Terms & Conditions

TERMS AND CONDITIONS OF SALE

Applicability. These terms and conditions of sale (these “Terms”) are the only terms that govern the sale of the goods (“Goods”) by SIMATEX, INC. (“Seller”) to the purchaser identified on Seller’s order confirmation (“Buyer”). The accompanying order confirmation (the “Sales Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
Delivery. Delivery is Ex Works (EXW). Seller shall deliver the goods in the quantities, at the qualities, on the date(s), and at its location as specified on the Sales Confirmation. Buyer is solely responsible for arranging and paying for shipment with a Carrier of Buyer’s choice. Seller shall not be liable for any delays, loss, or damage in transit. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
Title and Risk of Loss. Title and risk of loss pass to Buyer upon delivery of the Goods. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and purchase money security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing.
Inspection and Rejection of Nonconforming Goods. Buyer shall test the product within a commercially reasonable time after delivery. Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods prior to consuming more than 1% of the delivered product. If Buyer timely notifies Seller of any Nonconforming Goods, Buyer shall, according to Seller’s discretion, permit Seller to inspect the product at Buyer’s site and/or submit product samples for third-party testing. Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods. Buyer shall ship, at its sole expense and risk of loss, the Nonconforming Goods to an address indicated by Seller.
Price and Payment Terms. Buyer shall purchase the Goods from Seller at the price and according to the terms set forth in the Sales Confirmation. Buyer shall make all payments hereunder by ACH, wire transfer, or check and in US dollars. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Any check or remittance received from or for the account of Buyer may be accepted and applied by Seller against any indebtedness or obligation owing by Buyer, as shown by the books and records of Seller, without prejudice to or the discharge of the remainder of any such indebtedness or obligation.
SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Limitation of Liability.
1. (a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
2. (b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.
3. c) BUYER SHALL INDEMNIFY SELLER AGAINST ANY CLAIMS OF THIRD PERSONS FOR INJURIES, DAMAGES, LIABILITIES, EXPENSES, JUDGMENTS AND COSTS (INCLUDING ATTORNEYS’ FEES), RESULTING FROM THE FAULT OF BUYER.
Insurance. Buyer shall, at its own expense, maintain and carry, in full force and effect during the term of this Agreement, insurance, which includes, but is not limited to, commercial general liability (including product liability) in a commercially reasonable sum with reputable insurers. Except where prohibited by law, Buyer shall require its insurer to waive all rights of subrogation against Seller’s insurers and Seller.
Compliance with Law. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) fails to pay any amount when due under any prior agreement with Seller; (iii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iv) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy.
Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Confidential Information. All confidential or proprietary information of Seller, including but not limited to customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether or not marked as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed unless authorized in advance by Seller in writing.
Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, disaster, catastrophe, public health emergency, or explosion; (c) war, invasion, hostilities, terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) industrial disturbances; or, (g) other events beyond the control of the Impacted Party. The Impacted Party shall give notice within 10-days of the Force Majeure Event to the other party. The Impacted Party shall use diligent efforts to minimize any effects of such Force Majeure Event. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable. If the Impacted Party’s failure or delay remains uncured for a period of 10-days following written notice given by it under this Section, the other party may thereafter terminate this Agreement upon 5-days’ written notice.
Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement 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 Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever.
Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of South Carolina without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of South Carolina.
Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the state or federal courts located in Spartanburg County, South Carolina, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
Notices. All notices, requests, 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 the Sales Confirmation. All Notices shall be delivered by electronic mail, commercial carrier, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, (b) by email confirmation, and (c) if the party giving the Notice has complied with the requirements of this Section.
Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement.
Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Insurance, Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction, and Survival.