Terms And Conditions - Polyhose US

Terms and Conditions of Sale

Applicability. These terms and conditions of sale (these “Terms“) are the only terms that govern the sale of the products (“Products“) by Polyhose Incorporated (“Seller“) to the buyer named on Seller’s order acknowledgment (“Buyer“). The accompanying order acknowledgment (the “Order Acknowledgment“), these Terms, and the Limited Warranty attached hereto as Exhibit A (collectively, this “Agreement“) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Any additional or different terms contained in Buyer’s purchase order, shipping papers or other documents relating to this transaction are rejected and null and void and of no effect with respect to this Agreement. 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.
Delivery. The Products will be delivered within a reasonable time after the receipt of Buyer’s purchase order. Seller shall not be liable for any delays, loss, or damage in transit. Unless otherwise set forth in the Order Acknowledgment, delivery of the Products shall be FOB Seller’s facility in Wilmington, North Carolina (the “Delivery Point“) using Seller’s standard packaging and shipping methods.
Shipping Costs. Freight with respect to a shipment shall be prepaid by Seller if: (a) the Price for the Products included such shipment is greater than Four Thousand Seven Hundred Fifty ($4,750) Dollars (the “Minimum Shipment Price”), (b) the shipment originates from Seller’s facility in Wilmington, North Carolina, and (c) the final destination point for such shipment is located within the United States (excluding Hawaii and Alaska). In all other cases, all shipping and loading costs shall be paid by Buyer. Seller may make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the Products shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order. If Buyer’s purchase order includes Products with an aggregate Price that is greater than the Minimum Shipment Price, but Seller’s shipment with respect to such purchase order includes Products with a Price that is equal to or less than the Minimum Shipment Price, the shipping and loading costs for such shipment shall be paid by Buyer.
Title and Risk of Loss. Title and risk of loss pass to Buyer upon delivery of the Products at the Delivery Point.
Acceptance. Buyer will be deemed to have accepted the Products unless it notifies Seller in writing of any nonconforming Products within thirty (30) days after delivery of the Product together with written documentation as to the reasons for the non-conformance. Notwithstanding the foregoing, Buyer’s use of the Product shall constitute Buyer’s acceptance of the Products.
Final Sales. All sales are final. No Product may be returned to Seller without prior written authorization of Seller. In the event Seller authorizes a return in its sole discretion, Buyer shall pay a restocking charge of twenty five percent (25%) of the Price of such Product. Shipping charges on all authorized returns are the sole obligation of Buyer.
Price. Buyer shall purchase the Products from Seller at the prices (the “Prices“) set forth in Seller’s latest Order Acknowledgment to Buyer. Unless otherwise expressly set forth in such Order Acknowledgment, Order Acknowledgments shall automatically expire sixty (60) days after the date of the Order Acknowledgment. If Seller shall increase Prices after delivery of such Order Acknowledgment, Seller shall notify Buyer of such increased Prices; and if Buyer fails to object to such increased Prices within fifteen (15) days after the date of Seller’s notice, then Seller’s Order Acknowledgment shall be construed as if the increased prices were originally inserted therein, and Buyer shall be billed by Seller on the basis of such increased prices. 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.
Payment Terms. With respect to Products that Seller shall ship from Seller’s facility in Wilmington, North Carolina, Buyer shall pay all invoiced amounts due to Seller within thirty (30) days after the date of Seller’s invoice. With respect to Products that shall be shipped from a facility other than Seller’s facility in Wilmington, North Carolina, Buyer shall pay all invoiced amounts due to Seller within sixty (60) days after the date of the bill of lading. Buyer shall make all payments hereunder by wire transfer or ACH bank transfer (as specified by Seller) and in US dollars. 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. Seller shall be entitled to suspend the delivery of any Products and reject future purchase orders if Buyer fails to pay any amounts when due hereunder.
Limited Warranty. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN EXHIBIT A, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCUTS, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Limitation of Liability.
- IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, 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.
- IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCT THAT IS THE SUBJECT OF THE CLAIM.
- The limitation of liability set forth in Section 10(b) above shall not apply to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s acts or omissions.
Indemnification. Buyer shall indemnify, defend, and hold harmless Seller and its officers, directors, employees, agents, affiliates, successors and assigns, from and against any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses“), arising out of or in connection with any third-party claim, suit, action, or proceeding relating to any actual or alleged infringement of any third-party’s intellectual property rights caused by Seller having followed instructions, specifications or designs provided by Buyer in connection with the Products.
Compliance with Law. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Buyer shall 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. Buyer assumes all responsibility for shipments of Products requiring any government import clearance. At Seller’ request, Buyer shall provide a copy of the export declaration for the Products delivered.
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) 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.
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.
Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
Force Majeure. No party shall be liable or responsible to the other party, 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 (except for any obligations of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party“) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Events“): acts of God; flood, fire, earthquake, epidemic, pandemic or explosion; war, invasion, hostilities, terrorist threats or acts, riot or other civil unrest; government order, law, or actions; embargoes or blockades in effect on or after the date of this Agreement; national or regional emergency; strikes, labor stoppages or slowdowns, or other industrial disturbances; shortage of adequate power or transportation facilities; and other events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within ten (10) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of ninety (90) consecutive days following written notice, either party may thereafter terminate this Agreement upon ten (10) days’ written notice.
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. 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 this Agreement.
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.
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 these Term; provided, however, that the indemnified parties in Section 10 are intended third-party beneficiaries of Section 11 with the rights to enforce Section 11.
Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of North Carolina without giving effect to any choice or conflict of law provision or rule (whether of the State of North Carolina or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of North Carolina.
Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of North Caolina in each case located in the City of Wilmington and County of New Hanover, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) shall be in writing and addressed to the parties at the addresses set forth on the face of the Order Acknowledgment 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 (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
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.
Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Title and Risk of Loss, Limited Warranty, Limitation of Liability, Indemnification, Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction, and Survival.

Exhibit A

Limited Warranty

Polyhose Incorporated (“Seller“) warrants to the buyer named on Seller’s Order Acknowledgment (“Buyer“) that for a period of one (1) year from the manufacture date of the Products as stamped on the Products (“Warranty Period“), that such Products will materially conform to Seller’s published specifications in effect as of the date of manufacture and will be free from material defects in material and workmanship. This limited warranty is exclusively for the benefit of Buyer and cannot be transferred or assigned.
EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN EXHIBIT A, SECTION (A), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Products manufactured by a third party (“Third Party Product“) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Products. Third-Party Products are not covered by the warranty in Exhibit A, Section (a). 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.
Seller shall not be liable for a breach of the warranty set forth in Exhibit A, Section (a) unless: (i) Buyer gives written notice of the defect to Seller within ten (10) business 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 Products and Buyer (if requested to do so by Seller) returns such Products at Buyer’s cost to Seller’s place of business within fifteen (15) days of Buyer’s notice for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Products are defective. Seller shall reimburse Buyer for the reasonable transportation costs if Seller determines such Products subject to the warranty.
Seller shall not be liable for a breach of the warranty set forth in Exhibit A, Section(a): (i) if Buyer makes any further use of such Products after giving such notice; (ii) if the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, application, commissioning, use or maintenance of the Products; or (iii) if Buyer alters such Products or combines such Products with third party products; or (iv) with respect to normal wear and tear of the Products
Subject to Exhibit A, Section (d) and Exhibit A, Section (e) above, with respect to any defective Products during the Warranty Period, Seller shall, in its sole discretion, either: (i) replace such Products or (ii) credit or refund the price of such Products at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Products to Seller. If Seller replaces a Product, such replacement shall not extend the duration of the original Warranty Period.
THE REMEDIES SET FORTH IN EXHIBIT A, SECTION (F) SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN EXHIBIT A, SECTION (A).