Terms and Conditions
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1. Acceptance of Terms: The complete and exclusive agreement between PEDOT Inks (“Seller”) and buyer (“Buyer”) is contained in these Terms and in other document(s), if any, agreed to in writing by Seller and Buyer (collectively, “Contract”), and cancels and supersedes any prior understandings or agreements. By purchasing and accepting delivery of products (“Products”) supplied by Seller, Buyer agrees to be bound by these terms and conditions (the “Terms and Conditions”). Terms or conditions contained in any order form or other document submitted by Buyer which are inconsistent with, or in addition to, these Terms and Conditions are rejected, objected to and shall be deemed void and of no force or effect.
2. Changes: Once submitted, any change(s) to Buyer’s order(s) may be made only with advance written approval of Seller and such changes may require different terms, including a change in the price and/or time of delivery. Once submitted, Buyer may not cancel any order unless cancellation is expressly approved by Seller in writing, which approval may be contingent on your payment of Seller’s costs or other charges, including, but not limited to, storage and shipment costs, costs of producing non-standard materials, costs of purchasing non-returnable materials, cancellation costs imposed on Seller by its suppliers, and any other costs resulting from cancellation. A verified bill of costs issued by an officer or other authorized representative of Seller shall be conclusive as to the amount of such costs. Seller reserves the right to cancel any order, in whole or in part, upon your breach of these terms and conditions or your bankruptcy, insolvency, dissolution, receivership proceedings, or upon the occurrence of any event leading Seller to reasonably question your willingness or ability to perform.
3. Delivery, claims: All sales will be delivered Ex Works Seller’s shipping point unless otherwise noted. If shipping and handling charges are quoted or invoiced, they will include charges in addition to actual freight costs. Delivery of Products to the carrier at Seller’s shipping point shall constitute delivery to you and you shall bear all risk of loss or damage in transit. Seller reserves the right, in its sole discretion, to determine the exact method of shipment for any particular shipment. Seller reserves the right to make delivery in installments, all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of his obligations to accept remaining deliveries. Immediately upon receipt of any Products shipped hereunder, Buyer shall inspect the same and shall notify Seller in writing of any claims for shortages, defects or damages and shall hold Products for Seller’s written instructions concerning disposition. If Buyer fails to so notify Seller within fourteen (14) calendar days after the Products have been received by Buyer, such Products shall conclusively be deemed to conform to the terms and conditions hereof and to have been irrevocably accepted by the Buyer.
4. Delays: Any specified delivery dates are estimates only and do not represent a promise by Seller to deliver Products at a date certain. Seller shall not be liable for any loss, damage or penalty as a result of any delay in or failure to manufacture, deliver or otherwise perform hereunder due to any cause beyond Seller’s reasonable control, including, without limitation, unsuccessful reactions, act(s) of Buyer, embargo or other governmental act, regulation or request affecting the conduct of Seller’s business, fire, explosion, accident, theft, vandalism, riot, acts of war, strikes or other labor difficulties, lightning, flood, windstorm or other acts of God, delay in transportation, or inability to obtain necessary labor, fuel, materials, supplies or power at current prices. If any such event continues for longer than 180 days, either party may terminate Buyer’s order and Buyer will pay Seller for work performed prior to termination. In the event of delays in delivery or performance caused by force majeure or by Buyer, the date of delivery or performance shall be extended by the period of time Seller is actually delayed or as mutually agreed. If, for reasons other than the foregoing, Seller should default or delay or not deliver Products, your sole remedy against Seller is an option to cancel your purchase order, through prior written notice to Seller.
5. Security Interest in Unsold Inventory: To secure your obligation to pay Seller for the purchase of products, you grant to Seller a purchase money security interest in all products purchased from Seller, and in all proceeds thereof. You agree to execute UCC Financing Statements and such other documents as may be necessary from time to time and to otherwise assist Seller in perfecting its security interest, if requested.
6. Payment and Interest: Unless otherwise stated, payment in full shall be made within 30 days of invoice. Seller reserves the right to require an advanced deposit of up to 100% of the purchase price at the time of order or any time prior to delivery as a condition of performance. If for any reason Seller, in its sole and unfettered discretion, deems the ultimate collectability of the purchase price to be in doubt, Seller may, without notice to Buyer, delay or postpone the delivery of the Products and may, at its option, change the terms of payment to payment in full or in part in advance, with respect to the entire undelivered balance of Products. In the event of default by Buyer in the payment of the purchase price or otherwise, Seller, at its option, without prejudice to any other of Seller’s lawful remedies, may defer delivery, cancel Buyer’s order and any other order of Buyer, or sell any undelivered products on hand for the account of Buyer and apply such proceeds as a credit, without set-off or deduction of any kind, against the agreed upon purchase price, and you agree to pay the balance then due to Buyer on demand. Buyer agrees to pay all costs, including, but not limited to, reasonable attorney and accounting fees and other expenses of collection resulting from any default by Buyer in any of the terms hereof. Invoices remaining unpaid after their due date will be subject to an interest charge of 1.5% per month (or the maximum rate allowed by law). Buyer must pay all costs of collection on unpaid amounts, including (without limitation) attorneys’ fees and related costs.
7. Taxes and other charges: Seller shall not be responsible for the payment of any use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between, with the sole exception of any sales taxes invoiced and collected from Buyer by Seller. All other such charges (if any) must be paid by Buyer separately and in addition to the prices quoted or invoiced. In the event Seller is required to pay any such tax, fee or charge, Buyer shall reimburse Seller therefore; or, in lieu of such payment, Buyer shall provide Seller at the time the order is submitted an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.
8. Pricing: Prices are subject to change without notice. Any quotation provided by Seller is firm only if Buyer places a corresponding order within the time specified on the quote or, if no time period is mentioned, within 30 days.
9. Resale, Distribution and Export Prohibited: Products may not be marketed, distributed, resold or exported by Buyer for any purpose. Seller will, at its sole discretion, sell to distributor or reseller, provided Reseller/ Distributor has clearly declared his intention in writing. Selling to Distributor/ Reseller does not grant Distributor/ Reseller exclusivity or monopoly to resale/distribute Seller’s products to any past, current, and future Buyers or end-users.
10. PRODUCT SAFETY: BUYER COVENANTS AND AGREES TO TRANSPORT, STORE, HANDLE, USE, DISPOSE OF AND OTHERWISE DEAL WITH PRODUCT SAFELY AND IN STRICT COMPLIANCE WITH ALL LAWS AND REGULATIONS AND ALL APPLICABLE STANDARDS OF CARE, INCLUDING IN A MANNER NO LESS STRINGENT THAN AS SET FORTH IN SELLER’S LABELS, MATERIAL SAFETY DATA SHEETS AND OTHER SAFETYAND HEALTH INFORMATION. Seller does not warrant the safety of the Product or its use, whether alone or in combination with any other substance or in any process or equipment. Buyer assumes all responsibility for warning its employees, customers, and contractors of any hazards associated with the Products, including those arising from incorporation of the Products into other substances or use in process(es). Seller assumes no liability for Buyer’s failure to comply with Buyer’s obligations under the E.U. REACH (Registration, Evaluation, Authorization, and Restriction of Chemicals) regulations.
11. WARRANTY: SELLER MAKES NO WARRANTY OF, AND SHALL HAVE NO LIABILITY FOR, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF SELLER IS AWARE OF SUCH PURPOSE) OR OTHERWISE, WHETHER EXPRESS OR IMPLIED, AT LAW OR IN EQUITY OR OTHERWISE, OTHER THAN THAT (A) THE PRODUCT, UPON DELIVERY AT THE DELIVERY POINT AND NOT ALTERED OR MODIFIED BY BUYER OR ANY THIRD PARTY, SHALL MEET THE SPECIFICATIONS STATED IN THE CONTRACT, AND (B) SELLER SHALL TRANSFER TO BUYER GOOD TITLE TO PRODUCT. IF NO SPECIFICATIONS ARE SO STATED, THEN AT THE DELIVERY POINT PRODUCT SHALL MEET SELLER’S SPECIFICATIONS FOR THE PRODUCT AT THE TIME OF ITS MANUFACTURE. NO OTHER WARRANTY OR LIABILITY WHATSOEVER, EXPRESS OR IMPLIED, AND WHETHER ARISING BY OPERATION OF LAW, STATUTE OR CUSTOM, SHALL APPLY.
12. LIABILITY: Seller's total liability shall be limited to the purchase price of the Product supplied (or to have been supplied) hereunder in respect of which Damages are claimed. All technical or other advice, recommendation or assistance by Seller, whether or not at Buyer’s request, with respect to the Product, its processing, further manufacture, or otherwise, is given gratis by Seller and Seller shall not be liable for, and Buyer assumes all risk of, same and the consequences thereof. OTHER THAN AS SET FORTH IN THIS PARAGRAPH 12, SELLER SHALL IN NO EVENT BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES, AND REGARDLESS (i) WHETHER THE CLAIM IS BASED ON WARRANTY, CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, AND (ii) WHETHER SELLER WAS OR SHOULD HAVE BEEN AWARE OF SAME. Such excluded damages embrace, without limitation, the Buyer's loss of profits, loss of savings or revenue, loss of associated equipment, cost of capital, cost of any substitute product or equipment, facilities, or services, downtime, claims of third parties including customers, and injury to person or property. Upon satisfactory proof of claim by Buyer of Product not meeting specifications as provided in this Contact, and as Buyer’s exclusive remedy, Seller will within a reasonable time supply Buyer at the Delivery Point with replacement Product meeting specifications, free of charge, freight prepaid or, at Seller's option, refund the purchase price for the Product upon return of such non-conforming Product. Buyer claims for replacements and returns for credit will not be allowed unless authorized by Seller in writing. The Buyer shall indemnify, defend and hold harmless Seller and its affiliates from and against all claims, proceedings, damages, costs, fees, expenses (including reasonable attorneys’ fees and expenses), liabilities, losses, obligations, judgments, and penalties (“Damages”) arising out of, or in connection with, any actual or alleged breach by Buyer of its obligations under the Contract, and also from Buyer’s transportation, use, storage, handling, disposal, resale of or other dealing with Product.
13. LIMITATIONS OF ACTIONS: Subject to Paragraph 11, Buyer’s right to commence a legal action arising out of or in connection with the Contract or the Product expires one (1) year after the cause of action has accrued. Buyer hereby waives any otherwise applicable statute of limitations. Failure by Buyer to commence a legal action within one year forever bars Buyer from commencing any legal action with respect thereto.
14. MANUFACTURING DEVICES AND CONFIDENTIAL INFORMATION: All manufacturing devices, designs, formulas, data, or other technical information of Seller or any of its affiliates relating to the Contract will remain Seller's or its affiliates’ confidential property, and Buyer shall not have any rights thereto, nor any right to disclose such items or information to any third party. Nothing in the Contract shall be construed (by implication, estoppel or otherwise) as granting, or as an undertaking by Seller to subsequently grant, to Buyer any license, right, title or interest in or to any present or future patent, patent application, knowhow, copyright, trademark, trade secret or other proprietary right.
15. BINDING EFFECT/ASSIGNMENT: The Contract shall be binding on the successors and assigns of Buyer and Seller; provided, however, that Buyer shall not, directly or indirectly, and whether by operation of law or otherwise, assign any of its rights or delegate any of its obligations under the Contract, or suffer the same to occur without the prior written consent of Seller, signed by Seller. Other than Seller’s affiliates, there are no third-party beneficiaries to the Contract.
16. WAIVER/SEVERABILITY: (a) Seller’s failure in any instance to insist upon strict performance of any provision of the Contract will not constitute a continuing waiver of such provision, or a waiver of any other provision. No waiver by Seller shall be deemed to arise from any course of dealing or trade custom, and will only be effective if set forth in a separate writing specifically identifying the matter waived, and signed by Seller. (b) If any provision of the Contract is held to be wholly or partly invalid, the validity of the remaining provisions shall not be affected.
17. GOVERNING LAW/CONSTRUCTION/WAIVER OF JURY TRIAL: The Contract shall be interpreted and enforced in accordance with the laws of the State of Texas, U.S.A., without regard to the United Nations Convention on the International Sale of Goods or other international treaty, rule or accord, and without regard to conflicts of law principles. These Terms shall supersede any inconsistent provision of any other part of the Contract, unless and to the extent such provision expressly states that it will supersede these Terms. Paragraph headings are exclusively for reference purposes, only. Seller and Buyer hereby irrevocably submit to the exclusive jurisdiction of the federal and state courts located in the State of Texas for the resolution of any suit, action or proceeding, whether by way of claim or counterclaim, under the Contract, and Buyer agrees not to assert any defense to any suit, action or proceeding initiated by Seller based upon improper venue or inconvenient forum.
BUYER AGREES THAT ANY SUIT, ACTION OR PROCEEDING, WHETHER BY WAY OF CLAIM OR COUNTERCLAIM, BROUGHT BY IT RELATED TO THE CONTRACT SHALL BE TRIED ONLY BY A COURT AND NOT BY A JURY. BUYER HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND INTELLIGENTLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR PROCEEDING.