1. Scope. Unless otherwise agreed in a writing signed by you (“Buyer”) and Darigold, Inc. or any of its affiliates or subsidiaries (“Seller”), these standard terms and conditions, along with any Order Confirmation signed by Seller and delivered to Buyer (together, the “Agreement”), shall govern the sale of all Seller products (“Goods”) to Buyer.
2. Price; Price Adjustment. All prices include freight to Buyer’s location, unless Buyer specifies or provides its own carrier. If Buyer requests expedited delivery, Buyer shall pay for such expedited freight, unless it is due to Seller’s late delivery, in which case Seller shall pay. Prices for the Goods shall be adjusted by the parties in writing.
3. Payment Terms; Late Fee. The invoice must be paid in full within thirty (30) days of the invoice date (i.e., net 30). Buyer agrees to pay a late fee of 1.25% per month or the highest rate permitted by law, if lower, on all overdue balances.
4. Title, Risk of Loss and Insurance. Title, risk of loss and responsibility to obtain insurance for the Goods shall pass from Seller to Buyer at Seller’s shipping dock.
5. Warranty. Seller warrants to Buyer that, at the time of delivery: (i) the Goods conform to the specifications agreed to in writing by Buyer and Seller, and (ii) the Goods are free of all lawful liens and encumbrances, (iii) the Goods comply with all applicable laws and/or regulations. THIS IS THE EXCLUSIVE WARRANTY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED.
6. Inspection; Non-Conforming Goods. Buyer shall have the right to inspect, accept or reject the Goods within 2 days of delivery, irrespective of whether Buyer has already acknowledged receipt or paid for the Goods. Buyer shall notify Seller within 2 business days and shall set aside any non-conforming Goods for Seller’s inspection for a period of 5 business days after notice to Seller. If the Goods are determined to be non-conforming, Seller shall either: (a) refund the portion of the purchase price paid with respect to such non-conforming Goods, or (b) replace the non-conforming Goods with conforming Goods. If no rejection has been made within such 2-day period, Buyer shall be deemed to have finally and unconditionally accepted the Goods.
7. Intellectual Property Ownership. It is not the intent of this Agreement to provide for joint developments and any such joint developments, if they are to occur, will be reflected in a separate agreement signed by the parties. All inventions, whether patentable or not, made during the term of this Agreement shall be owned by Buyer if made by an employee of Buyer; and shall be owned by Seller if made by an employee of Seller. Nothing in this Agreement shall be construed as conferring on the receiving party by implication, estoppel, or otherwise, any right, title or interest in, or any license under, any patent, trademark, copyright, trade secret or confidential information now or subsequently owned by the disclosing party.
a. Mutual Indemnification. Seller and Buyer (“Indemnitor”) each agrees to indemnify and hold the other, and its respective parent company, affiliates, agents, employees, officers, directors, successors, and assigns (“Indemnitee”) harmless, against any and all third-party claims, damages, fines, penalties, costs, liabilities or losses (including sums paid in settlement of claims, reasonable attorneys’ fees, consultant fees, expert fees and costs) (“Claim”) arising out of its negligence or other tortuous fault, including that of its officers, employees, contractors, agents and subcontractors, or arising out of its infringement of any patents, copyrights, trade secrets or similar intellectual property rights covering the Goods furnished hereunder by such party, except that no right of indemnity shall exist if such Claim results from the negligence or tortuous fault of Indemnitee, its officers, employees, contractors, agents and subcontractors, or if the Indemnitor relied on the express written approval, acceptance or instructions of Indemnitee with respect to the act or omission giving rise to the Claim.
b. Procedure. Indemnitee shall, within ten (10) calendar days after receipt of notice of the commencement of any third party Claim against Indemnitee, for which indemnity may be sought, notify Indemnitor; provided, however, that the failure to provide such notice shall not relieve Indemnitor of its indemnity obligations, unless the Indemnitor is prejudiced by such delay. Indemnitor shall, upon Indemnitor’s request, be entitled, at its own expense, to assume the defense of any such Claim with reputable counsel reasonably acceptable to Indemnitee. Indemnitor shall be entitled to settle any such Claim, with Indemnitee’s written consent (which may be granted or withheld in Indemnitee’s reasonable discretion). Indemnitee, at Indemnitor’s cost, shall reasonably cooperate with Indemnitor in the defense of such Claim as Indemnitor may reasonably request. Upon the institution of any Claim alleging infringement against Buyer relating to Seller’s intellectual property, Seller may, at its option but without obligation to do so: (i) procure the right to continue using the Goods, (ii) replace the Goods with non-infringing Goods, or (iii) modify the Goods so they becomes non-infringing. This indemnity obligation shall survive the expiration, termination, or cancellation of this Agreement.
9. Limitation on Liability; No Intended Third-Party Beneficiaries. NEITHER BUYER NOR SELLER SHALL BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES WITH RESPECT TO DIRECT CLAIMS MADE BY THE OTHER PARTY WHETHER IN TORT, CONTRACT, BREACH OF THIS AGREEMENT OR ANY WARRANTY OR ANY OTHER THEORY. THIS LIMITATION SHALL NOT APPLY TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS RELATING TO THIRD PARTY CLAIMS. THERE ARE NO INTENDED THIRD-PARTY BENEFICIARIES OF THIS AGREEMENT.
10. Excused Non-Performance. Except for the obligation to timely pay amounts due, neither party will be liable for failure to carry out its obligations under this Agreement in whole or in part when such failure is due to acts of God, weather, fire, natural disaster, explosion, strikes, labor disputes, failures or delays in transportation, civil disturbance, judicial acts or acts of a government agency, or circumstances beyond a party’s reasonable control.
11. Confidentiality. Confidential Information (“Confidential Information”) shall be limited to the terms of this Agreement and any information disclosed to the receiving party by the disclosing party in writing or other tangible form and marked “Confidential” or, if orally or visually disclosed, confirmed in writing as being confidential within thirty (30) days after the oral or visual disclosure. For a period of three (3) years from the date of disclosure the receiving party shall keep the disclosing party’s Confidential Information in confidence and shall disclose such Confidential Information to its employees, representatives and agents only on a need to know basis and must be subject to the confidentiality obligations herein. Each party further agrees, except as required by law, not to disclose such Confidential Information to any third party without the prior consent of the disclosing party. Confidential Information subject to the restriction of this Agreement shall not include (i) information already in the possession of the receiving party as evidenced by the receiving party’s prior written records, (ii) information disclosed to the receiving party by a third party entitled to make such disclosure, (iii) information which becomes public through no fault of the receiving party, (iv) information developed independently by the receiving party, or (v) information required to be disclosed pursuant to a subpoena or court order or by law, provided, however, that to the extent not prohibited the receiving party shall provide reasonable prior notice to the disclosing party such that the disclosing party may seek an order preventing such disclosure.
12. Assignment; Subcontractors. Except for a transfer to an entity under common control with a party to this Agreement, neither party may assign all or a part of this Agreement to any third party voluntarily or by operation of law without the prior written consent of the other party, which consent shall not be unreasonably withheld, and any other attempted assignment or transfer shall be void. Notwithstanding the foregoing, if a transaction involving any change of control or sale of the operations or assets of either party, whether by merger, sale of stock, assets or operations, joint venture or otherwise, the rights and obligations under this Agreement shall be deemed to be automatically assigned to and assumed by the successor. Each party is fully responsible for the conduct of its contractors, subcontractors and agents.
13. Dispute Resolution; Governing Law. If a dispute arises under this Agreement, the parties will attempt to settle it through negotiation. Only if the parties are unable to reach a settlement through negotiation after at least ten (10) days may suit be filed in the state and federal courts of the state in which title passes; provided that such 10-day period shall not apply if it would cause the statute of limitations would expire. This Agreement shall be interpreted, construed and governed by the laws of the State of Washington.
14. No Additional or Conflicting Terms; Notice. No amendment to this Agreement or any additional or conflicting terms contained in any purchase order, acknowledgement, terms and conditions of purchase or sale, or other document shall be effective unless in writing signed by Buyer and Seller. Other than routine communications, all notices must be in writing and shall be deemed complete one business day after transmittal by a recognized international courier or by fax with confirmation of receipt, at the notice address or fax number above or as a party may specify by written notice to the other.