TERMS AND CONDITIONS OF SALE
REGENT PRODUCTS, INC., “REGENT STONE PRODUCTS” AND/OR “REGENT PRODUCTS” (COLLECTIVELY, “REGENT”)
PRICES, SHIPPING, INSURANCE AND RISK OF LOSS: Except as expressly stated otherwise in writing by Regent, all prices quoted for Regent’s products shall be F.O.B. Regent’s warehouse in Virginia Beach, Virginia, U.S.A.. Except as otherwise agreed in writing by Regent, Regent’s quoted prices shall not include: (a) charges for freight, insurance or other costs incurred in connection with shipment of Products or (b) any sales, use, excise, gross receipts or similar taxes, all of which shall be paid by Buyer. All risk of loss or damage to Regent’s products shall pass to Buyer upon transfer of Regent’s products to the carrier at the F.O.B. point, but title to the products shall pass only upon acceptance thereof by the Buyer at its premises. Regent may change the prices applicable to its products at any time. Except as otherwise agreed in writing by Regent, each sale of any Regent product shall be at Regent’s list price in effect on the date of Regent’s acceptance of Buyer’s purchase order.
PURCHASE ORDERS: All purchase orders placed on behalf of Buyer shall constitute the Buyer’s irrevocable commitment and obligation to purchase the products identified thereon in the indicated quantities at Regent’s prices then in effect in accordance with these Terms and Conditions, subject to acceptance or non-acceptance by Regent, in its sole and absolute discretion, in whole or in part. No terms, stipulations or conditions set forth in a Buyer’s purchase order or other document furnished by Buyer shall be binding on Regent unless expressly and specifically accepted by Regent in writing. Any terms, stipulations or conditions set forth in a purchase order or other document furnished by Buyer that are different from, or in addition to, any of the terms, stipulations or conditions set forth in these Terms and Conditions are hereby objected to by Regent, and all such different or additional terms, stipulations or conditions shall be null, void ab initio and of no effect unless expressly and specifically agreed to in writing by Regent.
REGENT’S ACCEPTANCE OR NONACCEPTANCE: All purchase orders placed by Buyer shall be subject to acceptance or nonacceptance by Regent, in its sole and absolute discretion, at its office in Virginia Beach, Virginia, U.S.A. Without limitation of the foregoing, Regent has no obligation to accept, and may cancel, without liability, any purchase orders from Buyer at any time that Regent shall deem itself insecure with respect to Buyer’s account or financial standing or Buyer’s relationship with Regent generally. Regent reserves the right to terminate or cancel, in whole or in part, any purchase order at any time prior to shipment of the products covered by such purchase order. Buyer shall comply with any requirements established by Regent from time to time concerning the minimum volume of products that may be covered by any purchase order.
ALLOCATIONS: Regent reserves the right to allocate its inventory of products in such a manner as it may from time to time, in its sole and absolute discretion, determine,and Regent will not be liable for any delay in filling, or any failure to fill, any purchase order due to shortage of any products or allocation of Regent’s products among purchasers. Without limitation of the foregoing rights of Regent, Regent shall have the right to refuse any purchase order, in whole or in part, at any time Buyer has failed to pay when due any amounts payable under a Regent invoice.
FORCE MAJEURE: Regent shall not be responsible or liable for any failure to perform, or any delay in supplying if occasioned in whole or in part by act of God or the public enemy, fire, explosion, perils of the sea, flood, drought, war, riots, civil insurrection, sabotage, accident, embargo, governmental priority, requisition or allocation or any action of any governmental authority (or any refusal of such governmental authority to provide necessary authori-zation), or shortage or failure of supply, materials, fuel,transportation or labor, or strikes or other labor trouble, or any occurrence, act, cause or thing beyond the reasonable control of Regent, all of which shall excuse any failure or delay on the part of Regent, and Regent shall have no obligation or liability whatsoever arising out of or in connection with any such failure or delay.
DELIVERY DATE: Any delivery date agreed to by Regent shall be deemed to be an estimated delivery date only. Regent shall not be liable for any loss or damages allegedlycaused by failure to make any delivery of a purchase order (or portion thereof) when due. Without limitation of the oregoing, Regent is not responsible for any delay inshipment or delivery of its products occurring after such products are transferred to the carrier.
RETURNS: All sales are final, and Buyer may not return any products to Regents without prior written authorization from Regent.
PAYMENT: Except as otherwise agreed in writing by Regent, all payments by Buyer to Regent shall be made, without setoff or other reduction, by causing Regent’s bankaccount to be credited for the full amount due in accordance with Regent’s wiring instructions or other payment instructions. Buyer may make payments by draft onlyif Regent gives its prior written consent to this method of payment. Payment shall be due by the date or dates specified by Regent in connection with any purchaseorder. If Regent agrees to ship any products prior to payment in full, Buyer shall pay at Regent’s offices in Virginia Beach, Virginia U.S.A., in full any and all amounts owed with respect to such shipment of products within thirty (30) days of the invoice date. If payment is not received within thirty (30) days of the invoice date, interest shall accrue from the invoice date on the unpaid amount(s) at the monthly rate of one and one-half percent (1.5%), or at the maximum rate allowed by applicable law, whichever rate is less.
NO OFFSET: Buyer agrees not to make any deductions of any kind from any payments coming due to Regent unless Buyer shall have received an official credit memorandum from Regent authorizing such deduction.
PURCHASE MONEY SECURITY INTEREST: Buyer hereby grants to Regent a purchase money security interest in all of the products purchased from Regent, and in all accessions and additions thereto, and in all products and proceeds thereof, as security for the full and prompt payment of all amounts at any time owed by Buyer to Regent in connection with such purchase. Buyer hereby authorizes Regent to file any and all UCC financing statements as Regent may deem necessary or advisable in order to perfect the security interest granted in the previous sentence, and Buyer shall otherwise cooperate with all other reasonable requests by Regent with respect to the perfection of such security interest. Upon default by Buyer in the timely payment of any and all amounts due with respect to any o Regent’s products, Regent shall be entitled to exercise all of the remedies of a secured party under the Uniform Commercial Code. In addition thereto, Regent shall have the right to enter the Buyer’s premises and remove such Regent products therefrom, with or without judicial process.
DISCLAIMER OF WARRANTY: REGENT MAKES NO WARRANTIES WITH REGARD TO ITS PRODUCTS, EXPRESS OR IMPLIED, INCLUDING WITH-OUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE, OR ANY WARRANTY AGAINST INFRINGE-MENT SUCH AS PROVIDED IN ARTICLE 2-312(3) OF THE UNIFORM COMMERCIAL CODE AND/OR ANY COMPARABLE STATUTE OR LAW THAT MAY GOVERN THE SALE OF GOODS. REGENT DOES NOT GUARANTEE, WARRANT OR OFFER ANY PATENT PRO-TEC-TION TO BUYER ON ANY OF REGENT’S PRODUCTS, AND REGENT SHALL NOT BE LIABLE OR IN ANY WAY RESPONSIBLE TO BUYER BECAUSE OF ANY ALLEGED INFRINGEMENTS OF PATENT RIGHTS IN CONNECTION WITH THE SALE OR USE OF ANY OF REGENT’S PRODUCTS. EXCLUSIVE REMEDY: THE SOLE AND EXCLUSIVE REMEDY AGAINST REGENT FOR ANY NON-CONFORMING PRODUCT DELIVERED TO BUYER SHALL BE, IN REGENT’S SOLE AND ABSOLUTE DIS-CRETION, EITHER REPAIR OF THE NONCONFORM-ING PRODUCT, REPLACEMENT OF THE NONCONFORMING PRODUCT, OR RETURN OF SAME FOR REPAYMENT OF THE PURCHASE PRICE.:
NO RESELLER WARRANTY: Buyer agrees not to make or extend any warranties or representations concerning the quality or capability of any of Regent’s products to any person or entity except as authorized in the manufacturer’s written warranty (if any) accompanying the products in question. In no event shall Buyer indicate to any person or entity that Regent offers any warranty with respect to the products. Buyer shall indemnify and hold Regent harmless against all claims, suits, expenses, losses, costs and liability (including attorneys’ fees) incurred by Regent arising out of or resulting from any breach of this paragraph.
LIMITATION OF LIABILITY: THE DAMAGES RECOVERABLE BY BUYER AGAINST REGENT FOR ANY CLAIM OF ANY KIND WHATSOEVER ARISING FROM OR IN ANY WAY CON-NECTED TO ANY REGENT PRODUCTS, OR THE PURCHASE, SALE OR USE THEREOF, REGARDLESS OF THE LEGAL THEORY, SHALL NOT BE GREATER THAN THE ACTUAL PURCHASE PRICE OF THE PRO-DUCTS PAID BY BUYER WITH RESPECT TO WHICH SUCH CLAIM IS MADE. IN NO EVENT SHALL REGENTBE LIABLE FOR ANY SPECIAL, INDIRECT, OR INCIDENTAL OR CONSE-QUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY DAMAGES WITH RESPECT TO LOSS OF INCOME, LOSS OF EXPECTED OR PROSPEC-TIVE PROFITS, ANY LOSS CAUSED BY DELAY, ANY EXPENDITURES, INVESTMENTS OR COMMITMENTS OF BUYER, ANY LOSS WITH RESPECT TO BUYER’S ESTABLISHMENT, DEVELOP-MENT OR MAINTENANCE OF BUSINESS REPUTATION OR GOODWILL, ANY LOSS INCURRED BY BUYER IN OBTAINING SUBSTITUTE PRODUCTS, OR ANY LIABILITY, LOSS OR EXPENSE OF BUYER ARISING FROM THE CLAIMS OF THIRD PARTIES SUCH AS, BUT NOT LIMITED TO, CUSTOMERS OF BUYER.:
MISUSE: Regent shall have no liability or obligation to Buyer with respect to any of Regent’s products which have been subject to abuse, misuse, improper use, negligence, accident, modifi-cation, alteration, tampering, failure to follow normal operating procedures, attempt to repair by unqualified personnel, any sale, use or operation such products outside their normal environment, or any alteration of any literature with respect to such products. CLAIMS: All claims of Buyer relating to a nonconformity or defect in the products delivered shall be deemed forever waived unless (i) Buyer provides Regent with written notice and satisfactory proof of the nonconformity within ten (10) business days after receipt of same by the Buyer; and (ii) Regent is afforded a reasonable and sufficient opportunity to verify any claim before the products are used by Buyer or removed from Buyer’s facility.
LIMITATION PERIOD: Buyer must give Regent a written demand to arbitrate any claim or cause of action related to the parties’ business relationship or otherwise with respect to the sale, purchase or use of Regent products within six (6) months from the date when such claim or cause of action arises. The failure by Buyer to initiate arbitration in accordance with the preceding sentence shall constitute an absolute bar to such claim or cause of action.
ATTORNEYS’ FEES AND INDEMNIFICATION: Buyer shall pay, reimburse, indemnify and hold Regent harmless from and against any and all liabilities, losses, damages, penalties, costs or expenses (including but not limited to attorneys’ fees, expert witness fees, court costs and arbitral fees) incurred by Regent arising out of relating to (a) any breach of these Terms and Conditions by Buyer; (b) Regent’s cost of collection incurred with respect to any sums payable by Buyer; (c) any acts or omissions of Buyer, its agents or employees resulting in any claim or suit against Regent, including without limitation claims relating to warranties regarding Regent’s products which have not been expressly authorized in writing by Regent; (d) any action, claim or suit brought by Buyer against Regent that is inconsistent or in conflict with the provisions of these Terms and Conditions; or (e) Regent’s enforcement of its rights and remedies, whether or not arising under these Terms and Conditions, and whether such enforcement action is necessitated by (i) the Buyer’s breach or nonfulfillment of any of the provisions of these Terms and Conditions or (ii) the Buyer bringing any suit, action, demand or claim against Regent that is inconsistent or in conflict with the provisions of these Terms an Conditions.
DISPUTE RESOLUTION: All disputes, controversies, claims or differences between the parties arising out of or relating to the purchase, sale or use of Regent’s products and/or these Terms and Conditions shall be finally and solely determined and settled by binding arbitration in Norfolk or Virginia Beach, Virginia, U.S.A. in accordance with the Rules for Non-Administered Arbitration of the CPR Institute for Dispute Resolution. The arbitration shall be conducted by a sole arbitrator. The arbitrator need not be a member of any of the CPR Panels of Distinguished Neutrals. The arbitrator is hereby instructed, directed and commanded to assume case management initiative and to initiate early scheduling of all events and proceedings so as to resolve any dispute as expeditiously as possible. In rendering the award, the arbitrator shall determine the rights, remedies, liabilities and obligations of the parties according to the laws of the Commonwealth of Virginia including, without limitation, the provisions thereof with respect to evidence. The arbitrator shall have no power to make awards or issue orders of any kind inconsistent with the provisions of these Terms and Conditions. The award, which shall be made not later than thirty (30) days after the conclusion of the arbitration, shall state the reasons upon which the award is based. Judgment upon any arbitration award may be entered and enforced in any court of competent jurisdiction. The Buyer shall be irrevocably deemed to waive, to the fullest extent permitted by law, any claim for punitive, treble or other exemplary damages against Regent in any suit, action, arbitration or other proceeding arising out of or relating to the purchase, sale or use of Regent products. Notwithstanding anything herein to the contrary, Regent shall in its discretion be entitled to bring suit in a court of competent jurisdiction against Buyer in order to (a) recover any sums payable by Buyer to Regent or (b) obtain injunctive relief or other equitable remedies or interim measures to prevent, mitigate or stop irreparable harm to Regent’s rights. Buyer hereby irrevocably submits to the personal jurisdiction and venue of the courts of Norfolk and Virginia Beach, Virginia, with respect to any action brought by Regent (i) to enforce the agreement herein to arbitrate, (ii) to enforce the arbitrator’s award, (iii) seeking injunctive relief or other equitable remedies or interim measures, or (iv) claiming any amounts owed by Buyer. Regent shall be entitled to recover its attorneys’ fees and other expenses incurred in the enforcement or defense of its rights and remedies.
GOVERNING LAW: These Terms and Conditions, together with the purchase, sale and use of Regent’s products, and all other aspects of the relationship between Regent and Buyer shall be governed by and construed in accordance with the internal laws of the Commonwealth of Virginia, U.S.A. without giving effect to any choice of law rules that could result in the application of the laws of any other jurisdiction.
DUTY DRAWBACK: Except as otherwise agreed in writing by the parties, Regent reserves all rights to, and the Buyer shall make no claim for, any United States duty drawback available in respect of Regent’s products or any raw materials or parts used therein. Buyer shall cooperate fully with all requests of Regent in connection with Regent’s claim for any such duty drawback by, among other things, executing and endorsing all certificates, assignments, Customs forms and other documents presented by Regent with respect to any such duty drawback claim.
NO DISTRIBUTORSHIP OR FRANCHISE: Neither the acceptance of any of Buyer’s purchase orders by Regent nor any other course of dealings between Regent and the Buyer will cause the Buyer to become a distributor, franchisee, partner or joint venturer of Regent. Regent will not be bound by any modification of these Terms and Conditions unless set forth in a writing signed by Regent.