Optimum Technologies, Inc. – Terms and Conditions of Sale
1. Applicability. These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the goods (“Goods”) by Seller to Buyer. Seller’s commencement of Buyer’s order preparation expressly conditions AND LIMITS acceptance to the Terms stated herein and any action by Buyer in furtherance of a sale or purchase of Goods shall constitute acceptance of these Terms. These Terms and the accompanying acknowledgement or invoice (the “Sales Document” and these Terms (collectively, this “Agreement”)) compose the entire agreement between the parties, and supersede all prior, contemporaneous or subsequent understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, including any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its order, purchase order or such terms, and all such terms and conditions which are different from or in addition to the Terms are hereby rejected and shall not be binding on Seller, and Seller hereby objects thereto. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
(a) Seller aims to deliver the Goods on or before Buyer’s requested delivery date or fourteen (14) business days after the receipt of Buyer’s purchase order, whichever is later; except that delivery dates for custom made and/or custom packaged Goods are approximate and delivery may be delayed without Seller incurring liability therefor. Seller shall not be liable for any delays, loss or damage in transit.
(b) Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to Seller’s plant of manufacture (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods within 14 days of Seller’s written notice that the Goods have been delivered to the Delivery Point. Buyer shall be responsible for all transportation, customs and related costs, loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point. Delivery shall be made FOB Delivery Point. The carrier shall be Buyer’s agent for purposes of delivery of Goods to Buyer.
(c)Seller may, in its sole discretion, without liability or penalty, make partial deliveries of Goods to Buyer. Each delivery will constitute a separate sale, and Buyer shall pay for the units shipped whether such delivery is in whole or partial fulfillment of Buyer’s purchase order. Partial delivery shall not obligate Seller to make further deliveries.
(d) If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
3.Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, 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 proceeds) of the foregoing and hereby agrees to execute and the filing of such security agreements, financing statements and other documents as Buyer deems necessary. The security interest granted under this provision constitutes a purchase money security interest under the Georgia Uniform Commercial Code.
4.
Inspection and Rejection of Nonconforming Goods.(a) Buyer shall inspect the Goods immediately after receipt. Buyer’s failure to notify Seller in writing of any claim related to Nonconforming Goods, defective Goods or shortages (including furnishing such written evidence or other documentation as reasonably required by Seller) within five (5) days after the date of receipt shall constitute an unqualified acceptance the Goods. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
(b) If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to the Delivery Point. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s delivery of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 4(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 4(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
(a) Buyer shall purchase the Goods from Seller at the price (the “Price”) set forth in the accompanying Sales Document, subject to change without notice prior to the delivery of the Goods to the Delivery Point. If the Price should be increased by Seller before delivery of the Goods to the Delivery Point, then these Terms shall be construed as if the increased price was originally inserted herein, and Buyer shall be billed by Seller on the basis of such increased prices.
(b) All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes.
(a) Buyer shall pay all invoiced amounts due to Seller on receipt of Seller’s invoice. Buyer shall make all payments hereunder in US dollars and by any payment method set forth in the accompanying Sales Document as acceptable.
(b) Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder.
(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
7. Custom Packaging. In the event that Buyer requests custom packaging relating to the Goods, Buyer agrees that, upon receipt of notice and invoice from Seller, it shall purchase from Seller any such excess custom packaging materials acquired by Seller. Buyer shall bear all costs and expenses related to Seller’s disposal of such excess materials, including shipment to Buyer.
8. Intellectual Property of Seller. Buyer shall not use the intellectual property (including trademarks and trade secrets) owned by or assigned to Seller except with the prior written consent of Seller and in compliance with Seller’s written policies regarding such use, which shall in no event be deemed given by sale of the Goods.
a) Buyer shall have the benefit of the product warranties applicable to the Goods, if any, for the specified warranty periods (“Warranty Period”) subject to any terms and conditions therein, except where indicated on the accompanying Sales Document that the sale is made “AS IS”. Further details of specific warranties are available from Seller upon request. Each warranty shall be valid only under the proper selection, storage, installation, maintenance, and under normal use of the Goods and is otherwise subject to the terms herein. Any products or Goods sold as other than “first quality,” such as promotional goods and seconds, are sold “as is” and no claims hereunder will be considered for such products.
(b) EXCEPT FOR THE WARRANTY REFERENCED IN SECTION 9(A), SELLER MAKES NO OTHER WARRANTY OR GUARANTEE WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING, WITHOUT LIMITATION, ANY (a) WARRANTY OF MERCHANTABILITY; OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) 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.
(c) Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty referenced in Section 9(a) and Seller shall in no event be liable for any specification changes thereto without Seller’s prior actual knowledge. For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) 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.
(d) Seller shall not be liable for a breach of the warranty referenced in Section 9(a) unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within thirty (30) days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective.
(e) Seller shall not be liable for a breach of the warranty referenced in Section 9(a), such warranty shall be void, and Buyer shall be deemed to have accepted the Goods “as is,” with no further obligation of Seller to Buyer if: (i) Buyer makes any further use of such Goods after giving such notice of the defect; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.
(f) Subject to Section 9(d) and Section 9(e) above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests in writing, Buyer shall, at Seller’s expense and pursuant to Seller’s written instructions, return such Goods to Seller.
(g) THE REMEDIES SET FORTH IN SECTION 9(F) SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY REFERENCED IN SECTION 9(A).
10.
Limitation of Liability.
(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER, ITS CUSTOMER OR OTHER PERSONS OR ENTITIES FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b)
SELLER’S TOTAL LIABILITY AND BUYER’S EXCLUSIVE REMEDY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, IS EXPRESSLY LIMITED TO REPLACEMENT OF NONCONFORMING GOODS OR PAYMENT IN AN AMOUNT THAT SHALL IN NO EVENT EXCEED THE TOTAL PRICE PAID TO SELLER FOR THE SPECIFIC GOODS SOLD HEREUNDER FOR WHICH DAMAGES ARE CLAIMED, AT SELLER’S DISCRETION.11. Compliance with Law. Buyer shall comply with all applicable laws, regulations and ordinances, including all export and import laws of all countries involved in the sale of the Goods hereunder or any resale of the Goods by Buyer. Buyer assumes all responsibility for deliveries of Goods requiring any government import clearance.
12. Termination. In addition to any remedies that may be provided under these Terms, 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) breached or has not otherwise performed or complied with any of these Terms, 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. In the event of termination, all outstanding payment obligations or other indebtedness of Buyer to Seller shall be due and payable no later than fifteen (15) days after delivery of notice of termination. Acceptance of less than the full amount due shall not be a waiver of any of Seller’s rights under this Agreement or applicable law.
13. Cancellation of Order. Buyer may cancel an order only within forty-eight (48) hours of placement; except that, Buyer shall not, in any event without the written consent of Seller (including agreement to terms and conditions of cancellation required by Seller), cancel any portion of an order after commencement of preparation of Goods that are custom made and/or custom packaged at the request of Buyer. Specifications of Goods are subject to change or withdrawal without notice and are subject to normal manufacturing tolerances.
14. 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 rights, 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.
15. Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted 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 or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, weather, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or interruption, inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
16. Assignment; Survival. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order.
17. Governing Law; Submission to Jurisdiction. All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Georgia, United States of America, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of Georgia. The transaction contemplated by this Agreement shall be deemed to take place in the State of Georgia and this Agreement shall apply in every jurisdiction, regardless of the Buyer’s location or principle place of business. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted exclusively in the federal courts of the United States of America located in the City of Atlanta and County of Fulton or the courts of the State of Georgia located either in the City of Atlanta and County of Fulton or the City of Cartersville and County of Bartow, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
18. 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.
