1. Applicability. This purchase order is an offer by Reflow Supply Chain Solutions LLC, a Texas limited liability company doing business as Pyrock Chemicals (the "Buyer") for the purchase of the product(s) specified on the face of this purchase order (the "Product") from the party to whom the purchase order is addressed (the "Seller") in accordance with and subject to these terms and conditions (the "Terms"; together with the terms and conditions on the face of the purchase order, the "Order"). This Order, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order. The Order expressly limits Seller's acceptance to the terms of the Order. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller's general terms and conditions of sale or any other document issued by Seller in connection with this Order. These Terms apply to any replacement Product provided by Seller hereunder. Buyer is not obligated to any minimum purchase or future purchase obligations under this Order.
2. Acceptance. This Order is not binding on Buyer until Seller accepts the Order in writing (notice by email addressed to the person at the email address provided in the Order will suffice). If Seller does not accept the Order in writing or provide written notice that it has commenced performance within five business days of Seller's receipt of the Order, this Order will lapse. Buyer may withdraw the Order at any time before it is accepted by Seller.
3. Delivery Date. Seller shall deliver the Product in the quantities and on the date(s) specified in this Order or as otherwise agreed in writing by the parties (the "Delivery Date"). Timely delivery of the Product is of the essence. If Seller fails to deliver the Product in full on the Delivery Date, Buyer may terminate the Order immediately by providing written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller's failure to deliver the Product on the Delivery Date.
4. Quantity. If Seller delivers any more Product than the quantity specified in this Order, Buyer may reject all or any excess Product. Any such rejected Product shall be returned to Seller at Seller's risk and expense. If Seller delivers any amount of Product less than the quantity specified in this Order, Buyer may, in its sole discretion, accept the entire amount or reject the entire order. If Buyer does not reject the Product and instead accepts the delivery of Product at the increased or reduced quantity, the Price for the Product shall be adjusted upward or downward on a pro-rata basis.
5. Delivery & Shipping. All Product shall be delivered to the address specified in this Order (the "Delivery Location") during Seller’s normal business hours or as otherwise agreed by the parties. Delivery shall be in accordance with the terms on the face of this Order. Seller shall give written notice of shipment to Buyer when the Product is delivered to a carrier for transportation. Seller shall provide Buyer all shipping documents, including the commercial invoice, packing list, air waybill/bill of lading, material safety data sheet(s), certificate of analysis (if applicable) and any other documents necessary to release the Product to Buyer at such time as Seller delivers the Product to the transportation carrier. The Order number must appear on all shipping documents, shipping labels, bills of lading, invoices, correspondence and any other documents pertaining to the Order.
6. Title and Risk of Loss. Title passes to Buyer at such time as the entire quantity of Product is loaded onto Buyer’s transportation carrier. Seller bears all risk of loss or damage to the Product until such time.
7. Inspection and Rejection of Nonconforming Product. Buyer has the right to inspect the Product on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Product, and may reject all or any portion of the Product if it determines the Product is nonconforming or defective. If Buyer rejects any portion of the Product, Buyer has the right, effective upon written notice to Seller, to: (a) rescind the Order in its entirety; (b) accept the Product at a reasonably reduced price; or (c) reject the Product and require replacement of the rejected Product. If Buyer requires replacement of the Product, Seller shall, at its expense, promptly (but in no event later than two business days) replace the nonconforming Product and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective Product and the delivery of replacement Product. If Seller fails to timely deliver replacement Product, Buyer may replace them with Product from a third party and charge Seller the cost thereof and terminate this Order for cause pursuant to Section 20. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller's obligations under the Order, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.
8. Price; Payment Terms. The price of the Product is the price stated in the Order (the "Price"). Unless otherwise specified in the Order, the Price includes all transportation costs to the Delivery Location, insurance, and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer. Seller shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with the Terms. Buyer shall pay all properly invoiced amounts due to Seller within fifteen business days after Buyer's receipt of such invoice, except for any amounts disputed by Buyer in good faith. All payments hereunder must be in US dollars and made by wire transfer to an account designated by Seller. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller under the Order.
9. Warranties. Seller warrants to Buyer that for a period of twelve months from the Delivery Date, all Product will: (a) be free from any defects in workmanship, material and design; (b) conform to applicable specifications, samples and other requirements specified by Buyer or otherwise generally accepted in the industry; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be free and clear of all liens, security interests or other encumbrances; and (f) not infringe or misappropriate any third party's patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the Product by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer's discovery of the noncompliance of the Product with the foregoing warranties. If Buyer gives Seller notice of noncompliance with this Section, Seller shall, at its own cost and expense, promptly (but in any event no less than two business days) replace the defective or nonconforming Product and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming Product to Seller and the delivery of repaired or replacement Product to Buyer or a destination and/or party of Buyer’s choosing.
10. Indemnification. Seller shall defend, indemnify and hold harmless Buyer and Buyer's parent company, their respective subsidiaries, affiliates, successors or assigns and their respective directors, officers, shareholders, members, managers, contractors and employees and Buyer's customers (collectively, "Indemnitees") against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, "Losses") arising out of or occurring in connection with (a) the products purchased from Seller, (b) Seller's negligence, willful misconduct or breach of the Terms, and (c) any claim that Buyer's or Indemnitee's use or possession of the Product infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. Seller shall not enter into any settlement without Buyer's or Indemnitee's prior written consent.
11. Insurance. During the term of the Order and for a period of six months thereafter, Seller 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 is customary in the industry with financially sound and reputable insurers.
12. Authority; Compliance with Laws. Each of Buyer and Seller represent and warrant to the other as follows: (a) it is in material compliance with and shall comply with all applicable laws, regulations and ordinances, (b) it has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Order.
13. Termination. Buyer may terminate this Order, in whole or in part, at any time with or without cause for undelivered Product on 24 hours’ prior written notice to Seller. In addition to any remedies that may be provided under these Terms, Buyer may terminate this Order with immediate effect upon written notice to Seller, either before or after the acceptance of the Product, if Seller has not performed or complied with any of these Terms, in whole or in part. If Seller 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, then Buyer may terminate this Order upon written notice to Seller. If Buyer terminates the Order for any reason, Seller's sole and exclusive remedy is payment for the Product received and accepted by Buyer prior to the termination.
14. LIMITATION OF LIABILITY. NOTHING IN THIS ORDER SHALL EXCLUDE OR LIMIT (A) SELLER'S LIABILITY UNDER SECTIONS 15, 16, 17 AND 23 HEREOF, OR (B) SELLER'S LIABILITY FOR FRAUD, PERSONAL INJURY OR DEATH CAUSED BY ITS NEGLIGENCE OR WILLFUL MISCONDUCT. EACH PARTY'S MAXIMUM LIABILITY TO THE OTHER PARTY SHALL NOT EXCEED THE GREATER OF $50,000 OR THE AGGREGATE AMOUNT ACTUALLY PAID OR PAYABLE UNDER THIS ORDER.
15. Confidentiality; Non-Circumvention. All non-public, confidential or proprietary information of each party, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed to the other party, 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 the Order is confidential, solely for the use of performing the Order and may not be disclosed or copied unless authorized by the disclosing party in writing. Each party shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; or (c) rightfully obtained by the receiving party on a non-confidential basis from a third party. Seller hereby irrevocably agrees and warrants that Seller and its employees, representatives, and affiliates shall not, directly or indirectly, interfere with, circumvent, attempt to circumvent, avoid or bypass Buyer in connection with any related, similar or competing transaction with Buyer’s contacts or obviate or interfere with the relationship of Buyer and its contacts for the purpose of gaining any benefit, whether such benefit is monetary or otherwise, for a period of twelve months following the date of purchase of Products pursuant to each individual purchase transaction between Buyer and Seller. Seller also undertakes not to make use of any third party to circumvent this section. Seller further agrees not to directly or indirectly contact or communicate with, or submit a request for a product or service to, any contact, entity, or institution introduced by Buyer to Seller without the prior written approval of Buyer authorizing such contact or communication.
16. Force Majeure. Neither party shall be liable to the other for any delay or failure in performing its obligations under the Order to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party's fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable ("Force Majeure Event").
17. Assignment. Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Order without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Seller of any of its obligations hereunder. Buyer may at any time assign, transfer or subcontract any or all of its rights or obligations under the Order without Seller's prior written consent.
18. Governing Law. All matters arising out of or relating to this Order shall be governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action or proceeding arising out of or relating to this Order shall be instituted in the federal courts of the United States of America or the courts of the State of Texas in each case located in the City of Austin and County of Austin, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
19. Cumulative Remedies. The rights and remedies under this Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
20. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of this Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (to an authorized representative of Buyer) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Order, 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.
21. Survival. Provisions of this Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, Sections 7, 9, 10, 11, 12, 14, 15, 18, and 21.
22. Miscellaneous. No change to this Order is binding upon Buyer unless it is in writing, specifically states that it amends this Order and is signed by an authorized representative of Buyer. If any term or provision of this Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. This Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms. The relationship between the parties is that of independent contractors. Nothing contained in the Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Order. No waiver by any party of any of the provisions of the Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Order, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Order shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Contact:
Pyrock Legal Counsel
2110 Ranch Road 620 S, #342712
Lakeway, TX 78734-9998
Email: Legal@PyrockChemical.com
Phone: (877) 959-4998