. Orders. Prior to commencing the manufacturing of any Products, Seller will provide to Buyer a two-dimensional proof of the design, and upon Buyer’s written approval of the design, Seller will cause the manufacture of the Product to commence. Once approved by Buyer, there shall be no changes to the design or any other aspect of the Purchase Order, except the Buyer shall have the right to increase the quantity of the Purchase Order. Buyer hereby represents and warrants that (i) it owns the rights to any logo or other design element which it provides to Seller to be incorporated into the design of the Product, and (ii) that such logo or design element does not infringe upon any copyright or trademark. Notwithstanding anything contained herein to the contrary, Seller retains ownership of the final Product design as well as any other design options shown to Buyer, and Buyer agrees it shall not use any such designs in any other products or in any other manner without Seller’s prior written consent, which consent shall be withheld in Seller’s sole and absolute discretion. A Purchase Order is not considered accepted by Seller until the Products are shipped or until Seller sends an acknowledgment.
3. Price. Prices for the Products are set forth in the Purchase Order. Seller may change any prices at any time in Seller’s sole discretion on 30 days prior written notice to Buyer.
4. Payment. Seller’s payment terms are indicated on the Purchase Order. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law. In addition, Buyer shall reimburse Seller for all expenses and costs incurred or expended by Seller in enforcing any of its rights hereunder and/or collecting any past due sums, whether or not suit is commenced. Buyer may not reduce any payment by any alleged discounts or other deductions without Seller’s prior written consent. Buyer is responsible for paying all applicable local, state, federal, use, sales and excise taxes in relation to the purchase of the Products.
5. Delivery; Title.Manufacturing of Products will not commence until all outstanding payments, if any, are paid in full. Unless an accepted Purchase Order indicates otherwise, all Products are delivered FOB to Buyer’s address set forth above. The mode of delivery will be at the discretion of Seller. Although Seller estimates that delivery will occur within 4-7 weeks after production commences, Buyer acknowledges and agrees that this time period is an estimate and not a guarantee. Risk of loss and title for Products will pass to Buyer upon delivery to Buyer or its designee at the FOB location. Where permitted by law, Buyer hereby grants to Seller a security interest in Products sold until full payment is received. Buyer authorizes Seller to file a UCC financing statement to perfect this security interest at any time.
6. Inspection. Buyer shall carefully inspect all Products and shipping documents promptly upon delivery of Products. No claim for non-conformity, defect, shortage or damage will be valid or enforceable against Seller unless Buyer gives Seller written notice specifying in detail the issue within 48 hours from the date that Buyer receives the Products. Buyer shall supply such reasonable documentation as to any loss as Seller may request. Buyer shall be deemed to conclusively accept all Products not rejected in accordance with the preceding sentences. If any Products are non-conforming, Buyer has provided proper notice, and if the non-conformity was not caused by Buyer or due to misuse or handling after the Products were delivered to Buyer, Seller will cause the non-conforming Products to be replaced at no additional charge to Buyer. Without limiting the foregoing, Buyer hereby acknowledges and agrees that the Produces are custom orders and there shall be no refunds or returns accepted in the event the Products are non-conforming.
7. Disclaimer of Warranties. Seller warrants that the Products when delivered will be (i) free and clear of all liens, security interests and other encumbrances, and (ii) will be produced in compliance with all applicable law. THE WARRANTIES SET FORTH IN THIS SECTION ARE IN LIEU OF ALL OTHER WARRANTIES AND COMPRISE SELLER’S SOLE AND ENTIRE WARRANTY OBLIGATION TO BUYER AND BUYER’S CUSTOMERS AND ASSIGNS IN CONNECTION WITH THE PRODUCTS. SELLER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. Limit of Liability. SELLER WILL IN NO EVENT BE LIABLE FOR ANY INCIDENTAL, CONTINGENT, SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUE OR USAGE, COST OF SUBSTITUTE PRODUCTS, ADDIT1ONAL COSTS INCURRED BY BUYER, OR CLAIMS OF THIRD PARTIES. SELLER’S TOTAL LIABILITY TO BUYER FOR DAMAGE OR LOSS ARISING OUT OF, OR IN ANY WAY RELATED TO, THE SALE OF PRODUCTS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND/OR GROSS NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY OR ANY OTHER CAUSE SHALL IN NO EVENT EXCEED THE PRICE OF PRODUCTS TO WHICH SUCH CLAIM RELATES.
9. Indemnification. Buyer agrees to defend, indemnify, and hold harmless Seller and its affiliates, or their respective officers, directors, employees, shareholders, agents, successors, or assigns from all liabilities, claims, and expenses, including attorney's fees, that arise from (i) Buyer’s breach of the Purchase Order or the T&Cs including Buyer’s representations and warranties set forth in Section 2 above; (ii) the negligent or more culpable act or omission of Buyer or its employees or agents; and (iii) any failure by a Buyer to comply with any applicable laws.
10. Governing Law; Venue; Attorney’s Fees. These T&Cs shall be governed by, and any dispute arising hereunder shall be determined in accordance with, the laws of the Commonwealth of Pennsylvania, without giving effect to conflict of laws principles. Buyer and Seller irrevocably submit to the exclusive jurisdiction and venue of the state and federal courts sitting in Philadelphia County, Pennsylvania. In addition to other remedies, the prevailing party shall be entitled to recover such amount as the court may adjudge reasonable as attorney’s fees and expenses in the enforcement action or any appeal. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
11. Miscellaneous. Neither party will be liable for performance delays or for non-performance due to causes beyond its reasonable control, except for payment obligations. There is no relationship of partnership, joint venture, employment, franchise or agency between the parties and Buyer will not have the power to bind Seller or incur obligations on Seller’s behalf without Seller’s prior written consent. If any provision of these T&Cs shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable, this provision shall not affect any other provision or provisions contained in these T&Cs. None of the provisions of these T&Cs shall be (a) deemed to have been waived unless such waiver shall be set forth in writing signed by Seller, or (b) subject to modification or waiver by course of performance, course of dealing, or usage of trade.