1. Acceptance. These Standard Terms and Conditions of Purchase are incorporated into and are a part of the Purchase Order on the reverse hereof (the “Purchase Order”). The Purchase Order constitutes an offer by Trinity Promotions, Inc. (herein called "Buyer") to purchase from the seller (identified on the face hereof and herein called "Seller"), and shall supersede all prior oral and written statements of any kind whatsoever made by the parties and their representatives, including all prior negotiations, discussions and preliminary agreements, if any. Except as set forth herein or in the Purchase Order, neither party has relied upon or may rely upon any oral or written promise or representation made by the other, its representatives or any third party as an inducement to enter into the subject transaction. All terms and conditions heretofore or hereafter contained in Seller's invoices or sales order confirmations or elsewhere which are different from, in addition to, or that conflict with or vary the terms hereof are hereby objected to, rejected and shall not be binding on Buyer, unless expressly agreed to in writing, signed by a duly authorized officer of Buyer in a document making specific reference to the Purchase Order and specifically stating that it Aamends@ the Purchase Order. Seller’s acceptance of the offer contained in the Purchase Order is limited to the terms of the Purchase Order. Seller’s acceptance and assent to the terms and conditions of the Purchase Order shall be conclusively presumed from the issuance of an invoice or confirmation for any goods, commencement of performance pursuant to the Purchase Order, or the shipment or delivery of any goods to Buyer.
2. Shipment. Prior to shipment, Seller shall provide notice to Buyer that goods are ready and/or scheduled to be shipped. Buyer reserves the right to designate the carrier and routing. Any losses arising from deviation from Buyer's carrier and routing instructions will be charged to Seller's account. Title and risk of the goods will pass to Buyer when goods are delivered to and accepted by Buyer, or, in the event Buyer has agreed to pay for delivery, title and risk of loss passes to Buyer upon delivery to Buyer’s designated carrier.
3. Performance. Time is of the essence of the Purchase Order. Delivery of goods shall be in the exact quantities ordered and on schedule in accordance with the Purchase Order. If delivery dates cannot be met, Seller shall inform Buyer in writing by facsimile or certified mail, return receipt requested. If deliveries are not made at the time agreed upon or in correct quantities, Buyer may cancel or refuse delivery of all or any part of such order, or of any undelivered order, and/or Buyer may purchase elsewhere, and hold Seller accountable for all resulting damages, including but not limited to any additional amounts paid to purchase elsewhere. Buyer shall not be liable for payment for goods delivered to Buyer in excess of quantities ordered.
4. Termination. Buyer may, by written notice, terminate the Purchase Order at any time, in part or in its entirety. Upon such termination, Seller agrees to waive all claims for damages, including for those of anticipated profits, and to accept as its sole remedy for termination, the value of all goods shipped or work completed up to the date of termination, provided, however, that Buyer shall have no liability for goods which are Seller’s standard stock. Other than to this extent, Buyer shall be entitled to a refund of any payment made prior to the date of termination. No such termination shall relieve Seller of any of its obligations for any goods delivered prior to such termination.
5. Inspection and Rejection. All goods are subject to inspection at Buyer's premises. Goods rejected as not conforming to the Purchase Order, or otherwise defective, may, at Buyer’s election, be returned at Seller's expense, including transportation and handling costs, or price may be adjusted to reflect any shortage in quantity, failure to make specified delivery, or other nonconformity or defect.
6. Price. Seller's price for goods shall not be higher than the price set forth in the Purchase Order unless otherwise agreed in writing (exclusive of all applicable federal, state, and local taxes). Buyer shall be entitled to setoff any amount now or hereafter owing from Seller to Buyer against any amount now or hereafter owing by Buyer to Seller.
7. Warranty. Seller warrants all goods delivered hereunder to be free from defects in material or workmanship and to conform strictly to the specifications, drawings, or sample specified or furnished, if any. This warranty shall survive any inspection, delivery, acceptance, payment or resale by Buyer for the goods.
8. Intellectual Property. At Seller's expense, Seller hereby agrees to defend, indemnify and hold Buyer, its assigns, customers, directors, officers, employees, agents, and users of the goods harmless from and against any loss, damage or liability, including costs and expenses related thereto (including attorney’s fees), which may be incurred on account of any suit, claim, judgment, or demand involving infringement upon any United States or foreign patent, trademark, copyright or other intellectual property right with respect to any goods supplied hereunder.
9. Seller’s Exclusive Remedy. Seller’s sole and exclusive remedy and Buyer’s absolute limit of liability in connection with any lawsuit, claim or cause whatsoever directly or indirectly relating to or arising out of the transaction effected by the Purchase Order whether based on contract, tort or any other legal theory of recovery shall in all cases be limited to the contract price for the materials ordered by Buyer. Seller acknowledges and agrees that the foregoing remedy shall be Seller’s sole remedy even if such remedy fails in its essential purpose for any reason whatsoever. In no event shall Buyer, its officers, employees and owners, be liable for any punitive, incidental or consequential damages to Seller or any third party.
10. Personal Injury, Death And Property Damage. Seller agrees to defend, indemnify and hold Buyer, its assigns, customers, directors, officers, employees, agents and users of the goods harmless from and against any and all loss, damage, or liability, including costs and expense related thereto (including attorney’s fees), which may be incurred on account of any suit, claim, judgment or demand for any loss or damage to property or injury to persons, including death, sustained by Buyer, its assigns, customers, directors, officers, employees, agents, and users of the goods arising out of or resulting from or incurred in connection with any goods furnished by Seller under the Purchase Order, and hereby represents and warrants the Seller carries and maintains adequate insurance to cover such liabilities.
11. Miscellaneous. Any failure of Buyer to insist upon strict performance of any of the terms and conditions of the Purchase Order shall not be construed as a waiver of its right to strict performance thereafter. Seller agrees that it will comply with all federal, state and local laws and regulations applicable to the production, sale, labeling and the delivery of goods and the performance of any work set forth herein. If any term, covenant or condition of the Purchase Order, or the application thereof to any person or circumstance, shall be invalid or unenforceable, the remainder of these terms shall not be affected thereby, and all such terms, covenants or conditions shall be valid and shall be enforced to the fullest extent permitted by law. Seller shall not assign its obligations under the Purchase Order in whole or in part without the prior written consent of Buyer, and any such actual or attempted assignment by Seller shall constitute a breach and shall entitle Buyer to terminate the Purchase Order without further liability. The laws of the State of Georgia shall govern the validity and interpretation of the Purchase Order. Seller, to the extent it may lawfully do so, hereby submits to the jurisdiction of any state or federal court located in Fulton County, Georgia, for the purpose of any suit, action or other proceeding arising out of any of Seller’s obligations under the Purchase Order, expressly waives any and all objections that Seller may have as to jurisdiction or venue in any of such courts, and expressly waives its right to arbitrate such claim or to bring or have it tried elsewhere. In the event of any proceedings, voluntary or involuntary, in bankruptcy or insolvency by or against Seller, the inability of Seller to meet its debts as they become due, or in the event of the appointment, with or without Seller's consent, of an assignee or receiver for the benefit or creditors, then Buyer shall be entitled, at its sole option, to cancel any unfulfilled part of the Purchase Order without any liability whatsoever.