Terms & Conditions
Terms and Conditions for Purchase Orders
TERMS AND CONDITIONS OF PURCHASE
1. AGREEMENT. STRATA-TAC, INC. (“STRATA-TAC”) WILL NOT ACCEPT AND OBJECTS TO ANY TERMS AND CONDITIONS OR OTHER WRITING ON SELLER’S SALES ORDER OR ACKNOWLEDGEMENT WHICH IS DIFFERENT FROM OR ADDITIONAL TO THE (i) TERMS AND CONDITIONS CONTAINED HEREIN OR (ii) TERMS AND CONDITIONS CONTAINED IN THE ATTACHED PURCHASE ORDER (COLLECTIVELY WITH THESE TERMS AND CONDITIONS OF PURCHASE, THE “PURCHASE ORDER”). NO MODIFICATION OR WAIVER OF THE PURCHASE ORDER WILL BE EFFECTIVE UNLESS SPECIFIED IN WRITING AND SIGNED BY THE PARTY AGAINST WHOM ENFORCEMENT IS SOUGHT. NO TERM OR CONDITION OF SELLER’S SALES ORDER OR ACKNOWLEDGEMENT, EXPRESSLY INCLUDING ANY EFFORT TO NEGATE THE PURCHASE ORDER, SHALL BE EFFECTIVE OR BINDING AGAINST STRATA-TAC. THE PURCHASE ORDER SHALL CONSTITUTE WRITTEN NOTICE SIGNED BY STRATA-TAC OF OBJECTION TO AND REJECTION OF ANY TERM OR CONDITION IN SELLER’S SALES ORDER OR ACKNOWLEDGEMENT, INCONSISTENT WITH THE PURCHASE ORDER, WHETHER ISSUED OR DELIVERED TO STRATA-TAC PRIOR OR SUBSEQUENT TO THE DATE OF THE PURCHASE ORDER.
2. PRICE AND PAYMENT.
2.1 The price to be paid for the products shall be set forth in the Purchase Order. The parties agree that all charges are included in the price of the products including all applicable federal, state or local taxes, use or other taxes, shipping, storage and packaging, including insurance and other expenses associated with the Purchase Order. Any additional changes or expenses of any kind shall not be allowed unless agreed in writing by Strata-Tac.
2.2 Payment is deemed made when Strata-Tac’s payment is mailed. Payment by Strata-Tac shall not constitute acceptance of an order. Unless otherwise specified on the face of the Purchase Order, payment is due within forty-five (45) days of the later to occur of (i) receipt of the products by Strata-Tac which conforms with the Purchase Order, or (ii) receipt of an invoice from Seller. In connection with any discount offered for early payment, time shall be computed from the date of the receipt of the invoice. For the purpose of computing the discount earned, payment shall be considered to have been made on the date which payment is mailed or the specified electronic funds transfer date. No late charges shall be assessed against Strata-Tac for the late payment of an invoice. If Strata-Tac fails to pay an invoice when due, Seller shall give Strata-Tac not less than thirty (30) days written notice to cure such failure prior to declaring a breach of the parties agreement.
3. PACKING, SHIPPING AND STORAGE.
No charge will be assessed against Strata-Tac for packing, crating, shipping, storage and/or any other services unless agreed upon in writing at time of purchase, and shipments must be packed and crated to conform with the requirements of the carriers and all applicable federal, state and local laws. Unless otherwise specified, all packing, packaging, and crating by Seller shall be in compliance with carrier’s instructions and in suitable containers and packing materials for protection in shipment and storage.
4. INSPECTION AND NON-CONFORMING GOODS.
4.1 Upon receipt of the products, Strata-Tac may inspect the products for conformance to the Purchase Order and may reject any non-conforming or otherwise defective or damaged products by giving notice of such rejection to Seller within a reasonable time. Strata-Tac may reject any delivered goods for nonconformance with the Purchase Order. For purposes of the Purchase Order, a non-conforming good shall be deemed a product that fails to meet the specification set forth on the Purchase Order, breaches any of the representations and warranties set forth herein, or is otherwise defective or contaminated. The products rejected by Strata-Tac will be returned to Seller and Seller shall be responsible for all charges incurred for the shipment of nonconforming or otherwise defective or damage products to and from Strata-Tac. Despite any prior payment or acceptance, the products are subject to inspection by Strata-Tac for sixty (60) days after delivery. As to any defect not discoverable by inspection, Strata-Tac may reject the products at any time.
4.2 Products delivered in excess of the amount called for in this Purchase Order may be refused by Strata-Tac and returned at Seller’s expense. In the event the quantity delivered is less than the quantity ordered, Strata-Tac, at its sole option, may either (i) accept the quantity delivered as fulfillment of this Purchase Order and receive a refund of the purchase price and other expenses incurred with respect to the undelivered products, (ii) reject the Purchase Order and return the short shipment at Seller’s cost or (iii) require the Seller to deliver the balance of the products in accordance with the terms of the Purchase Order in a timely fashion. If Strata-Tac elects to accept less than the quantity ordered, the price of the Purchase Order shall be adjusted accordingly.
5.1 Strata-Tac may cancel and terminate this Purchase Order at any time prior to delivery in which case Strata-Tac’s sole and exclusive financial obligation and liability will be limited to actual damages as set forth herein. Actual damages shall be measured by the actual, direct cost to Seller of products supplied (as supported by documents presented by Seller); provided that Seller shall be obligated to use best efforts for a reasonable time to sell the products to other prospective purchasers (in which event Strata-Tac’s liability shall be measured by the difference, if any, between said actual damages and the proceeds of any resale of the products by Seller). In any event, if the products are fungible and in a reasonable and general saleable condition (and not unique or custom), then Strata-Tac’s sole and exclusive liability hereunder shall be a reasonable charge for storage of such products by Seller until resold, but in no event exceeding thirty (30) days.
5.2 Seller acknowledges that time is of the essence to the Purchase Order; and therefore, Seller shall have no right to cancel or terminate the Purchase Order and Seller acknowledges and agrees that in the event of a breach of the Purchase Order by Seller that Strata-Tac shall be entitled to all remedies available to it at law or in equity including money damages for both direct and indirect damages (indirect damages being deemed to include, without limitation, damages resulting in connection with the breach of any other agreement between Strata-Tac and a third party, the subject matter of which relates to this Purchase Order).
The products shall be delivered by the date or dates set forth on the front side of the Purchase Order, or in the absence thereof, as promptly as practicable. Unless otherwise agreed elsewhere in the Purchase Order, the products shall be shipped and delivered F.O.B. to Strata-Tac’s place of business, or at such other address Strata-Tac may direct from time to time. Strata-Tac shall select the method of shipment and carrier unless otherwise agreed upon in writing by the parties. Proper packing list and shipping documents must accompany all shipments. Strata-Tac reserves the right to change shipping dates specified for any portion of the Purchase Order.
Seller hereby covenants and agrees to indemnify and hold Strata-Tac and its successors, assigns, employees, agents, customers and users of its products, harmless against and from all liability, demands, claims, actions or causes of action, assessments, losses, fines, penalties, costs, damages and expenses, including reasonable attorneys’ fees, sustained or incurred by Strata-Tac as a result of or arising out of or by virtue of (i) Seller’s failure to deliver the products in conformance with Strata-Tac’s Purchase Order, (ii) any inaccuracy in a representation or warranty made by Seller to Strata-Tac herein, (iii) the failure of Seller to comply with, or the breach by Seller, of any of the covenants of the Purchase Order to be performed by Seller (including, without limitation, anything contained in the Purchase Order, (iv) for Seller’s negligent acts or omissions, (v) for failing to comply with any and all applicable federal, state and local laws, statutes, orders, rules and regulations, and standards issued thereunder in effect on the date that the Purchase Order is accepted, and (vi) third party claims made by Strata-Tac’s customers relating to any of the foregoing matters.
8. FORCE MAJEURE.
Strata-Tac reserves the right, without any liability to Seller, to defer delivery under the Purchase Order, cancel or modify the Purchase Order or change any performance dates in the event of a strike, lockout, concerted act of workers or other industrial disturbance, fire, explosion, flood, or other natural catastrophe, civil disturbance, riot, act of war or terrorism, or armed conflict whether declared or undeclared, curtailment, shortage, rationing or allocation of normal sources of supply of labor, materials, transportation, energy or utilities, mechanical breakdown, equipment failure, accident, Act of God, delay of subcontractors or vendors, sufferance of or voluntary compliance with acts of government and government regulations (whether or not valid), embargo, or due to any other cause whether similar or dissimilar to any of the causes or categories of causes described above and which is beyond the reasonable control of Strata-Tac.
9. TITLE AND RISK OF LOSS.
Regardless of the delivery terms specified in the Purchase Order, title and risk of loss shall pass to Strata-Tac at the time the products are delivered to Strata-Tac’s designated shipping address.
In consideration of Strata-Tac purchasing the products, Seller shall keep confidential and not disclose to any persons, or use, any and all confidential and proprietary knowledge, information or materials, with respect to Strata-Tac’s business, including, without limitation, customer names, customer supplied information, pricing, quantities, business and marketing plans and strategy, processes and trade secrets for so long as permitted by applicable law. Additionally, the use of Strata-Tac’s name or logo or other proprietary marks or those of Strata-Tac’s customers in any advertisement or other publication by Seller must be preapproved in writing by Strata-Tac.
11. REPRESENTATION AND WARRANTIES; COVENANTS:
Seller represents, warrants and covenants to Strata-Tac that:
(a) it has good title to all goods to be sold under the Purchase Order and that it has the unrestricted right to and shall convey good and marketable title free and clear of all liens, encumbrances and security interests;
(b) all products delivered or services performed by Seller will conform to the Purchase Order and any description, specification, or sample relating to such goods or services;
(c) all goods shall be merchantable and fit for the use intended by Strata-Tac;
(d) it shall produce and/or supply products as more fully described in the attached Purchase Order and the products shall conform to all specifications described in the Purchase Order or in any related document;
(e) it shall use, and deliver products to, carriers specified by Strata-Tac and shall be responsible for all shipping and delivery arrangements and expenses unless otherwise specified in the Purchase Order; and
(f) all goods manufactured by Seller shall be manufactured in accordance with good quality workmanship and material and that all goods, and Seller, shall comply with and/or be sold, as the case may be, in accordance with all applicable federal, state and local laws, statutes, rules, ordinances and regulations and Seller shall furnish Strata-Tac with any certifications as may be required by such laws, statutes, rules, ordinances and regulations.
Seller agrees that the foregoing representations, warranties and covenants shall inure to the benefit of Strata-Tac, its successors, assigns, and customers, purchasers and users of its products. The foregoing representations, warranties and covenants shall survive any delivery, inspection, testing and/or acceptance for payment by Strata-Tac under the Purchase Order; and the termination of the Purchase Order for any reason for one (1) year from the date of delivery.
12.1 The Purchase Order may not be transferred or assigned in whole or in part by Seller without the prior written consent of Strata-Tac. Such consent shall not relieve Seller of its obligations and liabilities hereunder.
12.2 Except as otherwise provided, the Purchase Order may be modified or amended only by a writing of the party against whom enforcement is sought.
12.3 This instrument, together with the Purchase Order and all schedules, attachments and documents incorporated herein by reference, shall constitute the entire agreement between the parties. The failure of either party at any time to require performance by the other party of any provision of this agreement shall in no way affect the right to require such performance at any time thereafter, nor shall the waiver of either party of a breach of any provision of this agreement constitute a waiver of any succeeding breach of the same or other provision.
12.4 Seller shall be solely responsible for filing the appropriate federal, state and local tax forms due with respect to Seller’s receipt of any payments from Strata-Tac. Strata-Tac shall have no responsibility to pay or withhold from any payment to Seller, any federal, state or local taxes or fees.
12.5 The Purchase Order shall not create an exclusive agreement with Seller. Strata-Tac is free to engage others to provide products the same as or similar to Seller’s and Seller is free to offer and provide Seller’s products to others; provided however, that Seller does not breach any of the terms of the Purchase Order.
12.6 Seller shall comply fully with all applicable foreign, federal, regional, provincial, state and local laws, statutes, orders, rules, ordinances and regulations in the performance of its obligations under the Purchase Order, including, but not limited to, all applicable employment, tax and environmental laws.
12.7 The Purchase Order shall be governed by and construed in accordance with the laws of the State of Illinois. Any court action which may be brought by any party pertaining to the Purchase Order shall be brought in Illinois. The parties consent to personal jurisdiction and venue by state and federal courts in Illinois for any action pertaining to the Purchase Order by personal service of process within or without the State of Illinois.
12.8 Any controversy or claim arising out of or relating to the Purchase Order or the breach hereof may be settled at Strata-Tac’s sole discretion either by submitting the claim to (i) a court of competent jurisdiction or (ii) binding arbitration, before a single arbitrator, in the state and under the laws of the state of its choosing, in accordance with the commercial arbitration rules of the American Arbitration Association, and judgment upon the arbitrator’s award may be entered in any court having jurisdiction. Pending resolution of settlement of any dispute arising under the Purchase Order, Seller will proceed diligently as directed by Strata-Tac with the performance of the Purchase Order.
12.9 Seller agrees that Strata-Tac shall have the right to set-off against any amounts which may become payable by Strata-Tac to Seller under the Purchase Order, any amounts which Seller may owe to Strata-Tac, whether arising under the Purchase Order or otherwise.
12.10 The invalidity or unenforceability of any provision contained herein shall not affect the validity or enforceability of any other provision hereof. Any invalid or unenforceable provision shall be deemed severed from the Purchase Order to the extent of its invalidity or unenforceability, and the Purchase Order shall be construed and enforced as if the Purchase Order did not contain that particular provision to the extent of its invalidity or
Terms and Conditions for Order Confirmations
TERMS AND CONDITIONS - ORDER CONFIRMATION
(a) “Products” means the products and materials manufactured, sold and/or distributed by Strata-Tac, Inc. (“Strata-Tac”) and/or listed or described in Strata-Tac’s quotation or Buyer’s Purchase Order (each as defined below), subject to these terms and conditions attached to Strata-Tac’s order confirmation (these “Terms”).
(b) “Purchase Order” means any written order for purchase of any of the Products pursuant to a price quote or otherwise, issued to Strata-Tac by the buyer of the Products (“Buyer”).
2. PURCHASE ORDERS, PRICES, PAYMENT AND TITLE.
2.1 Purchase Orders.
(a) Strata-Tac may reject in whole or in part, any Purchase Order from Buyer for any reason. Purchase Orders that are accepted will be deemed accepted by Strata-Tac as of the date of the earlier of Strata-Tac’s (i) issuance of an order confirmation with respect to such Purchase Order or (ii) shipment of the Products.
(b) These Terms shall constitute written notice signed by Strata-Tac. Any modifications to a Purchase Order by these Terms will be the final agreement between Strata-Tac and Buyer unless promptly objected to in writing by Buyer and delivered to Strata-Tac.
(c) STRATA-TAC WILL NOT ACCEPT AND OBJECTS TO ANY WRITING CONTAINED IN OR ADDED TO THE PURCHASE ORDER, OR OTHERWISE WHICH IS DIFFERENT FROM OR IN ADDITION TO STRATA-TAC’S PRICE QUOTE, ORDER CONFIRMATION OR THESE TERMS, EXPRESSLY INCLUDING ANY WRITING WHICH WOULD NEGATE ANY OF THESE TERMS. NO MODIFICATION OR WAIVER OF THESE TERMS SHALL BIND STRATA-TAC UNLESS SPECIFIED IN WRITING AND SIGNED AND ACCEPTED BY AN OFFICER OF STRATA-TAC. THESE TERMS CONSTITUTE WRITTEN NOTICE OF STRATA-TAC’S OBJECTION TO AND REJECTION OF ANY WRITING INCONSISTENT WITH THESE TERMS, WHETHER ISSUED OR DELIVERED TO STRATA-TAC PRIOR OR SUBSEQUENT TO THE DATE OF THE PURCHASE ORDER.
2.2 Prices. Prices for the Products will be those specified in Strata-Tac’s quotation or price list and specification sheets and will be valid for 30 days from date of quotation unless otherwise stated therein. Unless otherwise stated in an applicable price quote, prices do not include, and Buyer is responsible for (i) all applicable federal, state or local sales, use or other taxes (except taxes on Strata-Tac’s net income), (ii) shipping or packing charges, (iii) insurance, and (iv) any other expenses associated with the sale and transportation of the Products or tariffs and any similar charges imposed upon or in connection with the Products. Buyer will be responsible for all expenses associated with shipping, storage, and packing of the Products unless otherwise agreed upon by the parties in writing signed by the party against whom enforcement is sought.
2.3 Payment. Payment for Products is due 30 days from the date of shipment or as otherwise specified in a particular price quote or the attached order confirmation. Strata-Tac may require payment to be made through an irrevocable letter of credit in favor of and acceptable to Strata-Tac and established by Buyer at its expense or may require prepayment in immediately available funds. Payment is made when Strata-Tac receives payment from Buyer. Strata-Tac may require prepayment. Strata-Tac may charge Buyer interest on all amounts unpaid after thirty (30) days at the rate of one and one-half percent (1.5%) per month from the date of shipment of the Products or the highest interest rate permitted by law, whichever is lower. If any invoice is not paid when due, payment shall be considered late, and Strata-Tac may, at any time, suspend delivery or other performance with respect to any Products without liability or penalty and take all other action permitted under the Uniform Commercial Code available to it.
2.4 Title and Security Interest.
(a) As payment for any sum due or to become due, Strata-Tac shall have a lien on all Buyer property in Strata-Tac’s possession, if any, including work in progress and finished work.
(b) Title to and risk of loss for the Products sold hereunder will pass to Buyer upon delivery by Strata-Tac to the carrier transporting the Products at Strata-Tac’s facilities, and any loss or damage thereafter shall not relieve Buyer from any obligation hereunder.
(c) Strata-Tac reserves, and Buyer hereby grants to Strata-Tac, a purchase money security interest in the Products, and all proceeds from the sale thereof, until full payment is received for all amounts due and payable by Buyer. Buyer hereby agrees to sign, upon request, any documents necessary to perfect Strata-Tac’s security interest in said Products.
3. SHIPPING, RESCHEDULING, CANCELLATION, INSPECTION AND RETURNS.
(a) Products will be shipped F.O.B. Strata-Tac’s facilities unless otherwise stated in a particular price quote. Method of shipment and carrier will be selected by Strata-Tac unless Buyer has specified in writing a method and carrier satisfactory to Strata-Tac. Buyer shall be liable for all costs for insurance and transportation, packing, storage, taxes and any other expenses incurred or licenses or clearance required.
(b) Buyer shall make all claims for damage to or loss of Products while in transit directly to the carrier; Strata-Tac shall have no liability whatsoever for such damage or loss and Buyer shall hold Strata-Tac harmless from and against all claims or liability resulting from any such damage or loss, if the carrier was identified by Buyer.
3.2 Shipment Dates. Requested shipment dates are subject to acceptance by Strata-Tac and shall only constitute approximate dates. At Strata-Tac’s sole option, Strata-Tac may deliver the purchased Products in advance of the approximate delivery date.
3.3 Rescheduling. Prior to shipment, Strata-Tac will make reasonable efforts to accommodate shipping delays required by Buyer. If Buyer delays shipment of any Products when ready for shipment, Strata-Tac may hold or place such Products in storage, and all risks of loss will pass to Buyer at the time the Products are held or placed in storage. Buyer shall be responsible for any and all expenses incurred by Strata-Tac for delay in shipment/delivery. Strata-Tac also may, at its sole option, submit its invoice for said rescheduled, delayed, held or stored Products to Buyer and Buyer will pay as set forth in Paragraph 2.3 and reimburse Strata-Tac for all such expenses.
3.4 Force Majeure. Strata-Tac shall not be in default in the performance of its obligations hereunder, or be liable in damages or otherwise, for any failure or delay in performance which is due to circumstances beyond Strata-Tac’s reasonable control, including but not limited to, strike, lockout, concerted act of workers or other industrial disturbance, fire, explosion, flood, or other natural catastrophe, civil disturbance, riot, act of war or terrorism, or armed conflict, whether declared or undeclared, curtailment, shortage, rationing or allocation of normal sources of supply of labor, materials, transportation, energy, or utilities, mechanical breakdown, equipment failure, accident, Act of God, delay of subcontractors or vendors, sufferance of or voluntary compliance with acts of government or government regulations (whether valid or not), embargo, or due to any other cause whether similar or dissimilar to any of the causes or categories of causes described above.
3.5 Cancellation. Buyer shall have no right to cancel the Purchase Order once received by Strata-Tac, for any reason whatsoever, including by reason of a delay in delivery, subject to any provisions of Buyer’s local law to the contrary. Buyer shall be liable for payment of Strata-Tac’s costs and expenses incurred in connection with the purchase of, and labor associated with, any materials that have been produced by Strata-Tac that are not readily reusable or otherwise salvageable; provided, however, that Buyer shall also be responsible for the amount of the difference between the salvage value of any such materials and the costs incurred by Strata-Tac to purchase and otherwise produce such materials. Any conduct constituting a breach or repudiation of these Terms, including but not limited to failure to obtain a timely letter of credit or prepay the Purchase Order as required, will be deemed to be a cancellation by Buyer.
3.6 Shortage Claims and Inspection. Buyer shall have the right to inspect the Products within twenty-four (24) hours of receipt (or Buyer pick up, as applicable). Any quantities delivered by Strata-Tac to Buyer which do not exceed a 10% variation in increase or decrease of the Purchase Order shall constitute compliance with the Purchase Order. Any defects, shortages or other claims in connection with the Purchase Order must be made in writing and delivered to Strata-Tac within the 24-hour time period. Thereafter, Strata-Tac will be given reasonable opportunity to investigate and cure. In the event Strata-Tac’s delivery is not in compliance with the Purchase Order, no deduction from the payment of any invoice will be binding upon Strata-Tac unless (i) Strata-Tac has been notified of shortages as specified herein, (ii) the parties agree to such a deduction, and (iii) a credit memo has been issued to Buyer by Strata-Tac. Any amount paid less than the full amount due under any invoiced amount will be considered a late payment as set forth in Paragraph 2.3 and Strata-Tac may suspend delivery or other performance with respect to the Products without liability.
3.7 Returns. Buyer acknowledges that Strata-Tac has no obligation to accept returns of any non-defective Products sold to Buyer. Strata-Tac, at its sole discretion, may authorize the return of unused Products. Such returns cannot be made without a return authorization in writing issued by Strata-Tac. Any such return of Products shall be freight prepaid by the Buyer, and shall be subject to re-inspection by Strata-Tac and credit for Products will be made only on the Products deemed suitable by Strata-Tac for resale (which may be less than the quantity of the Products returned by the Buyer) and all such returns shall be credited to the Buyer at the purchase price paid by Buyer less a thirty (30%) percent inspection, handling and restocking charge deducted by Strata-Tac.
4. WARRANTIES AND REMEDIES.
4.1 Warranty. Strata-Tac warrants to the Buyer that the Products will substantially conform to the specifications in Strata-Tac’s quotation or product catalog.
4.2 Warranty Limitation. EXCEPT AS SET FORTH IN PARAGRAPH 4.1 HEREOF, STRATA-TAC HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES TO THE BUYER WITH RESPECT TO THE PRODUCTS, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW, COURSE OF PERFORMANCE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND THE WARRANTY OF NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. BUYER ACCEPTS FULL RESPONSIBILITY FOR THE SELECTION AND USE OF THE PRODUCTS TO ACHIEVE INTENDED RESULTS. No representation or warranty concerning the Products shall be binding unless confirmed by Strata-Tac in writing. Acceptance of the Purchase Order is made only upon these Terms. Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations and warranties which are not so confirmed. Any advice or recommendation given by Strata-Tac to Buyer as to the storage, application or use of the Products which is not confirmed in writing by Strata-Tac shall be followed or acted upon entirely at Buyer’s own risk. Except as provided by Strata-Tac in advance in writing, Buyer shall make no warranty or guaranty, orally or in writing, concerning the Products.
4.3 Buyer’s Remedy. Subject to the provisions contained in Paragraphs 5.1 and 5.3 herein, Strata-Tac’s entire liability and Buyer’s exclusive remedies under the warranties described in this Paragraph 4 shall be for Strata-Tac, at its option, and as the case may be, (i) to use reasonable efforts to remedy such defects within a reasonable period of time; or (ii) to replace the affected Product(s); or (iii) to refund to Buyer the amount paid for the affected Products, upon the return thereof to Strata-Tac.
4.4 Trademarks and Patents. Buyer covenants and agrees to indemnify and hold Strata-Tac harmless from and against any and all liability and damages, losses, costs or expenses, including attorneys’ fees and court costs, which Strata-Tac hereinafter may incur, suffer or be required to pay to third parties relating to, arising out of, or occurring in connection with the use or misuse of trademarks, designs, or patents reproduced by Strata-Tac on any Products for and at the direction of the Buyer; Strata-Tac having no knowledge of agreements between Buyer and others, or knowledge of Buyer’s right to use such trademark, designs or patents, if any.
5. LIMITATION OF LIABILITY
5.1 Limitation of Liability. The total liability of Strata-Tac to Buyer from any cause whatsoever, whether arising under contract, warranty, tort (including negligence), strict liability, products liability or any other theory of liability will be limited to the lesser of (i) Buyer’s actual damages or (ii) the purchase price paid to Strata-Tac for the Products that are the subject of Buyer’s claim. Strata-Tac is not and will not be liable for SPECIAL, PUNITIVE, INDIRECT, COLLATERAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES including but not limited to loss of profits or revenues, damage to or loss of the use of the Products, loss of work in process, downtime, damage to property, claims of third parties, including personal injury or death suffered as a result of provision or use of the Products or failure of Strata-Tac to instruct or warn, or to adequately instruct or warn, about the safe and proper use of the Products, whether or not Strata-Tac has been advised of the potential or risk for such liability and damages. Buyer’s limitation of liability and remedies provided herein shall be Buyer’s sole and exclusive remedy and no other course of action may be maintained. Buyer further covenants and agrees to indemnify and hold Strata-Tac harmless from and against any and all liability and damages, losses, costs or expenses, including attorneys’ fees and court costs, which Strata-Tac hereinafter may incur, suffer or be required to pay to third parties relating to, arising out of, or occurring in connection with the use of any of Buyer’s products which may incorporate the Products.
5.2 Advice. No charge has been made for advice furnished and Strata-Tac makes no representation or warranty regarding any advice and assumes no obligation or liability for the use of or the results obtained, or conclusions reached from such advice and Buyer expressly accepts all such advice at Buyer’s own risk. BUYER ACKNOWLEDGES THAT IT IS NOT RELYING AND SHALL NOT RELY UP ON ANY ORAL STATEMENTS MADE BY ANY STRATA-TAC PERSONNEL REGARDING THE PRODUCTS. BUYER FURTHER ACKNOWLEDGES THAT ORAL STATEMENTS MADE BY STRATA-TAC PERSONNEL ARE NOT AND WILL NOT BE CONSTRUED AS, CONSTITUTE OR CREATE ANY WARRANTY FOR A PARTICULAR PURPOSE; AND THAT ALL SUCH WARRANTIES ARE DISCLAIMED (AS SET FORTH IN PARAGRAPH 4.2 HEREOF).
5.3 Time for Claims. All claims hereunder against Strata-Tac must be brought within 1 year after the cause of action arises and Buyer expressly agrees to this 1-year period and waives any other statue of limitations which might apply by operation of law or otherwise including under the Uniform Commercial Code.
5.4 Storage and Transportation. Strata-Tac shall, after delivery, have no liability in respect of any changes in quality of the Products arising from storage or transportation of the Products or from willful damages, negligence, abnormal working conditions, failure to follow Strata-Tac’s instructions (whether oral or in writing), misuse, or alteration of the Products.
6. GENERAL TERMS
6.1 Choice of Law. All disputes arising in connection with these Terms will be construed and governed under the laws of the State of Illinois without regard to its conflict of law provision. All disputes will be resolved in Cook County, Illinois or at Strata-Tac’s sole option, by arbitration or in a court of competent jurisdiction, and Buyer hereby irrevocably consents to the jurisdiction and exclusive venue of the state and federal courts in Cook County, Illinois whether suit or legal action is pursued by Buyer or Strata-Tac and Buyer agrees to appear in any action so brought by Strata-Tac upon written notice thereof.
6.2 Severability. The invalidity or unenforceability, in whole or in part, of any provision in these Terms shall not affect in any way the remainder of the provisions herein which shall be revised in full force and effect.
6.3 No Assignment. No rights or obligations arising under these Terms may be assigned or delegated by Buyer unless expressly agreed to in writing by Strata-Tac. Any assignment contrary to this provision will be in breach of these Terms, void and of no force or effect. No sale of any Products subject of these Terms by Buyer to a third party will be effective to transfer the rights or obligations of these Terms to the third party unless expressly agreed to in writing by Strata-Tac.
6.4 Entire Agreement. These Terms, together with Strata-Tac’s quotation, price list and specification sheets, product catalog and any other materials referenced in or expressly made a part of these Terms, constitute the final, complete and entire agreement between Strata-Tac and Buyer and supersede all prior and contemporary agreements, oral or written or contained in Buyer’s purchase order or release, with respect to the sale of the Products.
6.5 Confidentiality. Buyer shall keep confidential and not disclose to any persons, or use, any and all confidential and proprietary knowledge, information or materials, with respect to Strata-Tac’s business, including, without limitation, Strata-Tac’s supplied information, pricing, quantities, business and marketing plans and strategy, processes and trade secrets for so long as permitted by applicable law. Additionally, the use of Strata-Tac’s name or logo or other proprietary marks or those of Strata-Tac’s customers in any advertisement or other publication of Strata-Tac must be pre-approved in writing by Strata-Tac.