Purchase Order Terms & Conditions

MM HERMAN PURCHASE ORDER TERMS & CONDITIONS

  1. Applicability.

    1. These Terms of Purchase (these “Terms” or “Terms of Purchase) are the only terms which govern the sale of the goods (the “Items”) by Seller to Buyer. The Parties agree that these terms shall apply to and control all purchases for Items.

    2. These Terms of Purchase and any and all accompanying sales confirmations, if applicable (each Sales Confirmation”) (collectively, this “Agreement”), comprise the entire agreement between the Parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Seller’s general terms and conditions or any other terms emanating from Seller, including without limitation terms specified on an invoice, regardless of whether or when Seller has submitted its invoice and/or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Seller’s terms and conditions and does not serve to modify or amend these Terms.

  2. Definitions. Capitalized terms not otherwise defined in this Agreement have the meaning set forth in this Section.

    1. Buyermeans MM Herman & Associates, LLC, a New Jersey limited liability company.

    2. Affiliates” refers to a party’s executives, members, employees, officers, contractors, consultants, attorneys, advisers, investors, board members, directors, partners, joint ventures, parents, subsidiaries, successors, assigns, and any controlling and/or acquiring individual and/or entity and each of their respective affiliates. For the avoidance of doubt, Buyer’s “Affiliates” excludes the manufacturers and distributors of Items and their affiliates, in particular but without limitation Seller and Seller’s Affiliates.

    3. Sellerrefers to any entity receiving a purchase, as well as any entity or other individual on whose behalf Seller is acting.

    4. Party” means each of Seller and Buyer.

    5. Parties” means Seller and Buyer, collectively.

  3. Conflicts. Each Party represents and warrants that it is legally able to fulfill all obligations under this Agreement, without conflict to any pre-existing obligation, agreement, restriction, or condition and will remain free of any such conflict at all times during the duration of this Agreement.

  4. Basic Standards of Conduct.

    a. Improper Use. Seller agrees that the purchase/sale of Items shall not directly or indirectly constitute, involve, attempt, aid, support, incite, encourage, advise, bring about, and/or facilitate any of the followin:

  1. A violation and/or circumvention of applicable law, regulation, and/or standard of conduct;

  2. A breach of an agreement, legal obligation, or responsibility;

  3. Interference with an existing business relationship and/or contract;

  4. An unlawful, unfair, and/or deceptive business act, practice, or scheme;

  5. Extortion, fraud, and/or identity theft;

  6. Impersonation, misrepresentation, and/or another reckless or knowing provision of false, incomplete, inaccurate, or outdated information;

  7. Tortious conduct not previously describe; or

  8. Any other violation of the Agreement.

b. All Rights Reserved. Seller acknowledges and agrees that all trademarks, service marks, logos, trade names, trade dress, slogans, designs, and any other proprietary designations of Buyer regardless of the size of the print or the presence of a legal designation (e.g., TM, ® or ©) – are trademarks, registered trademarks, or protected marks of Buyer, its Affiliates, or third parties other than Seller and its Affiliates, and are protected by United States and international law from reproduction, imitation, confusing and/or misleading usage, dilution, and/or any other unfair usages. This includes, without limitation, “MM Herman.” Nothing expressly stated or implied by the Agreement shall give Seller any right, license, or other form of permission to use the Buyer name, or any trade names, logos, service marks, trade dress, slogans, and designs that belong to Buyer and/or its licensors. Seller agrees that its use or misuse of intellectual property belonging to Buyer, its Affiliates, its licensors, and any other related parties is hereby expressly prohibited, unless otherwise expressly authorized in writing.

5. Survival. All terms and conditions in these Terms of Purchase which are reasonably intended to survive beyond the lifespan of the Parties’ transaction shall so survive, regardless of whether there is payment and delivery in full. This includes, without limitation, the terms and conditions set forth in the following Sections: Sect ion 2 (“Definitions”); Section 4 (“Basic Standards of Conduct”); Section 5 (“Survival”); Section 9 (“Confidentiality”); Section 10 (“Shipments, Delivery, Inspection, and Acceptance”); Section 11 (“Seller Warranties”); Section 12 (“Limitation of Liability”); Section 13 (“Indemnification”); Section 14 (“Injunctive Relief”); Section 15 (“Non-Interference”), Section 16 (“Procedural Considerations”); and Section 17 (“Non-Binding”), and Section 18 (“Miscellaneous”). Each surviving term and condition shall survive until its purpose is fulfilled and/or no longer applicable or, otherwise, indefinitely. To the extent any of the foregoing Sections, Paragraphs, and/or Policies contain one or more provisions which are not applicable as to this Section 5 (“Survival”), the Parties acknowledge and agree that the inapplicable provision(s) shall simply be severed from interpretation, and that the rest of the provisions shall survive as described in this Section.

Purchases, Prices, & Payments.
    1. Purchase of Items. Seller shall make Items available for sale to Buyer and its Affiliates. Seller shall at all times abide by the warranties and representations set forth in this Agreement. As to Buyer and its Affiliates, Seller shall follow best commercial practices and conduct business in a manner that is consistent with or better than its standard practices and procedures in designing, manufacturing, assembling, packaging, storing, and arranging for the shipment and delivery of Items. Seller shall make best efforts to adhere to all lead times and product commitments. Seller shall not deviate in a negative direction with respect to standard practices, procedures, pricing, materials, personnel, and/or timeframes during the course of manufacturing and furnishing Items for sale to Buyer. Buyer shall have the right to purchase Items from Seller at the prices set forth in Exhibit A, hereto attached, or if not included in Exhibit A, at the price specified in the initial Sales Confirmation for the purchase of a given Item (“Prices”). Seller shall not increase Prices to Buyer at any point, except to extent reasonably necessary to account for a good-faith increase in Seller’s production costs. To the extent Seller makes a substantially equivalent Item available to Buyer in lieu of a previously available Item, Seller shall sell that Item to Buyer at the same price as or less than the price of the original Item, except to the extent reasonably necessary to account for increased production costs.

    2. Payment Terms. Seller will invoice Buyer for the sale of Items, and Buyer shall pay all invoiced amounts due to Seller within 30 (thirty) days of the date of receipt of Seller’s invoice, or as the parties may otherwise agree in a document signed by Buyer. Buyer shall pay interest on all late payments at the rate of 1.5% per annum, calculated and compounded annually.

  1. Exclusivity Option. Seller agrees that Buyer holds a non-extinguishable option to place and receive an order for Seller’s entire available inventory and/or production output as to one or more given Items - at any time, for any reason, and, with respect to the production output, for any length of time chosen by Buyer. If Buyer chooses to exercise this option, Seller agrees that it shall: (a) refrain from fulfilling any orders for said Item(s) from available inventory and/or for the time period designated with the understanding that it may fulfill and ship pre-existing orders; (b) honor its obligations with respect to the Prices of said Items; and (c) continue to obtain and/or produce said Items subject to the same materials, manufacturers, processes and practices, lead times, production schedules, and delivery commitments as prior to Buyer exercising its option.

  2. Labelling. At Buyer’s request and upon Seller's written agreement, Seller will affix a label reflecting Buyer’s name, logo, and/or slogan as solely determined and provided by Buyer onto each Item it sells to Buyer, in the location agreed to by both Buyer and Seller.

  3. Confidentiality.


a. “Confidential Information” refers to any non-public information that concerns, arises out of, and/or relates to the prospective and/or actual business of a Party and/or a Party’s officers, executives, employees, agents, attorneys, legal representatives, affiliates, consultants/contractors, licensees, advisors, investors, joint ventures, spinoff, parents, subsidiaries, successors, assignsdirectly or indirectly, in any medium including without limitation, information concerning any prospective and actual: business and personal contacts; products and product lines; prices, bids, and pricing information; research; developments; products; financial plans; financial results and information (e.g. revenue, costs, rates, expenses, profits, losses, compensation amounts and structures); legal analyses; business plans, analyses, and/or models; markets; customers; business partners; engagements and/or engagement details; vendors/suppliers; distributors; service providers; technology and/or technology usage; sales and marketing; investment and fundraising matters, and/or other sensitive matters concerning the Party. Each Party shall treat the existence and terms of this Agreement as Confidential Information. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party's breach of this Agreement; (b) 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; (c) was in Receiving Party's possession prior to Disclosing Party's disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information.

b. 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 use to 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 its affiliates, employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, service providers, sublicensees, subcontractors, attorneys, accountants, or financial advisors who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to: (i) understand these terms and conditions; (ii) evaluate the parties’ rights, obligations, and entitlements hereunder; and/or (iii) exercise its rights or perform its obligations under this Agreement. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party's sole cost and expense, a protective order or other remedy. Insofar as the Receiving Party needs to disclose Confidential Information to one or more individuals who need-to-know, the Parties covenant that any such individual(s) will first execute a written agreement that contains confidentiality terms that are, at least, equally as protective of the Disclosing Party’s rights as the terms specified in this Section. The Parties acknowledges that, in the event of any breach of this Confidentiality Section, the Disclosing Party will not have an adequate remedy in money or damages. The Disclosing Party therefore shall be entitled in such event to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. The Disclosing Party’s right to obtain such relief shall not limit its right to obtain other remedies.


  1. Shipments, Delivery, Inspection & Acceptance.

    1. Shipping. The Parties agree that delivery of the Items will be made F.O.B. (Destination Point) to the location specified in the Sales Confirmation. The right, title, and interest in and to any Item Buyer purchases along with the risk of and responsibility for any loss, damage, and/or destruction as to any Itemshall pass to Buyer or Buyer’s designated recipient upon acceptance of said Item by Buyer or Buyer’s designated recipient. Seller agrees that any claims, disputes, controversies, and/or causes of action for loss or damage in transit shall be made by Seller directly against the carrier; Seller agrees that neither Buyer nor Buyer’s designated recipient shall be responsible for bringing or defending against any such claims, disputes, controversies, and/or causes of action.

    2. Lead Time. Seller will use commercially reasonable efforts to ship all Items within lead time specified in the Sales Confirmation for those Items. In the event that Seller is unable to ship the Items within that period, Seller shall notify Buyer, with a revised shipping date; Buyer shall then have the option to either proceed with the belated shipment or cancel, in whole or in part, and receive a refund for any purchased Item(s), provided that such cancellation occurs before the belated Items have been provided to Seller’s shipping carrier.

    3. Inventory Records. Delivery and/or inventory records with respect to an Item, as recorded by Buyer and/or Buyer’s designated recipient at or around the time of receipt, shall be conclusive evidence of the product type, make, model, quantity received by Buyer or Buyer’s designee on delivery unless Seller can provide conclusive evidence proving the contrary.

    4. Acceptance of Items. Buyer or Buyer’s designee may inspect the delivered Items within thirty (30) business days of receipt (“Inspection Period”) of the Items and either accept or reject such Items. Buyer or Buyer’s designee will be deemed to have accepted the Items unless, prior to the conclusion of the Inspection Period, Buyer and/or Buyer’s designee notifies Seller of: (a) one or more defects in design, material, workmanship, manufacturing, assembly, and/or packaging as to one or more Items; (b) non-conformity in terms of product type, make, model, and/or quantity; (c) one or more Items arriving broken, incomplete, or otherwise dysfunctional. If Buyer and/or Buyer’s Designee timely notifies Seller of any of the aforementioned, Seller agrees that Buyer and/or Buyer’s designee holds the option of: (a) cancelling the order and receiving a refund, in whole or in part; or (b) as applicable, (i) returning the problematic Item(s) and/or receiving a repair or replacement at Seller’s expense and/or (ii) receiving the missing Item(s) in a subsequent delivery.

  2. Seller Warranties.

a. IN CONNECTION WITH EACH ITEM SOLD TO BUYER, SELLER PROVIDES THE FOLLOWING WARRANTIES: (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE AND (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.

  1. SELLER AGREES THAT ALL WARRANTY, SERVICE, AND REPAIR OBLIGATIONS WHICH WOULD RUN TO BUYER ARE EXTENDED TO THOSE PERSON, COMPANIES, ENTITIES, AND/OR ORGANIZATIONS THAT PURCHASE ONE OR MORE ITEM(S) FROM BUYER AND/OR ITS DISTRIBUTORS JUST AS THOUGH THESE PURCHASERS DIRECTLY PURCHASED THE ITEM(S) FROM SELLER ITSELF. SELLER ACKNOWLEDGES AND AGREES THAT ALL MATTERS ARISING OUT AND/OR RELATING TO ANY MANUFACTURER AND/OR SUPPLIER WARRANTY OBLIGATIONS RUN STRICTLY BETWEEN SELLER AND THE PARTY SEEKING WARRANTY COVERAGE. BETWEEN BUYER AND, SELLER ASSUMES ALL RESPONSIBILITY FOR ALL DEBTS, OBLIGATIONS, AND LIABILITIES ARISING OUT OF AND/OR RELATING ANY WARRANTY MATTERS IN CONNECTION WITH AN ITEM; SELLER AFFIRMS THAT BUYER SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY BREACH OF WARRANTY CLAIMS OR FOR ANY DAMAGES ARISING OUT AND/OR RELATING TO THE FAILURE TO OFFER ADEQUATE WARRANTY PROTECTION SAND/OR HONOR WARRANTY OBLIGATIONS. SELLER ACCORDINGLY WARRANTS THAT IT WILL ACCEPT ALL LIABILITY AND TAKE FULL RESPONSIBILITY FOR ALL CUSTOMER SERVICE MATTERS RELATING TO: (A) THE QUALITY, EFFICACY, FUNCTION, MALUNFCTION, USE AND/OR INABILITY TO USE AN ITEM SOLD BY BUYER; (B) WARRANTY, SERVICE, AND/OR REPAIR MATTERS CONCERNING AN ITEM SOLD BY BUYER; AND/OR (C) INSTRUCTIONS, GUIDELINES, FEATURES, FUNCTIONS, AND SPECIFICATIONSIN RELATING TO AN ITEM SOLD BY BUYER. SELLER ACKNOWLEDGES AND AGREES THAT BUYER WILL REFER ALL SUCH CUSTOMER SERVICE MATTERS TO SELLER, AND SELLER WARRANTS THAT IT WILL HANDLE ALL SUCH INTERACTIONS IN A TIMELY, RESPONSIVE, FRIENDLY, AND PROFFESIONAL MANNER.

  2. SELLER WARRANTS THAT IT SHALL SECURE AND PROTECT FROM UNAUTHORIZED ACCESS, USE, AND DISCLOSURE ALL PRIVATE, CONFIDENTIAL, IDENTIFYING, AND/OR SENSITIVE DOCUMENTS AND INFORMATION ARISING OUT OF AND/OR RELATING TO BUYER AND/OR BUYER’S PURCHASE OF ITEMS. THIS INCLUDES, WITHOUT LIMITATION DOCUMENTS AND INFORMATION CONCERNING: FINANCIAL ACCOUNTS, AND PAYMENT INFORMATION, AND OTHER FINANCIALLY-SENSITIVE INFORMATION; THE IDENTITY, ORDER HISTORY, PRICING TO, AND/OR CONTACT INFORMATION OF BUYER; THE IDENTITY, ORDER HISTORY, PRICING TO, AND/OR CONTACT INFORMATION OF ANY DISTRIBUTOR, PURCHASER, RECIPIENTS OF ITEM(S), END-USER, AND/OR DESIGNEE OF BUYER; THE ITEMS, QUANTITIES, DESTINATIONS, AND/OR PRICING AS TO ANY SHIPMENTS OF ITEMS; ANY COMMUNICATIONS BETWEEN BUYER AND SELLER; AND THE TERMS AND CONDITIONS OF THIS AGREEMENT.

  1. SELLER WARRANTS THAT, BETWEEN BUYER AND SELLER, SELLER SHALL ASSUMMES ALL LIABILITY AND TAKES FULL RESPONSIBILITY FOR THE COMPLETE, TIMELY AND SUCCESSFUL SHIPMENT AND DELIVERY OF ALL ITEMS TO BUYER AND/OR BUYER’S DESIGNATED RECIPIENTS.

  2. SELLER SHALL AT ALL TIMES ADHERE TO BEST COMMERCIAL PRACTICES WITH RESPECT TO THE DESIGN, MANUFACTURING, ASSEMBLY, PACKAGING, AND STORAGE OF ITEMS, AS WELL AS WITH RESPECT TO THE MAINTENANCE AND OPERATION OF ITS FACILITITES.

  3. SELLER REPRESENTS AND WARRANTS THAT, FOR EACH ITEM IT SELLS TO BUYER, IT WILL PROVIDE BUYER WITH MATERIALS (E.G. PHOTOS, SPEC SHEETS) AND INFORMATION REGARDING THE ITEM’S SPECIFICATIONS (E.G. WEIGHTS, DIMENSIONS, MEASUREMENTS, WATTAGES) AND FEATURES AND THAT SUCH INFORMATION WILL BE COMPLETE, PRECISE, ACCURATE, AND UP-TO-DATE FOR EACH ITEM. SELLER ASSUMES ALL LIABILITY AND TAKES FULL RESPONSIBILITY FOR PROVIDING BUYER WITH COMPLETE, PRECISE, ACCURATE, AND UP-TO-DATE MATERIALS AND INFORMATION REGARDING ITEM SPECIFICATIONS AND FEATUES. SELLER ACKNOWLEGES AND AGREES THAT BUYER MAY FURINISH SUCH MATERIALS AND INFORMATION TO PROSPECTIVE AND ACTUAL CUSTOMERS, INCLUDING WITHOUT LIMITATION FEATURING SUCH MATERIALS AND INFORMATION ON ONE OR MORE PUBLICLY AVAILABLE WEBSITES.

  4. SELLER WARRANTS THAT IT SHALL BE REPONSIBLE FOR CREATING, PRINTING, PACKAGING, AND COMMUNICATING WITH EACH ITEM IT SELLS INSTRUCTIONS, GUIDELINES, VISUAL AIDES, SHELF LIFE AND EXPIRATION DATES (IF APPLICABLE), AND ANY APPLICABLE WARRANTIES, WAIVERS, LIMITATIONS AND/OR DISCLAIMERS. SELLER ASSUMES ALL LIABILITY AND TAKES FULL RESPONSIBILITY FOR: (A) PROVIDING INSTRUCTIONS, GUIDELINES AND VISUAL AIDES THAT ARE COMPLETE, ACCURATE, AND EASILY UNDERSTOOD; (B) OFFERING AND CLEARLY COMMUNICATING APPLICABLE WARRANTIES, LIMITATIONS, WAIVERS, AND DISCLAIMERS IN A MANNER WHICH IS BOTH PERMISSIBLE AND CONSISTENT WITH OBLIGATIONS UNDER LAW; AND (C) CLEARLY INDICATING ANY APPLICABLE SHELF LIFE AND/OR EXPIRATION INFORMATION IN A WRITING WHICH ACCOMPANIES THE ITEM.

  5. SELLER REPRESENTS AND WARRANTS THAT, AT ALL TIMES, IT WILL MAINTAIN TIMELY, OPEN, AND PROMPTLY RESPONSIVE CHANNELS OF COMMUNICATION WITH BUYER. SELLER SHALL IMMEDIATELY NOTIFY BUYER OF ANY ISSUES CONCERNING THE TIMELY AND/OR SATISFACTORY FULFILMENT OF AN ORDER, AND SELLER SHALL IMMEDIATELY RESPOND TO ANY COMMUNICATINS FROM BUYER CONCERNING THE TIMELY AND/OR SATISFACTORY FULFILMENT OF AN ORDER AND/OR ANY OTHER CUSTOMER SERVICE ISSUES.

12. Limitation of Liability. IN NO EVENT SHALL BUYER AND/OR ITS AFFILIATES BE LIABLE TO SELLER AND/OR ITS AFFILIATES FOR ANY INDIRECT, STATUTORY, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, RELIANCE AND/OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL BUYER’S AND ITS AFFILIATE’S AGGREGATE LIABILITY ARISING OUT OF AND/OR RELATING TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OWED TO SELLER FOR THE SUBJECT ITEM(S).

  1. INDEMNIFICATION. SELLER AGREES TO INDEMNIFY, DEFEND (INCLUDING REASONABLE ATTORNEY’S FEES), AND HOLD BUYER AND ITS AFFILIATES HARMLESS IN CONNECTION WITH ANY AND ALL THIRD PARTY DISPUTES, CONTROVERSIES, AND CLAIMS FOR DAMAGES, HARMS, DEBTS, LOSSES, LIABILITIES, STATUTORY REMEDIES, FINES, FEES, COSTS AND EXPENSES AND/OR PENALTIES ARISING OUT OF, RELATING TO, AND/OR CONCERNING: (A) THE DESIGN, MANUFACTURING, PACKAGING, QUALITY, FUNCTIONALITY, FEATURES, SPECIFICATIONS, EFFICACY, USE, AND/OR RESULTS, OF ANY ITEM, INCLUDING WITHOUT LIMITATION ANY MATTERS CONCERNING PRODUCT WARRANTY ISSUES; (B) THE SHIPMENT AND/OR DELIVERY OF AN ITEM FROM SELLER TO BUYER AND/OR BUYER’S DESIGNATED RECIPIENT; (C) ANY INSTRUCTIONS, GUIDELINES, MANUALS, VISUAL AIDES, AND/OR SHELF LIFE/EXPIRATION DATES IN CONNECTION WITH AN ITEM; (D) THE ACTIONS AND/OR OMISSIONS OF SELLER AND/OR ITS AFFILIATES IN CONNECTION WITH ONE OR MORE ITEMS; (E) THE SERVICE, REPAIR, AND/OR REPLACEMENT OF ONE OR MORE ITEMS; AND (F) SELLER’S BREACH OF ONE OR MORE TERMS IN THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ONE OR MORE WARRANTIES AND/OR REPRESENTATIONS BY SELLER, WHICH INCLUDES BUT IS NOT LIMITED TO WARRANTIES AND REPRESENTATIONS CONCERNING ITS AFFILIATES. THE OBLIGATIONS OF SELLER AS SET FORTH IN THIS PARAGRAPH APPLY, WITHOUT LIMITATION, TO MATTERS INVOLVING: (A) PERSONAL INJURY (PHYSICAL, EMOTIONAL, AND/OR PSYCHOLOGICAL), UP TO AND INCLUDING DEATH; (B) CONTRACTUAL DISPUTES, INCLUDING BUT NOT LIMITED TO MATTERS ALLEGING BREACH OF CONTRACT, MISREPRESENTATION, AND/OR FRAUD; (C) ANY DAMAGE, DESTRUCTION, LOSS, OR THEFT IMPACTING ANY PERSONAL PROPERTY, REAL PROPERTY, AND/OR PREMISES; (D) ANY VIOLATION OF LAW, RULE, STATUTE, REGULATION, OR ORDINANCE; AND/OR (E) ANY PRODUCT SAFETY, WARRANTY, AND/OR LIABILITY ISSUES. EVEN THOUGH SELLER AGREES TO FULLY AND UNCONDITIONALLY PAY FOR THE COST OF DEFENDING ANY MATTER ARISING UNDER THIS PROVISION, SELLER AGREES THAT BUYER AND ITS AFFILIATES RESERVE THE EXCLUSIVE RIGHT TO CONTROL THE DEFENSE, STRATEGY, SELECTION OF COUNSEL, AND SETTLEMENT DECISIONS IN CONNECTION WITH ANY MATTER WHERE SELLER MUST PROVIDE INDEMNIFICATION.

  2. Injunctive Relief. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, SELLER AGREES THAT UNDER NO CIRCUMSTANCES WILL IT SEEK TO ENJOIN OR RESTRAIN BUYER OR ANY OF ITS AFFILIATES FROM SELLING ITEMS AND/OR OTHER GOODS, INCLUDING, WITHOUT LIMITATION, OPERATING A WEBSITE FEATURING THE ITEMS AND/OR OTHER GOODS SELLER ACKNOWLEDGES AND AGREE THAT, TO THE EXTENT NOT PROHIBITED BY LAW, SELLER IS NOT ENTITLED TO INJUNCTIVE RELIEF, RESCISSIONS, OR ANY OTHER EQUITABLE REMEDY IN CONNECTION WITH THESE TERMS OF PURCHASE AND ANY AGREEMENT HERETO RELATING, EXCEPT THAT A COURT MAY AWARD INJUNCTIVE RELIEF OR REQUIRE SPECIFIC PERFORMANCE, BUT ONLY THE EXTENT NECESSARY TO RESOLVE SELLER’S INDIVIDUAL CLAIM(S).

  1. Non-Interference. Insofar as Seller receives communications from prospective customers inquiring about the purchase of products reflecting Buyer's previous sales to customers, Seller agrees on behalf of itself and its Affiliates to refer these prospective customers to Buyer; Seller shall not sell directly to prospective customers making such an inquiry, nor shall Seller or its Affiliates refer such prospective customers to any third-party. Seller furthermore agrees that it and its Affiliates shall refrain from directly or indirectly soliciting, assisting, encouraging, inciting, supporting, advising, directing, suggesting, and/or facilitating a decision by any prospective or actual customer of Buyer to adversely modify its relationship with and/or disposition towards Buyer (e.g. a decision to select a different distributor, reduce order commitments).

  2. Procedural Considerations. Any claim, dispute, suit, matter, or controversy arising out of or relating to this Agreement and/or one or more Items will be construed and governed in accordance with the laws of the State of New Jersey, without regard to its conflict of laws principles and will be litigated in Camden County, NJ. The Parties hereby waive any defense or claim of lack of personal jurisdiction, the inappropriateness of venue, or forum non conveniens. In any claim, dispute, suit, matter, or controversy arising out of or relating to this Agreement and/or one or more Items, the prevailing party will be entitled to reasonable fees and costs, including but not limited to attorneys’ fees, litigation expenses and costs, expert fees, and any other applicable relief.

  3. Non-Binding. Neither Party shall in any manner bind or attempt to bind the other Party to any debt, liability or obligation or to represent that it has any such authority without the prior express written consent of the other Party. The debts, liabilities, and obligations of the Parties shall remain entirely their own unless expressly authorized otherwise in writing, including as set forth in this Agreement (e.g. Section 13 (“Indemnification”)).

  4. Miscellaneous

    1. Assignments. Except as expressly permitted otherwise in writing by Buyer, Seller may not assign, delegate, sell, or transfer any of its rights or obligations under this Agreement. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Seller of any of its obligations under this Agreement. Notwithstanding anything herein contrary, Buyer may freely assign, delegate, sell, and/or transfer its rights and obligations under this Agreement and any assets relating to, arising out of, and/or concerning this Agreement including without limitation circumstances of sale, merger, acquisition, reincorporation, consolidation, reorganization, or other change of control. This Agreement will be binding on Seller’s heirs, permitted assigns, administrators, and other legal represents, and shall inure to the benefit for Buyer and any of its successors and/or assigns.

    2. Severability. If any of the terms and conditions herein or any portion(s) of any terms or conditions are held unenforceable, the impact of that unenforceability (i.e. limitation or exclusion of terms) will be construed as narrowly as possible to the extent permitted by law and it does not invalidate or render unenforceable such term or provision in any other jurisdiction; moreover, the remainder of this

Agreement herein and all other portions thereof shall nevertheless remain in full force and effect to the extent legally permissible.

c. Translation & Headings. Any translation of these Terms of Purchase is merely provided as a convenience. Any discrepancy or dispute involving a translated version of these Terms of Purchase and the English version of these Terms of Purchase shall be resolved in favor of the English version. The headings and section titles in these Terms of Purchase and any Sales Confirmation from Buyer are provided strictly for Seller’s convenience; they have no binding or representative effect on either Party.

  1. Non-Waiver. No waiver under this Agreement is effective unless it is in writing, identified as a waiver to this Agreement, and signed by an authorized representative of the Party waiving its right. The Parties acknowledge and agree that any failure by either Party to require the other’s strict adherence to any term or condition herein shall, in no manner, be construed as a waiver by that Party, nor shall such a failure be construed to remove or dilute the effect of any term, condition, or requirement.

  2. Non-Endorsement. Although Buyer intends to sell Items manufactured and supplied by Seller, Seller acknowledges and agrees that Buyer’s product listings and any related imagery and/or information do not constitute an endorsement of, or affiliation with, the Items, Seller, or manufacturers/suppliers up the supply chain from Seller, nor do they constitute an assumption of liability or taking of responsibility as to the Item(s) in question.

  3. Construed to Reflect Intent of Parties. Insofar as this Agreement includes any errors or ambiguities related to spelling, grammar, or syntax or any other clear errors or ambiguities these errors and ambiguities shall be construed to reflect the intent of the Parties. This includes, without limitation: (a) any ambiguities, inconsistencies, misuses, or uncertainties around the usage of the word “and” vs. “or” vs. “and/or”; and (b) any ambiguities, inconsistencies, misuses, or uncertainties around the usage of the word “including” – which shall mean “including without limitation,” rather than as point of exclusion, unless otherwise noted; (c) any ambiguities, inconsistencies, misuses, or uncertainties around the usage of the word “Item” vs. “Items” vs. “Item(s)” - which shall not render any language inapplicable by virtue of the fact that it does or does not possess more than one (1) Item.

  4. Entirety, Modification & Waiver. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter contained herein and therein, and supersede any prior and contemporaneous agreements, understandings, representations and warranties, both written and oral, with respect to such subject matter. No amendment to, modification of, or waiver of rights provided by this Agreement is effective unless it is in writing, identified as an amendment or waiver, to this Agreement and signed by an authorized representative of each Party.

  5. Legal Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses designated on the signature page of this Agreement. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

  1. Fair Opportunity for Review, Negotiation & Consideration. The Parties acknowledge and agree that these Terms of Purchase and any Sales Confirmation to which these Terms of Purchase are attached were negotiated and arrived at freely, fairly, and without duress or other improper or unfair influence. Each Party acknowledges and agrees that it had a fair opportunity to extensively review these Terms of Purchase and any related Sales Confirmation authored by Buyer to which these Terms of Purchase are attached, pose any questions, ascertain all necessary information, consult a licensed attorney of its choosing, explore and consider its options, and fully understand the terms, conditions, and effects of these Terms of Purchase and any related Sales Confirmation authored by Buyer to which these Terms of Purchase are attached. The individual signing this Agreement hereby represents and warrants that s/he is an adult over the age of eighteen (18), of sound mind and body for the purposes of rightfully executing this Agreement, and if signing this Agreement on behalf of an organization or company, that s/he has full legal authority to bind such organization or company to this Agreement.

  2. Counterparts. This Agreement may be executed in separate counterparts, each of which shall constitute a binding original. Notwithstanding the foregoing Notice provision, the parties may deliver these Agreements electronically, with copies having the same force and effect as originals for all intents and purposes.

  3. No Third-Party Beneficiaries. This Agreement benefits solely the Parties and their respective successors and permitted assigns and nothing in this Agreement, express or implied, confers on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

  4. No Public Announcements. Unless expressly permitted under this Agreement, Seller shall not make any statement (whether oral or in writing) in any press release, external advertising, marketing or promotion materials regarding the subject matter of this Agreement, the Items, or Buyer’s business unless it has received the express written consent of Buyer, or it is required to do so by law.

  5. Time Is of the Essence. Seller acknowledges and agrees that time is of the essence with respect to its performance of obligations under this Agreement.