Terms and Conditions (Tooling)
These Terms and Conditions together with any order form, invoice, order confirmation, receipt for payment made, or quote (the “Purchase Document” together with the Terms and Conditions the “Agreement”), set forth the terms and conditions under which Elizabeth Tooling, LLC, a Texas limited liability company, and it affiliates and subsidiaries (“Seller”), will provide the individual and/or legal entity identified as being the buyer in the applicable Purchase Document (“Buyer”) with the ability to which apply to purchase (i) tablet presses, capsule fillers, mixers and such other equipment as Seller may sell from time to time (collectively, “Equipment”); (ii) binding agents, flowing agents, lubricants, super-disintegrants and other excipients (collectively, “Excipients”); and (iii) such other products as Seller may manufacture and/or otherwise offer for sale from time to time, including spare or replacement parts for equipment and tooling used in tablet presses and capsule fillers (“Extras”). “Equipment”, “Excipients” and “Extras” maybe referred to collectively or in various combination, as the “Products”, whether one or more. This Agreement shall apply to all of Buyer’s purchases and uses of any Products set forth in the applicable Purchase Document. Certain Products offered to Buyer by Seller, may be subject to additional or different terms and conditions. By purchasing any Product(s) or otherwise making payment to Seller, Buyer acknowledges that it has read the Agreement and agrees to be legally bound by the terms of this Agreement.
THESE TERMS AND CONDITIONS ARE INCORPORATED INTO EACH PURCHASE DOCUMENT BY REFERENCE AND GOVERN THE PARTIES’ RESPECTIVE RIGHTS AND OBLIGATIONS RELATING TO ANY AND ALL SUCH PRODUCTS BUYER MAY PURCHASE FROM SELLER.
1. USE RESTRICTIONS.
Buyer shall not (a) use or otherwise permit or allow any Products purchased by or on behalf of Buyer to be used for any unlawful purpose or in any manner that violates applicable Federal, state, or local laws, rules, regulations, or ordinances of any kind, including without limitation, the Controlled Substances Act (Title 21, U.S. Code Ann. §811 et. Seq.), the Comprehensive Drug Abuse Prevention and Control Act of 1970, and rules and regulations promulgated by the U.S. Justice Department, Drug Enforcement Administration (“DEA”), Diversion Control Division, each as may be amended from time to time, (collectively “Applicable Laws”); (b) remove, delete, alter, or obscure any trademarks, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Products, including any copy thereof; (c) access or use the Products for purposes of competitive analysis of the Products, or any portion thereof, the development, provision, or use of a service or product competitive to those provided by Seller or any other purpose that is to Seller’s detriment or commercial disadvantage; (d) access or use the Products any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person or entity (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of Seller or any other Seller customer), I access or use the Products in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Products could lead to personal injury or severe physical or property damage; (f) copy the Products, in whole or in part; (g) modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of any Products; (h) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Products to any third party; or (i) reverse engineer, disassemble, decompile, decode, or adapt the Products, or otherwise attempt to derive or gain access to the source code, underlying ideas, algorithms, or technology of any of the Products provided by Seller, in whole or in part.
2. Delivery; Shipping Terms.
(a) Products will be delivered to Buyer within a reasonable period of time after Seller’s receipt and acceptance of the Purchase Document and payment thereunder, subject to availability of finished goods and products which are ready for shipment. SELLER SHALL NOT BE LIABLE FOR ANY DELAYS, LOSS OR DAMAGE TO THE PRODUCTS WHICH OCCURS WHILE IN THE POSSESSION OR CONTROL OF A COMMON CARRIER (DEFINED BELOW) OR ANYONE OTHER THAN SELLER, OR FOR DELAYS CAUSED BY BUYER’S FAILURE TO TIMELY SUBMIT ALL PURCHASE DOCUMENTS AND OTHER INFORMATION WHICH SELLER MAY REASONABLY REQUIRE AS A PRE-CONDITION TO ITS DELIVERY OF THE PRODUCTS.
(b) Unless otherwise agreed to by the Buyer and Seller in an applicable Purchase Document or another written instrument, Seller shall deliver any Products sold hereunder FOB Shipping Point at a warehouse or other storage facility owned, operated, maintained or otherwise utilized by Seller (“Seller’s Warehouse”) using Seller’s standard methods for packaging and shipping. Buyer shall take delivery of the Products within fourteen (14) days after Buyer’s receipt of Seller’s written notice that the Products are ready for pick up at Seller’s Warehouse (the “Delivery Notice”), or otherwise provide Seller with shipping information and a bill of lading from a nationally recognized common carrier (each, a “Common Carrier”) of Buyer’s choosing. If Buyer fails to take delivery of such Products at Seller’s Warehouse or to otherwise provide Seller with Buyer’s shipping information and a bill of lading from Buyer’s chosen Common Carrier within such fourteen (14) period of time, then Seller may, but shall have no obligation to arrange for shipment of the Products through a Common Carrier of Seller’s choosing to the location specified in the applicable Purchase Document (the “Shipping Destination”), at Buyer’s sole cost and expense. In either event, Buyer will be solely responsible for all shipping costs and all risk of loss once the Products leave the Seller’s Warehouse. Seller may, require pre-payment of shipping and/or storage costs from Buyer prior to the shipment of the Products to the Shipping Destination, or may invoice Buyer for the cost of storing the Products at Seller’s Warehouse or shipping the Products to the Shipping Destination (“Delivery Costs”). Buyer shall be responsible for paying all Delivery Costs by the date specified in the invoice provided by Seller.
(c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. In such event, each separate shipment will constitute a separate sale and Buyer shall pay for each unit of Products shipped, including all associated Delivery Costs, regardless of whether such shipment is in whole or partial fulfillment of the Products described in the particular Purchase Document at issue. Seller will use reasonable efforts to notify Buyer where Products may be shipped in separate shipments.
(d) If Buyer fails for any reason to accept delivery of the Products or any portion thereof as described in Section 2(b) above or otherwise on the date specified in the Seller’s Delivery Notice or if Buyer otherwise fails to provide appropriate access, instructions, documents, licenses or authorizations, the absence of which prevents the Seller from delivering the Products or renders Seller unable to deliver the Products to the specified Shipping Destination (if applicable), then the Products shall be deemed to have been delivered to Buyer, and in good and acceptable condition. In such event, (i) the Seller may, but shall have no obligation to, retake possession of the Products from Buyer’s Common Carrier and/or store such Products at Buyer’s sole cost and expense until such time as Buyer makes alternate arrangements for pickup or delivery, and (ii) Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance costs), and subject to risk of loss in the event that the Products are lost, stolen or damaged in any way, in whole or in part, and whether in storage, in transit, or otherwise.
3. Non-Delivery.
The quantity of any shipment of Products as recorded by Seller on dispatch from Seller’s Warehouse is conclusive evidence of the quantity Buyer actually received upon delivery, unless Buyer provides conclusive evidence proving the contrary within five (5) business days after the date upon which the Products were delivered or should have been delivered in due course. Seller shall not be liable for any non-delivery of Products unless Buyer gives Seller written notice of such non-delivery within five (5) business days after the date upon which the Products should have been received in due course. In such event, Seller’s liability for non-delivery of any Products shall be limited to replacing the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered, in Seller’s sole discretion.
4. Inspection and Rejection of Non-Conforming Products.
(a) Buyer must perform a detailed, initial inspection immediately at the time of delivery (each, an “Inspection Upon Delivery”) of the box, crate, or other packaging in which any Products are shipping (“Packaging”) and before signing for the shipment or otherwise acknowledging its receipt and acceptance of such Products from the Common Carrier. As part of this detailed, initial inspection, Buyer must inspect and take note of the condition of any shock-recorders, drop sensors and/or similar impact detection sensors (each, an “Shock Recorder”) which Seller may have affixed to the Packaging and notify Seller immediately if the Shock Recorder indicates that the Packaging has been dropped or suffered some other form of impact or the Packaging otherwise shows evidence of significant mishandling by the Common Carrier. If the Buyer has any reason to believe that the Packing or Products may have been damaged while in possession or control of a Common Carrier, then Buyer must affirmatively reject the shipment and promptly notify Seller in writing of its rejection of the shipment and the reasons for such rejection. If the Buyer does not reject and provide notice of such rejection to Seller in writing within twenty-four (24) hours of Inspection Upon Delivery, it will be deemed accepted and Seller will have no further obligation to Buyer for such Products. Buyer’s failure to timely reject Products under this Section 4(a) will not relieve Buyer of its payment obligations to the Seller for such Products, including Delivery Costs.
(b) If Buyer fails to perform an inspection upon delivery or to otherwise reject any shipment which it should have rejected according to the terms set forth above, then Buyer shall be deemed to have accepted such Products in their “AS IS” condition upon delivery and shall have no further right to reject such Products because of any damage which may have occurred while in the possession or control of a Common Carrier, whether patent, latent or otherwise, on grounds that the Products are Non-Conforming Products (defined below). Nor shall any such Products be regarded as being defective, to the extent that the alleged defect could have reasonably been caused by being dropped or by some other impact, or some other damage which occurred while the Products were in the possession or control of a Common Carrier.
(c) Unless Buyer rejects a shipment of Products as provided above, it must perform a more detailed inspection of the Products within seven (7) days after its receipt thereof (the “Inspection Period”). Buyer must further notify Seller in writing before the expiration of the Inspection Period of any Non-Conforming Products and provide Seller with such photographs or other evidence and documentation as Seller may reasonably require. For purposes of this provision, “Non-Conforming Products” means any Products that differ from the Products described in the applicable Ordering Document or shipping manifest. If Buyer fails to notify Seller of any Non-Conforming Products in a timely manner, then it will be deemed to have accepted the Products for all purposes. Time is of the essence with regard to Buyer’s notification obligations hereunder.
(d) If Buyer notifies Seller of any Non-Conforming Products in a timely manner, then Seller shall, at its sole discretion, either (i) replace such Non-Conforming Products with conforming Products, or (ii) issue a credit or refund to Buyer for the purchase price for such Non-Conforming Products; provided, that in either case, Buyer has first shipped the Non-Conforming Products back to Seller’s Warehouse at Seller’s sole cost and expense, and according to Seller’s written instructions. If Seller exercises its option to replace any Non-Conforming Products as opposed to issuing a credit or refund, then once it is in receipt of the Non-Conforming Products, Seller shall ship the replacement Products to Buyer according to the same terms set forth in Section 1 above.
(e) Buyer acknowledges and agrees that the remedies set forth in this Section are Buyer’s exclusive remedies for the delivery of Non-Conforming Products, and that Buyer has no right to return Products purchased under this Agreement to Seller except as otherwise expressly provided above.
5. Title and Risk of Loss.
Title and risk of loss passes to Buyer upon Seller’s delivery of the Products to Buyer or a Common Carrier at the Seller’s Warehouse. As collateral security for the payment of the purchase price of the Products, Buyer hereby grant Seller a lien on and security interest in and to all of Buyer’s right, title and interest in and to the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance).
6. Price.
Buyer shall purchase the Products from Seller at the prices specified in the applicable Purchase Document and all associated Delivery Costs (the “Prices”). Prices are exclusive of any and all applicable sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, municipal, foreign or other governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
7. Payment Terms.
(a) Unless otherwise agreed upon by the parties in an applicable Purchase Document or other written instrument, Buyer shall, at Seller’s discretion, pay all amounts, including Delivery Costs, due to Seller (i) upon receipt of Seller’s invoice, or (ii) at the time of purchase of the Products. Seller’s fulfillment of the applicable Purchase Document may be subject to partial or complete payment by Buyer. Seller shall no responsibility for delay in fulfillment or shipping caused by Buyer’s delayed payments. Seller, may, at Seller’s sole discretion, permit Buyer to pay for purchased Products under a particular Purchase Document, in multiple payments overtime, subject to the payment terms determined by Seller or set forth in the applicable Purchase Document. Buyer shall make all payments hereunder in US dollars by ACH payment, wire transfer or other means of payment acceptable to Seller. Seller may process payment through the use of a third party payment processor.
(b) To the extent that Seller ever delivers Products to Buyer without otherwise requiring full payment in advance, and that Buyer does not thereafter pay Seller’s invoices for such Products within thirty (30) days after the dates thereof, Buyer shall pay interest on all late payments at the lesser of 1.5% per month or the highest rate permissible under applicable law, compounded monthly. In addition, Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, Seller’s attorneys’ fees, court costs and fees of collection agencies and which may include up to a fifty percent (50%) additional recovery fee imposed by Seller. In addition to the remedies available under this Agreement, Seller reserves the right to pursue such other remedies to which Seller may be entitled at law or in equity, and to further suspend or delay the delivery of any Products which Buyer has not paid for in full in advance, and any other Products which Buyer may order so long as Buyer has any amounts due and payable under any other Ordering Document(s). Amounts payable to Seller hereunder shall not be subject to off-set or reduction due to any claim or dispute with Seller, whether relating to Seller’s breach or otherwise, and Buyer covenants and agrees not to withhold payment of any amounts due and payable to Seller hereunder on account of any such offsets or reductions.
(c) Where Seller ships or otherwise delivers Products to Buyer without otherwise requiring full payment in advance, as security for Buyer’s obligation to pay Seller for such Products, Buyer unconditionally and irrevocably assigns, conveys, pledges, hypothecates, transfers, and sets over to Seller, and does hereby grant to Seller, a properly perfected, valid, and enforceable assignment of and continuing security interest in the Product(s) and all components or derivatives thereof, which pledge is intended to be a security agreement under the UCC with respect to all or any portion of the Products and all products, cash, and non-cash proceeds thereof, whether acquired as of the date of purchase of the Products or at any time in the future. At the request and direction of Seller, Buyer will take all necessary steps to perfect such security interest in the Product(s), including without limitation, entering into additional agreements and filing a financing statement as required under the UCC. Buyer acknowledges that upon Buyer’s failure to make timely payment as due to Seller under any applicable Purchase Document or this Agreement, Seller may, re-take possession of the Product(s), in its sole discretion, without notice to the Buyer. Seller will have no obligation to refund Buyer for any amounts already made towards the re-possessed Products. Upon completion of all Buyer’s payment obligations to Seller, title in and to the Products will automatically transfer to Buyer. In addition, Buyer shall reimburse Seller for all costs incurred by or on behalf of Seller associated with the repossession or reclamation of the unpaid Products, including, without limitation, Seller’s attorneys’ fees, court costs and fees of collection or repossession agencies and which may include up to a fifty percent (50%) additional recovery fee imposed by Seller.
(d) Much of the Equipment offered for sale by Seller is built to order and requires various parts and tooling to be custom-made to the Buyer’s particular specifications and requirements. Due to the customized nature of such Equipment, such parts and tooling will have little or no value or utility to Seller or anyone other than Buyer. As a result, Seller expressly reserves the right to require Buyer to submit a non-refundable prepayment or deposit (each, a “Non-Refundable Deposit” or “NRD”) to Seller as condition precedent to Seller’s acceptance of any particular Ordering Document(s) and to the Seller’s performance of its obligations thereunder. BUYER ACKNOWLEDGES AND AGREES THAT (i) NRD’S WILL ONLY BE APPLIED TO THE PURCHASE PRICE OF THE PRODUCT(S) TO WHICH THEY ARE INITIALLY APPLIED; (ii) NRD’s CANNOT BE TRANSFERRED TO OTHER ORDERING DOCUMENT(S) OR OTHERWISE APPLIED TO OTHER ORDERS OR PRODUCTS; AND (III)THE AMOUNT OF NRD’S MAY VARY AS BETWEEN DIFFERENT PRODUCTS, AND WILL BE IN SUCH AMOUNTS AS SELLER MAY DETERMINE FROM TIME TO TIME IN ITS SOLE DISCRETION, WHICH MAY BE AS HIGH AS ONE HUNDRED PERCENT (100%) OF THE PURCHASE PRICE FOR SOME PRODUCTS, INCLUDING WITHOUT LIMITATION, CUSTOM TOOLING. BUYER FURTHER SHALL AND DOES HEREBY WAIVE ALL RIGHTS RELATIVE TO NRD’S PAID IN RESPECT OF ANY PARTICULAR ORDERING DOCUMENT(S), IF BUYER CANCELS THE UNDERLYING PURCHASE DOCUMENT OR OTHERWISE REFUSES TO ACCEPT DELIVERY OF EQUIPMENT WHICH SELLER REASONABLY DETERMINES TO BE IN CONFORMANCE WITH ANY SPECIFICATIONS OR REQUIREMENTS SET FOR IN AND AGREED TO BY BUYER IN THE APPLICABLE PURCHASE DOCUMENT.
8. Ownership.
(a) Seller does not grant Buyer any rights or licenses not expressly set out in this Agreement. Except for Buyer’s express rights in this Agreement, Seller and its licensors retain all intellectual property and other rights in the Products, including any software, formulations, and underlying components thereof or processes associated therewith, included in any Product, made available to or purchased by Buyer.
(b) If Buyer gives Seller feedback regarding improvement or operation of the Products, Seller and its licensors may use the feedback without restriction or obligation. All feedback is provided “AS IS” and Seller will not publicly identify Buyer as the source of feedback without Buyer’s permission.
9. Confidentiality.
(a) “Confidential Information” means all information disclosed by Seller or made available to Buyer through the use of or access to the Products that whether tangible or intangible and in whatever form or medium provided.
(b) Seller may disclose or make available Confidential Information to Buyer in connection with its performance of any services or provision of any Products to Buyer, whether or not pursuant to the Agreement or through the Products. Buyer must: (i) hold in confidence and safeguard the Confidential Information of Seller from unauthorized use, access or disclosure using no less than a commercially reasonable degree of care at least as strict as the level of care used by Buyer to protect its own confidential information; (ii) not use or exploit the Confidential Information in any way except for the purposes of using the Products or receiving services from Seller; and (iii) not disclose or make available such Confidential Information (in whole or in part) to any person or entity other than to its employees or contractors who: (A) need access to such Confidential Information; and (B) are bound by obligations with respect to Confidential Information consistent with, and no less protective than, the Agreement. Buyer is responsible for any and all breaches of the Agreement caused by its employees, agents, or contractors. Buyer must promptly report to Seller any actual or suspected violation of the Agreement and take all reasonable further steps to prevent, control or remedy any such violation.
(c) Exclusions. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Buyer breach of the Agreement; (b) is obtained by Buyer on a non confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; or (c) Buyer establishes, by documentary evidence was or is independently developed by Buyer without using any Confidential Information of the Seller.
(d) Seller may seek injunctive or other equitable relief for an actual or threatened breach of this Article 9.
(e) Personal Information, as defined in Seller’s privacy policy (“Privacy Policy”), provided to Seller under the Agreement is subject to Seller’s then-current Privacy Policy , which may be updated from time to time in accordance with its terms. Seller may collect, process, use, store, and otherwise access Buyer’s information, including Personal Information of Buyer and its employees, in accordance with the terms of Seller’s Privacy Policy. By entering into this Agreement, Buyer agrees to be bound by the terms of the Privacy Policy. Except as otherwise permitted under the Agreement or the Privacy Policy, Seller will not share or sell Personal Information with any third party for purposes of marketing or advertising.
10. Buyer Representations and Warranties.
Buyer represents and warrants to Seller, its affiliates, and their respective officers, managers, members, successors and assigns that Buyer, (a) is over the age of eighteen (18) and has all necessary capacity, right and authority to bind Buyer to this Agreement that is in effect at that time; (b) is the Buyer or the duly appointed and authorized officer or representative of the legal entity which is identified as being the Buyer on the applicable Purchase Document; (c) is duly organized and in good standing under the laws of the jurisdiction in which it was organized and in each of the jurisdictions in which it is currently doing business; (d) is not prohibited from making the purchase of such Products identified on the Purchase Document under any Applicable Laws; (e) will comply with all Applicable Laws in its use of any Products purchased from Seller, (f) will procure and maintain in effect all licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement, and/or in connection with its use of any Products purchased from Seller, (g) will comply with all export and import laws of all countries involved in the sale of the Products under this Agreement or any resale of the Products by Buyer; and (h) will not use any Products purchased from Seller hereunder in violation of any Applicable Laws. Buyer acknowledges and assumes all responsibility for shipments of Products requiring any government import clearance.
11. Limited Warranties.
(a) Seller warrants to Buyer that for a period of twelve (12) months from the date of shipment of any Equipment (the “Equipment Warranty Period”), such Equipment will materially conform to Seller’s published specifications in effect as of the date of shipment and will be free from material defects in materials and workmanship (the “Limited Equipment Warranty”); provided, however, that the foregoing Limited Equipment Warranty does not include labor costs, and nor does it cover reasonable wear and tear of tooling and other parts which are subject thereto, and which may reasonably require replacement from time to time after so many hours of use, even during the Equipment Warranty Period.
(b) Seller warrants to Buyer that for a period of thirty (30) days from the date of shipment of any of the Excipients or Extras (the “Excipient/Extras Warranty Period”), such Excipients or Extras will materially conform to Seller’s published specifications in effect as of the date of shipment and will be free from material defects in materials and workmanship (the “Limited Excipient/Extras Warranty”); provided, however, that the foregoing Limited Excipient/Extras Warranty will not apply unless (i) the Buyer personally takes delivery of the Excipients or Extras in question at the Seller’s Warehouse and thereafter transports, stores and maintains such Excipients or Extras at such temperatures and other environmental variables as are consistent with Seller’s recommended guidelines; or (ii) the Buyer pays to have the Excipients or Extras in question shipped to Buyer by Common Carrier in a refrigerated box truck and/or a thermally insulated shipping container or other packaging, if necessary in order to conform with Seller’s recommended shipping guidelines for such Excipients or Extras, within three (3) days after leaving the Seller’s Warehouse, and upon Buyer’s receipt, thereafter transports, stores and maintains such Excipients or Extras at such temperatures and other environmental variables as are consistent with Seller’s recommended guidelines.
(c) EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 11(a) AND 11(b) ABOVE, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE EQUIPMENT, EXCIPIENTS OR EXTRAS, INCLUDING WITHOUT LIMITATION, ANY (I) WARRANTY OF MERCHANTABILITY; (II) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (III) 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; AND BUYER SHALL AND DOES HEREBY WAIVE ANY CLAIMS TO THE CONTRARY. FURTHER, SELLER DISCLAIMS AND ANY ALL WARRANTIES OR REPRESENTATIONS FOR THE OUTPUT CREATED THROUGH THE USE OF ANY PRODUCTS AND DOES NOT GUARANTEE THAT THE PRODUCT WILL PRODUCE ANY PARTICULAR RESULT OR OUTPUT.
(d) TO THE EXTENT THAT ANY COMPONENT PARTS OF ANY PARTICULAR ITEM(S) OF EQUIPMENT ARE MANUFACTURED BY A THIRD PARTY AND COVERED BY A WARRANTY (EACH, A “THIRD-PARTY MANUFACTURER’S WARRANTY”) SHALL BE PASSED THROUGH TO BUYER TO THE EXTENT PERMISSIBLE AND PRACTICABLE. HOWEVER, SELLER SHALL HAVE NO LIABILITY IN REGARD TO ANY THIRD-PARTY MANUFACTURER WARRANTIES.
(e) The Seller shall have no liability whatsoever for any breach of the Limited Equipment Warranty or the Limited Excipient/Extras Warranty unless: (i) Buyer gives written notice of the defect, within thirty (30) days after the date upon which Buyer discovers or ought to have discovered the defect; (ii) Buyer provides Seller with such additional information, photographs, videos and other evidence as Seller may reasonably request within five (5) business days after Buyer’s receipt of Seller’s request; (iii) Seller is afforded reasonable opportunity to examine the allegedly defective Equipment, Excipients or Extras in person after receiving such notice of defect, and to the extent requested by Seller, Buyer has further shipped the Equipment, Excipients or Extras to Seller’s Warehouse in order to allow for such comprehensive examination using the same shipping method by which Products were originally received by Buyer; and (iv) Seller has verified Buyer’s claim that the Equipment or particular Excipient or Extras at issue is/are defective.
(f) The Seller shall not be liable for a breach of the Limited Equipment Warranty if Buyer: (i) continues to use the Equipment at issue after having actual knowledge or good cause to believe that the Equipment is or may be defective, or otherwise having notified Seller that the Equipment is or may be defective; (ii) fails to follow Seller’s written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment; (iii) alters or modifies or attempts to alter or modify the Equipment in any way, (iv) repairs or otherwise attempts to repair any Equipment, or otherwise permits or allows anyone other than Seller to repair or attempt to repair the Equipment; or (v) claims or contends that the Equipment fails to satisfy Buyer’s requirements, but is nonetheless determined by Seller to be in compliance with Seller’s published specifications and without material defects in materials or workmanship. Similarly, the Seller shall not be liable for a breach of the Limited Excipient/Extras Warranty if Buyer: (i) continues to use the Excipient or Extras at issue after having actual knowledge or good cause to believe that the Excipients or Extras are or may be defective, or otherwise having notified Seller that the Excipients or Extras are or may be defective; (ii) fails to follow Seller’s written instructions or guidelines relating to the storage, installation, commissioning, use or maintenance of the Excipients or Extras; or (iii) claims or contends that the Excipients or Extras fail to satisfy Buyer’s requirements, but is nonetheless determined by Seller to be in compliance with Seller’s published specifications and without material defects in materials or workmanship.
(g) Subject to the limitations set forth in Subsections 11(d), 11(d) and 11(f) above, Seller shall, in its sole discretion, either: (i) repair or replace any Equipment, Excipients or Extras which it has verified to be defective, or (ii) credit or refund the purchase price actually paid by Buyer for such Products; provided, that (1) Seller’s obligation to replace any such Products or credit or refund the purchase price shall be conditioned upon the Buyer’s return of such Products to Seller, at the Seller’s cost and expense, and (2) the amount of any credit or refund shall be determined by amortizing the cost of any Equipment at issue on a straight-line basis over a period of twelve (12) months, and subtracting the amount of the amortized costs allocable to the period from the date upon the Equipment was delivered through the date upon which the warranty claim was made. THE REMEDIES SET FORTH IN THIS SECTION 11.g. SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDIES AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY.
12. LIMITATION OF LIABILITY.
(a) IN NO EVENT SHALL SELLER, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, MANAGERS, MEMBERS, SUCCESSORS AND ASSIGNS BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE (COLLECTIVELY, “CLAIMS”), EXCEED THE AMOUNT ACTUALLY PAID TO SELLER BY BUYER UNDER THE APPLICABLE ORDERING DOCUMENT(S) FOR THE PRODUCTS WHICH ARE THE SUBJECT OF SUCH CLAIMS. The foregoing limitation of liability shall not apply, however, to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s affirmative acts.
(c) Seller shall not be liable for any losses, damages or liabilities arising from Buyer’s failure to properly test the Products prior to their use. It is the sole responsibility of Buyer to conduct all necessary tests to ensure that the Products meet their intended use and comply with all applicable laws and regulations. Buyer acknowledges that it assumes all risks associated with the use of the Products, including but not limited to, the risk of using the Products without adequate testing.
13. Indemnity.
Buyer agrees to defend, indemnify, and hold Seller and its affiliates, officers, directors, agents, and employees harmless from and against any liability to third parties, including reasonable attorneys’ fees, arising from or related to (a) Buyer’s use or purchase of the Products or breach of the Agreement, (b) any individual’s use or misuse of the Products, including any components associated therewith, or any Output created therefrom, including any physical injuries suffered by such individual, (c) any component used together with the Product, and (d) any output, product, or service created through the use of the Product (each a “Third Party Claim”). Seller shall give Buyer timely notice of, and have the option to undertake and conduct the defense of any such Third Party Claim, if Seller determines in its discretion that Buyer is not diligently prosecuting such defense.
14. Insurance Requirements.
During the term of this Agreement and for a period of two (2) years thereafter, Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than One Million and No/100 Dollars ($1,000,000) with financially sound and reputable insurers. Upon Seller’s request, Buyer shall provide Seller with a certificate of insurance from Buyer’s insurer evidencing the insurance coverage specified in these Terms and Conditions. Buyer shall provide Seller with not less than thirty (30) days’ advance written notice in the event of a cancellation or material change in Buyer’s insurance policy. Except where prohibited by law, Buyer shall require its insurer to waive all rights of subrogation against Seller’s insurers and Seller.
15. Term and Termination.
(a) The initial term of the Agreement begins on the date at which Buyer enters into the first Purchase Document and shall continue thereafter For so long as there is any active Purchase Document, The initial term of each Purchase Document begins on the date at which Buyer enters into such Purchase document and shall continue thereafter until the later of (i) the final delivery and acceptance of the Products; and (ii) final payment of all fees and costs due to Seller by Buyer under the Purchase Document.
(b) In addition to any remedies that may be provided under this Agreement, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) fails to perform or comply with any of its obligations under this Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
16. Arbitration.
THIS SECTION TITLED “ARBITRATION” SETS FORTH THE TERMS OF AN ARBITRATION AGREEMENT BETWEEN BUYER AND SELLER.
(a) ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. BUYER AGREES BUYER WILL NOT SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION OR IN ANY OTHER PROCEEDING IN WHICH BUYER ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY, AND BUYER HEREBY WAIVES ANY RIGHT TO ASSERT CONSOLIDATED CLAIMS WITH RESPECT TO ANY DISPUTES SUBJECT TO ARBITRATION UNDER THIS AGREEMENT OR ANY DISPUTES BETWEEN THE PARTIES. NO ARBITRATION OR PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATIONS OR PROCEEDINGS. ALSO, BUYER AGREES THAT BUYER IS PRECLUDED FROM PARTICIPATING IN OR RECOVERING RELIEF UNDER ANY CURRENT OR FUTURE CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE ACTION BROUGHT AGAINST SELLER BY SOMEONE ELSE.
(b) BOTH PARTIES AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO (I) THIS AGREEMENT OR THE EXISTENCE, BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION OR VALIDITY THEREOF, OR (II) BUYER’S ACCESS TO OR USE OF THE PRODUCTS AT ANY TIME, WHETHER BEFORE OR AFTER THE DATE BUYER AGREED TO THE TERMS OF THIS AGREEMENT, WILL BE SETTLED BY BINDING ARBITRATION BETWEEN THE PARTIES, AND NOT IN A COURT OF LAW.
(c) BUYER ACKNOWLEDGES AND AGREES THAT THE PARTIES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY. HOWEVER, THE PARTIES EACH RETAIN THE RIGHT TO BRING AN INDIVIDUAL ACTION TO SEEK INJUNCTIVE OR OTHER EQUITABLE RELIEF IN A COURT OF COMPETENT JURISDICTION TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF A PARTY’S COPYRIGHTS, TRADEMARKS, TRADE SECRETS, PATENTS, OR OTHER INTELLECTUAL PROPERTY RIGHTS, BREACH OF CONFIDENTIALITY, OR OTHER BREACH OF THIS AGREEMENT FOR WHICH EQUITABLE RELIEF MAY BE AVAILABLE.
(d) The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Agreement. The AAA Rules are available at https://adr.org/Mediation or by calling the AAA at 1-800-778-7879. Unless both parties otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding.
(e) The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Agreement, including any claim that all or any part of this Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether this Agreement are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
(f) Notwithstanding any choice of law or other provision in this Agreement, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of Texas.
(g) A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules, which must also include a detailed description of the party’s claim against the other party, the amount of damages sought to be recovered, and a copy of these Terms. (The AAA provides a form Demand for Arbitration – Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879). The parties agree that one (1) arbitrator shall arbitrate the dispute. The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the state of Texas and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.
(h) Unless the parties agree otherwise, the arbitration will be conducted in City of Fort Worth, Texas and County of Tarrant If either party’s claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents the parties submit to the Arbitrator, unless either party requests a hearing, or the Arbitrator determines that a hearing is necessary. If a party’s claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
(i) The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator will have no authority to award consequential, punitive, or other damages to the extent prohibited by this Agreement and will have no authority to award other monetary relief not measured by the prevailing party’s actual damages and each party irrevocably waives any claim thereto. The award may include equitable relief. The Arbitrator will not make any ruling, finding, or award that does not otherwise conform to the Agreement. The arbitrator may render a summary disposition relative to all or some of the issues, provided that the responding party has had an adequate opportunity to respond to any such application for such disposition. Only declaratory or injunctive relief may be awarded by the Arbitrator in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. The prevailing party in arbitration will be entitled to an award of reasonable attorneys’ fees and expenses, to the extent provided under applicable law. The parties agree to treat all aspects of the arbitration as confidential, as provided in the AAA Rules. Before making any disclosure permitted by the rules, a party shall give written notice to the other party and afford such party a reasonable opportunity to protect its interests.
(j) Each party’s responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
(k) Notwithstanding the aforementioned provisions of this Agreement regarding consent to be bound by amendments to this Agreement, if Seller materially changes the terms of this Section 16 after the date Buyer first agreed to this Agreement, Buyer may reject any such change by providing Seller written notice of such rejection within 30 days of the date such change became effective. This written notice must be provided either (i) by mail addressed to Seller at 6601 Will Rogers Blvd, Fort Worth, Texas, 76140, USA, or (b) by email from the email address associated with Buyer’s Purchase Document(s) to sales@eliz.com. In order to be effective, the notice must include Buyer’s full name and clearly indicate Buyer’s intent to reject changes to this Section 16. By rejecting changes, Buyer is agreeing that Buyer will arbitrate any dispute between the parties in accordance with the provisions of this Section 16 as of the date Buyer first agreed to the terms of this Agreement (or agreed to any subsequent changes to the terms of this Agreement).
(l) If any portion of this Section 16 is found to be unenforceable or unlawful for any reason, then: (i) the unenforceable or unlawful provision shall be severed from this Agreement; (ii) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 16 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 16; and, (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
17. Miscellaneous.
(a) Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. 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.
(b) Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond the Seller’s reasonable ability to control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (i) acts of God; (ii) flood, fire, earthquake, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) governmental orders, laws, or actions, including without limitation, those affecting public health in the event of a pandemic, pestilence or other public health emergency of any kind; (v) delays in delivery resulting from seizures or holds placed on any Products sold hereunder by U.S. customs, DEA or any other governmental officials of any kind, whether in the U.S. or of those countries to which any such Products are shipped; (vi) transportation difficulties, embargoes or blockades of any kind, whether in effect on or after the date of this Agreement; (vii) national or regional emergency; (viii) strikes, labor stoppages or slowdowns, or other industrial disturbances; (ix) black-outs, brown-outs, shortages, failures and/or disruptions of electrical or other utilities of any kind, or the means and infrastructure used to deliver them to Seller; and (x) other events or occurrences of any kind beyond Seller’s ability to reasonable control. Upon the occurrence of a Force Majeure Event which prevents Seller from performing any of its obligations hereunder, it shall promptly give notice to Buyer stating the period of time that the event is expected to continue to prevent Seller from doing so. Seller shall use commercially reasonable, diligent efforts to perform its obligations hereunder notwithstanding the occurrence of the Force Majeure Event(s), and to minimize any disruption caused by the Force Majeure Event(s), and to resume the performance of its obligations as soon as reasonably practicable as the effects of the Force Majeure Event(s) diminish over time, or otherwise cease to prevent it from performing its obligations hereunder. In the event that Seller’s failure or delay remains uncured for a period of twelve (12) months following written notice given hereunder, the Buyer may terminate this Agreement and the associated Purchase Document upon written notice to Seller. In such event, Seller shall promptly refund Buyer the full amount of its otherwise Non-Refundable Deposit, unless the failure or delay on any Products sold hereunder is the result of a seizure or hold on such Products by U.S. customs, DEA or any other governmental officials of any kind, whether in the U.S. or of those countries to which any such Products are shipped, in which case Buyer shall be deemed to have forfeited any and all right thereto.
(c) Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller, which may be withheld or denied by Seller in its sole and absolute discretion. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under the Agreement.
(d) Non-Solicitation.
(i) Buyer agrees and covenants that for a period of two (2) years from the date of the last Ordering Document, Buyer shall not, directly or indirectly, on behalf of itself or any other person or entity (A) solicit, hire, or attempt to solicit or hire any employee, consultant or independent contractor of Seller who was employed by or under contract with Seller during the preceding twelve (12) months, without the prior written consent of Seller, or (B) solicit, induce, or attempt to solicit or induce any customer, client, or business partner of Seller who was a customer, client, or business partner of Seller during the preceding twelve (12) months to terminate or reduce its relationship with Seller, or to transfer its business to any competing entity.
(ii) Any solicitation in violation of this Section shall result in Buyer owing Seller liquidated damages in the amount of $1,000,000. Buyer acknowledges that this amount is a reasonable estimate of the damages that Seller would suffer as a result of such a violation.
(iii) The parties agree that the duration, scope, and geographical area of the restrictions contained in this Section 17(d) are reasonable and this non-solicitation provision shall be enforceable to the fullest extent permissible under Texas law. If any portion of this provision is found to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the court may modify this Section 17(d) to substitute the maximum duration, scope, or geographical area legally permissible under such circumstances to the greatest extent possible to effect the restrictions originally contemplated by the parties hereto and the remaining portions shall remain in full force and effect.
(e) Relationship of the Parties. The relationship between the parties is that of independent contractors. 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, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
(f) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement
(g) Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) must be in writing and addressed to the parties at the addresses set forth on the face of the applicable Purchase Document or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only upon receipt of the receiving party, and if the party giving the Notice has complied with the requirements of this Section.
(h) Severability. 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.
(i) Survival. Provisions contained within this Agreement, which by their nature should apply beyond the expiration of earlier termination hereof, will remain in force after any termination or expiration of this Agreement including, without limitation, the following provisions: Insurance, Compliance with Laws, Confidential Information, Governing Law, Jurisdiction and Venue; and Survival.
(j) Modifications to the Agreement. From time to time, Seller may change the Agreement in its sole discretion. Seller will communicate these changes by posting the updated Agreement on Seller’s website or by providing electronic notice to Buyer. The date that the Agreement was last revised is identified at the top of the page. Buyer is responsible for ensuring periodic review of the Agreement to check for any changes. The continued purchase of Products will constitute acceptance of, and agreement to, the revised Agreement.
(k) Entire Agreement. This Agreement and the terms and conditions contained herein set forth the entire understanding and agreement between Buyer and Seller with respect to Buyer’s purchase of Products and supersede any prior or contemporaneous understanding, whether written or oral.