These terms shall be considered to be an inseparable part of any additional terms between the applicable Fellowes entity and Customer and are collectively referred to herein as the Terms and Conditions. To the extent that any terms provided by Customer conflict with the terms and conditions that follow, these Terms and Conditions shall govern that transaction.
Acceptance; Entire Agreement. Acceptance by Customer of delivery of goods constitutes acceptance by Customer of the following terms and conditions. Any additional or different terms proposed by Customer shall be deemed to have been objected to by the Fellowes entity ("Seller"), shall be of no force or effect, and shall not be binding upon or enforceable against Seller. These terms and conditions constitute the entire agreement and understanding between the parties and supersede any and all prior agreements, understandings and communications with Customer, oral or written, relating to the goods that Seller or any of its subcontractors may provide (collectively, the "Goods"). No course of dealing or course of performance, either prior to, during or after the delivery of the Goods, shall be relevant or admissible by Customer to supplement, explain or vary these Terms and Conditions. The invalidity or unenforceability of any Terms and Conditions shall not affect the validity or enforceability of any other term or condition, and the remaining terms and conditions shall remain in full force and effect. No waiver, amendment or modification of these Terms and Conditions shall be binding upon or enforceable against Seller until approved in writing by a Fellowes Authorized Signatory.
Proprietary Information; Confidentiality. Advertising. Customer shall consider all information furnished by Seller, as well as information learned about , business or products, to be confidential and shall not disclose any such information to any other person or entity, or use such information itself for any purpose other than performing hereunder, unless Customer obtains written permission from Seller to do so. This paragraph shall apply to drawings, specifications, or other documents prepared by Customer or Seller in connection with this order as well as observations of Customer while receiving goods or services. Customer shall not advertise or publish the fact that Seller has contracted to sell goods or services to Customer, nor shall any information relating to the order be disclosed without Seller's written permission unless otherwise agreed in writing, no commercial financial or technical information disclosed in any manner or at any time by Customer to Seller shall be deemed secret or confidential and Customer shall have no rights against Seller with respect thereof except such rights as may exist under patent or copyright laws.
Trademark Rights. Seller grants Customer a non-exclusive, royalty-free license to use the Seller's trademarks included on any goods purchased hereunder (the "Licensed Marks") in connection with Customer's sale or marketing of goods in the course of Customer's business. The license granted herein does not include a right to sublicense. Customer acknowledges that Seller is the owner of the Licensed Marks, and nothing herein shall grant to Customer any right, title or interest in the Licensed Marks, except as specifically set forth herein. Customer shall use Seller's trademarks in a manner that is consistent with Seller's standards. This includes using the ® designation adjacent to registered trademarks, and the TM designation adjacent to unregistered trademarks, where practicable. Customer shall cooperate with Seller's requests to ensure that Seller's trademarks are used in this manner. Seller shall have the right to review and inspect any marketing or promotional materials relating to the Licensed Products and, in its sole discretion, to prohibit the use of any such materials that do not meet Seller's standards. If Customer becomes aware of any infringing products, Customer will promptly notify Seller, which reserves the right to take any action. This trademark license is revocable at Seller's sole discretion. The limited license granted to Customer herein shall, upon any default or termination of the agreement between Seller and Customer, be immediately revoked without need of prior notice by Seller; and Customer agrees that upon such revocation it shall not sell any products containing the Licensed Marks without receiving prior, written approval from Seller.
Prices. Prices quoted by Seller are subject to change without notice. Prices billed on invoice at time of shipment shall govern. Unless otherwise stated, all prices are quoted in U.S. Dollars. Seller will not accept or process purchase orders that contain pricing different from the standard prices. Notwithstanding the foregoing, upon thirty (30) days' written notice to Customer, Seller may increase prices on any items as a result of a material increase to products costs that are beyond Seller's control, including without limitation, fire or other casualty, act of God, war, terrorism, violence, enactment of any law, rule, regulation, or executive order, or any act of any governmental authority.
Credit. Seller may, in its sole discretion, extend credit to the Customer. For credit limits in excess of $10,000, Seller requires audited financial statements prior to initial credit approval and on an annual basis thereafter. Seller shall perform periodic credit reviews using credit reporting agencies, trade references, industry trade groups and banks. In the event of a material adverse change in Customer's credit standing or in the event that Customer does not comply with the terms of these provisions, Seller shall have the right to change terms of payment, and Seller obligation to provide Goods will be subject to reaching mutual agreement on revised terms.
Payment. Unless otherwise agreed in writing or stated on the Invoice, all payments are to be made in national currency of the Seller and all amounts payable by Customer shall be due and payable in full 30 days after invoice. Seller will not accept the unilateral assessment of any fee, marketing support, co-op or other advertising, expense reimbursement, rebate, offset or any other financial or marketing support not explicitly authorized in writing by an authorized officer of Seller. Any amounts not paid in full within 30 days after invoice shall be subject to a late payment charge of 1-1/2% per month (or, if less, the maximum amount permitted by law) from the date due until paid. Seller's obligation to provide Goods is subject to receipt of prompt payment of all invoices pursuant to the terms of this and other agreements we may have with Customer. Progress billing of interest due or a failure to bill for interest due shall not constitute a waiver of Seller's right to charge interest on all amounts past due to the date payment is received. Should any portion of an invoice become disputed you agree to pay the undisputed portion according to its terms, and you will notify us promptly of the dispute. Both parties agree to use their best efforts to resolve the disputed portion of such invoice within 30 days. Seller shall have the right to set off against any amount that Seller may be obligated to pay to Customer any amounts due or to become due to Seller from Customer and its divisions, subsidiaries and affiliated companies. Seller may assign payments due to a wholly-owned subsidiary without consent. Seller reserves the right to revoke these payment terms and required prepayment or cash in advance upon any event of non-payment or late payment by Customer that is not cured withing five (5) business days of the original payment due date.
Rebate. Any and all rebates made available to Customer by Seller are discretionary and voluntary at Seller's sole authority and discretion. Customer acknowledges and agrees that it has no right or entitlement to rebates. To be eligible for rebate, Customer's account must be in Good Standing for the duration of the contract year or other applicable program period. "Good Standing" means that Customer pays all invoices within specified payment terms. Seller, in its sole discretion, may extend Customer up to a five (5) day grace period to cure any payment deficiency and maintain Good Standing. Customer acknowledges and agrees that any accumulated pool of rebates held by Seller shall serve as a security deposit against pending and future orders until such time as Seller remits payment of the rebate to Customer.
Delivery. Delivery dates for the Goods shall be established by mutual agreement of Seller and Customer. The minimum order size is $1500. Seller may at its option accept orders not meeting the minimum order size with a $75 handling fee. Customer shall provide any special shipping or labeling requirements to Seller for consideration prior to the first shipment. Unless an Invoice expressly specifies otherwise, all Goods shall be delivered F.O.B. the shipping platform at the shipping facility, and all shipping and transportation costs from the shipping platform at such facility shall be borne by Customer and all risk of loss, damage or late delivery shall pass to Customer upon loading at the shipping platform at such facility. Seller shall have no responsibility for any failure of or delay in delivery caused by or attributable to war, sabotage, riot, civil disorder, fire, flood, earthquake, explosion, accident, natural or manmade disaster, governmental action, shortage or interruption of supply of materials, supplies, equipment or energy, transportation problem, strike, labor stoppage or slowdown, or other cause beyond the reasonable control of Seller.
Taxes. The prices for the Goods do not include sales, use and other taxes, duties and other governmental fees and charges that may be applicable to the Goods, and Customer shall be responsible for and pay upon demand all such taxes, duties and other governmental fees and charges (other than income taxes of Seller), notwithstanding that responsibility for collection or payment of such taxes, duties and other governmental fees and charges may be imposed by law on Seller or any of its subcontractors.
LIMITED WARRANTY; LIMITATIONS ON LIABILITY. Seller grants a limited warranty to the end-users of its Goods, the terms of which are included with each product. Seller warrants to the Customer solely that, subject to the terms, conditions and limitations hereof, the Goods conform to the specifications set forth in the Seller catalog and will be transferred to customer free and clear of any and all encumbrances. SELLER MAKES NO OTHER WARRANTIES AND GIVES NO OTHER ASSURANCES OR GUARANTEES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY GOODS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
SELLER'S SOLE LIABILITY IN CONNECTION WITH ANY GOODS THAT ARE DEFECTIVE OR DELIVERED LATE SHALL BE LIMITED TO EITHER (i) REFUNDING TO THE CUSTOMER A PERCENTAGE OF THE TOTAL PRICE (EXCLUSIVE OF TAXES, SHIPPING AND OTHER SEPARATE CHARGES) THAT THE CUSTOMER HAS PAID TO SELLER FOR ALL GOODS PROVIDED EQUAL TO THE PERCENTAGE OF ALL GOODS PROVIDED THAT ARE DEFECTIVE OR DELIVERED LATE DUE TO THE SOLE FAULT OF SELLER AND ITS SUBCONTRACTORS, OR (ii) AT SELLER'S OPTION, REPLACING FOR THE CUSTOMER, AT NO CHARGE TO THE CUSTOMER, THE GOODS THAT ARE DEFECTIVE OR DELIVERED LATE DUE TO THE SOLE FAULT OF SELLER AND ITS SUBCONTRACTORS.
IN NO EVENT SHALL SELLER OR ANY OF ITS SUBCONTRACTORS BE LIABLE FOR (i) ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, INTEREST, LOST PROFITS OR INTERRUPTION OF BUSINESS), EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES RESULT FROM ANY RECOMMENDATIONS MADE BY SELLER, OR (ii) ANY LOSSES, DAMAGES, LIABILITIES, SUITS OR CLAIMS THAT ARE COVERED BY ANY INSURANCE MAINTAINED BY OR ON BEHALF OF THE CUSTOMER OR ARE OTHERWISE RECOVERABLE FROM THIRD PARTIES.
IN ADDITION, THE LIABILITY OF SELLER AND ITS SUBCONTRACTORS FOR LOSSES, DAMAGES, LIABILITIES, SUITS AND CLAIMS, REGARDLESS OF THE FORM OF ACTION (WHETHER BASED ON CONTRACT, ON NEGLIGENCE, ON STRICT LIABILITY OR OTHERWISE) AND THE PERSON OR ENTITY BRINGING SUCH ACTION, SHALL NOT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT (EXCLUSIVE OF TAXES, SHIPPING, AND OTHER SEPARATE CHARGES) ACTUALLY PAID TO SELLER BY THE CUSTOMER FOR THE GOODS AT ISSUE. ANY ACTION AGAINST SELLER MUST BE BROUGHT WITHIN ONE YEAR OF THE CAUSE OF ACTION FIRST ARISING.
Claims by Customer. Customer shall notify Seller via Fax at (630.893.9770) of any shortages or overages that occur detailing PO #, item #, quantity ordered, and quantity received. All such notifications must be made within 72 hours of receipt of the Goods. A Fellowes Customer Service Representative will respond with the proposed resolution within two weeks. All claims by Customer with respect to any invoice, including, but not limited to, claims related to defects and late delivery in connection with any Goods, must be submitted to Seller in writing within a period of 30 days from earlier of the date of receipt or the date of invoice. Any claims not submitted in writing within such 30-day period shall be deemed to have been waived by Customer, and failure to submit a claim within such 30-day period shall constitute irrevocable acceptance of and an admission that the Goods meets all specifications and delivery requirements and otherwise fully complies with these Terms and Conditions.
Governing Law and Dispute Resolution. In no case shall the 1980 U.N. Convention on Contracts for the International Sale of Goods apply.
The construction, validity and performance of these Terms and Conditions shall be governed and construed according to the internal laws of the Province of Ontario, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other that the Province of Ontario. Each of the Parties agrees that any legal action arising out of or relating to this Agreement shall be brought in Ontario, Canada, and consents to the personal jurisdiction of such courts over the Parties in any such action. Each of the Parties waives any defense of inconvenient forum to the maintenance of any such action or proceeding so brought and waives any bond, surety, or other security that might be required of any Party hereto.
References in herein to "Customer" include the person or entity specifically identified in this Invoice as "Customer" and its divisions, subsidiaries and affiliated companies.