Polymerall LLC, a Texas (USA) limited liability company (hereinafter “Polymerall”) agrees to sell and the undersigned (“Customer”) agrees to purchase certain Polymerall Products pursuant to these terms of sales (these “Terms”).
ART. 1 DEFINITIONS
“Customer” – Means the undersigned, plus all parents, subsidiaries, corporate affiliates and partners designated by the undersigned to place Purchase Orders with Polymerall.
“Party” — Refers to either Customer or Polymerall.
“Parties” — Refers to Customer and Polymerall, collectively.
“Products” — Refers to packaging products created for Customer and sold by Polymerall to Customer, as more specifically described in a Purchase Order, commercial invoice, or other written agreement between the Parties.
« Purchase Order » Refers to a written Customer order for Products, in a form acceptable to Polymerall. Polymerall is not obligated under any Purchase Order unless and until Polymerall indicates its acceptance of the Purchase Order in writing.
“Writing” — For purposes of these Terms, includes transmissions via email, text and facsimile.
ART. 2 ORDERS
2.1 Customer shall order Products hereunder by execution of a Purchase Order in accordance with the terms and conditions herein which shall be subject to Polymerall’s written acceptance.
2.2 Purchase Orders placed hereunder shall specify:
a) the description, quantity and purchase Price of the Product inclusive of any numerical/alphabetical identification.
b) Requested delivery and completion date; and
c) Ship to and bill to address.
2.3 Customer and Polymerall agree that these Terms shall control the purchase of all Products. In the event of any ambiguity or inconsistency between the terms and conditions of these Terms and those which may appear on individual Purchase Orders or other documents, these Terms shall take precedence.
Art. 3 CONFIDENTIALITY
3.1 During the course of these Terms, each Party will reveal certain information such as vendor, agents, pricing, specifications, trade secrets and other information that is proprietary and confidential information to the other Party (collectively, “Confidential Information”). Each Party will keep such Confidential Information secret, and will not disclose or use such Confidential Information, except in accordance with these Terms.
Art. 4 Contract Price
4.1 The “Price” for the goods sold to Customer is/are listed on a Purchase Order, commercial invoice, order acknowledgement or is/are specified in writing elsewhere.
4.2 Prices are quoted in U.S. Dollars, and all payments shall be made in U.S. Dollars. Customer warrants that it has obtained any necessary government approval required for Customer to make payment to Polymerall in United States Dollars.
4.3 The purchase Price is exclusive of any taxes, duties, fees or similar charges however designated, imposed upon or made payable by Polymerall, its agents, assignee’s or subcontractors arising out of performance of the work.
Art. 5 Payment conditions
5.1 Unless otherwise agreed in writing, payment of the price and of any other sums due by Customer to Polymerall shall be on open account and time of payment shall be 30 days from the date of invoice. The amounts due shall be transferred, unless otherwise agreed, by wire transfer to Polymerall’s bank in the United States for the account of Polymerall and Customer shall be deemed to have performed its payment obligations when the respective sums due have been received by Polymerall’s bank in immediately available funds. Customer shall bear all transaction costs associated with such wire transfer.
5.2 Non prompt payment allowances or discounts are made on any invoice unless specifically agreed in writing by both parties.
5.2 If Payment is not made in full within 30 days of the date of the invoice, the unpaid balance of such invoice shall immediately begin to accrue interest at a rate of 8% per annum or the highest legal rate allowed, whichever is less.
Art. 6 TRANSFER OF title
6.1 Unless the Parties agree otherwise in writing, title to the goods shall pass from Polymerall to Customer upon delivery of the goods to the approved destination according to the trade terms (e.g., FOB, CIF, etc.) used.
Art. 7 DELIVERY TERMS & ACCEPTANCE
7.1 All orders are shipped FOB Polymerall’s Warehouse (U.C.C) unless otherwise specified in writing.
7.2 Unless otherwise specified in writing, Polymerall will deliver the goods to the carrier within a commercially reasonable time. The Parties agree that reasonable delays will include, without limitation, delays caused by production limitations, equipment repairs, shipping delays, difficulty in obtaining raw materials, and any delays caused by Customer.
ART. 8 PRODUCT WARRANTY
8.1 Polymerall’s STANDARD WARRANTY IS THAT THE PRODUCTS CONFORM TO THE PURCHASE ORDER AND AUTHORIZED PROOFS. Polymerall HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
ART. 9 CANCELLATION
9.1 Customer shall have no option to cancel once twenty-four (24) hours has passed from the acceptance by Polymerall of a Purchase Order. Thereafter, Customer is liable for the full Price and all related charges provided in the Purchase Order.
ART. 10 LICENSES
10.1 Any licenses or permits required to operate, sell, or otherwise use the goods in any country, state or municipality shall be the responsibility of Customer.
Art. 11 FORCE majeure
11.1 Polymerall is not liable for a failure to perform any of its obligations where: (a) the failure was due to an impediment beyond its control, and (b) that he could not reasonably be expected to have taken into account the impediment and its effects upon its ability to perform at the time of the conclusion of these Terms, and (c) that he could not reasonably have avoided or overcome it or its effects.
11.2 As soon as practicable after the impediment and its effects upon its ability to perform become known to Polymerall, Polymerall will give notice to Customer of such impediment and its effects on its ability to perform. Notice shall also be given when the ground of relief ceases.
11.3 A ground of relief under this clause relieves Polymerall failing to perform from liability in damages, from penalties and other contractual sanctions, except from the duty to pay interest on money owing as long as and to the extent that the ground subsists.
11.4 If the grounds of relief subsist for more than six months, Customer shall be entitled to terminate these Terms upon written notice.
ART. 12 APPLICABLE LAW
12.1 These Terms ARE governed by the U.C.C. as adopted and interpreted by the domestic laws of the State of Texas, U.S.A., and of the United States, and should be interpreted and construed as A DOMESTIC CONTRACT. the parties hereby expressly opt out of the c.i.s.g., which shall have no bearing on these Terms or the transactions effected pursuant thereto.
ART. 13 NOTICES
13.1 The Parties agree that, for a Notice to be effective, it must be in writing.
13.2 The Parties further agree that all notices, demands and other communications relating to these Terms must be sent by hand delivery, registered mail, certified mail, facsimile or email to:
a. Notices to Polymerall:
1431 Greenway Drive, Suite 800
Irving, Texas 75038
b. Unless otherwise agreed in writing, notices to Customer shall be sent to Customer’s billing address as listed on Purchase Orders, Invoices, or other documents. Alternatively, notices may be also sent to Customer’s principle place of operations or incorporation.
ART. 14 INTELLECTUAL PROPERTY
14.1 Intellectual Property. For purposes of these Terms, “Intellectual Property” (or “IP”) means, wherever existing (a) all inventions and improvements thereto, and all patents, patent applications, and patent disclosures, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and reexaminations thereof, designs, installation and construction know-how, and Products incorporating any patents, trade secrets, or proprietary knowledge, (b) all trademarks, service marks, trade dress, logos, trade names, and corporate names, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith, (c) all copyrightable works, all copyrights, and all applications, registrations, and renewals in connection therewith, (d) all trade secrets and confidential business information, (e) all domain names, URLs or Internet websites, (f) all other proprietary rights, and (g) all copies, translations, and tangible embodiments thereof (in whatever form or medium)
14.2 Ownership of IP. Each Party acknowledges and agrees that, as between the Parties, each Party is and shall remain the sole and exclusive owner or licensee of all right, title, and interest in and to its Intellectual Property and that these Terms does not affect such ownership or rights. Each Party acknowledges that it acquires no rights under these Terms to the other Party’s IP other than the limited rights explicitly granted in these Terms. Absent written agreement to the contrary, any IP created by Polymerall for Customer shall be owned solely by Polymerall.
ART. 15 Representations and Warranties.
15.1. Each Party warrants to the other Party that it has the legal authority to enter into these Terms, to become bound by these Terms, and to perform its obligations under these Terms.
15.2. Each Party warrants to the other Party that : (1) it owns or has the rights to use any Intellectual Property licensed or otherwise shared with the other Party, and (2) its Intellectual Property does not infringe on intellectual property owned by third parties.
15.3 Customer warrants that Customer will bear sole responsibility for complying with all applicable laws in regard to the import, sale, promotion, packaging, merchandising, marketing, and distribution of the Products.
15.4. Each of the below individuals executing these Terms on behalf of the respective Parties is duly authorized to execute these Terms on such Party’s behalf.
ART. 16 SURVIVING PROVISIONS AND WAIVER
16.1 If any provisions of these Terms are held by any government, court, or other tribunal to be illegal or otherwise restricted or unenforceable, the surviving provisions of these Terms shall remain in full force and effect, provided the overall aims of these Terms are still attainable.
16.2 Waiver by any Party of any obligation or right under these Terms shall not be construed as a waiver of the future performance of such provision, nor shall it be construed as a waiver of any other provisions of these Terms.
Art. 17 Resolution of disputes
17.1 The Parties agree that all claims and disputes relating to or arising under these Terms that cannot be settled through negotiation between the Parties themselves shall be settled by arbitration in accordance with the American Arbitration Association Rules, and judgment on the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof.
17.2 The arbitration shall be conducted at Dallas, Texas, in the English language, and the proceedings and any award shall be deemed confidential except to the extent needed to enforce any such award in a competent court of law.
Art. 18 INDEMNIFICATION & LIMIT OF LIABILITY.
18.1 EXCEPT AS OTHERWISE DISCLAIMED OR PROVIDED BY THESE TERMS, CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS Polymerall AND Polymerall’S OFFICERS, EMPLOYEES AND DIRECTORS FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, CAUSES, ACTIONS, LIABILITIES, DAMAGES, EXPENSES, LEGAL FEES, AND OBLIGATIONS (COLLECTIVELY, “CLAIMS”) OF ANY KIND ARISING OUT OF OR FROM, EITHER DIRECTLY OR INDIRECTLY, ANY OF THE FOLLOWING: (1) THE SHIPMENT, DISTRIBUTION, AND/OR RESALE OF THE PRODUCTS; (2) CUSTOMER’S BREACH OF ANY REPRESENTATION, WARRANTY OR PROVISION, TERM OR CONDITION OF THESE TERMS; AND/OR (3) CUSTOMER’S DEFAULT UNDER THESE TERMS. EXCEPT AS OTHERWISE DISCLAIMED OR PROVIDED BY THESE TERMS, Polymerall AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS Customer AND customer’s OFFICERS, EMPLOYEES, AND DIRECTORS FROM AND AGAINST ANY AND ALL CLAIMS OF ANY KIND ARISING OUT OF OR FROM, EITHER DIRECTLY OR INDIRECTLY, ANY OF THE FOLLOWING: (1) Polymerall’s BREACH OF ANY REPRESENTATION, WARRANTY OR PROVISION, TERM OR CONDITION OF THESE TERMS; AND/OR (2) CUSTOMER’S DEFAULT UNDER THESE TERMS. THE PARTY SEEKING INDEMNIFICATION HEREUNDER SHALL PROVIDE PROMPT WRITTEN NOTICE OF ANY CLAIM TO THE OTHER PARTY AND SHALL REASONABLY COOPERATE IN THE DEFENSE. THIS SECTION SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THESE TERMS.
18.2 Limitation of Liability. Buyer’s purchase of the Products is subject of the following limitations of liability: (A) Polymerall’s cumulative liability to Buyer or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to these Terms will not exceed the purchase price paid to Polymerall for the Products. (B) In no event will Polymerall be liable for any loss or injuries to earnings, profits, or goodwill, or for any incidental, special, punitive, or consequential damages of any person or entity whether arising in contract, tort, or otherwise. The limitations set forth in this section will apply even if any other remedies fail of their essential purpose.
ART. 19 Entirety of agreement
19.1 THESE TERMS, TOGETHER WITH ALL PURCHASE ORDERS ACCEPTED BY POLYMERALL FROM CUSTOMER, CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBECT MATTER HEREOF. IT SUPERSEDES ALL PROPOSALS, ORAL OR WRITTEN, ALL PREVIOUS NEGOTIATIONS, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES HERETO UNLESS EVIDENCED IN WRITING BY AN AMENDMENT SIGNED BY DULY AUTHORIZED REPRESENTATIVES OF BOTH PARTIES. In the event of a conflict between provisions of a written Purchase Order and these Terms, the provisions of theSE TERMS shall prevail.
ART. 21 NON-CIRCUMVENTION/CONFIDENTIALITY
It is anticipated that,during the course of dealings, Polymerall will reveal to Customer certain strategies, business methods pricing and other proprietary information of Polymerall (collectively, “Confidential Information”), as well as business associates, vendors, customers and suppliers (each, a “Designated Party”) which is the proprietary information and property of Polymerall. During and for a period of two (2) years following the termination of the last Purchase Order between Customer and Polymerall, Customer will not consummate a transaction with a Designated Party, and agrees not to circumvent, attempt to circumvent, or permit any other party or persons on its behalf to circumvent Polymerall in any way, manner or form regarding any transaction involving any Designated Party. Moreover, Customer will not disclose and Polymerall Confidential Information absent prior written consent from Polymerall.