The purchase order attached hereto (the “PO,” and together with these terms and conditions of sale, the “Contract”) sets forth the entire agreement between the seller (the “Seller”) and buyer (“Buyer”), each as identified in the attached PO, relating to the sale of the goods (including any parts, components and accessories) set forth in the attached PO (the “Products”). No modifications or additions hereto shall be binding on Seller unless consented to in a writing signed by Seller’s duly authorized representative. Any additional or different terms and conditions set forth in any acknowledge or document issued by the Buyer will have no effect. Buyer will not offer the Products for sale on any website, e-commerce or other online platform and Buyer agrees that Buyer is purchasing the Products solely for its own or client’s use. Buyer will not offer the Products for sale to any person or entity who Buyer has actual knowledge is purchasing such Products for resale.
All sales of Products are subject to a pass through of the standard manufacturer’s warranty given by the manufacturer of the Products, which shall be freely transferrable to any purchaser of Products from Buyer. SELLER MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PRODUCTS AND THE SALE THEREOF TO BUYER. EXCEPT FOR THE PASS THROUGH OF THE MANUFACTURER’S WARRANTY REFERENCED ABOVE. ALL OTHER WARRANTIES AND REPRESENTATIONS ARE DISCLAIMED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO WARRANTIES OR REPRESENTATIONS THAT MAY BE PROVIDED BY BUYER TO ITS PURCHASERS OR OTHERS SHALL BE CONSTRUED AS BINDING UPON SELLER.
Claims for defective merchandise, shortages, delays or for any other causes shall be deemed waived and released by the Buyer, unless made in writing within thirty (30) days after the delivery of the Products. No person, firm or corporation is authorized to assume for Seller any other liability in connection with the sale of the Products. Seller’s representative shall be given due opportunity to investigate such claims. If Buyer fails to comply with the provisions of this paragraph Buyer shall be deemed to have approved and accepted the Products shipped or delivered under this Contract, and the Products may not be returned nor allowance made. If any portion of the Products delivered to Buyer is defective, Seller shall have the right in its discretion either to replace such defective Products or to refund the portion of the purchase price applicable thereto. No Products shall be returned to Seller without Seller’s prior written consent.
Unless otherwise provided herein, Seller shall not be responsible for freight, transportation, insurance, shipping, storage, handling, demurrage or similar charges or any import taxes or similar levies. If such charges are included in the price, any increase in rates becoming effective after acceptance of this Contract shall be charged to the Buyer.
Buyer shall pay the amounts set forth in the PO. Unless otherwise set forth in the applicable PO, invoices shall be issued upon acceptance of the PO and are due upon receipt. All sales, use and similar taxes which the Seller may be required to pay or collect with respect to the Products shall be charged to the Buyer.
Risk of loss respecting all Products purchased hereunder shall pass to Buyer upon Seller’s delivery of the Products to the carrier. Title in the Products shall not pass to Buyer until Seller has received payment in full for all Products purchased hereunder.
Shipping dates are approximate and are based upon prompt receipt of all necessary information. If any shipment or delivery hereunder shall be delayed through any act or neglect of the carrier or any other person, including sub-contractors, suppliers or supplier’s plants, or by any embargo, hostilities, war, civil disturbance, strike or other labor difficulties, shortages or inability to obtain seizure or requisition, force majeure, or by reason of any other cause whatsoever, whether domestic or foreign, whether direct or indirect, beyond the reasonable control of Seller, Seller shall not be responsible therefore, and shipment or delivery may be postponed or cancelled by Seller at its option without liability hereunder; provided, however, that if Seller postpones shipment or delivery and the cause of delay continues for ninety (90) days or more following notice of such postponement, Seller, at its option and without any liability, may either cancel such shipment or delivery or postpone the same for an additional period. If Seller, upon removal of such cause or causes of delay, begins or resumes making shipment or delivery, the shipment or delivery time shall be extended for a period equal to the time lost by reason of the delay.
Unless otherwise expressly stated, Seller shall have the right to deliver all of the Products at one time or in installments. All installments shall be separately invoiced and paid as billed without regard to subsequent deliveries. No offset shall be allowed against the payment due for such installment. Failure to pay for any installment when due shall excuse Seller from making further deliveries. Delay in the delivery of any one installment shall not relieve Buyer of its obligation to accept remaining installments. The delivery by Seller of non-conforming Products or of a default by Seller of any nature respecting one or more installments shall not substantially impair the value of this Contract as a whole and shall not constitute a total breach of this Contract as a whole. Should the Buyer fail to accept or pay for each individual installment or delivery, Seller may, without prejudice to any other lawful remedy, defer further shipments or deliveries until acceptance by Buyer or payment is made by Buyer or, at its option, Seller may, without liability whatsoever, terminate this Contract as to any unaccepted or undelivered portion or installment, as well as any other outstanding contract with Buyer, and Buyer shall be responsible for any expenses, or losses sustained by Seller in so doing.
Seller’s liability under this Contract shall be limited to the amount of the purchase price. In no event shall Seller be liable hereunder for the cost of processing, lost profits, injury to goodwill or any other indirect, special, incidental, punitive or consequential damages.
Seller reserves the right at any time and from time to time, to revoke, suspend or change any credit terms extended to Buyer because of Buyer’s failure to pay for any Products when due or for any other reason deemed good and sufficient by Seller. In such case, in addition to any other remedies herein or provided by law, cash payment or satisfactory security from the Buyer may be required by Seller before shipment, or the due date of payment by Buyer under any contract or order with the Seller may be accelerated by Seller. Failure to pay invoices when due shall make any subsequent invoices immediately due and payable, regardless of terms, and the Seller may withhold all subsequent deliveries until the full account is settled. Acceptance by Seller of less than full payment shall not be a waiver of any of its rights. If Buyer becomes bankrupt or insolvent, or a receiver is appointed for Buyer in any court, Seller may forthwith terminate this Contract by written notice thereof to Buyer, and such termination shall not prejudice Seller’s rights to any amounts then due hereunder. The Buyer represents to the Seller that it is financially solvent as of the date of signing this Contract.
This Contract and any dispute arising hereunder shall be construed according to and governed by the laws of the State of New York. Buyer consents to the jurisdiction of the Supreme Court of the State of New York, County of New York, or the Federal District Court for the Southern District of New York as the exclusive forums for any actions commenced hereunder. No suit or legal proceeding arising under this Contract shall in any event be maintainable against Seller unless commenced or made against Seller within one (l) year after delivery or failure of delivery of the Products or after any cause of action hereunder or in relation hereto shall have arisen and the lapse of such period shall be a complete bar to any recovery in any such suit or proceeding.
If any term or condition or part hereof is held invalid, the remaining terms and conditions of this Contract shall not be affected thereby. This Contract is intended by the parties as a final expression of their agreement regarding the Products, and is intended also as a complete and exclusive statement of the terms of their agreement related thereto. No course of prior dealings between the parties and no usage of the trade shall be relevant to supplement or explain any term used in this Contract. Acceptance or acquiescence to a course of performance rendered under this Contract shall not be relevant to determine the meaning of this Contract even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection. Whenever a term defined by the Uniform Commercial Code (the “Code”) is used in this Contract the definition contained in the Code is to control. No agent, employee, or representative of Seller has any authority to bind the Seller to any affirmation, representation or warranty concerning the Products, or any terms or provisions other than those expressly provided for herein, and unless any affirmation, representation or warranty made by an agent, employee or representative of Seller is specifically included within this written agreement it shall not be enforceable by the Buyer.
No claim or right arising out of a breach of this Contract may be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is in writing signed by the aggrieved party.
No right or interest in this Contract may be assigned by Buyer without the written permission of the Seller and no delegation of any obligation owed by the Buyer to the Seller shall be made without the written consent of the Seller.
Buyer shall not distribute, publish or post any advertising, marketing or promotional materials in connection with the Products unless such materials have been approved in advance in writing by Seller. Prior to the initial release, posting, distribution, or publication, Buyer shall e-mail electronic copies of proposed mock-ups of all advertising, marketing or promotional materials proposed for use, at Buyer’s sole expense, to Seller, atbrandapproval@delos.com(or such other e-mail address which Seller may later designate upon written notice to Buyer), for Seller’s review and written approval. Notwithstanding the foregoing, in the event that Seller provides Buyer with any marketing materials relating to the Products (“Materials”), Buyer may use such Materials solely to promote the Products in connection with the properties where the Products (as featured or described in the Materials) have been installed and activated by or on behalf Buyer. Buyer agrees: (a) it will not use the Materials in any way that misrepresents, disparages or defames Seller, or any of its related businesses, employees, officers, partners, and existing and prospective customers, suppliers, investors and other associated third parties, or creates a misleading or false association or relationship between Buyer and Seller; (b) the limited license granted herein to use the Materials is non-exclusive and may be revoked by Seller at any time for any reason; (c) Seller or its affiliates owns all right, title and interest in and to the Materials, and that no title in and to the Materials or ownership of any related intellectual property rights is transferred to Buyer hereunder; (d) Seller or its affiliates retain the sole rights to alter the Materials at any time and that Buyer may not alter the Materials in any way without obtaining the prior written approval of Seller; (e) to the extent that Buyer creates any derivative works based on the Materials, regardless of whether creation of such derivative work was authorized under this license, any and all such derivative works to the Materials shall automatically be owned by, and Buyer hereby assigns ownership to, Seller; (f) all rights, good will and other benefits accruing to Buyer by its use of the Materials and by its use of any derivative works based on the Materials or any portion thereof, will inure to the benefit of Seller, and Buyer agrees to assist and cooperate with Seller in the perfection and/or enforcement of those rights, good will and other benefits; and (g) any use or threatened use of the Materials which violates or exceeds the permission granted herein shall: (i) constitute a breach of this Contract, and shall cause this Contract to terminate automatically and without further notice; and (ii) result in imminent or actual irreparable harm to Seller and/or its affiliates, and that Seller and/or its affiliates shall be entitled to any and all remedies in connection with such misuse including, without limitation, injunctive relief and monetary damages.
