1. GOVERNING PROVISIONS. GLUE DOTS INTERNATIONAL LLC ("Glue Dots") is offering to provide the goods and/or services described herein (the Products") to the buyer to which this offer is addressed ("Buyer"), subject to the terms and conditions set forth herein (the "Agreement"). Buyer may not modify, change, renounce or waive any term or condition hereof without Glue Dots express written consent. Glue Dots agrees to provide to Buyer the Products and Buyer accepts the Products only on the terms of this Agreement. Buyer may not amend, modify or replace the terms of this Agreement in any agreement or purchase order (oral or written), if one exists, or other writing or oral representation previously or hereafter received by Glue Dots purporting to amend, modify or replace the terms of this Agreement with any conflicting, different or additional terms or reciting that any action or inaction by Glue Dots constitutes agreement or consent by Glue Dots to such amendment, modification or replacement. If this document is deemed an acceptance of a prior offer by Buyer, such acceptance is limited to the express terms contained herein. Glue Dots hereby objects to and rejects any additional, different or varying terms proposed by Buyer, unless Glue Dots expressly assents to such terms in writing. Such proposal of additional, different or varying terms by Buyer shall not operate as a rejection of Glue Dots offer unless such variances are in the terms of the description, quantity, price or place or date of delivery of the Products, and Glue Dots offer shall be deemed accepted without such additional, different or varying terms.
2. ACCEPTANCE. Buyer shall be deemed to have made an unqualified acceptance of this Agreement, and the terms and conditions herein, on the earliest to occur of the following (a) Glue Dots receipt of a copy of this Agreement signed by Buyer; (b) Buyer's payment of any amounts due under this Agreement; (c) Buyer's delivery to Glue Dots of any material to be furnished by Buyer; (d) Glue Dots delivery of the Products; (e) Buyer's failure to notify Glue Dots to the contrary within ten days of receipt of this Agreement, or (f) any other event constituting acceptance under applicable law. Written quotations are void unless accepted within 45 days from date of issue. Other Glue Dots publications are maintained as sources of general information and are not quotations or offers to sell.
3. CANCELLATION OR MODIFICATION; RETURNS. Buyer may not cancel or modify its order except upon terms accepted by Glue Dots in writing. In the event of any cancellation or modification, Buyer shall compensate Glue Dots for all costs and damages resulting there from, including, but not limited to, out-of-pocket expenses and lost profits and the fees and charges imposed by Glue Dots suppliers. No Products may be returned to Glue Dots without its prior, written authorization and Products may be returned only on the terms or conditions specified in such authorization. Returned Products must be of current manufacture, unused, in resalable condition, and securely packed to reach Glue Dots without damage. Any cost incurred by Glue Dots to put Products in first class condition will be charged to Buyer. All Product returned to Glue Dots shall be subject to a restocking charge of up to 20%, plus the costs of freight, packaging, insurance and any import or export costs.
4. TAXES. Buyer shall pay any tax (including sales tax), duty, custom, inspection or testing fee or any other fee or charge imposed on, in connection with or measured by the transaction between Glue Dots and Buyer in addition to the prices quoted or invoiced.
(a) Generally: Unless previously agreed to by Glue Dots and Buyer in writing, for shipments within the United States, Glue Dots shall deliver the Products F.O.B. Glue Dots facility (the "Facility"), in accordance with the Uniform Commercial Code as adopted in the State of Wisconsin. For international shipments, unless previously agreed to by Glue Dots and Buyer in writing, Glue Dots shall deliver the Products FCA the Facility in accordance with INCOTERMS 2010 of the International Chamber of Commerce, as amended from time to time. All risk of loss, damage or delay, and title to Products, shall pass from Glue Dots to Buyer upon delivery at the Facility. Partial shipments shall be permitted. Buyer shall accept overruns and/or under runs not exceeding 5% or seven (7) rolls of the original order quantity.
(b) Delivery Dates: All delivery dates are approximate. Delivery dates given by Glue Dots are based on prompt receipt of all necessary information regarding the order. Glue Dots will use reasonable efforts to meet such delivery dates, but does not guarantee to meet such dates. Failure by Glue Dots to meet any delivery date does not constitute a cause for cancellation and/or for damages of any kind. Time for delivery shall not be of the essence.
(c) Delivery Delays: Any delay in delivery due to causes beyond Glue Dots reasonable control, or due to any priorities or allocations necessitated by governmental orders or regulations, or due to any causes specified in the following sentence, shall extend the term of delivery by a period equal to the length of such delay. In the event of delay in delivery requested by Buyer or caused by Buyer's (a) failure to supply adequate instructions; (b) failure to arrange for pickup; (c) failure to supply or approve necessary data in a timely manner; (d) requested changes; or (e) failure to provide documents required for Glue Dots to effect delivery, Glue Dots will store all Products at Buyer's risk and expense. Buyer shall pay all storage costs and expenses upon Glue Dots demand.
(d) Claims: Claims for shortages or other errors must be communicated to Glue Dots within ten days after Glue Dots delivery. Failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Buyer. Buyer shall, promptly upon delivery, open, inspect and test all Products and report any discrepancy to Glue Dots.
(e) Orders: Buyer's orders or mutually agreed change orders shall be subject to all provisions of this Agreement, whether or not the order or change order so states. Minimum order quantities may apply.
6. TERMS OF PAYMENT. Unless otherwise stated on the face hereof, payment terms are as follows. If Buyer resides in the United States, payment terms are net 30 days from Glue Dots’ invoice date. If Buyer resides outside the United States, Buyer shall pay in advance by wire transfer. All banking and other charges associated with the wire transfer are the responsibility of Buyer. Credit terms are subject to the approval Glue Dots credit department and may be changed at any time and from time to time by Glue Dots in its sole discretion.
(a) Generally: If, during performance of this Agreement, Buyer's financial condition does not justify the terms of payment specified, Glue Dots may (a) demand, before proceeding with delivery of Products, full or partial payment in advance, satisfactory security or guaranties that invoices will be promptly paid when due or (b) at its option and without prejudice to other remedies, defer delivery of the Products or cancel this Agreement. Buyer agrees to reimburse Glue Dots for all costs and fees including, but not limited to attorneys' fees and repossession fees, incurred by Glue Dots in collecting any sums owed by Buyer to Glue Dots. Buyer agrees to pay a late payment charge of 1-1/2% per month, or the maximum amount allowable by law, on all amounts not paid in full when due, payable on Glue Dots demand. Buyer shall not set off amounts due to Glue Dots against claims or other amounts.
(b) Security Interest: In partial consideration for Glue Dots sale of Products to Buyer, Buyer hereby grants to Glue Dots and Glue Dots hereby retains a security interest in all Products sold to Buyer and documents relating to such Products now or hereafter in the possession of or under the control of Buyer, title to which might at any time be determined to have passed to Buyer, including, without limitation, all inventories of the Products or any other product bearing any trademark or trade name of Glue Dots, returns or repossessions and the proceeds, including insurance proceeds and proceeds from products in which the Products were an input, of all of the foregoing, together with the additions and accessions thereof, to secure all of Buyer's obligations to Glue Dots under this Agreement and all other obligations of Buyer to Glue Dots. Buyer agrees to execute such financing statements, continuation statements and other documents including, but not limited to pledge agreements, and to take such actions as may be required by Glue Dots to evidence or perfect the security interest granted herein and the interest of Glue Dots. Glue Dots is authorized in Buyer's name or otherwise to take such actions as permitted under this Agreement or applicable law, including, without limitation, signing Buyer's name, and Buyer hereby appoints Glue Dots as its attorney-in-fact for such purpose.
8. WARRANTIES AND REMEDY.
(a) Products In Original Packaging and not Manufactured by Glue Dots: IF BUYER IS PURCHASING PRODUCTS IN THEIR ORIGINAL PACKAGING AND NOT MANUFACTURED BY GLUE DOTS, THE ONLY WARRANTY AVAILABLE TO BUYER AS TO THE PRODUCTS SHALL BE ANY MANUFACTURERS WARRANTY WHICH MAY APPLY AND GLUE DOTS MAKES NO INDEPENDENT WARRANTIES. Glue Dots does not adopt, guarantee or represent that the manufacturer will comply with any of the terms of the warranty of such manufacturer. Buyer assumes all liability with respect to the Product, its use, misuse, storage and disposal.
(b) Repackaged Products and Glue Dots Products:
(i) Repackaged Products. If Buyer is purchasing Products not manufactured by Glue Dots, but repackaged by Glue Dots, causing the original manufacturer's seal to be broken, Glue Dots warrants to original user only that the Products will be free from material defects in materials and workmanship attributable to the repackaging process under normal use and service for the shelf life of the Product as described in the technical data sheet, but no event longer than one year from the date of Glue Dots delivery of such Product hereunder. Glue Dots is not the manufacturer and Buyer assumes all liability with respect to the Product, its use, misuse, storage and disposal.
(ii) Glue Dots Products. If Buyer is purchasing Products manufactured by Glue Dots, Glue Dots warrants to original user only that the Products will be free from material defects in materials and workmanship under normal use and service for the shelf life of the Product as described in the technical data sheet, but no event longer than one year from the date of Glue Dots delivery of such Product hereunder.
(iii) Limitations and Remedies. There is NO WARRANTY in cases of damage in transit, negligence, abuse, abnormal usage, misuse, accidents, normal wear and tear, damage due to environmental or natural elements, failure to follow Glue Dots instructions or improper installation, storage or maintenance. Buyer must make claims for defects in writing within 10 days after discovery of such defects. Buyer's failure to make such claim within the warranty period and within 10 days after discovering a defect shall constitute Buyers irrevocable acceptance of the Products and Buyer's acknowledgement that the Products fully comply with the terms and conditions of this Agreement. Glue Dots shall repair or replace, at its expense, any covered Products proved to Glue Dots satisfaction to be defective within the warranty period. Such warranty satisfaction shall be available only if: (i) Glue Dots is notified in writing within 10 days after discovery of an alleged defect; (ii) the defect has not been caused by Buyer's misuse, neglect or alteration or by physical environment; and (iii) the manufacturer's shelf life of the Product (as indicated on the Products packaging has not expired when the alleged defect is discovered.
GLUE DOTS SOLE OBLIGATION AND BUYERS EXCLUSIVE REMEDY HEREUNDER SHALL BE LIMITED TO REPLACEMENT OR REPAIR OF DEFECTIVE PRODUCTS. Notice of any warranty claim or request for warranty service should be sent to Glue Dots at the following address: Glue Dots International, 5515 S. Westridge Drive, New Berlin, WI 53151, Attention: Customer Service. Any assistance Glue Dots provides to or procures for Buyer outside the terms, limitations or exclusions of this warranty will not constitute a waiver of the terms, limitations or exclusions of this limited warranty, nor will such assistance extend or revive the warranty. Glue Dots will not reimburse Buyer for any expenses incurred by Buyer in repairing, correcting or replacing any defective Products, except for those incurred with Glue Dots prior written permission. This warranty gives Buyer specific legal rights, and Buyer may also have other rights which vary from state to state.
(c) NO LIABILITY FOR OTHER OBLIGATIONS OR INCIDENTAL OR CONSEQUENTIAL DAMAGES: GLUE DOTS SHALL NOT BE LIABLE TO BUYER, OR TO ANYONE CLAIMING UNDER BUYER, FOR ANY OTHER OBLIGATIONS OR LIABILITIES, INCLUDING, BUT NOT LIMITED TO, OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORT OR ANY THEORY OF STRICT LIABILITY, WITH RESPECT TO THE PRODUCTS (WHETHER THE PRODUCTS ARE IN ORIGINAL PACKAGING OR HAVE BEEN REPACKAGED) OR GLUE DOTS UNDERTAKINGS, ACTS OR OMISSIONS. IN NO EVENT SHALL GLUE DOTS BE LIABLE FOR INCIDENTAL, COMPENSATORY, PUNITIVE, CONSEQUENTIAL, INDIRECT, SPECIAL OR OTHER DAMAGES. GLUE DOTS AGGREGATE LIABILITY WITH RESPECT TO A DEFECTIVE PRODUCT AND THIS AGREEMENT SHALL BE LIMITED TO THE MONIES PAID TO GLUE DOTS FOR THAT DEFECTIVE PRODUCT.
Some states do not allow the exclusion or limitation of incidental and consequential damages, so the above limitation or exclusion may not apply to Buyer.
(d) Retains: Glue Dots has no obligation to retain Product samples and Buyer accepts all responsibility for obtaining and retaining any required or desired retains or samples. If Buyer requests in writing that Glue Dots obtain and maintain a sample, and if Glue Dots agrees to do so, Buyer will pay Glue Dots associated costs.
9. DISCLAIMER OF IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE. GLUE DOTS AND BUYER AGREE THAT THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. GLUE DOTS HEREBY DISCLAIMS ALL OTHER EXPRESS WARRANTIES. For commercial Products, all warranties, including without limitation, the implied warranties of merchantability, noninfringement and fitness for a particular purpose, are disclaimed. For consumer Products, warranties implied by law, including those of merchantability and fitness for a particular purpose, are expressly limited to the period of the warranty stated above for the relevant Product. Any oral or written description of the Products is for the sole purpose of identifying the Products and shall not be construed as an express warranty. Prior to using or permitting use of the Products, Buyer shall determine the suitability of the Products for the intended use and Buyer shall assume all risk and liability whatsoever in connection therewith. Buyer agrees that Glue Dots has no post—sale duty to warn Buyer or any other party about any matter or, if such duty exists, Glue Dots satisfies that duty by providing any required warnings only to Buyer. Buyer assumes all post—sale duty to warn its customers and indemnifies Glue Dots against any Damages in connection with such duty or failure to warn. Some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to Buyer.
10. ASSIGNMENT. Neither party may assign this Agreement or any rights or obligations hereunder without the prior written consent of the other party; provided, however, Glue Dots may assign, without Buyer's consent, this Agreement or its interest herein to any affiliate or to any corporation succeeding to Glue Dots business. Subject to the foregoing, this Agreement shall bind and inure to the benefit of Glue Dots and Buyer and their successors and assigns.
11. GOVERNING LAW. The internal laws of the State of Wisconsin shall govern the rights and obligations of Glue Dots and Buyer under this Agreement. Neither this Agreement nor sales hereunder shall be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods. Any cause of action, claim, suit or demand by Buyer allegedly arising from or related to the terms of this Agreement or the relationship of the parties shall be brought in a Court situated in the State of Wisconsin. Both parties hereby irrevocably admit themselves to and consent to the jurisdiction of said Court. Upon termination of this Agreement for any reason, Glue Dots shall have all of the rights and remedies provided by law, including, without limitation, the rights of a secured party under Chapter 409, Wisconsin Statutes or any successor statute or similar statute in the jurisdiction where Buyer is located or stores the Products.
12. MISCELLANEOUS. Glue Dots reserves the right to correct clerical or similar errors relating to price or any other term shown in this Agreement. The failure of Glue Dots to insist, in any one or more instances, upon performance of any of the terms, covenants and conditions of this Agreement shall not be construed as a waiver or relinquishment of any rights granted hereunder or the future performance of any such term, covenant or condition. The invalidity of any provision or clause of this Agreement shall not affect the validity of any other provision or clause hereof. Buyer agrees to comply with all laws and regulations applicable to the purchase, transport, use, storage, sale, lease and/or disposal of the Products including, without limitation, to the extent applicable, the U.S. Foreign Corrupt Practices Act and all other antibribery laws, all U.S. antiboycott laws, the U.S. Export Administration Act and all regulations thereunder and all laws relating to exports or re-exports of Products. If Buyer or its affiliates, agents or representatives engages a freight forwarder or similar service provider, Buyer shall provide Glue Dots with copies of freight forwarder (or similar) records regarding Product exports promptly upon request. Buyer shall promptly notify Glue Dots in writing if Buyer receives notice of or otherwise has reason to believe that a violation of U.S. export law has occurred or is likely to occur. Buyer is an independent contractor and neither Buyer nor any of its employees or agents shall be considered an employee or agent of Glue Dots. Neither Buyer nor any of its employees or agents is authorized to incur any obligations or make any promises or representations on Glue Dots behalf. The provisions found in sections 11, 12, 16, 18, 19 and 20 and the warranty and damage limitations in sections 8 and 9, and any other provision the performance or effectiveness of which naturally survives, shall survive expiration or termination of the parties' agreement for any reason. All of Glue Dots remedies herein are cumulative and not exclusive of any other remedies available to Glue Dots at law, by contract or in equity.
13. ENTIRE AGREEMENT. THIS CONSTITUTES THE ENTIRE AGREEMENT OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF. ANY NEGOTIATIONS OR UNDERSTANDINGS BETWEEN GLUE DOTS AND BUYER WHICH ARE NOT CONTAINED IN THIS AGREEMENT AND ANY AND ALL PURCHASE ORDERS, CORRESPONDENCE OR STATEMENTS THAT CONFLICT WITH, DIFFER FROM OR MODIFY THIS AGREEMENT SHALL HAVE NO FORCE OF EFFECT, UNLESS IN WRITING AND SIGNED BY AUTHORIZED OFFICERS OF GLUE DOTS AND BUYER. GLUE DOTS SALES REPRESENTATIVES ARE WITHOUT AUTHORITY TO CHANGE THE TERMS OF THIS AGREEMENT.
14. PRICE; TERMS. Unless prices are stated on the face hereof, prices shall be the higher of Glue Dots most recent quote to Buyer, prevailing market price, Glue Dots list price, or the last price charged by Glue Dots to Buyer for the Products. Notwithstanding any prices stated on the face hereof or in any purchase order provided by Buyer or the other provisions of this section 14, Glue Dots may from time to time increase prices for the Products in response to increases in the prices of raw or other supplied materials. Without limiting the foregoing, for a purchase order which contemplates delivery of Products (either in whole or in part) more than 30 days after the date of such purchase order, Glue Dots reserves the right to increase prices for Products delivered more than 30 days after the date of the purchase order. Glue Dots shall give Buyer verbal or written notice of any price increase at the time that Glue Dots is made aware of such increase or its effective date. Unless otherwise stated on the face hereof, prices are in U.S. Dollars, F.O.B. the Facility. Glue Dots shall have no obligation to ship Product to Buyer unless Glue Dots shall have accepted the order and Buyer shall have paid for such order of Products in full prior to the time of delivery.
15. SHIPPING; INSURANCE. Buyer shall pay for all costs of shipping. Buyer shall fully insure all materials delivered to Buyer from F.O.B. shipping point.
16. PATENT INFRINGEMENT AND DEFECTS IN BUYER'S SPECIFICATIONS. Orders manufactured to Buyer's specifications, drawings, designs or descriptions are executed only with the understanding that Buyer will indemnify and hold harmless Glue Dots from any and all damages sustained by Glue Dots, including, but not limited to, reasonable attorneys' fees, resulting from any action or threatened action against Glue Dots for (a) infringement of the patents or proprietary right of any other person, or (b) injury to person or property, including death, relating to defects in Buyer's specifications, drawings, designs or descriptions.
17. FORCE MAJEURE. Glue Dots shall not be responsible for delay in delivery or failure to fill orders or other default or damage where such has been caused by an act of God, war, major disaster, terrorism, third-party criminal acts, insurrection, riot, flood, earthquake, fire, strike, lockout or other labor disturbance, delay by carriers, shortage of fuel, power, materials or supplies, operation of statutes, laws, rules or rulings of any court or government, demand for goods exceeding Glue Dots available supply or any other cause beyond Glue Dots control. In the event of any delay in delivery, failure to fill orders or other default or damage caused by any of the foregoing, Glue Dots may, at its option and without liability, prorate its deliveries, cancel all or any portion of the Agreement and/or extend any date upon which performance is due hereunder.
18. ENGINEERING DATA. All engineering data, design information and engineering and shop drawings used in the completion of this order are and shall remain Glue Dots property. Buyer shall not copy, reproduce, distribute, publish or communicate to any third party such data without the prior, written permission of a properly authorized representative of Glue Dots. Glue Dots hereby gives its permission to the Buyer to distribute product data or operation and maintenance information to the end user.
19. INDEMNIFICATION. Buyer hereby releases and agrees to indemnify, defend and hold harmless Glue Dots, its shareholders, officers, agents, employees, affiliates, successors, assigns and third-party suppliers ("Glue Dots Indemnified Parties") from and against any and all direct and indirect claims, debts, actions, causes of action, liabilities, loss, suits, demands, fines, penalties, judgments, omissions, damages or expenses whatsoever, including, without limitation, attorneys' fees and costs ("Damages") incurred by or against Glue Dots or any of Glue Dots Indemnified Parties due to or arising out of, in connection with, resulting from or relating to (i) misrepresentations, breach of the warranties, representations, covenants or agreement contained in this Agreement or any law by Buyer or any of Buyer's shareholders, directors, officers, employees, affiliates, representatives, agents, successors or assigns ("Buyer's Parties"), or (ii) any damage to or destruction of property, or injury to or death of persons caused, or alleged to have been caused, in whole or in part, by any intentional, reckless, negligent or other act (or failure to act) of Buyer or any of Buyer's Parties, or (iii) losses, damages or injuries caused by Buyer's products, Buyer's specifications, designs, approvals or instructions provided to Glue Dots, or due to improper application or use of the Products or otherwise. Prior to settling any claim, Buyer will give Glue Dots an opportunity to participate in the defense and/or settlement of such claim. Buyer shall not settle any claim without Glue Dots written consent. In the event of any form of recall affecting or relating to the Products, Glue Dots shall have the right to control the recall process and Buyer shall fully cooperate with Glue Dots in connection with the recall.
20. CONFIDENTIAL INFORMATION; TRADEMARKS.
(a) Confidential Information: Buyer acknowledges that all trade secrets, designs, specifications and other Confidential Information (as defined below) which may be disclosed to it by Glue Dots shall at all times, both during and after expiration or termination of this Agreement for any reason, remain the exclusive property of Glue Dots and that Buyer shall not acquire any proprietary interest whatsoever therein. "Confidential Information" means all knowledge and information disclosed by Glue Dots to Buyer orally or in writing, or acquired by Buyer through observation, regarding Glue Dots products, technology, inventions, formulas, know-how, services, forecasts, sales methods, customer lists, customer usages and requirements, financial information, business plans, strategies and future business relationships, that provides Glue Dots with a competitive advantage, with the exception of such information which Buyer can demonstrate by competent written evidence: (i) was already part of the public domain at the time of the disclosure by Glue Dots; (ii) becomes part of the public domain through no fault of Buyer (but only after and only to the extent that it is published or otherwise becomes part of the public domain); or (iii) s received (after the disclosure by Glue Dots) by Buyer from a third party who did not require Buyer to hold it in confidence and did not acquire it directly or indirectly from Glue Dots under a continuing obligation of confidence. Except as necessary to perform its duties under this Agreement, Buyer shall not use or disclose any of such Confidential Information, but shall care for such confidential information using at least the same degree of care given its own trades secrets and confidential information. Upon expiration or termination of this Agreement for any reason, Buyer shall, within 15 days, surrender to Glue Dots all plans, drawings, specifications, sketches, pictures, films, tapes, computer disks, literature, samples, documents, other tangible objects and all copies thereof relating to trade secrets and other Confidential Information and all of Glue Dots property. Buyer shall be permitted to destroy rather than return all analyses, extracts, and summaries prepared by Buyer which contain Confidential Information, and such destruction shall be certified in writing to Glue Dots by an authorized officer of Buyer who has supervised such destruction. Nothing in this Agreement shall be construed to limit or negate the common or statutory law of torts or trade secrets where it provides Glue Dots with broader protection than that provided herein.
(b) Trademarks: Any use of Glue Dots trademarks or other intellectual property shall be subject to Glue Dots prior written approval in each instance and such restrictions as Glue Dots may, in its sole discretion, impose from time to time. Buyer agrees that neither it nor its affiliates will seek to register any trademark, service mark, or trade dress owned by Glue Dots or its affiliates, and if Buyer or any of its affiliates does obtain such a registration, Buyer or its affiliate shall immediately assign the same to Glue Dots. Buyer acknowledges and agrees that Glue Dots owns all right, title, and interest in and to its trademarks. Except as otherwise agreed by Glue Dots, Products sold by Buyer shall bear Glue Dots trademark, and Buyer shall not remove or efface such trademark. Buyer will not repackage the Products in any manner and resell such Products utilizing a different trademark. Any use of Glue Dots trademarks in advertisements or promotion must be preapproved in writing by Glue Dots. Buyer and its affiliates agree to take all steps which Glue Dots may from time to time consider to be necessary to perfect or protect Glue Dots rights in its trademarks including, without limitation, executing all necessary assignments, declarations, and other documents requested by Glue Dots from time to time. Upon expiration or termination of this Agreement for any reason, Buyer and its affiliates shall take such steps and execute such documents as Glue Dots requests to cause Glue Dots to own all rights in its trademarks and to terminate any rights Buyer may have to use such trademarks. Buyer shall inform Glue Dots promptly of any potential or actual infringement of any of Glue Dots trademarks and shall provide all assistance and information required by Glue Dots, at Glue Dots expense, in connection with any such infringement.
1. CONTROLLING PROVISIONS AND ACCEPTANCE:
Controlling Provisions. The terms and conditions of this document, including the provisions on the face hereof (the "Contract") govern the parties' duties, obligations and relationship with respect to the sale by the vendor described herein ("Seller") and the purchase, acceptance and use by Glue Dots International LLC or its affiliate named herein ("Buyer") of the goods and/or services described herein (the "Products"). This Contract constitutes an offer by Buyer to buy the Products from Seller in accordance with the terms in this Contract. If this document is deemed an acceptance of a prior offer by Seller, such acceptance is limited to the express terms and conditions contained in this Contract. Seller's acceptance of this offer is limited to the terms, covenants and conditions in this Contract. Buyer objects to and rejects any additional, different or varying terms proposed by Seller, except additional warranties by Seller, regardless of whether such terms would materially alter these terms and conditions. Seller's proposal of additional or different terms shall not operate as a rejection of Buyer's terms unless such variances are in the description, quantity, price, or place or date of delivery of Products, and Buyer's terms shall be deemed accepted without the additional or different terms. THIS CONTRACT CONSTITUTES THE FINAL WRITTEN EXPRESSION OF THE TERMS BETWEEN BUYER AND SELLER REGARDING THE PRODUCTS AND IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THOSE TERMS. ANY TERMS, CONDITIONS, NEGOTIATIONS OR UNDERSTANDINGS BETWEEN THE PARTIES WHICH ARE NOT CONTAINED IN THIS CONTRACT SHALL HAVE NO FORCE OR EFFECT UNLESS IN WRITING AND SIGNED BY THE BUYER, EXPRESSLY STATING BUYER'S INTENT TO MODIFY THESE TERMS AND CONDITIONS.
Acceptance. Seller shall be deemed to have made an unqualified acceptance of this Contract on the earliest of the following to occur: (a) Buyer's receipt of a copy of this Contract, signed by Seller; (b) Seller's acknowledgment of these terms and conditions or any purchase order submitted by Buyer from time to time; (c) Seller's commencement of manufacture or delivery of the Products; (d) Seller's acceptance of any payment from Buyer; (e) Seller's failure to object to these terms and conditions within ten days of receipt; or (f) any other event constituting acceptance under applicable law.
2. PATENT INDEMNIFICATION: Seller shall defend, protect and save harmless Buyer, its successors, assigns, customers and users of the Products, against all suits at law or in equity, and from all damages, claims and demands for actual or alleged infringement of any United States or foreign patent by reason of the use or sale of the Products. In the event that either the sale or use of such Products is enjoined, Seller shall at its own expense, either procure for Buyer the right to continue using such Products, or replace same with equivalent non-infringing products or modify such Products so they become non-infringing, or remove same and refund the purchase price, including transportation, installation, removal and other charges incidental thereto, at Buyer’s option. In making this purchase Buyer does not recognize the validity of any patent.
3. DELIVERY: Unless otherwise specified herein, Seller shall deliver the Products F.O.B. Buyer’s plant or DDP Buyer's plant pursuant to INCOTERMS 2010 of the International Chamber of Commerce, as amended from time to time. Seller shall pack, mark and ship Products in accordance with applicable law and Buyer's specifications from time to time. Seller shall include with each shipment such documents as Buyer may require including, without limitation, a packing slip showing Buyer's purchase order number, item numbers, and sufficient other particulars to identify the Products, and a Bill of Lading showing quantities delivered by lot number (collectively, the "Delivery Documents"). Buyer's count shall be accepted as final on all shipments not accompanied by packing lists. Buyer shall have the right at any time to specify the carrier and/or the method of transportation to be employed in conveying the Products, upon proper adjustment being made to cover any difference in transportation cost agreed upon herein. Buyer may from time to time change delivery schedules. Any forecasts provided by Buyer are estimates only and are nonbinding. Seller agrees to supply Buyer's requirements for Products. Nothing herein shall be deemed to restrict Buyer from procuring Products from alternate sources. Time is of the essence for all deliveries. If Seller's deliveries are not in the quantities ordered and/or delivered at the time specified, Buyer, without limiting its other rights and remedies, may expedite routing and debit Seller's account for any expediting charges or may cancel all or any portion of any order. No charge will be allowed for packing, crating, drayage, storage or other charges without Buyer's written permission. Products delivered in excess of the specified quantities may be refused and returned at Seller's expense.
4. TITLE TO AND RISK OF LOSS OF PRODUCTS: Title to and risk of loss of Products shall remain with Seller until delivery to Buyer's plant. Seller warrants title to all Products sold and services supplied.
5. PRICING; PAYMENT: If a price is not stated on the face of this order, the Products shall be billed at the price last quoted, or the prevailing market price, whichever is lower. This order must not be filled at a higher price than last quoted or charged without Buyer's prior written authorization. Prices shall not increase without Buyer's prior written consent. Pricing is inclusive of applicable taxes, freight, packaging, insurance, handling and all other charges, whether similar or dissimilar, unless otherwise indicated on the face of the purchase order. Buyer's account with Seller shall be paid within 60 days after receipt of invoice or shipment, whichever is received later, except where cash discounts apply or other terms are specified and specifically agreed to in writing by Buyer. Buyer's obligation to pay within such 60 day period is subject to Buyer's receipt of the Delivery Documents. Buyer reserves the right of setoff of any amounts due Seller on this Contract against any amount due Buyer from Seller on any transaction. Buyer's acceptance of or payment for the Products or any other action or inaction shall neither (a) relieve Seller from any of its obligations and warranties hereunder nor (b) constitute a waiver of Buyer's rights and claims hereunder.
6. INSPECTION: At Buyer's option, all Products ordered will be subject to final inspection and approval by Buyer after delivery. Buyer has no obligation to inspect Products. Items that are palletized or in boxes are receipted and counted as exterior packages only for Proof of Delivery verification. Buyer maintains the right to validate actual delivery quantities after acceptance of delivery. Short shipment credits will be requested in a timely manner. Buyer may reject any Products which contain defective material or workmanship or fail to conform to specifications or samples, even if Buyer has already paid for the Products. Rejected Products will be held at Seller's risk, subject to Seller's disposal, or may be returned at Seller's risk and expense at the full invoice price plus incoming transportation charges and disposal cost, if any. No rejected Products shall be replaced by Seller unless Buyer expressly so requests in writing and then only at the price stated in the order or prevailing at the time of such written request, whichever is lower.
7. FORCE MAJEURE: Buyer shall not be liable for delays or defaults due to acts of God, acts of governmental authority, acts of public enemy, war, fires, floods, epidemics, strikes, labor troubles, freight embargoes, terrorism, operation of statutes, laws, rulings or of any court or government, or other causes or contingencies reasonably beyond its control. In case of such excusable delay or default, Buyer shall have the right to cancel any order on 15 days written notice without incurring liability to Seller.
8. NOTIFICATIONS: (a) Delay Notification: Whenever Seller has knowledge of any actual or potential delay in the timely performance of any order; Seller shall immediately give Buyer written notice including all relevant information. Seller agrees to insert the substance of this clause, including this sentence, in any subcontracts. Notwithstanding the foregoing, seller shall not assign or subcontract its rights or obligations hereunder without Buyer’s consent, which Buyer may withhold in its sole discretion. (b) Price Changes: Seller must provide Buyer written notification sixty (60) days prior to any price increases. (c) Supplier change: Seller must notify Buyer with written notification of any changes to company name, address, manufacturing site changes, which may include change(s) to processes, tooling, or raw materials. (d) Material Safety Data Sheets (MSDS): Any changes or updates to the MSDS must be submitted in writing to the Buyer.
9. CANCELLATION: Buyer reserves the right by written notice to cancel any order, without incurring liability to Seller, upon any of the following: Seller's insolvency; Seller's filing of a voluntary petition in bankruptcy; filing of involuntary petition to have Seller declared bankrupt; appointment of a receiver or trustee for Seller; execution by Seller of an assignment for the benefit of creditors; or Seller's failure to correct any breach of this Contract within ten days after Buyer notifies Seller in writing of such breach. In the event of such termination, Buyer may complete the performance of this Contract by such means as Buyer selects, and Seller shall be responsible for any additional costs incurred by Buyer in so doing. Any amounts due Seller for Products delivered by Seller in compliance with this Contract prior to such termination shall be subject to setoff by Buyer for Buyer's additional costs of completing the Contract and other damages incurred by Buyer as the result of Seller's default.
10. TERMINATION AND SUSPENSION: Buyer may suspend or terminate this Contract, at any time, for its convenience and in whole or in part, by any reasonable manner. If Buyer terminates this Contract for its convenience, Seller's sole claim shall be for the costs it reasonably incurred in the performance of this Contract prior to such termination, with due allowance for the salvage value of all Products after Buyer has had full opportunity to recommend disposition and audit Seller's costs. Seller may be entitled to such termination compensation only if it provides Buyer written evidence of such costs within 60 days of termination. Upon termination, Buyer may take possession of materials and work in progress. If Buyer suspends this Contract, Seller shall promptly suspend further performance of the Contract to the extent specified and during the period of such suspension shall properly care for and protect all work in progress and materials Seller has on hand for performance of the Contract. Buyer may at any time withdraw the suspension of performance to Seller and Seller shall resume diligent performance of the work. If Seller believes that any such suspension or withdrawal of suspension justifies modification of the Contract price, Seller shall within 30 days of such suspension or withdrawal submit to Buyer a written claim for such modification. Seller's claim shall substantiate Seller's increased costs with invoices and other documents satisfactory to Buyer. Upon Buyer's verification and approval of such additional costs, Buyer and Seller shall agree upon an adjustment in the Contract price based upon such costs as full settlement to Seller for the suspension and withdrawal of suspension. IN NO EVENT SHALL SELLER BE ENTITLED TO ANY PROSPECTIVE PROFITS OR ANY DAMAGES DUE TO TERMINATION, SUSPENSION OR WITHDRAWALS OF SUSPENSION.
11. MODIFICATION: Notwithstanding section 1 above, Buyer may by written supplement to this Contract change the specifications for Products. If such change would affect the price or delivery date for such Products, Buyer and Seller shall agree in writing upon an equitable adjustment to reflect the effect of such change. Seller shall not suspend performance of this Contract while Buyer and Seller are in the process of making of such changes and related adjustments. No substitutions shall be made in this Contract without Buyer's prior written authorization. Any claim by Seller for an adjustment pursuant to this section shall be deemed to have been waived unless made in writing within 30 days from the date Buyer notifies Seller of the modification.
12. ASSIGNMENT: No assignment may be made of this Contract or any orders or any claims for monies due under any orders without the written consent of Buyer. Any payment to an assignee of any claim under any order shall be subject to set-off, recoupment or other reduction for any claim that Buyer may have against Seller.
13. COMPLIANCE WITH LAWS: Seller represents and warrants to Buyer that in the performance of this Contract and all orders hereunder, Seller shall comply and has complied with all applicable federal, state, and local laws, rules, regulations and ordinances, including but not limited to the applicable provisions (as amended) of: Paragraphs 1-7 of Section 202 of Executive Order 11246 of September 24, 1965 (Equal Employment Opportunity); the Fair Labor Standards Act of 1938 (codified at 29 U.S.C. § 201-219); the Walsh-Healey Public Contracts Act (codified at 41 U.S.C. § 35-45); the Contract Work Hours and Safety Standards Act (codified at 40 U.S.C. § 3701-08); the Vietnam Era Veterans Readjustment Assistance Act of 1974 (codified at 38 U.S.C. § 4211-12); Section 503 of the Rehabilitation Act of 1973 (codified at 29 U.S.C. § 793); the Occupational Safety and Health Act (codified at 29 U.S.C. § 651-678); and the Federal Acquisition Regulations (C.F.R. Title 48). In addition, Seller agrees to comply with (to the extent applicable) the U.S. Foreign Corrupt Practices Act and all other anti-bribery laws, all U.S. anti-boycott laws, the U.S. Export Administration Act and all regulations thereunder and all laws relating to exports or re-exports of Products, and all laws relating to imports of Products into the United States. If Seller or its authorities, agents or representatives engages a freight forwarder or similar service provider, Seller shall provide Buyer with copies of freight forwarder (or similar) records regarding Product exports promptly upon request. Seller shall promptly notify Buyer in writing if Seller receives notice or otherwise has reason to believe that a violation of U.S. import or export law has occurred or is likely to occur. Seller shall indemnify and hold Buyer harmless from any damage or liability resulting from the failure of such compliance.
14. BUYER'S PROPERTY: If material is furnished by Buyer in connection with any order on other than a charge basis, Seller shall be solely responsible for all such material and shall properly insure it against damage, destruction and loss.
15. WARRANTY: Seller warrants to Buyer, Buyer's customer and to the ultimate user that, in addition to all express and implied warranties provided under the Uniform Commercial Code, (a) the Products (including Products sold to Buyer but manufactured by others) will (i) be free from defects in materials and workmanship, (ii) conform to all representations, specifications and drawings provided by Seller or Buyer and to any other specifications agreed upon between the Parties, and (iii) meet or exceed the quality standards furnished or adopted by Buyer, (b) the use and/or sale, alone or in combination, of the Products will not infringe or violate any United States or foreign letters patent, or any right in or to any patented invention or idea, or a trademark or copyright, and (c) the Products and their production, storage, pricing, delivery and sale hereunder are in compliance with foreign, federal, state and local laws applicable thereto. Seller acknowledges that it has knowledge of Buyer's intended use and warrants that all Products that have been manufactured by Seller based on Buyer's use and will be fit and sufficient for the particular purposes intended by Buyer. Any Products not in accordance with the foregoing warranties or any special warranty shall be deemed to be defective and may be rejected by Buyer. Buyer's approval of Seller's specifications shall not relieve Seller of any of its warranty obligations. Seller will maintain a quality assurance system which is adequate in Buyer's judgment to detect and prevent shipment of nonconforming Products. In the event of any recall affecting the Products, Seller shall indemnify Buyer and the Buyer Parties in accordance with section 22. Buyer shall have the right to control the recall process and Seller shall fully cooperate with Buyer in connection with the recall. Seller shall obtain and retain, for a period of at least six years from the date of sale to Buyer, samples of all Products and make such samples available to Buyer on request.
16. REMEDIES: If Seller breaches any of its warranties, Seller shall be liable for and shall indemnify Buyer and the Buyer Parties from and against any and all Damages incurred by them, including, without limitation, the purchase price of the Products, delivery costs, replacement and cover costs, lost profits, and consequential and incidental damages. Seller acknowledges that, if Seller's breach causes Buyer to deliver products to its customers either late or below Buyer's standards, Buyer will incur lost profits and other damages for which Seller is liable. Without limiting the foregoing, upon Buyer's request, Seller shall promptly and at its sole cost replace any Products failing to conform with the warranties set forth in this Contract. Replacement Products shall be subject to the same warranty as provided above. The remedies provided Buyer herein shall be cumulative and in addition to any other remedies provided by law or equity. A waiver of any breach shall not constitute a waiver of any other breach. The laws of the state shown in Buyer's address printed on the masthead of Buyer's purchase order shall govern and control this Contract and the parties' relationship. This Contract and purchases hereunder shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods. Any cause of action, claim, suit or demand allegedly arising from or related to the terms of this Contract or the relationship of the parties shall be brought in a court situated in the state of Wisconsin. Both parties hereby irrevocably admit themselves to and consent to the jurisdiction of said court. The invalidity in whole or in part of any of these terms and conditions shall not affect the validity of any other term or condition.
17. ON SITE SERVICES: If Seller is required to enter premises owned, leased, occupied by or under the control of Buyer during the performance of any order, Seller shall indemnify and hold harmless Buyer and its officers and employees, from any loss, expense or liability by reason of property damage or personal injury, including death, of whatsoever nature or kind arising out of or as a result of such performance, whether arising out of the actions of Seller or of its employees or subcontractors. Seller and its subcontractors shall maintain insurance in the following minimum amounts covering Seller's obligations under any order: Workmen's Compensation Insurance covering all those engaged in the performance of the Order in Statutory Amounts; Employer's Liability Insurance of at least $100,000/occurrence; Comprehensive General Liability Insurance including contractual obligations of at least $1,000,000; and Automotive Liability Insurance of at least $1,000,000. Seller shall provide Buyer with certificate(s) of insurance properly executed by its insurance carrier(s) showing all such insurance to be in force. Send to the address of appropriate Site Representative.
18. SAFETY MANUALS; INDEPENDENT CONTRACTOR: Seller shall adhere to Buyer's instructions or safety manuals, which will be made available to the Seller, but Seller shall remain an independent contractor and neither Seller nor any of its employees or agents shall be or be considered an employee of Buyer. Neither Seller nor any of its employees or agents is authorized to incur any obligations or make any promises or representations on Buyer's behalf.
19. RECORD RETENTION: Seller shall maintain verifiable objective evidence of all inspections and test performed, results obtained, and dispositions of non-conforming articles. These records shall be identified to associated articles, and shall be retained by the seller and made available for review to the Buyer and or authorized representatives, and customers of the Buyer upon request. Records shall be maintained in a safe accessible location for a period of 7 years.
20. AUDIT: (a) Supplier will maintain reasonably detailed records to adequately reflect Supplier’s compliance with the terms of this Purchase Order. Supplier will permit Glue Dots auditors to have access at all reasonable times to Supplier’s books, facilities, and other pertinent records. Supplier will require each of its sub tier suppliers to do likewise with respect to their books, facilities, and records. Supplier and each sub tier supplier will also furnish other information as may be needed by Glue Dots representatives in auditing compliance. (b) Glue Dots may perform audits up to two years following completion of this Purchase Order. If, as a result of an audit, any invoice submitted by Supplier is found to be in error, an appropriate adjustment will be made to the invoice or the next succeeding invoice following the discovery of the error. Any monetary discrepancy resulting from such error will be paid promptly by Supplier or Glue Dots, as the case may be. Supplier will promptly correct any other Supplier deficiencies discovered as a result of the audit.
21. CONFIDENTIALITY: Seller acknowledges and agrees that all Confidential Information (as defined below) shall at all times, both during and after expiration or termination of this Contract for any reason, remain the exclusive property of Buyer, and Seller shall not acquire any proprietary interest whatsoever therein. "Confidential Information" means all non–public knowledge and information that provides Buyer with a competitive advantage and that is disclosed by Buyer to Seller orally or in writing, or acquired by Seller through observation, regarding Buyer's products, technology, inventions, designs, specifications, trade secrets, formulas, know-how, services, forecasts, sales methods, customer usages or requirements, financial information, business plans, strategies and future business relationships. "Confidential Information" also includes the confidential information of Buyer's customers and channel partners. Seller shall maintain in confidence, not disclose to any third party and not use, except for the specific purpose of performing hereunder, all information furnished to Seller by Buyer or derived from Buyer in performance of any order. Seller shall inform those performing services under any order of these obligations and shall be responsible for all violations and indemnify Buyer against any damage, loss, cost or expense (including without limitation, attorneys' fees) arising in relation to any violation of these obligations. Upon Buyer's request, Seller shall return to Buyer all such confidential information without retaining any copies or embodiments thereof. Nothing in this Agreement shall be construed to limit or negate the common or statutory law of torts or trade secrets where it provides Buyer with broader protection than that provided herein.
22. INTELLECTUAL PROPERTY: Whenever requested by Buyer to do so, Seller will place on the Products, in the manner specified by Buyer, such trademarks or other identifying marks as Buyer may specify. Seller warrants and agrees that Buyer's identifying marks shall be used only on products supplied to Buyer and in the manner and subject to the restrictions imposed by Buyer. All of Buyer's Intellectual Property Rights are and shall remain Buyer's sole property and Seller agrees not to take or permit any action contradicting Buyer's rights thereto. "Intellectual Property Rights" include, without limitation, any copyright, patent, registered or unregistered design, logo, trademark, trade dress, trade name or other designation, translation of trade name into another language, and any similar rights or applications for rights in any of the foregoing in any part of the world owned or used by Buyer or any of its affiliates, and any goodwill relating thereto. Buyer's rights shall be enforceable by injunctive relief and/or a decree of specific performance. Seller does not acquire any rights, title or interest in any of the trademarks or trade names of Buyer by virtue of this Contract, and Seller shall not use or in any way refer to Buyer's trademarks or trade names without Buyer's prior written permission. Nothing herein shall limit the statutory or common law of torts or trade secrets where it provides Buyer with broader rights.
23. INDEMNIFICATION: Seller hereby releases and agrees to promptly defend, indemnify and hold Buyer and its affiliated entities, employees, customers, successors and assigns (collectively "Buyer Parties") harmless from and against all liabilities, losses, claims, court costs, incidental and consequential damages, attorneys' fees and other expenses arising from any loss, damage or injury (including death) to any person or property ("Damages") in any way relating to the Products or (a) any alleged defects in the Products, (b) any inadequate disclosures, labels, packaging, warnings or instructions, (c) the alleged violation of any statute, ordinance or other law, order, rule or regulation, (d) any alleged unfair competition resulting from similarity of design, trademark, use or appearance of the Products, (e) bodily injuries, deaths or property damage caused by negligent or wrongful act or omission of Seller, or any employee or agent of Seller, (f) any breach of this Contract, including without limitation any warranty set forth herein or any special warranty, and (g) any recalls involving Products. The provisions of this section 21 shall be effective whether or not such loss, damage or injury was proximately caused by the sole or partial negligent acts or omissions of Buyer or any Buyer Parties. Buyer and the Buyer Parties, at their option, may be represented by and actively participate through their own counsel in any such suit or proceeding, and Seller shall pay the costs of such representation and participation. IN NO EVENT SHALL BUYER BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES ARISING IN RELATION TO THESE TERMS AND CONDITIONS OR THE PARTIES' RELATIONSHIP, AND SELLER AGREES TO INDEMNIFY AND HOLD BUYER HARMLESS THEREFROM.
24. SURVIVAL: The provisions of sections 1, 2, 9, 10, 13, 15, 16, 20, 21, 22, 23, and 24, and any other provision, the performance or effectiveness of which naturally survives, shall survive expiration or termination of this Contract for any reason.