TERMS & CONDITIONS
Acceptance. The following terms and conditions of sale are applicable to all sales of Products or Services, and all Quotation, order acknowledgements, and invoices from 5Seconds™ (“5 Seconds Brand”) and to all Purchase Orders from 5Seconds™ customers (“Purchasers”) and are the only terms and conditions applicable to the sale of 5Seconds™ Products or Services, except those relating solely to prices, quantities, delivery schedules, terms of payment, invoicing, shipping instructions, or descriptions of the products set forth in Purchaser’s Purchase Orders (collectively, “Purchase Order Terms”). Purchase Orders, if accepted by 5Seconds™, are accepted subject to the terms and conditions set forth herein. 5Seconds™ HEREBY REJECTS ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED BY PURCHASER, WHETHER OR NOT CONTAINED IN ANY OF PURCHASER’S BUSINESS FORMS OR IN PURCHASER’S WEBSITE, AND SUCH ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS SHALL BE VOID AND OF NO EFFECT UNLESS SPECIFICALLY AGREED TO BY 5Seconds™ IN WRITING. Purchaser’s acceptance of Products or Services (“Products or Services”) called for in said Purchase Order shall constitute its acceptance of the following terms and conditions of sale (this “Agreement”). Any changes to these terms and conditions must be in writing and signed by 5Seconds™.
Quotation. Quotations are only valid in writing and for 30 days from the date of the Quotation unless otherwise notified. All Quotation by 5Seconds™ are subject to change or withdrawal without prior notice to Purchaser unless otherwise specifically stated in the Quotation. Quotation are made subject to approval by 5Seconds™ of Purchaser’s credit. 5Seconds™ shall have no obligation to sell or deliver Products or Services covered by 5Seconds™ Quotation unless and until 5Seconds™ issues an order acknowledgement form or upon the shipment of Products or commencement of Services by 5Seconds™.
Prices. Prices are in U.S. Dollars and are subject to change without notice. Time of payment is of the essence. All orders are accepted subject to 5Seconds™ price in effect at time of
TermsofPayment. The inspection rights granted to Purchaser will not affect or alter the payment terms or the timing of Purchaser’s payment obligations. Under no circumstances will Purchaser have a right of set-off. Payment is due before delivering the goods unless agreed in writing. If credit terms are approved by 5Seconds™, terms of payment are 30 days net from the date of 5Seconds™ invoice. Purchaser agrees to pay interest on overdue invoices at the rate of 2 ½ % per month, but not higher than the highest rate permitted by law. If Purchaser fails to make any payment as required, Purchaser agrees to indemnify 5Seconds™ for all costs and expenses, including reasonable attorney fees, court costs, and associated expenses incurred by5Seconds™. In the event of default, all future warranties are voided.
Credit Approval. All shipments to be made hereunder shall at all times be subject to the approval of 5Seconds™ credit 5Seconds™ may invoice Purchaser and recover for each shipment made pursuant to this Agreement as a separate transaction without regard to any other order or agreement with 5Seconds™, or if, in 5Seconds™ sole judgment, the financial responsibility of Purchaser is or becomes unsatisfactory, then 5Seconds™ may, at its option and without prejudice to any of its other remedies, (a) defer or decline to make any shipments hereunder except upon receipt of satisfactory security or cash payments in advance, and / or (b) terminate all Purchase Orders of Purchaser.
Cancellation. Once 5Seconds™ has either accepted a Purchase Order or has begun taking actions with respect to such Purchase Order, such Purchase Order cannot be canceled, terminated or modified by Purchaser in whole or in part except with 5Seconds™ consent in writing and then only upon terms and conditions to be agreed upon which shall include protection of 5Seconds™ against all losses. Purchaser shall indemnify 5Seconds™ for any costs incurred, including material and labor costs, in connection with any Purchase Order that Purchaser desires to cancel, terminate or
Inspection/Non-Conforming Shipments. 5Seconds™ grants Purchaser the right to inspect Products for a period of five
(5) business days immediately following delivery (“Inspection Period”). Purchaser must notify 5Seconds™ of any Products that do not conform to the terms applicable to their sale within the inspection period, enclose a copy of the invoice on which the Products where purchased and afford 5Seconds™ a reasonable opportunity to inspect such Products and cure any nonconformity. If Purchaser fails to provide 5Seconds™ with notice of nonconformity within the Inspection Period, Purchaser shall be deemed to have accepted the Products. Purchaser will have no right to return any Product without 5Seconds™ prior written authorization. Any return authorized by 5Seconds™ must be made in accordance with 5Seconds™ return policies then in effect and must be accompanied by a Returned Merchandise Authorization (“RMA”) from 5Seconds™. Purchaser will be responsible for all costs and expenses associated with any returns of Products and will bear the risk of loss or damage of such Products, unless 5Seconds™ agrees otherwise in writing or determines that the Products do not conform to the applicable terms of sale. 5Seconds™, in its sole discretion may reject any return of Product not approved by 5Seconds™ in accordance with this paragraph or otherwise not returned in accordance with 5Seconds™ then current-return policies.
Risk of Loss / Delivery. Unless other arrangements are made in writing, 5Seconds™ anticipates use of common carriers for transport of Products. Purchaser shall assume all risk and liability for loss, damage, or destruction, as well as the results of any use or misuse by third parties who may acquire or use the Products illicitly after the delivery to the carrier. Unless mutually agreed upon, shipping dates are approximate and are based upon prompt receipt of all necessary information. 5Seconds™ reserves the right to ship items in a single or in multiple shipments.
Damage. On Products shipped O.B. destination, Purchaser shall notify 5Seconds™ and the delivering carrier within three
(3) business days from date of receipt of Products, of any damage or shortage, and afford 5Seconds™ a reasonable opportunity to inspect the Products. On Products shipped F.O.B. 5Seconds™ warehouse, any loss occasioned by damage or shrinkage in transit will be for Purchaser account and claims for such loss shall be made solely against the carrier.
Limitation of Liability and Remedies. 5Seconds™ SHALL NOT BE LIABLE, AND PURCHASER WAIVES ALL CLAIMS AGAINST 5Seconds™, FOR INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR COMMERCIAL LOSSES, WHETHER OR NOT BASED UPON 5Seconds™ NEGLIGENCE OR BREACH OF WARRANTY OR STRICT LIABILITY IN TORT OR ANY OTHER CAUSE OF ACTION. 5Seconds™ WILL NOT BE LIABLE TO PURCHASER FOR ANY LOSS, DAMAGE, OR INJURY TO PERSONS OR PROPERTY RESULTING FROM THE HANDLING, STORAGE, TRANSPORTATION, RESALE, OR USE OF ITS PRODUCTS IN MANUFACTURING PROCESSES, OR IN COMBINATION WITH OTHER SUBSTANCES, OR OTHERWISE. IN NO EVENT WILL 5Seconds™ LIABILITY UNDER THIS AGREEMENT OR IN CONNECTION WITH THE SALE OF PRODUCTS BY 5Seconds™ EXCEED THE PURCHASE PRICE OF THE SPECIFIC PRODUCTS OR SERVICES AS TO WHICH THE CLAIM IS
Inventory. 5Seconds™ is under no obligation to take back material for credit or exchange when the reason for the return was anything other than the 5Seconds™ error. At 5Seconds™ sole discretion, should a return of this nature be authorized, the Products returned must be in its original packaging, and be in resalable A minimum 15% restocking charge will apply as well as any additional charges necessary to restore Products to a resalable condition.
Technical Data. All physical properties, statements and recommendations are either based on the tests or experience that 5Seconds™ believes to be reliable, but they are not guaranteed.
Product Use. Purchaser is solely responsible for determining whether any Product is fit for a particular purpose and suitable for Purchaser’s method of application. Accordingly, and due to the nature and manner of use of 5Seconds™ Products, 5Seconds™ is not responsible for the results or consequences of use, misuse, or application of its Products byTaxes. Purchaser shall pay to 5Seconds™, in addition to the purchase price, the amount of sales taxes which 5Seconds™ is required to collect in connection with the Products or Services sold to Purchaser. Failure by the 5Seconds™ to collect any such fees or taxes shall not affect Purchaser obligations hereunder and Purchaser shall fully defend, indemnify, and hold harmless 5Seconds™ with respect to such tax Purchaser must provide the copy of sales tax-exempt certificate to quality for exemption.
Ownership of Intellectual Property. All drawings, know-how, designs, specifications, developments, processes, copyrights and other information or Intellectual Property disclosed or otherwise provided to Purchaser by 5Seconds™ and all rights therein (collectively, “Intellectual Property”) will remain the property of 5Seconds™ and will be kept confidential by Purchaser in accordance with these terms and conditions. Purchaser shall have no claim to, nor ownership interest in, any Intellectual Property and such information, in whatever form and any copies thereof, shall be promptly returned to 5Seconds™ upon written request from 5Seconds™. Purchaser acknowledges that no license or rights of any sort are granted to Purchaser hereunder in respect of any Intellectual
Confidential Information. All information furnished or made available by 5Seconds™ to Purchaser in connection with the subject matter of this Agreement or of Purchaser’s Purchase Order shall be held in confidence by the Purchaser. Purchaser agrees not to use such information or disclose such information to others without 5Seconds™ prior written consent. The obligations in this paragraph will not apply to any information which (a) at the time of disclosure was or thereafter becomes, generally available to the public by publication or otherwise through no breach by the Purchaser of any obligation herein, (b) the Purchaser can show by written records was in the Purchaser’s possession prior to disclosure by 5Seconds™, or (c) is legally made available to the Purchaser by or through a third party having no direct or indirect confidentiality obligation to 5Seconds™ with respect to such
Infringement and Indemnification. (a) Except as set forth below, 5Seconds™ agrees to defend, indemnify and hold the Purchaser harmless against any claims, costs, damages, liability and expenses resulting from actual trademark, or copyright infringement, misappropriation of confidential information, or violation of any other Intellectual Property right, domestic or foreign, that may arise from the sale of Product that is owned by 5Seconds™ and that pertains to the subject matter of this Agreement (provided that Product is not modified in any way by the Purchaser or any other party, and that the Product is used in the manner intended by 5Seconds™). If a suit or claim results in any injunction or any other order that would prevent 5Seconds™ from supplying any part or Product falling under this Agreement, or if the result of such a suit or claim would, in the reasonable opinion of 5Seconds™, otherwise cause 5Seconds™ to be unable to supply such parts or Products, 5Seconds™ shall have the right, at its option, if it so chooses, to do one or more of the following: (i) secure an appropriate license to permit 5Seconds™ to continue supplying said parts or Products to Purchaser; (ii) modify the appropriate part or Product so that it becomes non-infringing; (iii) replace the appropriate part or Product with a non-infringing but practically equivalent part or Product; or (iv) if the 5Seconds™ cannot reasonably accomplish the actions specified in subparagraphs (i) – (iii), then in 5Seconds™ sole discretion, 5Seconds™ may discontinue selling the part or Product without any further liability to Purchaser. (b) Purchaser agrees to defend, indemnify and hold 5Seconds™ harmless against any claims, costs, damages, liability and expenses resulting from actual or alleged patent, trademark, or copyright infringement, misappropriation of confidential information, or violation of any other Intellectual Property right, domestic or foreign, that may arise from the making, using or selling of any part or Product or using any process that is owned by the Purchaser or is designed or specified by the Purchaser and that pertains to the subject matter of this Agreement. (c) If any claim is made by a third party on the basis of which indemnification may be sought under this paragraph, the party entitled to indemnification (the “Indemnified Party”) shall give written notice of such claim to the party liable for such indemnification (the “Indemnifying Party”) promptly after the Indemnified Party has actual notice of such claim. The Indemnifying Party shall have the right to defend and/or settle such claim at its expense, provided that it does so diligently and in good faith. The Indemnified Party shall cooperate with such defense and/or settlement and shall have the right to participate in (but not to control) such defense and/or settlement at its expense. No settlement shall be entered into unless the Indemnified Party shall be released from all liability for such
Force Majeure. 5Seconds™ shall not be liable for failure to perform or delay in performance or delivery of any Products or Services due to (a) fires, floods, strikes, or other labor disputes, accidents, sabotage, terrorism, war, riots, acts of precedence or priorities granted at the request or for the benefit, directly or indirectly, of any federal, state or local government or any subdivision or agency thereof, delays in transportation or lack of transportation facilities, restrictions imposed by federal, state or local laws, rules or regulations; or (b) any other cause beyond the control of 5Seconds™. In the event of the occurrence of any of the foregoing, the time for performance shall be extended for such time as may be reasonably necessary to enable 5Seconds™ to perform. 5Seconds™ may, during any period of shortage due to any of the above circumstances, allocate its available supply of Products or Services among itself and its Purchasers in such manner as 5Seconds™, in its judgment, deems fair and
Assignment and Delegation. No assignment of any rights or interest or delegation of any obligation or duty of Purchaser under these terms and conditions, 5Seconds™ Quotation, order acknowledgement, or invoice, or Purchaser’s Purchase Order may be made without the prior written consent of 5Seconds™. Any attempted assignment or delegation will be wholly void and totally ineffective for all
Integration Clause. These terms and conditions, together with 5Seconds™ Quotation, order acknowledgement and invoice to a Purchase Order accepted by 5Seconds™, constitute the entire contract of sale and purchase between 5Seconds™ and Purchaser with respect to the Products covered by this Agreement, and supersedes any prior agreements, understandings, representations and Quotation with respect thereto. No modification hereof shall be of any force or effect unless in writing and signed by the party claiming to be bound
Waiver. No failure of 5Seconds™ to insist upon strict compliance by Purchaser with these terms and conditions or to exercise any right accruing from any default of Purchaser shall impair 5Seconds™ rights in case Purchaser’s default continues or in case of any subsequent default by Purchaser. Waiver by 5Seconds™ of any breach by Purchaser of these terms and conditions shall not be construed as a waiver of any other existing or future
Limitation of Actions. Notwithstanding any contrary statute of limitations, any cause of action for any alleged breach of these terms and conditions by 5Seconds™ shall be barred unless commenced by Purchaser within one (1) year from the accrual of such cause or
Litigation Costs. If any litigation or arbitration is commenced between 5Seconds™ and Purchaser concerning any provision of this Agreement, the party prevailing in the litigation or arbitration is entitled, in addition to such other relief that is granted, to a reasonable sum as and for their attorney’s fees in such litigation or arbitration, provided that if each party prevails in part, such fees shall be allocated in such manner as the court or arbitrator shall determine to be equitable in view of the relative merits and amounts of the parties’
Choice of Laws. Any dispute arising out of or related to this Agreement, shall be governed by and construed according to the laws of the State of Georgia and litigated exclusively in a state or federal court located in Atlanta Georgia. The parties hereby agree to the exclusive jurisdiction and venue of such
Jury Waiver. The parties hereto expressly release and waive any and all rights to a jury trial and consent to have any dispute heard solely by a Court of competent
Severability. If any provision herein shall be held to be unlawful or unenforceable, the remaining provisions herein shall remain in full force and effect.
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