TERMS AND CONDITIONS OF SALE
Client may purchase, and Chem0GLO shall provide, the Products described in Purchase Orders, all in accordance with the Terms and Conditions set forth herein. All Purchase Orders executed by Client and ChemoGLO shall be governed only by these Terms and Conditions. Each Purchase Order and these Terms and Conditions shall be referred to collectively as the “Agreement”. Any additional or different terms in Client’s documents (including, without limitation, contracts proposed by Client) are hereby deemed to be material alterations and notice of objection to and rejection of them is hereby given by ChemoGLO.
Purchase Orders may not be cancelled unless mutually agreed to in writing by Client and ChemoGLO.
The purchase price for the Products shall be as set forth in the Purchase Order. ChemoGLO will invoice Client for Products upon shipping such Products. All invoices are due and payable within thirty days of the date of invoice. Any payments not received within 30 days of the date due shall accrue interest from the date due until the date paid at twelve percent (12%) per annum or, if less, the maximum per annum rate permitted by law. Client agrees that ChemoGLO, in its sole discretion, may discontinue the sale of Products to Client if any payment is not received when due. All applicable taxes, including but not limited to sales/use taxes, transaction privilege taxes, gross receipts taxes, and other charges such as duties, customs, tariffs, imposts, and government imposed surcharges shall be paid by Client.
3. DELIVERY AND USE
A. ChemoGLO shall ship the Products to the address set forth in the Purchase Order. All ship dates provided by ChemoGLO are approximate and subject to ChemoGLO’s production and availability schedule. ChemoGLO shall not be liable for any damages resulting from delays in delivery of Products. Unless otherwise set forth in writing by ChemoGLO, all costs for shipping and transportation of the Products to the Client’s location, will be the sole responsibility of Client. Products shall be deemed to be accepted by Client upon delivery to the address set forth in the Purchase Order. Title and risk of loss for Products shall pass to Client upon delivery of the Products to the common carrier for delivery to Client.
B. Client shall use in strict compliance with the instructions included with the Products. Client shall not provide the Products to any third party (other than third parties using the Products on Client’s behalf).
C. Client shall not, and shall ensure that third parties using Products on its behalf do not, use the Products to copy, modify, disassemble, reverse engineer, or otherwise determine or attempt to determine the technology underlying the Products, or create any derivative works based upon the Products. Client agrees that any works created in violation of this section are improvements or derivative works and, as such, the Client hereby assigns all right, title and interest therein to ChemoGLO at the moment of creation.
4. DISCLAIMER OF WARRANTIES
THE PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS, AND CLIENT SHALL USE THE PRODUCTS AT ITS OWN RISK. CHEMOGLO MAKES NO WARRANTIES REGARDING THE PRODUCTS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5. GENERAL INDEMNIFICATION
A. Client shall, to the fullest extent permitted by law, protect, defend, indemnify, and hold ChemoGLO and its directors, officers, shareholder, employees, agents and contractors (“ChemoGLO Indemnified Parties”) harmless from and against any and all claims, liabilities, demands, penalties, forfeitures, suits, judgments, and the associated costs and expenses (including attorney’s fees) arising out of Client’s or its employees’, officers’, agents’, representatives’, licensees or contractors’ use of the Products.
6. INDEPENDENT CONTRACTOR
ChemoGLO is an independent contractor and its personnel and other representatives shall not act as nor be agents or employees of Client. As an independent contractor, ChemoGLO will be solely responsible for determining the means and methods for performing this Agreement.
A. The Agreement contains the entire understanding between Client and ChemoGLO with respect to the subject matter hereof and merges and supersedes all prior and contemporaneous agreements, dealings and negotiations. No modification, alteration, or amendment shall be effective unless made in writing, dated and signed by duly authorized representatives of both parties.
B. No waiver of any breach hereof shall be held to be a waiver of any other or subsequent breach.
C. If any provision of the Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such determination shall not affect the validity of the remaining provisions.
Client shall not assign this Agreement or any Purchase Order without ChemoGLO’s prior written consent. ChemoGLO may assign this Agreement or any portion thereof without the written consent of Client in connection with the sale of substantially all of its assets, a merger, consolidation, change in control or any assignment by operation of law.
9. LIMITATION OF LIABILITY
IN NO EVENT WILL CHEMOGLO BE LIABLE TO CLIENT FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS ARISING OUT OF, OR IN CONNECTION WITH, THE AGREEMENT, WHETHER OR NOT CHEMOGLO WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT, CHEMOGLO WILL NOT BE LIABLE TO CLIENT WITH RESPECT TO THIS AGREEMENT OR ANY PURCHASE ORDER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS IN THE AMOUNT CLIENT PAID TO CHEMOGLO UNDER THE APPLICABLE PURCHASE ORDER.
10. APPLICABLE LAW
The Agreement shall be interpreted and construed in accordance with the substantive and procedural laws of the State of North Carolina, excluding that body of law known as choice of law. All disputes with respect to the Agreement shall be brought and heard either in the North Carolina state courts located in Wake County, North Carolina, or the federal district court for the Eastern District of North Carolina located in Raleigh, North Carolina. The parties to the Agreement each consent to the jurisdiction and venue of such courts. The parties agree that service of process upon them in any such action may be made if delivered in person, by courier service, by telegram, by telefacsimile or by first class mail, and shall be deemed effectively given upon receipt.