Purchase Terms - Akuratemp

AKURATEMP LLC STANDARD TERMS AND CONDITIONS OF PURCHASE

Acceptance; Entire Agreement – Unless otherwise agreed to in writing, these Terms and Conditions of Purchase (“Terms”) apply to all purchases by Akuratemp LLC (“Buyer”) from the supplier of any goods and/or services (“Seller”) hereunder. These Terms constitute Buyer’s offer and may be accepted by Seller only in accordance with the terms hereof. Seller’s acceptance of these Terms and any order hereunder shall occur either through commencement of performance or acknowledgment of the order. By accepting an order hereunder, Seller waives all terms and conditions contained in its quotation, acknowledgment, invoice or other documents which are different from or additional to those contained herein and all such different or additional terms and conditions shall be null and void. No addition to, waiver or modification of, any of the provisions herein contained shall be of any force or effect unless made in writing and executed by Buyer’s authorized representative.
Changes – Buyer shall have the right at any time to make changes in an order by written notice to Seller, and Seller agrees to comply with such changes. If such changes cause a material increase or decrease in Seller’s costs or time of performance, Seller shall notify Buyer immediately and negotiate an adjustment. Seller may not change material of manufacture, sources of supply, manufacturing process, or manufacturing location without the prior written consent of buyer.
Taxes – Purchases are exempt from sales tax collection by the Seller. Buyer is responsible for payment of any applicable sales, use, or excise tax.
Invoices – All invoices shall be emailed to Buyer at accounts@akuratemp.com and will state Buyer’s Purchase Order Number clearly on the Invoice. Invoice shall be rendered for each order or for each shipment if more than one is made on an order. An itemized delivery ticket, bearing Buyer’s Purchase Order Number as shown hereon, must be left with the goods to ensure their receipt. If delivery is made by a third party, an itemized delivery ticket must be attached to the package or other shipping unit.
Shipping; Delivery – Unless otherwise agreed to in writing, delivery shall be FOB point of destination and title and risk of loss shall pass to Buyer upon delivery to Buyer’s location. Time of shipment and of other aspects of performance hereunder is of the essence of these Terms. Delays in shipment shall be reported immediately by Seller to Buyer.
Right of inspection and rejection – Goods supplied by Seller shall be received subject to Buyer’s inspection and approval within a reasonable time after delivery, notwithstanding prior payment. If specifications or warranties are not met, goods may be returned at Seller’s expense.
Warranty – Seller warrants that in furnishing the goods hereunder, all applicable American standards have been complied with at the time of delivery. In addition to all warranties provided by law, Seller further represents and warrants that: (i) the goods, when shipped, shall conform to specifications, drawings, samples or other descriptions furnished by Seller or specified by Buyer, and shall be of merchantable quality, fit and safe and free from defects in material, design and workmanship; (ii) the goods do not infringe on any trademark or patent right; (iii) it possesses all licenses and permits required by any state, federal or municipal agency that may be required to sell the goods; (iv) the goods comply with and are manufactured and labeled in compliance with all applicable federal, state and local laws, rules and regulations; (v) the goods are fit for the particular purpose intended; Buyer’s approval of specifications, drawings, samples and/or other descriptions furnished by Seller shall not relieve Seller of its obligations under these Terms. Without limiting its remedies under law or equity, Buyer at its option may require Seller either to replace defective goods at no increase in price (Seller must pay all repacking, transportation and handling charges both ways) or to refund the purchase price and any charges in connection therewith.
Indemnity – Seller agrees to indemnify, defend and hold harmless the Buyer, its agents, and employees from and against any and all expenses, claims, demands, losses, damages, actions, or liability of any kind, including reasonable attorney’s fees incurred for any and all damage or injury of any kind or nature whatever (including death) to all persons, (including those employed by Seller) or property which is caused by, arises out of, on account of, or as a result of: (i) use of the goods or services provided hereunder; (ii) breach by Seller of any of its representations, warranties, covenants and/or any agreements contained herein; (iii) any act or omission of Seller, its agents, employees, representatives or subcontractors or failure to comply with the terms hereof; or (iv) any alleged infringement of any trademark, patent, copyright or other proprietary right, by reason of the sale or use of the goods and/or services furnished under these Terms. If any of the goods or services provided pursuant to these Terms or any part thereof is held to constitute infringement and its use is enjoined, Seller shall at its own expense either procure for Buyer, its successors, assigns, and customers the right to continue using such goods or services or part thereof or replace them with a substantially equivalent non-infringing good or service. Upon demand, Seller agrees to assume on behalf of the Buyer the defense of any action, at law or in equity, which may be brought against the Buyer upon any such claim and to pay on behalf of the Buyer the amount of any judgment that may be entered against the Buyer in any such action. Seller hereby expressly waives any immunity from suit by Buyer, which may be conferred by the workers’ compensation laws, or any other law of any state that would preclude enforcement of the indemnification clause of these Terms by Buyer. Seller further agrees to pay any reasonable attorney’s fees incurred by the Buyer in securing compliance with the provisions of this section. Seller agrees that its obligations to indemnify under this section are distinct from, independent of, and not intended to be coextensive with its duty to procure insurance required herein.
Compliance with Laws – Seller warrants that Seller and the goods furnished to Buyer comply with all applicable federal, state, and local statutes, rules of law, ordinances, regulations, and regulatory orders.
Non-Circumvention – Seller will not transact business directly or indirectly with Buyer’s customers or Buyer’s end user for the goods or services provided herein.
Safety Data Sheet Compliance – Seller certifies that safety data sheets (“SDS”) for hazardous materials or dangerous goods furnished in accordance with all applicable regulations conform to the UN Globally Harmonized System of Classification and Labelling of Chemicals (“GHS”) and agrees such SDS will promptly be provided in a legible Adobe .pdf format to Buyer pursuant to all federal, state or local laws and regulations prior to the first shipment of hazardous materials or dangerous goods and whenever there is an update to the SDS. Seller’s failure to supply such SDS shall be deemed to constitute Seller’s warranty and representation that each of such goods sold hereunder is exempt from such requirements.
Confidentiality – All specifications, data, pricing, payment terms, financial information, and other information established between Buyer, or its agents, and Seller in connection with these Terms or any order hereunder remain the exclusive intellectual property of Buyer and shall be treated by the Seller as proprietary and shall not be disclosed or used, except as necessary to fulfill its obligations hereunder, without prior written approval of Buyer. In addition, the purchase of the Seller’s goods does not authorize the Seller to use the name of or make reference to Buyer for any purpose in any releases for public or private dissemination, nor shall the Seller divulge or use in any advertisement or publication any specifications, data, or other information pertaining to or relating to this usage without prior written approval of Buyer.
Force Majeure – Neither party shall be liable for any failure or delay in performance of this Agreement to the extent that any such failure arises from acts of God, war, civil insurrection or disruption, riots, government act or regulation, strikes, lockouts, labor disruption, cyber or hostile network attacks, inability to obtain raw or finished materials, inability to secure transport, or any cause beyond such party’s reasonable control.\
Miscellaneous – Buyer, by written notice, may terminate these Terms or an order, in whole or in part. In the event any order is terminated as a result of Seller’s default, the Seller shall be liable for all damages allowed in law or equity, including the excess cost of procuring similar items. If an order is terminated for the convenience of Buyer, Seller will be compensated to the extent that items have been accepted by Buyer prior to the effective date of termination. Other than to this extent, Buyer shall not be liable to Seller for any damages on account of its failure to accept all of the items ordered. Seller may not transfer or assign these Terms, any order hereunder, any interest therein or any claim arising hereunder without the prior written consent of Buyer. Buyer may transfer or assign the benefits of these Terms or any order hereunder, in whole or in part, including without limitation the Seller’s warranty, without the approval of Seller. The sections of these Terms that by their nature are intended to survive termination or expiration of these Terms will so survive, including without limitation, warranties, indemnities and confidentiality. These Terms, any order hereunder, and the rights and obligations of the parties thereto, shall be governed by the laws of the State of North Carolina, without giving effect to its principles of conflicts of law. Seller agrees to subject itself to the courts of North Carolina and such venue shall be exclusive regarding disputes arising out of these Terms.