STANDARD TERMS AND CONDITIONS OF SALE
GOODS SOLD BY NISUS CORPORATION (“NISUS”) ARE EXPRESSLY SUBJECT TO THE TERMS AND CONDITIONS SET FORTH BELOW. ANY DIFFERENT OR ADDITIONAL TERMS OR CONDITIONS SET FORTH IN A PURCHASE ORDER OR SIMILAR COMMUNICATION RECEIVED FROM BUYER ARE OBJECTED TO AND SHALL NOT BE BINDING UPON NISUS UNLESS SPECIFICALLY AGREED TO IN WRITING BY AN AUTHORIZED CORPORATE OFFICER OF NISUS.
Prices of products in effect at time of shipment shall prevail. All prices quoted by NISUS are subject to change without notice. Prices do not include any present or future sales, use excise, value-added, or similar taxes and, where applicable, such taxes shall be billed as a separate item and paid by the Buyer. A late payment charge of one and one-half percent (1.5%) per month (Annual Percentage Rate of 18%) shall be charged on all past due accounts and Buyer shall pay NISUS all costs incurred by NISUS in collecting any past due account from Buyer, including all court costs and attorney’s fees; provided, however, if the foregoing charges exceed that rate which may be lawfully charged under applicable law, then such charges shall be calculated so as not to exceed the highest lawful rate.
Purchase orders may be written (including email or fax) or telephonic and constitute an offer by Buyer to enter into a purchase and sale contract with NISUS upon the terms and conditions set forth in these Standard Terms and Conditions of Sale. NISUS will not be bound by any purchase order until such time as NISUS receives the purchase order and NISUS agrees in writing (including email or fax) to fill the purchase order or does fill the purchase order.
Unless otherwise noted, all sales are made f.o.b. point of shipment and, in all cases, title shall pass to Buyer upon delivery to the carrier at point of shipment and thereafter all risk of loss or damage shall be upon Buyer.
Delivery dates given in advance of actual shipment are estimates and shall not be deemed to represent fixed or guaranteed delivery dates. NISUS shall not be liable for failure to deliver or for delay in delivery or performance because of: (i) circumstances beyond its reasonable control; or (ii) an act of God, act or omission of Buyer, act of civil or military authority, governmental priority or other allocation or control, fire, strike, or other labor difficulty, riot or other civil disturbance, insolvency or other inability to perform by the manufacturer or delay in transportation; or (iii) any other commercial impracticality. In the event of any such delay, the date of delivery or performance shall be extended for a period to the time lost by reason of delay.
CHANGE IN BUYER’S FINANCIAL CONDITION:
NISUS reserves the right to cancel any order or to require full or partial payment in advance without liability to NISUS in the event of: (i) insolvency of the Buyer; (ii) the filing of voluntary petition in Bankruptcy by Buyer; (iii) the appointment of a Receiver or Trustee for the Buyer; (iv) the execution by Buyer of an assignment for benefit of creditors; or (v) past due payment on previous shipments to Buyer by NISUS. NISUS reserves the right to cancel Buyers credit at any time for any reason.
Non-circumvention. Buyer expressly agrees it will not, directly or indirectly, reverse engineer, analyze or otherwise subject any NISUS product to any tests that would disclose the identity or makeup of such products. Buyer agrees it will not, directly or indirectly, make for or sell to any third party any product that uses the NISUS’ confidential information.
WARRANTY DISCLAIMER; REMEDY LIMIT:
Except as expressly stated on product labels, NISUS MAKES NO WARRANTY, WHETHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMIT, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, BOTH OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED. BUYER’S SOLE REMEDY AND NISUS’ SOLE LIABILITY UNDER ANY WARRANTY SHALL BE LIMITED SOLELY TO PRODUCT REPLACEMENT. NISUS SPECIFICALLY ADVISES THAT MOLD WILL CONTINUE TO GROW IN CONDUCIVE CONDITIONS. SINCE NISUS CANNOT CONTROL SUCH CONDUCIVE CONDITIONS, NISUS SHALL NOT BE LIABLE FOR ANY LIABILITIES, CLAIMS, DAMAGES OR THE LIKE, OF ANY KIND OR NATURE, INCLUDING WITHOUT LIMIT, HEALTH RELATED CLAIMS, IN ANY WAY RELATED TO OR ARISING OUT OF OR IN CONNECTION WITH THE OCCURRENCE OR PRESENCE OF MOLD.
LIMITATION OF LIABILITY:
NISUS’ liability on any claim for loss damage arising out of this contract or from the performance or breach thereof or connected with the supplying of any goods hereunder, or the sale, resale, operation or use of such goods, whether based on contract, warranty, tort (including negligence) or other grounds, shall not exceed the price allocable to such goods or part thereof involved in the claim. NISUS shall not, under any circumstances, be liable for any charges without its prior written consent. NISUS SHALL ALSO NOT, IN ANY EVENT, BE LIABLE whether as a result of breach of contract, warranty, tort (including negligence) or other grounds FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES including, but not limited to, loss of profits or revenue, loss of use of the goods or any associated products, cost of capital, cost of substitute products, facilities or service, downtime costs, or claims of customers of the Buyer for such damages, even if NISUS is aware of the possibility of these losses occurring. If NISUS furnished Buyer with advice or other assistance related to any goods supplied hereunder, the furnishing of such advice or assistance will not subject NISUS to any liability, whether based on contract, warranty, tort (including negligence) or other grounds, and NISUS specifically disclaims all implied warranties of merchantability and fitness for a particular purposes with respect to any and all goods supplied hereunder.
Buyer shall defend and indemnify NISUS from any and all costs, damages, expenses (including reasonable attorney’s fees), losses, suits, claims, demands, and liability to the extent arising out of (i) Buyer’s breach of these terms and conditions, (ii) any third party product liability claim respecting a NISUS product (including product promotional materials created by Buyer) to the extent such liability arises out of or results from the act or omission of Buyer or (iii) the violation of any applicable laws or regulations by Buyer relating to the sale, storage, handling, transportation, exportation, importation or disposal of the products including their wastes.
Buyer may cancel an order of products from NISUS prior to shipment of the goods by mutual agreement of the parties and upon payment to NISUS of reasonable and proper cancellation charges.
RETURN OF GOODS:
Once goods are shipped by NISUS, the goods may not be returned by Buyer unless either: (i) the goods fail to conform to their manufacturing specifications, or (ii) NISUS agrees in writing to accept a return of the goods from Buyer upon payment to NISUS of reasonable and proper cancellation charges.
ASSIGNMENT OR DELEGATION:
Buyer shall not assign or delegate any or all of its duties or rights hereunder, without the prior written consent of NISUS.
All purchase orders are subject to acceptance by NISUS, and any different or additional terms or conditions contained within purchase orders accepted by NISUS that are not contained within these Standard Terms and Conditions of Sale shall not be binding upon NISUS. Any representation, affirmation of fact and course of dealing, promise or condition in connection therewith or usage of trade not contained herein, shall not be binding on either party. If any provision hereof shall be unenforceable, invalid or void for any reason, such provision shall be automatically voided and shall not be part of this agreement and the enforceability or validity of the remaining provisions of this agreement shall not be affected thereby.
GOVERNING LAW; VENUE:
This agreement shall be governed by and construed in accordance with the laws of the State of Tennessee, without regard to the choice of law provisions thereof. Jurisdiction and venue for any actions shall be solely in any state court in Knox County, Tennessee, or the Federal District Court for the Eastern District of Tennessee, Northern Division, sitting in Knoxville, Tennessee, and Buyer hereby irrevocably submit to the jurisdiction of such courts.