1. Scope; Acceptance of Terms. The terms and conditions of sale (“Terms and Conditions”) set forth herein shall apply to all sales of goods (“Products”) by a vendor or other seller of goods or products (“Seller”) to Dunbar Security Products, Inc., a Maryland corporation and/or its various subsidiaries and affiliates, as the case may be (“Buyer”), pursuant to the terms and conditions of a purchase order (“Purchase Order”) issued by Buyer for the acquisition of Products. Any Purchase Order is expressly conditioned on Seller’s acceptance of all the Terms and Conditions. No term or condition of Seller’s invoice or quotation which is different from, or in addition to, the terms and conditions set forth herein shall be binding on Buyer, except to the extent, such different or additional terms or conditions are expressly acknowledged and accepted by Buyer in writing.
2. Time of Delivery. Seller shall deliver the Products to the location identified in the Purchase Order on or before the delivery date specified in the Purchase Order (“Delivery Date”). Time is of the essence and failure to deliver the Products on or before the Delivery Date shall constitute a material breach of these Terms and Conditions. In the event that Seller reasonably believes that it will not deliver the Products by the Delivery Date, Seller shall immediately notify Buyer. Notification of Buyer shall not relieve Seller of Buyer’s right to damages against Seller for failure to deliver the Products on or before the Delivery Date and Seller shall indemnify Buyer for any and all costs and charges incurred by Buyer in obtaining alternative Products.
3. Shipment and Risk of Loss. Products are sold F.O.B. delivery point (Buyer’s or Buyer’s customer’s facility, as the case may be) and all costs incurred in delivery of the Products, including, but not limited to packaging, shipping, insurance, and fees, are included in the price set forth in the Purchase Order. Seller shall package and ship all Products in a manner so as to protect the Products from any harm or damage in shipment. Buyer reserves the right to require Seller to conform to any shipment requirements reasonably requested by Buyer.
4. Prices; Terms of Payment.
a. Prices. The Purchase Price for the Products shall be the purchase price stated in the Purchase Order (“Purchase Price”). Subject to the terms of Section 4.2 below captioned “Taxes,” the Purchase Price includes any and all costs associated with the production, shipment, and delivery of the Products, including, but not limited to, any necessary expediting of the manufacturing of the Products to deliver the Products by the Delivery Date.
b. Taxes. The Purchase Price does not include taxes. Consequently, the amount of any value added tax or any sales, use or similar tax applicable to the sale of Products or to the use of such Products by Buyer shall be paid by Buyer, but shall be clearly noted on any invoice from Seller to Buyer.
c. Payment. Unless otherwise agreed in writing, payment is due within 30 days of the date Buyer accepts the Products pursuant to Section 5 hereof captioned, “Inspection of Products and Acceptance.”
5. Inspection of Products and Acceptance. Buyer shall have a commercially reasonably time after delivery, but in no event less than thirty (30) days after delivery of the Products, to inspect the Products and either accept the Products or reject the Products if the Products do not conform with the Specifications (as hereafter defined) or are otherwise defective. Acceptance of the Products shall not waive or otherwise limit Buyer’s rights or remedies available under applicable law or these Terms and Conditions. In the event that Buyer rejects the Products, in Buyer’s sole discretion and at Seller’s sole costs and expense, Seller shall either: (i) immediately remove the Products from the place of delivery and replace the Products with conforming Products; (ii) repair any non-conformance or defect in the Products; or (iii) refund Buyer for the rejected Products. Buyer’s rights and remedies described in this Section shall be in addition to and shall not be exclusive of or otherwise waive any of Buyer’s other rights or remedies available under applicable law or these Terms and Conditions.
6. Seller’s Warranty.
a. Warranty Terms. Seller represents and warrants that all Products manufactured and/or delivered by Seller shall: (i) comply with the specifications described in the Purchase Order and any documents incorporated therein or otherwise provided to Seller by Buyer or, with respect to any non-customized Products, the specifications published by Seller as of the date of the Purchase Order (“Specifications”); (ii) will be free from defects in material and workmanship under normal use and service; (iii) will be made of new materials of the highest quality; (iv) will be merchantable; (v) will be fit for the purpose intended by Buyer and its customers; and (vi) not infringe on any intellectual property interest of any third-party.
b. Period. Except as provided below and except in the case of latent defects, the warranty set forth herein shall remain in force for a period of three (3) years from the date of delivery of a given Product. Notwithstanding the foregoing, the time period of the warranty set forth herein shall restart upon the performance of any repairs by Seller or its agents performed in connection with any warranty claims by Buyer.
c. Transferability. The warranty set forth in this Agreement shall be freely transferable and assignable by Buyer and/or any of Buyer’s successors in interest.
d. Remedies. Upon a breach of the warranty by Seller, Buyer may, in Buyer’s sole discretion, require Seller at Seller’s costs to either: (i) immediately remove the Products from the place of delivery and replace the Products with conforming Products; (ii) repair any non-conformance or defect in the Products; or (iii) issue a refund to Buyer for the defective Products. Additionally, Seller shall defend, indemnify and hold Buyer harmless from or against any and all losses, damages, harms arising from or in connection with the breach of warranty by Seller. Buyer’s rights and remedies described in this Section shall be in addition to and shall not be exclusive of or otherwise waive any of Buyer’s other rights or remedies available under applicable law or these Terms and Conditions.
7. Third-Party Warranties. In addition to (and not in lieu of) Seller’s warranties described in the immediately-preceding Section 6 captioned “Seller’s Warranties,” if and to the extent Seller is the beneficiary of any manufacturer’s warranty or similar warranty or indemnity provided by a third-party related to the Products (a “Third-Party Warranty”), such Third-Party Warranty shall be, to the extent assignable, assigned by Seller to Buyer for the purpose of making any claims against the third-party related to the Products. If and to the extent the Third-Party Warranty is not assignable, at the request of Buyer, Seller agrees to pursue any claims for breaches of the Third-Party Warranties on behalf of Buyer and to promptly remit to Buyer any recovery arising out of or related thereto.
8. Attorneys’ Fees. In the event of any dispute between Seller and Buyer arising out of related to the Products or a breach by Seller of these Terms and Conditions (or any other agreement between the Parties related to the Products), in addition to any other rights and remedies afforded by these Terms and Conditions and applicable law, Buyer shall be entitled to recover its reasonable attorneys’ fees and other costs and expenses related to such dispute.
9. Limitation on Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BUYER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE PURCHASE ORDER OR THE PRODUCTS EXCEED THE TOTAL AMOUNT ACTUALLY PAID OR PAYABLE BY BUYER TO SELLER FOR THE APPLICABLE PRODUCTS PROVIDED UNDER THE PURCHASE ORDER NOR WILL BUYER OR ITS RELATED LEGAL ENTITIES BE LIABLE FOR ANY LOST REVENUES, LOST PROFITS, INCIDENTAL, DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF.
10. Indemnity. Seller shall defend, indemnify and hold Buyer, its affiliates, and their respective officers, agents and employees harmless from and against any and all losses, liabilities and damages, including, without limitation, reasonable attorneys’ fees, arising out of or in connection with (a) any alleged or actual infringement of patents, trademarks or other intellectual property rights arising out of the Products; (b) a violation by Seller of any governmental laws, rules, ordinances or regulations; (c) the negligent acts and/or omissions and/or the misconduct of Seller and/or any of its officers, agents or employees; and/or (d) the breach of the provisions of these Terms and Conditions, any quotation and/or other agreement between Buyer and Seller by Seller with respect to the purchase and sale of Products.
11. Governing Law / Jurisdiction. These Terms and Conditions, and any disputes arising out of or related to the Products, shall be governed by the laws of the State of Maryland, without regard to conflict of laws principles. Seller irrevocably consents to the exclusive jurisdiction and venue of the courts of Maryland or in the United States District Court for the District of Maryland (if a basis for federal jurisdiction exists) for all matters arising out of or relating to the sale of Products hereunder.
12. Severability. If any part of these Terms and Conditions is held void or unenforceable, such part, to the extent void or enforceable will be treated as severable, leaving valid the remainder of the Terms and Conditions which shall be deemed revised so as to remain enforceable to the greatest extent possible.
13. Headings. Headings used herein are for the convenience of reference and are not intended to limit or modify the express terms hereof.
14. Integration. The terms of the agreement by and between Buyer and Seller shall be limited to these Terms and Conditions and the Purchase Order submitted by Buyer. These Terms and Conditions and the Purchase Order submitted by Buyer shall supersede all prior agreements and understandings, whether written or oral, among the parties with respect to the Products and any subsequent terms and conditions submitted by Seller shall be null, void, and of no force and effect.
15. Waiver of Jury Trial. THE BUYER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THE PRODUCTS, THE PURCHASE ORDER, THESE TERMS AND CONDITIONS, OR ANY ANOTHER MATTER ARISING OUT OF OR RELATED TO ANY OF THE FOREGOING.