Master Sales Agreement
This Master Sales Agreement (the “Agreement”) is entered into between the buyer listed on the applicable Purchase Order (“Buyer”) and Calimetrix, LLC, a Wisconsin limited liability company (the “Company”) (collectively, the “Parties”), and is incorporated in its entirety in and shall govern all transactions between Buyer and Company set forth in a duly executed Purchase Order (the “Purchase Order”). Unless otherwise stated specifically in a Purchase Order, this Agreement shall apply to any and all transactions between Buyer and Company.
1. Definitions. (a) “Agreement” means collectively the terms and conditions set forth in this Agreement along with the additional terms and conditions set forth in an applicable Purchase Order; and (b) “Products” mean all items being sold by the Company to Buyer, whether finished goods, materials, products to be manufactured and/or installed, services to be rendered, or any combination thereof and specified in an applicable Purchase Order.
2. Orders. Buyer agrees that it shall place all orders for Products through a Purchase Order, which shall fully incorporate and be governed by this Agreement. Company has the right, in its sole discretion, to accept or reject any Purchase Order. Company may accept any Purchase Order by executing the Purchase Order or by delivering the Products, whichever occurs first. No Purchase Order by Buyer is binding on the Company unless accepted by the Company as provided in this Agreement.
Buyer acknowledges that the Company’s Website Terms of Use that apply generally to the use of the Company’s website at www.calimetrix.com and the Company’s Privacy Policy are an integral part of this Agreement and shall be incorporated herein; provided that if there is any conflict between the Terms of Use or the Privacy Policy on the one hand and the terms and conditions contained in this Agreement on the other, the terms and conditions contained in this Agreement shall govern.
3. Price; Taxes. The price for Products sold hereunder shall be set forth in the Purchase Order. Buyer shall pay all sales, use, VAT and excise taxes as well as all tariffs, duties and other charges imposed on or measured by the sale of Products, except for those based upon the Company’s income (collectively, “Taxes”). Taxes shall be in addition to the prices charged by the Company for Products. Applicable tax exemption certificates must accompany any order to which the same applies.
4. Payment. Unless specified otherwise in a Purchase Order, payment is due in full upon Buyer’s execution of a Purchase Order. Company will not accept or process any Purchase Orders until it receives full payment, unless Company agrees otherwise. All payments shall be made in US Dollars and shall be payable by check or ACH unless another method is specified in the Purchase Order. Any and all fees attributable to Buyer’s method of payment shall be the sole responsibility of Buyer.
5. Shipment. Unless otherwise agreed to with Buyer, the Company shall ship all Products FCA Incoterms 2020. Title to and all risk of loss or damage to the Products shall pass to Buyer upon delivery of the Products to the carrier for shipment. Unless otherwise agreed to with Buyer, the Company shall make any and all shipping arrangements on Buyer’s behalf. Buyer shall be responsible for all shipping and handling charges specified in the Purchase Order or otherwise paid for by Company. Notwithstanding anything in this Agreement to the contrary, any timeframe provided by the Company is a good faith estimate of the expected delivery date for the Products. The Company will use commercially reasonable efforts to fill Buyer’s orders within the time stated but in no event shall the Company be liable for any damages associated with the Company’s inability to meet any such estimated timeframes or deadlines.
6. Cancellation of Purchase Order. Once a Purchase Order is submitted, it is within Company’s sole discretion whether it will accept any requests for cancellation, and in no event is Company required to provide Buyer a refund of any amounts paid. Once Products have been shipped, Buyer may not return them. Company may, however, within its sole discretion, cancel any Purchase Order at any time by providing a full refund of any amounts paid.
7. Term. The term of the Agreement (“Term”) shall begin on the Effective Date and shall continue until terminated by either party in accordance with Section 8 below.
8. Termination. Company has the right to terminate the Agreement at any time, for any reason, or for no reason by providing written notice to Buyer, including, but not limited to, if Buyer violates any provision of the Agreement or Purchase Order. Buyer may terminate this Agreement at any time by providing Company sixty (60) days written notice. Subject to Section 6 above, any termination of the Agreement shall not terminate any Purchase Orders then in process and the terms of this Agreement shall continue in affect for any pending Purchase Orders.
9. Limited Warranty. Company provides a limited warranty to the original Buyer only that the Products shall remain free of material defects in workmanship (collectively “Defects”) for a certain period of time and under certain conditions as further specified by that Product’s specific Limited Warranty (the “Specific Product Limited Warranty”), but if no Specific Product Limited Warranty applies, the product Limited Warranty shall be three (3) months from the delivery date. The Specific Product Limited Warranty for Products can be found in the quote provided by Company, at www.calimetrix.com/warranty, or will be included with the Product at delivery.
Exclusive Remedy for Specific Product Limited Warranties. For any and all Defects covered by Company’s Limited Warranty and/or Specific Product Limited Warranty for any Product, Buyer’s sole and exclusive remedy shall be, at the Company’s option, a refund of the pro-rated purchase price (pro-rated over the applicable warranty period) or repair or replacement of the Product with a comparable product as determined by Company.
10. No Other Warranty. THE LIMITED WARRANTY PROVIDED HEREIN OR IN THE SHIPMENT OF THE PRODUCTS IS BUYER’S SOLE AND EXCLUSIVE WARRANTY. EXCEPT FOR THE WARRANTY PROVIDED HEREIN OR IN THE SHIPMENT OF THE PRODUCTS, THE COMPANY HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES REGARDING THE PRODUCTS, USAGE OF THE TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, INCLUDING, WITHOUT LIMITATION, THOSE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, ACCURACY AND/OR FITNESS FOR A PARTICULAR PURPOSE.
11. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL THE COMPANY OR ANY OF ITS AFFILIATES OR SUBSIDIARIES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, OWNERS OR AGENTS, BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUE, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY OR NEGLIGENCE) OR OTHERWISE, EVEN IF THE SAME HAS BEEN SPECIFICALLY ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES. THE COMPANY’S CUMULATIVE LIABILITY FOR ALL CLAIMS RELATING IN ANY MANNER TO THE PRODUCTS OR OTHERWISE UNDER THIS AGREEMENT, REGARDLESS OF THE TYPE OR NATURE OF THE ACTION, SHALL BE LIMITED TO BUYER’S DIRECT ACTUAL DAMAGES NOT EXCEEDING THE AMOUNT ACTUALLY PAID TO THE COMPANY BY BUYER FOR THE PRODUCTS WHICH ARE THE SUBJECT OF THE APPLICABLE CLAIM. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER THIS AGREEMENT MAY BE BROUGHT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED. THE COMPANY HAS RELIED ON THE FOREGOING LIMITATIONS OF LIABILITY AND BUYER EXPRESSLY ACKNOWLEDGES THAT THIS PROVISION IS ESSENTIAL IN THE ESTABLISHMENT OF THE PRICING OF THE PRODUCTS. THE LIMITATIONS ON, AND EXCLUSIONS FROM, LIABILITY SET FORTH HEREIN SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
12. Indemnification. Buyer shall defend, indemnify and hold the Company and its affiliates and subsidiaries and their respective officers, directors, owners, employees, advisors, consultants and agents harmless from and against any and all claims, losses, damages, liabilities or expenses (including, without limitation, reasonable attorneys’ fees and other costs and expenses of litigation) resulting from or otherwise connected with any of the following: (a) Buyer’s repackaging, modification, or shipment of the Products; (b) Buyer’s distribution, re-sale, or use of the Products in violation of this Agreement or in any way that would void any Product warranty or violate applicable law or regulation; (c) bodily injury, death or property damage caused by Buyer’s or its employee’s or agents acts or omissions with respect to the Products, (d) any design, specification, material or other component supplied or approved by Buyer for the design and manufacture of any Products; (e) gross negligence or willful misconduct in connection with the performance of its obligations under this Agreement, or (f) any breach of the terms and conditions of this Agreement by Buyer or its employees and agents; and (g) Buyer’s and its employees’ or agents’ possession, use, handling, release, storage, transport or disposal of any Products containing hazardous or toxic materials or components.
13. Confidentiality. All documentation or information provided by the Company which is marked as confidential, or which from its nature or the context in which it is given should reasonably be understood to be confidential or of a proprietary nature, shall be held by Buyer in strict confidence. All information related to the Products purchased by the Buyer is considered confidential and not for public release without express written permission from the Company. Buyer shall not disclose such information to any person or business, other than an employee and agent of Buyer who has a need to know the information; provided, however, that such employees and agents be required to maintain the information at all times in strict confidence in accordance with this Agreement.
14. Intellectual Property Rights; No License; No Resale. The Company shall retain all rights in its intellectual property, including all rights under any Products, patent, patent application, copyright, trademark, trade dress, trade secret, confidential information, or other intellectual property rights owned by or licensed to the Company which may be protected by foreign, federal, state or common law, and nothing in this Agreement shall be deemed or construed to be a transfer or license of any of the Company’s intellectual property. Buyer shall obtain rights to such intellectual property only to the extent that the Company may grant such rights in writing, whether by license or otherwise. Buyer shall not reverse engineer, disassemble, decompile or reproduce any of the Products or any part thereof without a bona fide license with the Company to do so. Unless specifically provided otherwise in an applicable Purchase Order, Buyer represents and warrants that it is buying the Products in their original form for its own use and does not intend to and will not resell, lease, distribute, or transfer the Products or divert them for a fee or for free beyond the actual shipping address the Products are shipped to.
15. Compliance with Laws; Import/Export.
(a) Buyer shall (i) comply with all applicable laws, statutes, rules, regulations and/or ordinances, and (ii) maintain in effect all the licenses, permissions, authorizations, consents and permits, relating to Buyer’s use, handling, storage, importation, exportation, sale or resale of the Products or otherwise related to its performance of this Agreement.
(b) Buyer shall be responsible for all costs and expenses relating to the Products transit across another country’s border, including, without limitation payment of any custom duties, fees or charges imposed or levied upon the Products or the Buyer. Buyer shall also be responsible for compliance with all United States export control rules and regulations. Buyer may not and shall not name the Company as shipper or exporter of record in connection with the export or re-export of any Products purchased from the Company. Buyer shall ensure that any Products that Buyer receives from the Company are exported by Buyer only, and in full compliance with all applicable laws, including U.S. Export Administration Regulations. Further, Buyer represents and warrants that it will not, directly or indirectly, divert any shipment of Products that is contrary to any applicable law, including without limitation, the Export Administration Regulations, as amended, the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the Office of Foreign Asset Control Regulations. Company disclaims any and all liability relating to Buyer’s use, transfer, export, or resale of any Products in or to any countries other than the country to which Company originally delivered the Product to Buyer.
(c) The Products may not be imported, exported, sold or resold, disposed of, or transported by or to any country, person or entity (including any carrier owned, flagged, leased, or chartered by any of the foregoing) which would cause the Company to be in violation of or to be penalized by the United States or any other applicable economic sanctions laws or another country.
16. Excused Performance. The Company shall not be liable for any delay in the performance of this Agreement by reason of any of the following: acts of God, acts or war or terrorism, laws, regulations, acts or requests of governmental agencies, strikes, lockouts or other labor conditions, shortages of raw materials, inadequate production capacity to meet demand, fire, flood, explosion, or other damage to plant or facilities, or absence of normal transportation or any other cause which is beyond the reasonable control of the Company. In the event of any such delay, the Company’s performance hereunder shall be postponed by such length of time as may be reasonably necessary to compensate for the delay.
17. No Waiver. No waiver of this Agreement or any of its provisions is valid unless expressly agreed to in a writing signed by the Company. No waiver by the Company of any default under this Agreement is a waiver of any other or subsequent default. The failure of the Company to insist upon strict and timely performance of any term or condition of this Agreement shall not be deemed a waiver of any right or remedy that the Company may have under this Agreement or at law or equity, and shall not be deemed a waiver of any subsequent default in performance of the terms and conditions of this Agreement.
18. Modification; Order of Precedence. No modification of this Agreement or any of its provisions by Buyer is valid unless expressly agreed to in a writing signed by the Company. A Purchase Order is valid only if it is subject to and incorporates this Agreement and is accepted by Company. This Agreement shall take precedence over any conflict between it and a valid Purchase Order unless expressly stated otherwise in the agreed upon Purchase Order. Any order forms issued by Buyer and not expressly subject to this Agreement, even if labeled a “purchase order,” or not expressly agreed upon by Company is not a valid and binding Purchase Order with respect to Company.
19. Severability. If any provision of this Agreement is found to be invalid or unenforceable, then such invalidity or unenforceability shall have no effect on the other provisions hereof, which shall remain valid, binding and enforceable and in full force and effect, and such invalid or unenforceable provision shall be construed in a manner so as to give the maximum valid and enforceable effect to the intent of the parties expressed in this Agreement.
20. Independent Contractor. In producing, supplying or providing any Products under this Agreement, the Company shall operate as an independent contractor. The officers, employees and agents of one party shall not be considered officers, employees or agents of the other party for any purpose whatsoever.
21. Publicity. Notwithstanding anything contrary in this Agreement, unless expressly stated otherwise in a Purchase Order, Company may list Buyer as a customer of Company on Company’s website and in marketing materials, and Company may use Buyer’s name and its logo for that purpose.
22. Assignment. Buyer may not assign any of its rights, duties or obligations under this Agreement without the Company’s prior written consent.
23. Remedies. Each of the rights and remedies of the Company under this Agreement is cumulative and in addition to any other or further remedies provided under this Agreement or at law or equity.
24. Attorneys’ Fees. In the event the Company is required to retain legal counsel or to initiate proceedings to enforce or interpret the terms and conditions of this Agreement, the Company shall be entitled to recover its reasonable attorneys’ fees and costs from Buyer.
25. Survival. Sections 10-13 of this Agreement shall survive the expiration or termination of this Agreement, subject only to the applicable statutes of limitation.
26. Governing Law; Arbitration. The Agreement shall be construed and governed under the laws of the State of Wisconsin, without application of conflict of law principles. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the aware rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.