1. ACCEPTANCE: THE ACCEPTANCE OF CUSTOMER’S ORDER IS EXPRESSLY MADE CONDITIONAL ON CUSTOMER’S ASSENT TO THE TERMS AND CONDITIONS SET FORTH HEREIN, AND SPONGE TECHNOLOGY CORPORATION, LLC (“STC”) AGREES TO FURNISH THE MATERIALS, GOODS AND PRODUCTS (COLLECTIVELY, “PRODUCTS”) COVERED THEREBY ONLY UPON THESE TERMS AND CONDITIONS OF SALE. Any terms and conditions that may be contained in any purchase order or other form of Customer shall be absolutely without force and effect, regardless of when received by STC. No waiver, alteration, or modification of any of the provisions hereof shall be binding on STC unless made in writing and signed by an authorized representative of STC. STC reserves the right to accept or reject any order in whole or in part. Possession of a product catalog by Customer does not constitute an offer to sell.
2. CANCELLATION: Cancellation or modification of orders are subject to STC’s prior written consent in each instance.
3. PRICE CHANGES: Prices quoted in STC’s product catalog are subject to change without notice at any time and from time to time. Products are invoiced at prices prevailing on the date of shipment or as agreed to by STC.
4. PAYMENT; TAXES: Unless otherwise set forth on STC’s invoice or otherwise agreed upon by the parties in writing, payment shall be made within thirty (30) days of the date of STC’s invoice and in all events prior to shipment of the Products. All payments shall be made in U.S. dollars. STC’s preferred methods of payment are ACH or check. Payments made via a credit card or purchasing card will be charged an additional three percent (3%) administrative fee to the extent permitted by applicable law. Outstanding balances shall accrue interest at a rate equal to the lesser of one and one half percent (1.5%) per month or the maximum rate permitted by applicable law, from due date until paid, plus STC’s reasonable costs of collection. In addition, STC reserves all other rights granted to a seller under the Uniform Commercial Code for Customer’s failure to pay for Product(s) or any other breach by Customer of these terms and conditions of sale. There shall be added to the purchase price amounts equal to any sales, use, or other taxes levied or based upon each Product or its value, unless Customer provides STC with an appropriate exemption certificate.
5. SECURITY INTEREST: STC reserves a purchase money security interest in each Product delivered hereunder and in proceeds from the sale, exchange, collection, or disposition thereof, until Customer has made payment in full for such Product. Customer shall, upon request by STC, provide all information and signatures required by STC to perfect such security interest. STC reserves all rights granted to a secured creditor under the Uniform Commercial Code, including the right to repossess upon default by Customer.
6. MODE OF SHIPMENT AND DELIVERY: All Product will be shipped FOB Origin and STC will charge Customer for the actual shipping costs and list such costs as a separate line item on the invoice, unless agreed to by the parties in writing. Customer is advised that quoted ship dates are based on estimates at the time of quotation and that STC will devote its commercially reasonable efforts to meeting such schedules. However, STC assumes no liability for additional costs or damages resulting from late deliveries. In addition, on orders for non-stock products, or special orders, or where manufacturing processes make it difficult to provide the exact quantity specified, STC reserves the right to under-ship or over-ship and invoice Customer accordingly.
7. RISK OF LOSS: STC shall not be liable for any Product(s) lost, damaged, or destroyed while in transit, and Customer acknowledges and agrees that any risk of such loss, damage, or destruction transfers to, and is assumed by, Customer upon delivery of Product(s) to a common carrier or when otherwise placed in transit.
8. WARRANTY: STC warrants that each Product shall, for a period of 12 months from delivery, (i) be manufactured in accordance with, and conform to its published specifications, and (ii) be free from defects in materials and workmanship under normal use and service. STC shall, as its sole obligation and Customer’s sole and exclusive remedy for any breach of this warranty, repair or replace the Product which gave rise to the breach or, at STC’s option, refund the amounts paid by Customer for the Product which gave rise to the breach. EXCEPT AS EXPRESSLY SET FORTH HEREIN, STC MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL IMPLIED WARRANTIES ARE HEREBY DISCLAIMED AND EXCLUDED.
9. RETURNED GOODS POLICY: Returns are subject to STC’s prior approval (in its sole discretion) and may be subject to restocking charges.
10. LIMITATION OF LIABILITY: IN NO EVENT WILL STC BE LIABLE FOR SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, EVEN IF STC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. STC’S TOTAL LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO ANY PRODUCT SHALL BE LIMITED TO GENERAL MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL PURCHASE PRICE FOR THE PRODUCT GIVING RISE TO THE CLAIM, REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT AGAINST STC.
11. FORCE MAJEURE: STC shall not be liable for any delays in making delivery where occasioned by strikes, differences with workers, or any causes beyond the control of STC, including but not limited to, fires, floods, accidents, action of any governmental authority, war, insurrection or riots, or shortages of labor, energy, raw materials, production facilities, or transportation. Where delays or failures of delivery are caused by labor difficulties, STC shall not be obligated to seek or obtain any settlement which, in STC’s sole judgment, is not in STC’s best interest.
12. ARBITRATION: Any dispute, controversy, or claim arising out of or relating to these terms and conditions of sale or any Product(s) shall be settled by arbitration in accordance with JAMS. Such arbitration shall be conducted by a single arbitrator who shall have no authority to add to, modify, change or disregard any lawful terms of this document. The arbitration shall be held in Denver, Colorado, and judgment upon the award rendered may be entered in any court having jurisdiction, and the parties consent to the jurisdiction of the California courts for this purpose.
13. MISCELLANEOUS: Customer acknowledges that is has not been induced to purchase any Product from STC by any representation or warranty not expressly set forth herein. This document constitutes the entire agreement of the parties and supersedes all existing agreements and all other oral or written communication between them concerning its subject matter. None of the terms and conditions contained herein may be added to, modified, superseded, or otherwise altered except by a written document signed by an authorized representative of STC. The paragraph headings contained herein are intended for convenience of reference only and shall not affect the interpretation of any provision. If any provision of this document shall be held to be invalid, illegal, or unenforceable, the validity, legality, or enforceability of the remaining provisions shall in no way be affected or impaired. These terms and conditions of sale and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Colorado.