These terms and conditions of sale (“Agreement” ) are applicable to any order (the “Order”) placed with and accepted by Electronic Finishing Solutions, LLC, a Delaware limited liability company (referred to herein as “Supplier”):
1. SCOPE OF AGREEMENT.
Supplier, upon acceptance of an Order placed by Buyer, will supply the products and services specified in the Order (the “Work”) to Buyer, pursuant to the terms and conditions of this Agreement and its exhibits and Supplier’s acceptance of such order submitted by Buyer is expressly limited to the terms and conditions of this Agreement notwithstanding any contrary provision contained in Buyer’s purchase orders, invoices, acknowledgements or other documents. The details of the Work (e.g. quantity, price, and product specifications) shall be set forth in the relevant Order.
2. PRICE AND TERMS.
(a) The prices payable by Buyer for goods and services to be supplied by Supplier under this Agreement will be specified in the applicable Order. Unless otherwise expressly stated in an Order, all prices exclude shipping and taxes. (b) Payment for all invoices is due upon Buyer’s receipt of that invoice. If Buyer does not pay an invoiced amount within terms, Buyer will in addition pay finance charges of one and one-half percent (1.5%) per month on the late balance and Supplier reserves the right to (1) withhold shipment of the Work until full payment is made; and/or (2) revoke any credit extended to Buyer. In the event that Buyer’s account is more than ninety (90) days in arrears, Buyer shall reimburse Supplier for the reasonable costs, including attorneys fees, of collecting such amounts from Buyer. (c) Unless otherwise specified in the Order, Work will be shipped to Buyer via carriers selected by Supplier.
3. BUYER MATERIALS AND DATA.
(a) Buyer represents and warrants that any matter it furnishes for performance of services by Supplier (i) does not infringe any copyright or trademark or other Intellectual Property Rights of any third party; (ii) is not libelous or obscene; (iii) does not invade any persons right to privacy; and (iv) does not otherwise violate any laws or infringe the rights of any third party. (b) Buyer warrants that it has the right to use and to have Supplier use on behalf of Buyer any data provided to Supplier or its Affiliates by Buyer including specifically customer names, identifying information, addresses and other contact information and related personal information (“Data”). Buyer further warrants that it will designate on the applicable Order if Data provided pursuant to that Order is subject to HIPAA, Gramm-Leach-Bliley or other statutes providing enhanced data protection or requiring enhanced data security procedures.
4. INTELLECTUAL PROPERTY.
Any and all inventions, discoveries, patent applications, patents, copyrights, trademarks and trade names, commercial symbols, trade secrets, work product and information embodying proprietary data existing and owned by Buyer as of the date of the Order or made or conceived by employees of Buyer during the Term of the Order shall be and remain the sole and exclusive property of Buyer provided that Buyer grants to Supplier a license to use, display and distribute (and to sub-license its affiliates and sub-contractors to use, display and distribute) any intellectual property rights delivered to Supplier as reasonably necessary to perform any Order (the “Buyer IP”). Upon Buyer’s submission of any Order to Supplier, Buyer grants Supplier a nonexclusive, royalty-free, fully paid-up, irrevocable, perpetual, worldwide license to use, display, and distribute any Buyer IP (including, but not limited to, trademarks and logos) in connection with the marketing, advertising, and sales of Supplier’s products and services. Any and all inventions, discoveries, patent applications, patents, copyrights, trademarks and trade names, commercial symbols, trade secrets, work product and information embodying proprietary data existing and owned by Supplier as of the date of the Order or made or conceived by employees, consultants, representatives or agents of Supplier during the term of this Agreement shall be and remain the sole and exclusive property of Supplier. Buyer acknowledges and agrees that Supplier is in the business of customizing, painting, and decorating promotional products, and that Supplier shall have the right to provide to third parties services which are the same or similar to the services provided herein and to use or otherwise exploit any Supplier materials in providing such services.
5. CONFIDENTIAL INFORMATION.
Any information that parties receive or otherwise have access to incidental to or in connection with this Agreement (collectively, the “Confidential Information”), shall be and remain the property of the disclosing party. Confidential Information shall not include information which: (i) was in the possession of the Receiving Party at the time it was first disclosed by the Disclosing Party; (ii) was in the public domain at the time it was disclosed to the Receiving Party; (iii) enters the public domain through sources independent of the Receiving Party and through no breach of this provision by the Receiving Party; (iv) is made available by the Disclosing Party to a third party on an unrestricted, non-confidential basis; (v) was lawfully obtained by the Receiving Party from a third party not known by the Receiving Party to be under an obligation of confidentiality to the Disclosing Party; or (vi) was at any time developed by the Receiving Party independently of any disclosure by the Disclosing Party. Confidential Information may be used to the extent necessary to perform this Agreement and the parties shall not disclose Confidential Information to any third party, except to its agents (who have executed confidentiality agreements containing terms substantially similar to the terms) as necessary to provide the Work hereunder. In no event shall Buyer acquire any right, title or interest in and to any product or process information, including related know how, either existing or developed during the course of the business relationship with Supplier and Buyer, and in no event shall Supplier acquire any right, title, or interest in and to any materials or information provided to it by Buyer.
The indemnifying party, as Indemnitor, shall indemnify, defend and hold harmless the indemnified party, as Indemnitee, its officers, directors, employees, agents, subsidiaries, and other affiliates from and against any and all claims, damages, liabilities, and expenses (including attorney fees) arising from any third-party claim based on Indemnitor’s (or its agent’s) breach of any representation, warranty, covenant, agreement, or obligation under the Order or this Agreement , or Indemnitor’s (or its agent’s) grossly negligent and/or willful acts in carrying out its obligations under the Order or the Agreement, provided that in no event shall Supplier be responsible for any claims arising out of its compliance with instructions, requirements, or specifications provided by or required by Buyer (including the use of information, artwork, logos, and/or trademarks provided by Buyer). Neither party will be responsible for indemnifying another party hereto where the basis of the indemnity claim arises out of such other party’s own negligence or willful misconduct. In order to avail itself of this indemnity provision, Indemnitee shall promptly provide notice to Indemnitor of any such claim, tender the defense of the claim to Indemnitor, and cooperate with Indemnitor in the defense of the claim. Indemnitor shall not be liable for any cost, expense, or compromise incurred or made by Indemnitee in any legal action without the Indemnitor’s prior written consent.
In addition to all other rights to which a party is entitled under this Agreement, if either party breaches any term of the Order or the Agreement, the non-breaching party shall have the right to: (a) terminate the Order immediately upon written notice to the other party. Failure to properly demand compliance or performance of any term of the Order or this Agreement shall not constitute a waiver of Supplier’s rights hereunder and, prior to any claim for damages being made for non-conformance or breach, Buyer shall provide Supplier with reasonable notice of any alleged deficiencies in the Work or performance under the Order or this Agreement and Supplier shall have a reasonable opportunity to cure any such alleged non-conformance or breach.
Supplier warrants that the Work shall reasonably conform to specifications in all material respects. If a proof has been provided, once Buyer approves a proof, Buyer will be liable for all fees associated with the order, as specified in the Order. If Buyer supplies Supplier stock or items for imprinting as part of the Order, Supplier is not responsible for issues related to the quality of the stock or items for imprinting. Supplier will not provide refunds for any Work conforming to specifications in all material respects. Other than the warranties set forth in this section, Supplier makes no warranty of any kind, expressed or implied or otherwise whatsoever, that the services performed or any items produced will be merchantable or fit for any particular purpose or use. In the event of any breach of any warranty specified in this provision, Buyer’s exclusive remedy shall be that Supplier shall, at its option, repair or replace any defective goods at no cost to Buyer or refund any purchase price paid for such Work.
9. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES IS EITHER PARTY (INCLUDING, WITHOUT LIMITATION, ITS PRINCIPALS, AGENTS, AFFILIATES, SUCCESSORS, ASSIGNS, HEIRS, OR REPRESENTATIVES) LIABLE UNDER ANY THEORY OF CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR THE LIKE, EACH OF WHICH IS EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER DAMAGES WERE FORESEEABLE OR WHETHER A PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. A PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY CLAIMS, LOSSES, INJURIES, SUITS, DEMANDS, JUDGMENTS, LIABILITIES, COSTS, EXPENSES OR DAMAGES FOR ANY CAUSE WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, THOSE ARISING OUT OF OR RELATED TO THIS AGREEMENT), AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, MUST NOT EXCEED THE TOTAL FEES PAID BY BUYER FOR THE INVOICE OR ORDER UPON WHICH THE CLAIM IS BASED. THE LIMITATIONS OF LIABILITY REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES. THE LIMITATIONS SPECIFIED IN THIS SECTION 9 SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS OR ANY OTHER AGREEMENT BETWEEN THE PARTIES IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
Any notice sent pursuant to the Order or this Agreement shall be sent by certified mail, return receipt requested, or by overnight mail to the addresses on the Order or to such address as either party may in the future designate. A copy of any notice to Supplier shall be also sent to Electronic Finishing Solutions, LLC, 178 E Hanover Ave, Suite 103-310, Cedar Knolls, NJ 07927 together with a copy of this Agreement. Notices shall be effective upon receipt.
Except as otherwise provided, the Order and this Agreement shall be binding upon and inure to the benefit of the parties’ successors and lawful assigns.
Buyer and Supplier are separate entities. Nothing in the Order or this Agreement shall be construed as creating an employer-employee or joint venture relationship.
13. COMPLIANCE WITH LAW.
Each party shall comply with all state, federal and local laws and regulations applicable to its performance hereunder.
14. GOVERNING LAW.
The Order and this Agreement shall be governed by the laws of the State of Delaware, without reference to conflicts of law principles. Any controversy or claim between the Parties arising out of or relating to this Agreement, or any alleged breach thereof, shall be governed by the laws of the State of Delaware, and the parties’ sole remedy shall first vest in good faith negotiation between the Parties, and if no mutually agreeable resolution is found within twenty-one (21) days then the Parties are limited in recourse to arbitration through JAMS Optional Expedited (“Fast Track”) Arbitration Procedures, in accordance with the Commercial Arbitration Rules of the American Arbitration Association, at a JAMS location nearest Cedar Knolls, NJ. The Parties agree that judgment upon any award, including but not limited to default judgment, or attorney’s fees, rendered by the arbitrator(s) may be entered in any court having jurisdiction over any of the Parties.
15. FORCE MAJEURE.
Neither party shall be liable for any failure to perform 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 commercially reasonable control.
In the event any provision of the Order or this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of the Order or this Agreement will remain in full force and effect. All sections herein relating to payment, ownership, confidentiality, indemnification and duties of defense, representations and warranties, waiver, waiver of jury trial and provisions which by their terms extend beyond the Term shall survive the termination of the Order and this Agreement.
In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, but this Agreement shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the court or other tribunal making such determination is authorized and instructed to modify this Agreement so as to effect the original intent of the parties as closely as possible so that the transactions and agreements contemplated herein are consummated as originally contemplated to the fullest extent possible.
18. ENTIRE AGREEMENT.