Terms & Conditions Of Sale
1. Agreement. These terms and conditions (“Terms and Conditions”): (a) apply to and are incorporated into any agreement to which they are attached; (b) apply to and are incorporated into to any quotation, purchase order, sales order confirmation, bill of lading, invoice, or other document accompanying these Terms and Conditions or into which these Terms and Conditions are incorporated by reference; and (c) apply to any and all sale of products and/or services (collectively “Products”) sold by Monarch Global Brands, Inc., a Pennsylvania corporation, d/b/a Monarch Brands (“Supplier”) whether or not the sale is accompanied by an agreement, quotation, work order, purchase order, sales order confirmation, or invoice. These Terms and Conditions apply to any customer identified in the applicable agreement, quotation, purchase order, sales order confirmation, bill of lading, invoice, or other document (“Customer”) and shall become effective upon the earliest of: (i) Customer issuing a purchase order to Supplier; (ii) Supplier’s issuance of a sales order confirmation; (iii) Customer’s receipt of the Products; or (iv) Supplier’s receipt of payment in full or in part for the Products.
2. Acceptance. Any quotation provided by Supplier to Customer shall constitute an offer to sell the Products identified on such quotation in accordance with these Terms and Conditions, which, when accepted by Customer, shall constitute a binding agreement between the parties. Customer’s acceptance of any offer by Supplier is limited to these Terms and Conditions. Any terms and conditions proposed by Customer in any document that are different from, conflict with, or add to these Terms and Conditions shall be deemed to materially alter the offer and are hereby objected to and rejected by Supplier.
3. Purchase Price. Customer shall pay Supplier the purchase price for the Products as listed in Supplier’s quotation or sales order conformation or as otherwise set forth in Supplier’s invoice. Supplier may change its prices at any time without notification; provided, however, that unless revoked prior to acceptance, prices set forth in Supplier’s quotation shall be valid only for the period set forth in such quotation. Supplier’s prices are exclusive of insurance, shipping, handling, and taxes. Customer shall have the sole responsibility for payment of all such insurance, shipping, handling, and taxes with respect to the purchase of any Products. If Customer is a tax-exempt entity, Customer shall present all appropriate documentation for any tax exemption to Supplier prior to placing its order.
4. Payment Terms. Customer shall pay all invoices within thirty (30) days from the date of the invoice, unless otherwise specified on the invoice. If Customer fails to make any payments when due, Customer will be charged interest of one and one-half percent (1.5%) per month (eighteen percent (18%) per annum) or the maximum rate permitted by applicable law, whichever is less, on any overdue balance. Supplier is not obligated to extend credit or financing terms to Customer. Supplier may in its sole discretion revoke any credit extended to Customer and require payment in full prior to Supplier’s delivery of Products, in which event Supplier may retain possession of any Products until Customer has paid in advance all amounts due to Supplier. If Supplier retains a collection agency or legal counsel or incurs any out-of-pocket expenses to collect payments from Customer, all such fees and costs will be added to the sums due, will bear interest at the rate set forth above, and will be the responsibility of Customer. If Customer fails to pay Supplier any amounts when due, Supplier may immediately suspend all activity relating to these Terms and Conditions and may exercise all of Supplier’s rights and remedies. Customer agrees that, other than Supplier’s delivery of the Products, payment to Supplier is not contingent on any other occurrence, matter, or event including, without limitation, Customer’s receipt of payment from any third party. Customer has no rights to set off against amounts due Supplier for the Products and, in the event Customer exercises a set off, it shall constitute a breach of these Terms and Conditions by Customer and entitle Supplier to all of its rights and remedies under these Terms and Conditions, including, without limitation, the right to recover interest and attorneys’ fees and any other remedy available at law or in equity.
5. Shipment and Delivery. All Products are priced F.O.B. origin and all freight and shipping charges are the responsibility of and shall be paid by Customer. Manner of shipping and routing of shipments is at the discretion of Customer unless otherwise agreed upon in writing by Supplier and Customer. All claims of shortages on shipments must be made within five days after receipt of goods.
6. Title and Risk of Loss. Title to the Products and any risk of loss associated with the Products shall pass to Customer at the time of delivery of the Products to the carrier for shipment to Customer. In the event Customer or its agent or representative picks up the Products at Supplier’s place of business or Supplier delivers the Products, title and risk of loss shall pass to Customer at the time of pick up by Customer, its agent, or representative or shipment by Supplier. With regard to Products that are returned to Supplier, title and risk of loss remain with Customer until receipt and acceptance of the Products by Supplier. All claims for damage and shortage in transit shall be made by Customer with the carrier, and Customer holds Supplier harmless for all such claims.
7. Reliance by Supplier. Customer represents and warrants to Supplier the complete accuracy and correctness of any information, data, dimensions, blueprints, schematics, diagrams, specifications, or other drawings or representations, whether oral or in writing, provided by or on behalf of Customer (collectively, the “Specifications”). Supplier may rely upon all Specifications and shall have no responsibility to make any independent inquiry or investigation regarding such Specifications. Supplier’s review of any Specifications will not relieve Customer of its obligation to provide complete, accurate, and correct Specifications.
8. Inspection and Acceptance; Returns. Customer shall have three (3) days from receipt of the Products to inspect the Products for conformance with the published specifications. Customer may reject Products that do not substantially conform to the published specifications. All rejections shall be made in writing to Supplier and shall provide sufficient detail as to the reason for such rejection. If Supplier does not receive such written notice within such 3-day period, Customer will be deemed to have accepted such Products. Supplier has sole discretion to determine, after examination, whether returned Products are defective, and Supplier’s determination shall be binding on Customer. Customer’s sole remedy for returned Products that have been found to be defective shall be either, in Supplier’s sole discretion: (a) replacement of the returned Products; and/or (b) reimbursement of the amount paid by Customer for the returned Products.
9. Disclaimer of Warranties. Supplier hereby disclaims, and Customer hereby waives, all warranties, whether express or implied, or arising under any statute, ordinance, course of dealing, course of performance, or usage of trade, or otherwise (including, without limitation, warranties of merchantability, fitness for a particular purpose, title, non-infringement, and any warranties arising out of course of performance or usage of trade).
10. Limitation of Liability. Supplier shall not be liable for any special, exemplary, indirect, incidental, punitive, or consequential damages, including, without limitation, lost profits, loss of use, or loss of income, arising out of these Terms and Conditions or the use or possession of the Products, however caused and under any theory of liability, whether based in contract, tort, or otherwise. Notwithstanding anything contained in these Terms and Conditions to the contrary, Supplier’s liability to Customer for actual direct damages arising out of the provision of Products to Customer by Supplier and/or these Terms and Conditions shall not exceed the total amount paid by Customer to Supplier for the Product or Products giving rise to the liability.
11. Indemnity. In addition to all other rights and remedies available to Supplier at law or in equity, Customer assumes the entire responsibility and liability for and agrees to indemnify, defend, and hold harmless Supplier, its shareholders, officers, directors, agents, employees, subcontractors, successors, and assigns from and against any and all losses, expenses (including, without limitation, attorneys’ fees, other professionals’ fees, and court costs), costs, damages (including, without limitation, consequential, exemplary, and special damages), lost profits, demands, liabilities, suits, and claims in connection with or arising, directly or indirectly, out of: (a) a breach of these Terms and Conditions by Customer; (b) any act, error, or omission, whether negligent or not, of Customer or its agents, employees, suppliers, subcontractors, or consultants, including, without limitation, any actual or alleged personal injury (including, without limitation, death) or damage or destruction to property of Supplier or other third parties (including, without limitation, loss of use); (c) any disputes with regard to the title or possession of any Products; (d) Customer use or misuse of the Products (including, but not limited to, improper use, alterations, or modifications); or (e) patent, trademark, or copyright infringement or trade secret misappropriation arising out of or relating to, directly or indirectly, the Specifications or other content or items furnished by Customer or Products manufactured in accordance with Specifications furnished by Customer. The provisions of this Section 12 shall continue in effect notwithstanding the fact that Customer has accepted and paid for the Products. Customer further understands and agrees that Supplier is relying upon the terms of these Terms and Conditions, including, but not limited to, this Section 12, in determining the cost of the Products.
12. Force Majeure. Supplier will be excused from any delay or failure in its performance of its obligations under these Terms and Conditions where the delay or failure is due, in whole or in part, directly or indirectly, to a cause beyond Supplier’s reasonable control including, without limitation, labor difficulties, riots, fire, weather, casualty, accidents, acts of God, acts of terrorism, civil disorder, war, shortage of labor or materials, or governmental acts or restrictions. Upon any of the above events, Supplier will have the additional right to extend the time to provide the Products under these Terms and Conditions or to cancel any open purchase orders without any resulting liability to Customer.
13. Attorneys’ Fees. In the event of a dispute between the parties with regard to or arising out of these Terms and Conditions which results in litigation in which Supplier is the prevailing party, Customer shall pay Supplier’s attorneys’ fees, professionals’ fees, and costs, and such sum may be added to any judgment entered in the litigation. Supplier’s right to the foregoing shall not merge with but shall survive the entry of judgment, and shall extend to appeals and collection.
14. Remedies Cumulative. If Customer wrongfully rejects the Products, fails to make a payment due, repudiates with respect to these Terms and Conditions, or otherwise breaches or defaults under any of these Terms and Conditions, then, with respect to any Products directly affected and also with respect to the whole undelivered balance of Products on order by Customer, Supplier may withhold delivery of such Products, stop delivery of such Products in possession of a carrier or other bailee, and recover any and all damages for wrongful rejection, breach, nonacceptance or repudiation, including, without limitation, lost profits of Supplier. The remedies provided in these Terms and Conditions in favor of Supplier upon default of Customer shall not be deemed to be exclusive, but shall be cumulative and in addition to all other remedies available to Supplier at law or in equity (including, without limitation, the rights of a seller under the Uniform Commercial Code). Supplier may exercise all remedies, successively or concurrently, and any such action shall not operate to release Customer until the full amount of all sums due and to become due under these Terms and Conditions have been paid.
15. Miscellaneous. Customer shall not assign, delegate, or otherwise transfer any of its rights or obligations under these Terms and Conditions without the prior written approval of Supplier, and any assignment, delegation, or transfer without Supplier’s prior written consent shall be void. If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be modified to the extent necessary to remove the invalidity, illegality, or unenforceability. If the modification of such provision is impossible, these Terms and Conditions shall be construed as if they never contained the invalid, illegal, or unenforceable provision, and such provision shall not affect any other provision of these Terms and Conditions. These Terms and Conditions shall be construed and enforced exclusively in accordance with the substantive and procedural laws of the Commonwealth of Pennsylvania, without regard to principles of conflicts of law, and without regard to rules of construction relating to which party drafted these Terms and Conditions. Customer consents to the exclusive jurisdiction and venue of the courts of the Commonwealth of Pennsylvania, Philadelphia County, and the United States District Court for the Eastern District of Pennsylvania with respect to the enforcement of these Terms and Conditions or any matter arising out of the provision of Products to Customer by Supplier, and Customer waives any objections to such exclusive jurisdiction and venue, including objection as to an inconvenient forum. No claim or right arising out of a breach of these Terms and Conditions by Customer may be discharged in whole or in part by a waiver of the claim or right, unless the waiver is in writing signed by an authorized representative of Supplier. Supplier’s waiver or acceptance of any breach by Customer of any provisions of these Terms and Conditions shall not constitute a waiver of, or an excuse for, nonperformance as to any other provision nor as to any prior or subsequent breach of the same provision. These Terms and Conditions shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. These Terms and Conditions, together with any other documents which Supplier has attached or referenced hereto or to which these Terms and Conditions have been attached or referenced by Supplier as part of the contract, constitute the complete and exclusive statement of the terms of the contract between the parties and the final expression of the terms of such contract, and shall supersede all prior and contemporaneous agreements, inducements or conditions, express or implied, oral or written. No course of prior dealings between the parties and no usage of trade shall be relevant to supplement or explain any term in these Terms and Conditions. Supplier’s acceptance or acquiescence in a course of performance rendered by Customer pursuant to these Terms and Conditions shall not be relevant to determine the meaning of this contract even though Supplier has knowledge of the nature of the performance and opportunity for objection. Customer acknowledges, agrees, represents and warrants that the provision of Products to Customer by Supplier and the transactions contemplated by these Terms and Conditions are commercial transactions and not for personal, family or household use. All claims, actions, and proceedings, legal or equitable, against Supplier must be commenced in court, if at all, within one (1) year after the cause of action has accrued, without judicial extension of time, or such claim, action, or proceeding is barred, time being of the essence of this sentence. The parties expressly waive the right to a trial by jury in any action or proceeding brought relating to these Terms and Conditions, the parties preferring that such dispute be resolved by a judge having jurisdiction with respect to such dispute.