WHEREAS, WOOX is in the business of manufacturing and selling various wood-based products to suppliers and distributors;
WHEREAS, Buyer wishes to purchase certain Products (as defined below) from WOOX; and
WHEREAS, WOOX desires to manufacture and sell the Products to Buyer
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Definitions. Capitalized terms have the meanings set out or referred to in this Section 1.
“Defective Products” means Products shipped by WOOX to Buyer pursuant to this Agreement that are not conforming to the Product Warranty under Section8(a).
“Governmental Authority” means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction.
“Law” means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, governmental order or other requirement or rule of law of any Governmental Authority.
“Nonconforming Products” means any products received by Buyer from WOOX pursuant to a Purchase Order that: (a) do not conform to the Product identifier listed in the applicable Purchase Order; (b) do not fully conform to the Specifications; or (c) materially exceed the quantity of Products ordered by Buyer pursuant to this Agreement or any Purchase Order.
“Person” means any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, association, Governmental Authority or any other entity.
“Personnel” of a Party means any agents, employees, contractors or subcontractors engaged or appointed by such Party.
“Purchase Order” means Buyer’s purchase order issued to WOOX hereunder, including all terms and conditions attached to, or incorporated into, such purchase order.
“Representatives” means a Party’s affiliates and each of their respective Personnel, officers, directors, partners, shareholders, attorneys, third-party advisors, successors and permitted assigns.
Purchase and Sale of Products; Branding.
From time to time, and subject to the terms and conditions of this Agreement, during the Term Buyer shall purchase from WOOX, and WOOX shall manufacture and sell to Buyer, the products pursuant to one or more Purchase Orders. This Agreement does not limit WOOX’s right to manufacture or sell Products or other products to any other Person.
Buyer shall not remove, obscure, or modify any trademark, logo, or other identifying mark placed by WOOX on any Product. Buyer agrees that its documentation, marketing materials, and product descriptions for any of its end products that include any Product will clearly identify WOOX as the supplier of the component Products. Buyer agrees to reasonably cooperate with WOOX to ensure proper identification and branding of WOOX Products that are incorporated into Buyer’s end products.
Purchase Orders. Buyer shall issue to WOOX Purchase Orders in written form via facsimile, e-mail, or U.S. mail. By issuing a Purchase Order to WOOX, Buyer makes an offer to purchase Products pursuant to the terms and conditions of this Agreement and the Purchase Order. Any additional, contrary or different terms contained in any Purchase Order shall not modify this Agreement or be binding on the Parties unless such terms have been fully approved in a signed writing by authorized Representatives of both Parties.
Acceptance, Rejection and Cancellation of Purchase Orders. WOOX accepts a Purchase Order by confirming the Purchase Order in writing within five (5) days after WOOX’s receipt of the Purchase Order. WOOX’s failure to provide such written confirmation to Buyer within such period shall be deemed to be a rejection of the Purchase Order.
Shipment, Delivery, Acceptance and Inspection.
Shipment. Unless otherwise expressly agreed by the Parties in writing, WOOX shall select the method of shipment of and the carrier for the Products. WOOX shall deliver the Products to the location specified in the applicable Purchase Order, using WOOX’s standard methods for packaging and shipping such Products.
Late Delivery. WOOX shall use commercially reasonable efforts to deliver all Products on or before the delivery date specified in the applicable Purchase Order. If WOOX has delayed shipment of all or any Products for more than thirty (30) days after the requested delivery date, Buyer may, as its sole remedy therefor, cancel the portion of the related Purchase Order covering the delayed Products by giving WOOX written notice.
Transfer of Title and Risk of Loss. Title to Products shipped under any Purchase Order passes to Buyer upon (i) payment in full of the price for such Products by Buyer to WOOX, and (ii) WOOX tenders the Products to the carrier for delivery to Buyer. Risk of loss to Products shipped under any Purchase Order passes to Buyer upon WOOX tendering the Products to the common carrier.
Inspection. Buyer shall inspect Products received under this Agreement within seven (7) days of receipt of such Products (the “Inspection Period”) and either accept or, only if any such Products are Nonconforming Products, reject such Products. Buyer will be deemed to have accepted the Products unless it provides WOOX with written notice of any Nonconforming Products within three (3) days following the Inspection Period. If Buyer timely notifies WOOX of any Nonconforming Products, WOOX shall determine, in its reasonable discretion, whether the Products are Nonconforming Products. If WOOX determines that such Products are Nonconforming Products, WOOX shall, at Buyer’s election, either: (i) repair such Nonconforming Products at WOOX’s sole cost and expense; or (ii) replace such Nonconforming Products with conforming Products at WOOX’s sole cost and expense. THE REMEDIES SET FORTH IN THIS SECTION 4(e) ARE BUYER’S SOLE AND EXCLUSIVE REMEDY FOR THE DELIVERY OF NONCONFORMING PRODUCTS.
Price and Payment.
Price. Buyer shall purchase the Products from WOOX at the prices set forth on WOOX PRICE list. Unless a Purchase Order provides otherwise, all prices are exclusive of taxes, shipping, insurance, and other freight costs.
Payment Terms. WOOX shall issue a monthly invoice to Buyer for all Products ordered in the previous month. Buyer shall pay to WOOX all invoiced amounts within thirty (30) days from the invoice date. Buyer shall pay interest on all late payments at the lesser of the rate of one and one-half percent (1.5%) per month or the highest rate permissible under applicable Law. Buyer shall also reimburse WOOX for all costs incurred by WOOX in collecting any late payments, including attorneys’ fees and court costs. In addition, if Buyer fails to pay any undisputed amounts when due under this Agreement, WOOX may (i) suspend the delivery of any Products, (ii) reject Buyer’s Purchase Orders or cancel accepted Purchase Orders, or (iii) terminate this Agreement pursuant to the terms of Section6(c)(i)
Shipping Charges, Insurance and Taxes. Buyer shall pay for all shipping charges and insurance costs. In addition, all prices are exclusive of, and Buyer is solely responsible for, and shall pay all taxes, with respect to, or measured by, the manufacture, sale, shipment, use or price of the Products (including interest and penalties thereon).
Term. The term of this Agreement commences on the Effective Date and continues for a period of one (1) year, unless it is earlier terminated pursuant to the terms of this Agreement or applicable Law (the “Initial Term”). Upon expiration of the Initial Term, the term of this Agreement shall automatically renew for additional successive one (1) year terms unless WOOX provides written notice of non-renewal to Buyer at least sixty (60) days prior to the end of the then-current term (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless any Renewal Term is earlier terminated pursuant to the terms of this Agreement or applicable Law.
WOOX’s Right to Terminate. WOOX may terminate this Agreement, by providing written notice to Buyer:
(i) if Buyer fails to pay any amount when due under this Agreement;
(ii) if Buyer is in breach of any representation, warranty or covenant of Buyer under this Agreement (other than failure to pay), and is not cured by Buyer within thirty (30) days after Buyer’s receipt of written notice of such breach;
(iii) if Buyer (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, (C) makes or seeks to make a general assignment for the benefit of its creditors, or (D) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business;
Buyer’s Right to Terminate. Buyer may terminate this Agreement upon thirty (30) days’ prior written notice to WOOX:
(i) if WOOX is in material breach of any representation, warranty or covenant of WOOX under this Agreement and is not cured by WOOX within thirty (30) days after WOOX’s receipt of written notice of such breach; or
(ii) if WOOX (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, (C) makes or seeks to make a general assignment for the benefit of its creditors, or (D) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
Effect of Expiration or Termination. Upon the expiration or earlier termination of this Agreement, Buyer shall pay to WOOX all amounts due to WOOX for Products delivered by WOOX or otherwise due to Buyer under this Agreement prior to WOOX’s receipt of the termination. Any notice of termination under this Agreement automatically operates as a cancellation of any deliveries of Products to Buyer that are scheduled to be made subsequent to the effective date of termination, whether or not any orders for such Products had been accepted by WOOX.
Compliance with Laws. Buyer shall at all times comply with all Laws applicable to this Agreement, Buyer’s performance of its obligations hereunder and Buyer’s use or sale of the Products, and Buyer shall be solely responsible and liable for any failure to comply therewith.
Limited Product Warranty.
Subject to the provisions of this Section 8, WOOX warrants to Buyer (the “Product Warranty”) that for a period of one (1) year from the date of delivery of a Product (the “Warranty Period”), each Product shall: (i) materially conform to the Specifications and any other representations, advertisements, brochures, and samples expressly provided by WOOX to Buyer and (ii) be free from significant defects in material and workmanship. Notwithstanding the foregoing, WOOX makes no representation or warranty with respect to any third party products or materials contained in, incorporated into, attached to or packaged together with the Product.
During the Warranty Period, with respect to any allegedly Defective Products:
(i) Buyer shall notify WOOX of any alleged claim or defect within thirty (30) days from the date Buyer discovers such alleged claim or defect;
(ii) Buyer shall ship, at its expense and risk of loss, such allegedly Defective Products to WOOX for inspection and testing;
(iii) if WOOX’s inspection and testing reveals, to WOOX’s reasonable satisfaction, that such Products are defective and any such defect has not been caused by Buyer’s negligence, subject to Sections 8(b)(i)-(ii) above, WOOX shall, at Buyer’s election, either repair or replace such Defective Products; and
(iv) WOOX shall ship to Buyer, at WOOX’s expense and risk of loss, the repaired or replaced Products.
THIS SECTION 8(b) SETS FORTH BUYER’S SOLE AND EXCLUSIVE REMEDY AND WOOX’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED PRODUCT WARRANTY SET FORTH IN SECTION8(a).
EXCEPT FOR THE LIMITED PRODUCT WARRANTY SET FORTH IN SECTION8(a), NEITHER WOOX NOR ANY PERSON ON WOOX’S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, EITHER ORAL OR WRITTEN, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OR PERFORMANCE OF GOODS OR PRODUCTS TO STANDARDS SPECIFIC TO THE COUNTRY OF IMPORT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
Indemnification. Subject to the terms and conditions of this Agreement, Buyer shall indemnify, defend and hold harmless WOOX and its officers, directors, employees, agents, affiliates, successors and permitted assigns against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees and costs, arising out of, relating to (i) Buyer’s negligent or more culpable conduct, (ii) any bodily injury, death of any Person or damage to real or tangible personal property caused by the acts or omissions of Buyer; or (iii) any failure by Buyer to comply with any applicable Laws.
Limitation of Liability.
NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. IN NO EVENT SHALL EITHER PARTY OR THEIR REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (I) WHETHER SUCH DAMAGES WERE FORESEEABLE, (II) WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (III) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
MAXIMUM LIABILITY FOR DAMAGES. EXCEPT FOR BUYER’S OBLIGATIONS TO MAKE PAYMENTS UNDER THIS AGREEMENT AND BUYER’S LIABILITY FOR INDEMNIFICATION, IN NO EVENT SHALL EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED TWO TIMES THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO WOOX PURSUANT TO THIS AGREEMENT IN THE YEAR PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Intellectual Property Rights. Buyer acknowledges and agrees that: (i) WOOX (or its licensors) will retain all intellectual property rights used to create, embodied in, used in and otherwise relating to the Products and any of their component parts; and (ii) any and all WOOX’s intellectual property rights are the sole and exclusive property of WOOX or its licensors.
Confidentiality. From time to time during the Term of this Agreement, either Party (as the "Disclosing Party") may disclose or make available to the other Party (as the "Receiving Party") information about its business affairs, products, services, confidential intellectual property, trade secrets, third-party confidential information and other sensitive or proprietary information (collectively, "Confidential Information"). Confidential Information shall not include information that, at the time of disclosure: (i) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach by the Receiving Party or any of its Representatives; (ii) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was known by or in the possession of the Receiving Party or its Representatives before being disclosed by or on behalf of the Disclosing Party; (iv) was or is independently developed by the Receiving Party without reference to or use, in whole or in part, of any of the Disclosing Party's Confidential Information; or (v) is required to be disclosed under applicable federal, state or local law, regulation or a valid order issued by a court or Governmental Authority of competent jurisdiction. The Receiving Party shall: (A) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (B) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (C) not disclose any such Confidential Information to any person or entity, except to the Receiving Party's Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement. The Receiving Party shall be responsible for any breach of this Section caused by any of its Representatives. On the expiration or termination of the Agreement, at the Disclosing Party's written request, the Receiving Party shall promptly return, and shall require its Representatives to return to the Disclosing Party all copies, whether in written, electronic or other form or media, of the Disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed.
Entire Agreement. This Agreement, including any exhibits and schedules, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement must be in writing and addressed to the other Party at its address set forth in the preamble to this Agreement (or to such other address that the receiving Party may designate from time to time). All notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid).
Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction
Amendment and Modification. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized Representative of each Party.
Waiver. No waiver under this Agreement is effective unless it is in writing and signed by an authorized representative of the Party waiving its right.
Assignment. This Agreement is binding on and inures to the benefit of the Parties and their respective permitted successors and permitted assigns. Buyer may not assign this Agreement or any of its rights hereunder or delegate any of its obligations under this Agreement without the prior written consent of WOOX. WOOX may assign any of this Agreement or any of its rights or delegate any of its obligations under this Agreement to any Person. Any purported assignment or purported delegation in violation of this Section 13(f) is null and void ab initio.
Governing Law. This Agreement, including all exhibits, schedules, attachments and appendices attached hereto and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the Laws of the State of North Carolina, United States of America, without regard to the conflict of laws provisions thereof. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not and shall not apply to this Agreement.
Choice of Forum. Each Party irrevocably and unconditionally agrees that it shall not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments and appendices attached hereto and thereto, and all contemplated transactions, in any forum other than the state and federal courts having jurisdiction in Mecklenburg County, North Carolina. Each Party: (i) irrevocably and unconditionally submits to the sole and exclusive jurisdiction of such courts, (ii) agrees to bring any such action, litigation or proceeding only in such courts, and (iii) waives all defenses to such jurisdiction and venue, including lack of jurisdiction, improper venue, and forum non conveniens.
Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
Force Majeure. WOOX shall not be liable or responsible to Buyer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, if such failure or delay is caused by or results from acts beyond WOOX’s control, including: (a) acts of nature; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) requirements of Law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any Governmental Authority (whether or not having the effect of Law); (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; (i) shortages of or delays in receiving raw materials; or (j) shortage of adequate power or transportation facilities.
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