ORBIS TERMS AND CONDITIONS OF SALE
1. Acceptance. These ORBIS Terms and Conditions of Sale (these “Terms”) are the only terms that govern the sale of goods (“Goods”) and services (“Services” and, together with Goods, “Products”) by ORBIS Corporation, including its subsidiaries (collectively “ORBIS”) to the purchaser (“Purchaser”) named on the applicable quote, order confirmation, invoice, or other document referencing these Terms (each a “Transaction Document” and, a Transaction Document together with these Terms, each this “Agreement”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties covering the sale of the Products covered hereby is in existence, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms. A Transaction Document may be modified or withdrawn by ORBIS at any time prior to Purchaser’s receipt of ORBIS’ acceptance. Any price quotation referencing these Terms shall expire if not accepted within ten (10) days from the date of the quotation, unless otherwise stated in such quotation. No purchase order shall be binding upon ORBIS unless accepted, in writing, by ORBIS, and then shall be solely governed by these Terms. Clerical errors in ORBIS’ quotations, acknowledgements, shipping documents, and invoices are subject to correction, and such errors do not relieve Purchaser of Purchaser’s obligations contained in this Agreement.
2. No Conflicting or Additional Terms. This Agreement constitutes the entire agreement between ORBIS and Purchaser with respect to the subject matter hereof, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. All terms, conditions and specifications are set forth in these Terms or on the face or back of the applicable Transaction Document or on any attachments thereto. There are no warranties, agreements, or understandings, either express or implied, affecting it, except as set forth in these Terms or on the face or back of the applicable Transaction Document or on an attachment thereto. The terms of this Agreement expressly exclude and prevail over any of Purchaser’s general terms and conditions contained in any documentation issued by Purchaser, including without limitation any terms referenced or included in any purchase order issued by Purchaser. ORBIS expressly rejects any and all additional or contradictory terms specified in any purchase order, email, acknowledgment, confirmation, or other document supplied by Purchaser pertaining to the Products or this Agreement. No online or electronic terms or conditions will be binding upon ORBIS even though such terms may have been “accepted” by ORBIS in order to access or use any system.
3. Pricing. Unless specifically held open for a length of time on the applicable Transaction Document, all prices are subject to change without notice and all Products will be invoiced to and paid by Purchaser at ORBIS’ prices in effect at the time of delivery or performance. All prices are exclusive of freight and transportation charges. Purchaser shall be responsible for any and all manufacturer’s tax, retailer’s occupation tax, use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee, or charge of any nature whatsoever, imposed by any governmental authority, on or measured by any transaction between Purchaser and ORBIS (other than taxes on or measured by ORBIS’ net income). If ORBIS is required to pay any such tax, fee, or charge, Purchaser shall promptly reimburse ORBIS. Purchaser agrees to reimburse ORBIS for all reasonable travel and out-of-pocket expenses incurred by ORBIS in connection with the performance of any Services.
4. Payment. Payments for Products shall be due and payable in accordance with the terms printed on the Transaction Document, without offset or deduction. If payment terms are not set forth on an applicable Transaction Document, payment shall be due in full within ten (10) days of invoice, without discount. Overdue payments shall bear interest at a rate of one and one-half percent (1.5%) per month, or the highest rate permitted by applicable law, from the date due until paid. Notwithstanding the foregoing, in the event that Purchaser fails to make any timely payment required under this Agreement, ORBIS may, in ORBIS’ sole and absolute discretion and without limiting any other rights or remedies available to ORBIS, (a) suspend or defer the Services and further shipments of the Goods to Purchaser (including Products under open orders) until such failure is remedied and/or (b) change the payment terms to cash on delivery or cash in advance. Purchaser shall pay all collection fees, including attorneys’ fees, incurred by ORBIS in connection with attempting to collect on any and all outstanding amounts due and owed to ORBIS.
5. Shipments. The Goods will be shipped via common carrier, unless Purchaser directs a different mode of transportation. ORBIS shall not be liable for any delays, loss or damage in transit. Title and risk of loss or damage to the Goods will pass to Purchaser upon delivery by ORBIS to the common carrier. Purchaser is liable for any costs associated with packaging shipments to meet any applicable laws and regulations, and such costs will be charged to Purchaser at the time of invoice. ORBIS is not liable for costs, delays, or damages caused by any failure by Purchaser to notify ORBIS of any packaging or shipping requirements. Stated delivery dates are approximate only, and ORBIS reserves the right to readjust shipment schedules without liability. ORBIS reserves the right, without any liability or penalty, to make delivery in installments; each shipment will constitute a separate sale, and Purchaser shall pay for the units shipped whether such shipment is in whole or partial fulfillment of this Agreement. Acceptance by Purchaser of the Goods waives any claim for loss or damage resulting from a delay, regardless of the cause of the delay. If a Goods shipment is delayed or suspended by Purchaser, Purchaser will pay the invoice price for the Products as per the normal payment terms based on the original delivery date, together with ORBIS’ handling, storage charges, demurrage, and similar charges in effect, if any. Once an order has been placed by Purchaser and accepted by ORBIS, such order is not cancelable by Purchaser. ORBIS may from time to time consider, but accept or reject in ORBIS’ sole discretion, an order cancellation request from Purchaser, but no such request shall be allowed with respect to any Goods delivered or in transit to Purchaser. ORBIS may cancel or modify any order or Transaction Document at any time in its sole discretion without liability. If for any reason Purchaser fails to accept delivery of any Goods on the date tendered for delivery by ORBIS, or if ORBIS is unable to deliver the Goods at the applicable delivery point on such date because Purchaser has not provided appropriate instructions, documents, licenses or authorizations: (a) risk of loss to the Goods shall immediately pass to Purchaser; (b) the Goods shall be deemed to have been delivered; and (c) ORBIS, at its option, may store the Goods until Purchaser picks them up, whereupon Purchaser shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
6. Quantity. If ORBIS delivers to Purchaser a quantity of Goods of up to 20% more or less than the quantity set forth in the applicable Transaction Document, Purchaser shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in this Agreement, adjusted pro rata.
7. Return of Goods. Prior to any return of Goods to ORBIS, Purchaser must contact ORBIS and obtain written authorization from ORBIS to return such Goods (“Return Authorization”). ORBIS will not accept any returned Goods without a Return Authorization. Return Authorizations shall be granted in ORBIS’ sole and absolute discretion. Purchaser shall return all Goods using the packaging and shipping guidelines as prescribed by ORBIS, freight prepaid by Purchaser. All Goods returned to ORBIS must be in their original, saleable condition in which they were delivered to Purchaser. ORBIS, in its sole discretion, shall determine whether the Goods returned are in their original, saleable condition. In the event that ORBIS determines that any returned Product is not in saleable condition, ORBIS will notify Purchaser, and Purchaser shall be responsible for the replacement costs incurred by ORBIS, and ORBIS shall invoice Purchaser the cost of any such replacement. ORBIS shall reimburse or otherwise credit Purchaser for the cost of Goods actually returned in accordance with this Section at the amount Purchaser was originally invoiced for such Products, less a restocking fee equal to the greater of twenty percent (20%) of the sales value of the returned Goods or twenty-five ($25) US Dollars per returned Good. Purchaser shall be responsible for the cost of all duties and insurance related to the return of the Products. Under no circumstances shall Goods made to special color and/or particular specifications of Purchaser be eligible for return.
8. Performance of Services. ORBIS shall use reasonable efforts to meet any performance dates to render the Services specified in this Agreement, and any such dates shall be estimates only. With respect to the Services, Purchaser shall (a) cooperate with ORBIS in all matters relating to the Services and provide such access to Purchaser’s premises, and such office accommodation and other facilities as may reasonably be requested by ORBIS, for the purposes of performing the Services; (b) respond promptly to any ORBIS request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for ORBIS to perform Services in accordance with the requirements of this Agreement; (c) provide such customer materials or information as ORBIS may reasonably request to carry out the Services in a timely manner, and ensure that such customer materials or information are complete and accurate in all respects; and (d) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
9. Purchaser’s Acts or Omissions. If ORBIS’ performance of its obligations under this Agreement is prevented or delayed by any act or omission of Purchaser or its agents, subcontractors, consultants or employees, ORBIS shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Purchaser, in each case, to the extent arising directly or indirectly from such prevention or delay.
10. Compliance with Laws. Purchaser shall comply with all applicable laws, regulations and ordinances. Purchaser shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
11. Intellectual Property. All intellectual property rights in and to the Products and any other materials that are delivered to Purchaser in connection with this Agreement or prepared by or on behalf of ORBIS in connection with this Agreement shall be and remain the exclusive property of ORBIS. Purchaser shall assist ORBIS, to the extent reasonably requested by ORBIS, in the procurement of any protection or defense of ORBIS’ intellectual property that relates to the Products. Except as otherwise expressly and specifically provided on the face of a Transaction Document hand-signed by an authorized representative of ORBIS, no license, transfer or assignment of proprietary rights shall occur as a result of this Agreement. Purchaser warrants that any trademarks Purchaser requests ORBIS to affix to any Product is owned or authorized for such use by Purchaser.
12. Confidentiality. If Purchaser and ORBIS are parties to a confidentiality and/or non-disclosure agreement, the terms of such agreement are incorporated herein by this reference and will control the disclosure of any confidential or proprietary information. If Purchaser and ORBIS are not parties to such an agreement, without ORBIS’ prior written consent Purchaser will not at any time disclose or allow to be accessed any confidential, non-public or proprietary information acquired by Purchaser through or in connection with this Agreement, and may only use such information for the purpose of performing under this Agreement. Such information includes, without limitation, ORBIS’ specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, supply volumes, information about ORBIS’ relations with its employees or its manner of operation, inventions, processes, and trade secrets, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential”. Purchaser may not take with it upon termination of this Agreement any drawings, blueprints, specifications, documents, or other papers, or any tools or materials, whether or not containing confidential information, except with the prior written consent of ORBIS. Upon ORBIS’ request, Purchaser shall promptly return all documents and other materials received from ORBIS or incorporating or based upon, in whole or in part, such materials. ORBIS shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Purchaser at the time of disclosure; or (c) rightfully obtained by Purchaser on a non-confidential basis from a third party.
13. Limited Warranty; Exclusive Remedy. ORBIS warrants to Purchaser that it shall perform the Services in accordance with generally recognized industry standards, and that, for a period of twelve (12) months from the date of shipment, each Good shall be free from defects in material and workmanship and shall be manufactured in accordance with the industry standards generally applicable to such Goods. The foregoing limited warranty runs only to Purchaser and not to purchasers of the Products from Purchaser. If a Product does not comply with the foregoing limited warranty, and a claim is made by Purchaser within the applicable warranty period, ORBIS will, at the option of ORBIS, either repair, replace or reperform any and all defective Products free of charge, or grant to Purchaser a credit in an amount equal to the purchase price of the applicable Products. The remedy of repair, replacement, reperformance or credit is the sole and exclusive remedy for breach of the foregoing warranty. At ORBIS’ request, Purchaser shall return to ORBIS any Goods for which a warranty claim has been made, F.O.B. ORBIS’ facility with freight prepaid. ORBIS will credit Purchaser’s account for such freight cost upon verification by ORBIS that the Goods are defective. The foregoing limited warranty shall not apply to defective Products that have been subject to misuse, abuse, alteration, modification or improper repair. To the extent any products manufactured by a third party (“Third Party Product”) may be contained in, incorporated in, attached to or packaged together with any Products, such Third Party Products are not covered by the warranty in this Section and are provided “as-is”. For the avoidance of doubt, ORBIS MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. THE FOREGOING WARRANTY IS THE ENTIRE AND EXCLUSIVE WARRANTY REGARDING THE PRODUCTS AND IS IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES WHATSOEVER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY. ORBIS shall not be liable for a breach of the warranties set forth in in this Section unless: (i) Purchaser gives ORBIS written notice of the defective Products, reasonably described, within five (5) days of the time when Purchaser discovers or ought to have discovered the defect; (ii) ORBIS is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in this Section to examine such Products and Purchaser (if requested to do so by ORBIS) returns any such Goods to ORBIS’ place of business at ORBIS’ cost for the examination to take place there; and (iii) ORBIS reasonably verifies Purchaser’s claim that the Products are defective. THE REMEDIES SET FORTH IN THIS SECTION SHALL BE PURCHASER’S SOLE AND EXCLUSIVE REMEDY AND ORBIS’ ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN THIS SECTION.
14. Limitation of Liability. ORBIS SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS OR LABOR COSTS, ARISING FROM THE SALE, USE OR PROVISION OF THE PRODUCTS, FROM THE PRODUCTS BEING INCORPORATED INTO OR BECOMING A COMPONENT OF ANOTHER PRODUCT, FROM ANY BREACH OF THIS AGREEMENT OR FROM ANY OTHER CAUSE WHATSOEVER, REGARDLESS OF WHETHER THE CLAIM GIVING RISE TO SUCH DAMAGES IS BASED UPON BREACH OF WARRANTY (EXPRESSED OR IMPLIED), BREACH OF CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EVEN IF ORBIS HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN ADDITION, ORBIS’ TOTAL AGGREGATE LIABILITY to PURCHASER for ANY and all DAMages arising out of or relating to thIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID BY PURCHASER TO ORBIS PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE RELEVANT EVENT GIVING RISE TO SUCH LIABILITY.
15. Indemnification. Purchaser shall indemnify, defend and hold ORBIS and its directors, officers, shareholders, employees, agents, successors and assigns harmless from and against any and all damages, liabilities, losses, obligations, judgments, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising out of or in connection with (a) Purchaser’s breach of this Agreement; (b) Purchaser’s failure to comply with any law or regulation; (c) Purchaser’s negligent or more culpable acts or omissions; (d) Purchaser’s use of the Products in any manner not specifically authorized by ORBIS in writing; or (e) claims, suits or proceedings brought against ORBIS alleging that the Products constitute a misappropriation or infringement of any patent, copyright, trademark, or trade secret, or any other proprietary rights of any third party and such claim, suit or proceeding is based upon, or would have been avoided but for: (i) ORBIS’ compliance with any designs, drawings, samples, specifications or instructions regarding the Products provided by Purchaser; (ii) the modification of the Products following shipment by ORBIS; or (iii) the combination, operation or use of the Products with devices, products, parts, or software not supplied by the ORBIS.
16. Independent Contractor. Purchaser and ORBIS are independent contractors, and neither party has nor will have any power, nor represent that it has any power, to bind the other party or to create any obligation or responsibility, express or implied, on behalf of the other party, or in the other party’s name.
17. Force Majeure. If ORBIS’ performance of any obligation under this Agreement is prevented, restricted or interfered with by any act of God, fire or other casualty, strikes or labor disputes, embargo, power or supplies, war or violence, acts of terrorism, or any law, order, proclamation, ordinance, demand or requirement of any governmental agency, or any other event beyond ORBIS’ reasonable control, whether or not similar (each, an “Event of Force Majeure”), ORBIS shall give Purchaser written notice thereof, setting forth in such notice the date of the commencement of the Event of Force Majeure. The existence of an Event of Force Majeure shall justify the suspension of performance under this Agreement by ORBIS and will extend the time for such performance for a period equal to the period of delay; provided, however, that if such period of delay exceeds sixty (60) calendar days from the date of commencement of the Event of Force Majeure, then Purchaser may terminate the applicable order immediately upon written notice to ORBIS.
18. Export Compliance. Purchaser acknowledges and agrees that to the extent Purchaser is not the ultimate end-user of the Products purchased pursuant to this Agreement and intends to resell or further distribute the Products, Purchaser will be responsible for complying with all applicable laws, including all U.S. and other export control laws and regulations. Purchaser shall not use or otherwise export or re-export the Products except as authorized by United States law and the laws of the jurisdiction in which the Products were obtained by Purchaser. Without limiting the foregoing, Purchaser shall not use, transfer, export or re-export the Products to countries on which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”), each of which may change from time to time. By purchasing the Products, Purchaser represents and warrants that Purchaser is not located in, under the control of, or a national or resident of, an Embargoed Country, and that Purchaser is not, and is not under the control of, a Designated National. In addition to any other indemnification obligations Purchaser may have to ORBIS, Purchaser shall indemnify, defend and hold ORBIS harmless from and against any and all claims, actions, liabilities, penalties, fines, and expenses of whatever kind (including without limitation attorneys’ fees) arising out of or relating to any breach of the foregoing or any resale, export or distribution of the Products.
19. Insurance. During the term of this Agreement and for five years thereafter, Purchaser shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $1,000,000 with financially sound and reputable insurers. Upon ORBIS’ request, Purchaser shall provide ORBIS with a certificate of insurance from Purchaser’s insurer evidencing the insurance coverage specified in these Terms. The certificate of insurance shall name ORBIS as an additional insured. Purchaser shall provide ORBIS with 10 days’ advance written notice in the event of a cancellation or material change in Purchaser’s insurance policy. Except where prohibited by law, Purchaser shall require its insurer to waive all rights of subrogation against ORBIS and ORBIS’ insurers.
20. Termination. In addition to any remedies that may be provided under these Terms, ORBIS may terminate this Agreement with immediate effect upon written notice to Purchaser, if Purchaser: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.