EnviroLogix® Inc. Sales Order Acknowledgement
Terms & Conditions
1. APPLICABILITY. These Standard Terms & Conditions of Sale (“Terms”) apply to the purchase of products and ancillary services (collectively the “Products”) from EnviroLogix Inc. (“EnviroLogix”) by customer (“Customer”). The Products and Customer are identified in the accompanying physical or electronic purchase order, quotation, proposal, customer order acknowledgement, or invoice (the “Sales Confirmation”). These Terms and the Sales Confirmation comprise the entire agreement between the parties (collectively, the “Agreement”) and supersede all existing agreements and all other oral or written communications between EnviroLogix and Customer concerning this subject matter. Customer accepts these Terms by signing and returning EnviroLogix’s quotation, by sending a purchase order in response to the quotation, or by Customer’s instructions to EnviroLogix to ship the Products. No terms or conditions other than those identified in the Agreement, including any agreement or understanding, oral or written, in any way purporting to modify or conflict with the terms and conditions of this Agreement, whether contained in Customer’s purchase order or shipping release forms, or elsewhere, shall be binding on EnviroLogix unless made in writing and signed by EnviroLogix’s authorized representative.
2. PRICE; TAXES. Unless otherwise specified in the Agreement, all prices, quotations, shipments and deliveries by EnviroLogix are dependent on the most recent price/terms agreed upon by EnviroLogix and Customer. All stated prices are exclusive of any taxes, fees, duties, and levies, however designated or imposed, including but not limited to value-added and sales taxes levied or based upon the amounts charged under this Agreement (collectively, “Taxes”). Products’ Taxes are the responsibility of Customer (excluding taxes based on EnviroLogix’ net income), unless Customer presents an exemption certificate acceptable to EnviroLogix and the applicable taxing authorities. If any exemption certificate presented by Customer is held to be invalid, then Customer will pay EnviroLogix the amount of the Tax and any penalties and interest related thereto. If possible, EnviroLogix will bill Taxes as a separate item on the invoice presented to Customer.
3. PAYMENT. Unless otherwise set forth in the Sales Confirmation or agreed in writing by EnviroLogix, Customer will promptly pay all invoiced amounts, with payment due Net 30. Any payment past due will be assessed a 1.5% interest charge (unless prohibited by applicable law) for every thirty (30) additional days past due, up to and until the past due payments are paid, plus EnviroLogix’ reasonable costs of collection. No offset or deduction is permitted without EnviroLogix’ advance written approval. EnviroLogix reserves all other rights granted to EnviroLogix under applicable law for Customer’s failure to pay for the Products or any other breach by Customer of these Terms. EnviroLogix may also, at its option, suspend the delivery of any Products if Customer fails to pay any amounts when due.
4. TERMINATION. In addition to any other remedies that EnviroLogix may have, EnviroLogix may terminate this Agreement upon written notice to Customer, if Customer: (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.
5. DELIVERY; TITLE; RISK OF LOSS. EnviroLogix will use its standard methods for packaging and shipping and deliver the Products FCA (Incoterms® 2010), EnviroLogix dock, Portland, ME unless otherwise agreed by EnviroLogix in writing in the Sales Confirmation. Title to and risk of loss for the Products pass to Customer upon delivery at EnviroLogix’ dock. Unless otherwise agreed to in writing, Customer is responsible for obtaining any import licenses and other consents required for a Product shipment at its own expense and will provide the licenses and consents to EnviroLogix before shipment.
6. WARRANTY. Each Product will include an insert setting forth the EnviroLogix’ Limited Warranty associated with the Products. The warranties set forth in the EnviroLogix’ Limited Warranty are in lieu of all other warranties, express or implied, including without limitation any warranty as to merchantability or fitness for a particular purpose or any other matter with respect to the Product, to the fullest extent of the law. The EnviroLogix Limited Warranty cannot be modified except in writing signed by an officer of EnviroLogix.
7. FORCE MAJEURE. EnviroLogix will be excused for any failure or delay in performance or delivery due to any cause beyond its reasonable control, including, but not limited to, act of God, outbreak, war, riot, pandemic, fire, explosion, flood, storm, accident, labor strike, sabotage, compliance with governmental requests, laws, regulations, orders or actions.
8. CONFIDENTIALITY. In addition to any non-disclosure agreement signed by the parties, each party hereto is required to hold the information it receives under this Agreement in confidence, including the pricing, or other terms and conditions of this Agreement, and agrees to protect such information using at least the same degree of care it uses to protect its own proprietary and confidential information and materials of like importance (but not less than the care of a reasonably prudent business person). Neither party will disclose or permit any third person or entity access to the confidential or proprietary information related to this Agreement without the other party's prior written permission, except for each party's legal, insurance, accounting advisors, or affiliates, as appropriate. Any proprietary information concerning EnviroLogix, its Products, data, documentation, services, or manufacturing processes which are disclosed to Customer incident to the performance of this Agreement will remain the property of EnviroLogix, and no rights are granted to Customer to produce or have produced any such Products or to practice or cause to be practiced any such processes, or reveal, disclose, or publish any such data and documentation.
9. NO CONSEQUENTIAL DAMAGES; LIMITATION ON LIABILITY. IN NO EVENT WILL ENVIROLOGIX BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT OR INCIDENTAL DAMAGES, WHETHER CONTRACT, TORT OR OTHERWISE, EVEN IF ENVIROLOGIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EnviroLogix’s maximum, aggregate liability to Customer for any and all claims of any kind, whether in contract, tort (including negligence), strict liability, indemnity or otherwise will be limited to an amount not to exceed the total purchase price for the Products giving rise to the claim.
10. NO LICENSE. The sale of Products will not confer upon Customer any license, express or implied, under any patents, trademarks, trade names, or other proprietary rights owned or controlled by EnviroLogix, its subsidiaries or affiliates; it being specifically understood and agreed that all the rights are reserved to EnviroLogix, its subsidiaries or affiliates. Without limiting the foregoing, Customer will not, without EnviroLogix’ prior written consent, use any trademark or trade name of EnviroLogix in connection with any of the Products, other than with respect to the resale of the Products pre-marked or packaged by or on behalf of EnviroLogix.
11. COMPLIANCE. Customer shall comply fully with all applicable laws, rules and regulations (“Laws”), including without limitation those of the United States and any and all other jurisdictions globally that apply to Customer’s business activities in connection with its purchase of Products from EnviroLogix. Specifically, Customer shall comply with all Laws relating to anti-corruption, bribery, extortion, kickbacks, or similar matters that are applicable to Customer’s business activities in connection with this Agreement, including without limitation the U.S. Foreign Corrupt Practices Act and the UK Bribery Act. Customer will take no action that will cause Customer or EnviroLogix or any of their affiliates to violate any such laws.
12. NOTICES. Any notices given under this Agreement must be in writing, sent by certified mail, postage prepaid, courier delivery (Federal Express or comparable service), on behalf of each Party at the address set forth in the Sales Confirmation, which either Party may change by prior written notice from time to time.
a. If there is a conflict between the provisions of the Sales Confirmation and these Terms, these Terms will govern.
b. Customer acknowledges that it has not been induced to purchase any Products from EnviroLogix by any representation or warranty not expressly set forth or referenced in this Agreement.
c. No waiver by EnviroLogix of any of the provisions of these Terms is effective unless explicitly set forth in a writing that specifically references these Terms and is signed by EnviroLogix. 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.
d. The laws of the State of Maine govern the validity and construction of this Agreement and any dispute arising out of or relating to this Agreement without regard to principles of conflicts of laws.
e. Customer will not assign any quotation or accepted order for the Products, in whole or in part, without EnviroLogix’s prior written consent.
f. The Section headings contained in these Terms are for convenience only and will not affect the interpretation of any provision.
g. If any provision or provisions of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
h. This Agreement may be executed in counterparts, including by facsimile or electronic transmission, each of which will be deemed an original and together will be deemed to be one and the same Agreement.
i. In addition to any other term whose context may so require, the terms contained in Sections 1, 3, 5, 6, 8, 9, 10, 11 and 13 will survive any cancellation of the Sales Confirmation.