TERMS AND CONDITIONS OF SALE

 

1.  Applicability.  These Terms and Conditions of Sale contain the entire agreement (these “Terms”) between Radia Enterprises, Inc. dba Spectrum Uniforms and its affiliates (“Spectrum” or “us” or “we”) and Buyer (the “Buyer” or “you”) regarding the sale and purchase of products or goods sold by Spectrum (the “Products”).  They are, therefore, also valid for all future business transactions between Spectrum and Buyer, even in cases where they are not expressly specified or re-agreed upon.  

2.  Dissenting or Additional Terms.  Dissenting or additional terms or conditions of purchase that may be proposed from time to time by Buyer are not binding upon Spectrum, unless they are expressly confirmed by Spectrum in writing.  The mere acceptance of a Sales Order containing such dissenting or additional terms and conditions shall not bind Spectrum to the same, and Spectrum expressly rejects all of Buyer’s general terms and conditions of purchase that are opposed to or in addition to these Terms.

3.  Oral Terms Not Binding.  Agreements, supplements or understandings made by phone or orally that deviate from these Terms are not binding, unless they have been confirmed in writing by the party to be bound.

4.  Issuance of Sales Orders.  All quotations are without obligation and are not binding upon Spectrum.  Buyer will submit to Spectrum one or more sales orders (each, a “Sales Order”) identifying the Products Buyer desires to purchase for sale and distribution, for inventory, or otherwise.  Each Sales Order may include other terms and conditions that are consistent with these Terms or that are necessary to place the Sales Order, such as billing and shipping information, target delivery dates, the delivery location, quantities, and the purchase price or charges for the Products.  Buyer will place Sales Orders online, by email, telephone, fax, or mail, and will promptly follow orders placed by telephone with a written Sales Order delivered by email or fax.

5.  Acceptance of Sales Orders.  Each Sales Order shall be subject to the acceptance by Spectrum in its sole discretion.  Spectrum will indicate its acceptance of Sales Orders or alterations to Sales Orders by providing to Buyer a written acceptance of such Sales Orders (whether by mail, email, telecopy or other means).  In the absence of any written acknowledgement or written acceptance of the Sales Order, shipment of Products ordered shall be deemed acceptance of such Sales Order.

6.  Sales Order Alteration and Cancellation.  Prior to Spectrum’s system confirmation of a Sales Order of the Products ordered by Buyer, Spectrum will accept an alteration to a Sales Order that: (i) changes a location for delivery; (ii) modifies the quantity or type of Products to be delivered; or (iii) corrects typographical or clerical errors.  Any aforementioned Sales Order alteration may be subject to a $20 discretionary fee. Any Sales Order cancellation may be subject to a 20% restocking fee.  Except as otherwise provided in this Section 6, no Sales Order, once placed with and accepted by Spectrum, may be cancelled or amended, except with Spectrum’s written consent and upon terms that reflect any changes in price or time for performance and that will indemnify Spectrum for all losses incurred by Spectrum associated with the Buyer’s amendment or cancellation, including but not limited to the costs already incurred by Spectrum in the performance of its contractual duties and any profits that Spectrum would have received had the Sales Order been completed.  

7.  Pricing.  Unless otherwise agreed in writing, the pricing of all Products sold hereunder shall be based on the pricing established by Spectrum.  Spectrum reserves the right to change the prices in its sole discretion from time to time.  All prices reflected in any order accepted by Spectrum or quoted by Spectrum shall be on a net basis F.C.A. (Incoterms 2010) Spectrum’s loading dock.  Unless otherwise specified on the face of the Sales Order, all packaging and cartage charges special containers, packaging, crating, palletizing, applicable taxes and duties, freight, insurance or other incidental expenditures and taxes payable in the country of manufacture shall be paid by Buyer and are deemed excluded from the purchase price.  All prices are in U.S. Dollars and all payments shall be in U.S. Dollars.

8.  Payment.  Unless otherwise agreed to in writing by Spectrum, payment of the total Sales Order price is due and payable upon the date of invoice, unless otherwise agreed to in writing by Spectrum.  Time is of the essence with respect to Buyer’s payment obligations hereunder.  If Buyer fails to pay any amounts due, Spectrum may cancel any accepted Sales Order.  Buyer grants Spectrum a continuing security interest in the Products and the proceeds thereof.  Such security interest secures all obligations of Buyer to Spectrum with respect to Products bought and sold from Spectrum.  Buyer agrees from time to time to execute such documents as Spectrum deems necessary to perfect Spectrum’s security interest. 

9.  Interest.  No Products shall be shipped to Buyer if Buyer has an outstanding invoice over ten (10) days past due.  All amounts on invoices that are overdue shall bear interest from the due date until the payment is received by Spectrum at a rate of interest equal to the lesser of one and one half percent (1½%) per month or the maximum rate permitted by applicable law.

10.  Account Information.  All payments shall be remitted to Spectrum’s account communicated to Buyer from time to time.  Spectrum shall have the right to change such account from time to time upon a written notice to Buyer.

11.  Credit.  In the event that Buyer fails to pay any sum Buyer owes as set forth herein, in addition to the interest due Spectrum as set forth in Section 9 hereof, Spectrum may require Buyer to provide Spectrum with such additional security of performance as Spectrum deems appropriate, which security may include without limitation: (i) imposition of credit limits; (ii) requiring Buyer to pay for the Products prior to Spectrum’s acceptance of the Sales Order for such Products or Spectrum’s shipment of any Products; (iii) requiring Buyer to obtain a letter of credit or like security; (iv) requiring Buyer’s principal owners or other third parties to guarantee payment personally of any sums Buyer owes Spectrum; (v) requiring Buyer to provide Spectrum with other collateral or security; and (vi) requiring Buyer to execute such documentation, or to cause designated third parties to execute such documentation, as Spectrum deems appropriate to effect the foregoing. Spectrum reserves the right to change any credit terms offered to Buyer at any time, when in Spectrum’s opinion, Buyer’s financial condition or previous payment record so warrants.

12.  Delivery or Performance Dates.  Spectrum will use commercially reasonable efforts to meet specified delivery or performance dates; however, all terms and dates are estimates only and are not binding, unless a written agreement to the contrary is made.  Delays in delivery or performance do not entitle Buyer to cancel any order, refuse any items, or claim damages.

13.  Delay Caused by Force Majeure.  Even if binding terms or dates are agreed upon, Spectrum shall not be liable for damages occasioned by a delay in performance or delivery caused by force majeure or similar circumstances that make delivery or service difficult if not impossible for Spectrum.  This includes problems caused in whole or in part by an act of God, war, insurrection, civil commotion, strike, flood, fire, earthquake, domestic violence, terrorism, lockout, embargo, pandemic, lack of water, materials, power, or telephone transmissions specified or reasonably necessary in connection with these Terms, hurricanes, unavoidable casualties, and any other occurrence, event, or condition beyond the reasonable control of Spectrum (a “Force Majeure Event”).  Spectrum shall promptly notify Buyer of such Force Majeure Event.  Such circumstances entitle Spectrum to postpone delivery by the period of their duration plus a reasonable starting up time or to cancel any Sales Order or part thereof not yet fulfilled. Payment by Buyer shall not be withheld or excused by any Force Majeure Event.

14.  Product Shortage, Partial Shipment and Back Orders.  Spectrum will use commercially reasonable efforts notify Buyer of product shortages and will use commercially reasonable efforts to fill the open Sales Orders.  Spectrum may make partial shipments of Products under any Sales Order, which Spectrum may invoice separately, and which shipments Buyer will pay for when due.  Delay in delivery of any installment will not relieve Buyer of its obligation to accept the remaining deliveries, unless Buyer cancels such shipments in accordance with Section 6 hereof.  Spectrum will use commercially reasonable efforts to fill all Sales Orders placed by Buyer, but does not guarantee it will have sufficient Products to fill all orders in a timely manner.  The parties agree that Spectrum is not liable for its failure to timely fill Sales Orders or for delays in shipment.

15.  Title and Risk of Loss; Transportation. Title to and all risk of loss and liability for damages shall pass to Buyer upon delivery by Spectrum to a common carrier at the F.C.A. point (i.e., Spectrum’s loading dock or such other location indicated by Spectrum).  Buyer shall be responsible for all insurance and transportation charges from the F.C.A. point.  Spectrum will from time to time and as the Buyer’s agent, make all necessary shipping arrangements, and unless the Buyer specifies otherwise in writing, purchase full value insurance for the items while in transit.  Unless otherwise agreed to in writing by the parties, placement of values and carrier, Spectrum will use its own discretion thereon.  Spectrum will invoice Buyer and Buyer agrees to reimburse Spectrum for all charges incurred on behalf of Buyer, including insurance, transportation costs and any packaging costs that may result from Buyer specifying a particular mode of transportation.  If Spectrum delivers the Products to Buyer from the F.C.A. point using Spectrum’s trucks and/or drivers, Spectrum does so only as a courtesy and accommodation to Buyer and the terms of sale remain F.C.A. Spectrum’s loading dock.

16.  Insurance During Transit.  Buyer shall insure the items for their full value during transit from the F.C.A. point, with such insurance to contain a provision waiving all rights of subrogation against Spectrum and its employees, agents, and representatives with respect to losses payable under such policy.  Buyer hereby waives and releases Spectrum and its employees, agents, and representatives of and from any and all rights of recovery, claim, action or cause of action for any loss or damage that may occur to the Products during transit regardless of cause or origin, including the negligence of Spectrum or its employees, agents, or representatives, and Buyer acknowledges that the foregoing waiver and release is intended to result in any such loss or damage being borne by the insurance carrier of Buyer, or by Buyer if Buyer fails to obtain and maintain the insurance required hereunder. 

17.  Drop Shipment; Buyer’s Duty to Inspect.  From time to time Buyer may request Spectrum to drop ship the Products directly to the customers of Buyer.  In such event Buyer shall bear all credit risks associated therewith.  Buyer (or its customer in the case of a drop shipment by Spectrum to such customer) shall inspect the Products upon receipt.  Failure of Buyer (or its customer in the case of a drop shipment by Spectrum to such customer) to inspect the Products and/or failure to notify Spectrum in writing of any noncompliance, shortage or other reason for its rejection of any of such Products within such period as set forth in Section 19 hereof and the specific grounds for rejection shall constitute irrevocable acceptance of such Products. Spectrum accepts no responsibility for breakage, damage or losses occurring after delivery by Spectrum to the carrier.  All claims in such regard should be made direct to the carrier.

18.  Returned Products.  Spectrum shall not be required to accept Products for return.  If Buyer desires to return any Products, it shall seek the prior written approval of Spectrum for such return.  All Products accepted for return must be in a re-saleable condition when delivered to Spectrum and must be returned to Spectrum within thirty (30) days of the delivery of the Products by Spectrum to Buyer or to the buyers of Buyer in the case of a drop shipment set forth in Section 17 hereof.  Returned Products are subject to a twenty percent (20%) restocking fee.  Buyer shall bear all freight costs and other charges for the return of the Products.  Upon the receipt of the returned Products, Spectrum shall credit the account of the Buyer (subject to the restocking fee), and such credits shall be applied towards outstanding invoices or future purchases if no invoices are then outstanding. Notwithstanding the foregoing, all custom orders and samples are final sale and are non-returnable.

19.  Inspection and Nonconforming Products.  Buyer agrees to inspect fully all Products delivered immediately at the time of delivery.  In the event that such inspection reveals any damage or other non-conformity in the Products, Buyer may refuse to accept such Products and shall, upon non-acceptance, notify Spectrum and the carrier in writing immediately of any such damage or other non-conformity.  If Buyer fails to notify the carrier and Spectrum in writing of any such damage or other non-conformity within five (5) days from the date of delivery, then Buyer shall be deemed to have accepted the Products delivered, and Buyer shall be deemed to have waived any claim relating to defects or non-conformities in the Products that would have been apparent upon a reasonable inspection of the Products.  Such acceptance shall constitute an irrevocable acceptance of the Products by Buyer and a waiver of any and all claims Buyer may otherwise have had against Spectrum with respect to the damage and/or non-conformity of such Products.  Spectrum shall not accept Products for return after such Products are accepted by Buyer.  If any Products do not conform to the warranty set forth herein, Buyer shall provide written notice to Spectrum and Spectrum shall at its sole election either (i) replace such nonconforming Products with conforming Products, or (ii) refund the price for such nonconforming Products, together with all reasonable shipping and handling expenses incurred by Buyer in connection therewith. If Spectrum’s reasonable inspection and testing reveals that such Products are not nonconforming, and/or such defect has been caused by Buyer’s or its customer’s improper use or handling of the Products, Buyer shall reimburse Spectrum for all shipping costs.  The foregoing shall be the sole and exclusive remedy of Buyer for nonconforming Products.  In no event is Buyer entitled to retain payments due Spectrum, except upon the written consent of Spectrum. 

20.  Warranty. Buyer acknowledges that Spectrum may be acting as a wholesaler and/or reseller of the Products.   Spectrum hereby assigns to Buyer all rights of Spectrum under manufacturers’ warranties on the Products sold hereunder, to the extent such rights are assignable, but without any representation or warranty as to the rights, if any, conferred on Buyer as a result of this assignment.  SPECTRUM MAKES NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY, OR WARRANTIES AS TO QUALITY OR CORRESPONDENCE WITH PRIOR DESCRIPTION OR SAMPLE, AND THE BUYER ASSUMES ALL RISK AND LIABILITY WHATSOEVER RESULTING FROM THE USE OF SUCH PRODUCTS.

21.  Liability of Spectrum.  Spectrum’s maximum liability for any breach of these Terms, or any other claim related to the Products, shall be limited to the purchase price of the product or portion thereof (as such price is set forth on the first page of Spectrum’s invoice) to which such breach or claim pertains. The foregoing shall be the sole and exclusive remedy of Buyer for breach of warranty by Spectrum.   IN NO EVENT SHALL THE LIABILITY OF SPECTRUM TO BUYER, WHETHER BASED IN CONTRACT, IN TORT OR OTHERWISE, EXCEED THE PRICE OF THE PRODUCTS WITH RESPECT TO WHICH SPECTRUM’S LIABILITY IS CLAIMED, AND IN NO EVENT WILL SPECTRUM BE LIABLE TO BUYER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE, WHETHER BASED IN CONTRACT, IN TORT OR OTHERWISE, THAT ARISE IN CONNECTION WITH THE PRODUCTS OR IN CONNECTION WITH EITHER SPECTRUM’S FAILURE TO DELIVER OR ITS LATE DELIVERY OF THE PRODUCTS (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE OF THE PRODUCTS AND LOSS OF PROFITS).  Buyer acknowledges that the remedies provided herein are exclusive and in lieu of all other remedies available to Buyer at law or in equity.

22. Confidential Information. All non-public, confidential, or proprietary information of Spectrum, including, but not limited to, trade secrets, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, manufacturers, pricing, discounts, or rebates, disclosed by Spectrum to Buyer, 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,” in connection with these Terms is confidential, solely for the use of performing these Terms and may not be disclosed or copied unless authorized by Spectrum in writing. Upon Spectrum’s request, Buyer shall promptly return all documents and other materials received from Spectrum. Spectrum shall be entitled to injunctive relief for any violation of this Section. With respect to confidential information that constitutes a trade secret under applicable law, the rights and obligations set forth in this section hereof will survive the expiration of these Terms until, if ever, such confidential information loses its trade secret protection other than due to an act or omission of Buyer.

23.  Assignment.  Buyer may not assign any Sales Order or these Terms without the express prior written consent of Spectrum.  These Terms shall be binding upon and shall inure to the benefit of Spectrum and its successors and assigns, and shall be binding upon and inure to the benefit of Buyer and its permitted assignees.

24.  Entire Agreement.  Except as otherwise expressly provided in a written document signed by Spectrum and Buyer, these Terms contain the complete and final agreement between Buyer and Spectrum with respect to the subject matter herein contained and supersede all prior agreements and communications between Spectrum and Buyer, whether oral or written.

25.  No Implied Waiver.  No modification, limitation, waiver or discharge of these terms or conditions shall bind Spectrum unless in writing and signed by an authorized officer, agent, or employee of Spectrum.  No waiver or failure of Spectrum to insist, in one or more instances, on performance by Buyer in strict compliance with of any provision of these Terms hereof on any one occasion shall be deemed to be a waiver of the same or of any other right granted hereunder with respect to any succeeding breach of the same or other provision hereof. 

26.  Notices.  All notices and other communications hereunder shall be in writing and shall be deemed to have been given only if and when (i) personally delivered;  (ii) five (5) business days after mailing, postage prepaid, first class air mail; (iii) when delivered (and receipted for) by an express delivery service; or (iv) when first sent by telex, telecopy or other means of instantaneous communication, provided such communication is properly confirmed by personal delivery, mail or an express delivery service as provided above, addressed in each case at the address set forth as the communications address on the Sales Orders or at such other address as either party may specify from time to time in writing in accordance with this provision.

27.  Governing Law; Consent to Jurisdiction; Waiver of Jury Trial.  These Terms and any agreement resulting from the acceptance of a Sales Order shall be construed pursuant to the laws of the state of Texas without giving effect to its conflicts of laws provisions.  Any and all claims, lawsuits or other proceedings for temporary or permanent injunctive relief brought hereunder or any causes of action, lawsuits, hearings or other proceedings brought in equity hereunder will be brought in the United States District Court for the Southern District of Texas located in Harris County, Texas. FURTHER, THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF PRODUCTS SHALL NOT APPLY TO THIS AGREEMENT.  EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT, OR PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS.

28.  Severability.  In case any terms or conditions contained herein should be or become invalid or unenforceable under applicable law, such terms and conditions shall be deemed to be severable from the remainder of these Terms and shall not cause the invalidity or unenforceability of the remainder of these Terms.

29.  Section References and Headings.  Any reference in these Terms to a section or subsection shall be deemed to include a reference to any subsidiary sections whenever the context requires.  The headings are for convenience only and are not to be used in the construction or interpretation of these Terms.

30.  Compliance with Law.  Buyer and Spectrum shall comply with all applicable local, state and federal laws, order, rules and regulations.  Buyer represents and warrants to Spectrum that it is, and shall continue to be, in compliance with all applicable export controls of the United States Government.

31.  Indemnity.  Buyer agrees to defend, indemnify and hold Spectrum, its affiliates, officers, directors, employees and agents, harmless from and against all liability, loss, damage, costs and expenses including, but not limited to, costs and expenses of litigation and reasonable attorneys’ fees, that Spectrum hereafter may incur or that Spectrum may reimburse to a third party as the result of any claim, action or right of action, at law or in equity, arising out of (A) Buyer’s non-compliance or breach of any Sales Order, these Terms and any representation or warranty contained therein or herein; (B) any infringement or alleged infringement of any license, patent, copyright or any other intellectual property right; or (C) any injury (including death) to any person or damage to any property occurring as a result of, or caused in whole or in part by, acts or omissions of Buyer or its agents, officers, directors, employees, any subcontractor or its employees, or any person, firm or corporation employed or engaged by Buyer.  Buyer hereby waives and releases Spectrum from any and all rights of recovery, claims, actions or causes of action that Buyer may have against Spectrum with respect to those matters that Buyer has agreed to indemnify Spectrum hereunder.