1. GENERAL: The terms and conditions contained herein constitute the complete agreement between Lost Battalion Publishing, LLC (LBP) and the Purchaser regarding this sales transaction (the “Agreement”) and supersede any and all prior communications concerning this specific transaction. No course of prior dealings and no usage of the trade shall be relevant to supplement or explain any terms used in this Agreement.
Acceptance by LBP of Purchaser’s order is expressly limited to and conditioned upon Purchaser’s acceptance of the terms and conditions contained herein, which may not be changed or waived unless signed in writing by a duly authorized representative of LBP. Any additional inconsistent or different terms and conditioned stated by Purchaser or contained in Purchaser’s purchase order or other documents supplied by Purchaser are hereby expressly objected to and rejected. 2. ORDERS: All orders are received subject to acceptance by a duly authorized representative of LBP. Typographical and clerical errors in quotations, orders, and acknowledgements are subject to correction by either party if made within fifteen (15) days from the date of the making thereof.
3. PAYMENT TERMS: Unless specified to the contrary by LBP’s CFO or President, payment terms are 30% deposit at time of invoice and balance due at time of shipping.
Unless otherwise specified, all payments of invoices shall be in United States dollars and should be remitted to LBP by mail at the address indicated on the invoice or by electronic funds transfer to the account and according to the routing on the invoice. Receipt of payment will be determined by the date the payment is received at LBP’s remittance address or when the electronic funds have been received and in our designated account.
4. PRICES: Prices are subject to adjustment to LBP’s prices in effect at the time of shipment. All prices shall be in United States dollars, unless otherwise specified. Unless otherwise specified, prices do not include sales tax, service excise or other taxes of any kind, and Purchaser agrees to pay such taxes at LBP’s request or to provide LBP with tax exemption certificate(s) applicable to the taxable transaction(s). Unless specified to the contrary in Section 5, prepaid freight costs will be in addition to the purchase price. Where price expressly includes transportation or other shipping charges, any increase in transportation rates or other shipping charges from date of quotation
5. SHIPMENT: Unless otherwise specified herein, all orders are delivered F.O.B. shipping point, with the method of transport and route to be selected by LBP. Where scheduled delivery is delayed due to causes specified in Section 6 below, LBP may deliver such product(s) by moving it to storage for the account of and at the risk of the Purchaser. LBP reserves the right to deliver in installments. Any special handling costs and costs of insurance will be paid by Purchaser. Notwithstanding any agreement with respect to delivery terms or payment of transportation charges, risk of loss or damage shall pass to Purchaser and delivery shall be deemed to be complete upon delivery of the products by LBP, to a private or common carrier or upon moving into storage, whichever occurs first, at the point of shipment.
6. DELIVERY DATES: LBP endeavors to make shipments of orders as scheduled; however all shipment dates are approximate, and LBP reserves the right to readjust shipment schedules. If LBP suffers delay in performance or delivery due to any cause beyond its control, including acts of nature, acts or omissions of Purchaser, acts of government, fires, floods, strikes or other labor disturbances, war, riot, sabotage or delays in obtaining from other suitable services, materials, components, equipment or transportation, the time of performance or delivery, shall be extended for a period of time equal to the period of the delay and its consequences. LBP will give notice to Purchaser, either through postal mail or electronically, within a reasonable time after LBP becomes aware of any such delay.
7. ORDER CANCELLATION: All orders subject to this Agreement are mutually understood by LBP and Purchaser to be firm non-cancelable purchase orders. Notwithstanding the foregoing, LBP may, in its sole discretion allow Purchaser to cancel an order upon Purchaser’s prior written notice and upon Purchaser’s payment of reasonable and proper termination charges, including, but not limited to all direct and indirect costs associated with the order incurred prior to the effective date of notice of termination and all charges incurred by LBP in respect to the termination. In addition, a fixed sum of fifteen percent (15%) of the final total selling price for cancellation of the order will be due from the Purchaser to compensate LBP for disruption in scheduling, restocking and other indirect costs.
8. ORDER MODIFICATIONS/CHANGES: Purchaser requested order changes, including those affecting the identity, scope and delivery of the product(s) must be documented in writing and approved by an officer of LBP, and LBP reserves the right to reject any change it deems inadvisable, inconsistent with its policies or incompatible with its capabilities. If any such change causes an increase or decrease in the cost of or in the time required for performance of this order, an equitable adjustment shall be made in the order price for delivery, schedule or both, and the order shall be modified in writing accordingly.
9. CLAIMS: Purchasers claims for lot-shortages, correction of erroneous order charges or other errors must be made in writing and delivered to LBP at its home office in Upperco, MD within fifteen (15) days of Purchaser’s receipt of the product(s). Claims outside of this time period will be disallowed.
10. RETURNED GOODS: If upon formal inspection and/or testing of the product(s), Purchaser is of the opinion that the product(s) is defective or otherwise unacceptable, Purchaser shall notify LBP in writing. Prior to making any return to LBP, Purchaser must obtain a Return Authorization (“RA”) from a duly authorized representative of LBP. The following condition also apply to returns: (1) all products returned to LBP must include the RA and must be properly packed and shipped; delivery of returns without the RA or returns not properly packed and shipped will not be accepted; (2) all returns are subject to inspection and/or testing by LBP as it deems appropriate. If LBP determines that the returned product(s) appear to be in compliance with order specifications, it shall notify the Purchaser; (3) All product(s) must be returned by delivery F.O.B. destination to LBP specific locations. Title and risk of loss on all product(s) shall remain with Purchaser until such returned product(s) are received by NRTC; (4) LBP will allow a credit on all defective product(s) returned in accordance with this paragraph, calculated on a last invoice basis; all product(s) under the warranty of Section 11 will be repaired or replaced at the original invoice price. Purchaser shall not be charged for parts and labor associated with replacement or repair. All returns are subject to the provisions of this Section and Section 9 governing claims. Any product(s), which has been modified, altered, damaged or used by Purchaser, may not be returned.
11. LIMITED WARRANTY:
a. COVERAGE: This warranty covers any defect in worksmanship of any product sold. This warranty does not cover any defects that arise due to accident, abuse, mishandling or misuse of the product.
b. PERIOD: This warranty shall only apply to defects reported to LBP, in writing, within ninety (90) days from the date of shipment.
EXCLUSION FROM WARRANTY: THE FOREGOING IS IN LIEU OF ALL OTHER WARRANTIES, ORAL OR EXPRESSED OR IMPLIED, INCLUDING ALL WARRANTIES THAT EXTEND BEYOND THE DESCRIPTION OF THE PRODUCT(S). THERE ARE NO EXPRESS WARRANTIES OTHER THAN THOSE CONTAINED IN THIS SECTION 11 AND TO THE EXTENT PERMITTED BY LAW THERE ARE NO IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. THE PROVISIONS OF THIS SECTION 11 AS TO DURATION AND LIMITATION OF LIABILITY SHALL BE THE SAME FOR BOTH IMPLIED WARRANTIES (IF ANY) AND EXPRESSED WARRANTIES c. SATISFACTION OF WARRANTY: Satisfaction of this warranty is limited to : (a) replacement of the product by LBP; or (b) issuance of a credit for the non-conforming product(s). IN NO EVENT WILL LBP BE LIABLE FOR INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND. LBP’S MAXIMUM CUMULATIVE LIABILITY, INCLUDING THAT WITH RESPECT TO DIRECT DAMAGES AND OBLIGATIONS UNDER ANY INDEMNITY, WHETHER OR NOT INSURED, WILL NOT EXCEED THE COST OF THE PRODUCTS GIVING RISE TO THE CLAIM OR LIABILITY, REGARDLESS OF ANY ADVICE OR RECOMMENDATION THAT MAY HAVE BEEN RENDERED CONCERNING THE PURCHASE OR USE OF THE PRODUCT(S). ANY ACTION AGAINST LBP MUST BE BROUGHT WITHIN EIGHTEEN MONTHS AFTER THE CAUSE OF ACTION ACCRUES. THESE DISC LAIMERS AND LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT, OR OTHERWISE, AND FURTHER WILL EXTEND TO THE BENEFIT OF LBP’S VENDORS AND OTHER AUTHORIZED RESELLERS AS THIRD-PARTY BENEFICIARIES. EACH PROVISION IN THE AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY OR CONDITION OR EXCLUSION OF DAMAGES IS SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND IS TO BE ENFORCED AS SUCH.
12. RESOLUTION OF DISPUTES: In the event of a dispute between LBP and Purchaser arising out of this Agreement, the parties shall meet and negotiate in good faith to attempt to resolve the dispute. In the event the dispute is not resolved within thirty (30) days of the date one party notified the other party in writing of the dispute, and if any party wishes to pursue the dispute, it shall be submitted to binding arbitration in accordance with the rules of the American Arbitration Association. In no event may arbitration be initiated more than one (1) year following the sending of written notice of the dispute. Any arbitration proceeding under this Agreement shall be conducted in the State of Maryland in the county designated by LBP. The arbiters shall have no authority to award any punitive or exemplary damages, or to vary or ignore the terms of this Agreement, and shall be bound by controlling law.
13. INTELLECTUAL PROPERTY: LBP will defend any suit or proceeding brought against Purchaser based on a claim that the design or construction of the product(s) sold hereunder by LBP infringe any U.S. Patent or Copyright, provided that Purchaser promptly notifies LBP of any such claim and resulting suit or proceeding in writing and further provided that, at LBP’s expense: (a) Purchaser gives LBP the sole right to defend or control the defense of the suit or proceeding, including settlement, and (b) Purchaser provides all necessary information and assistance for that defense. Except for any consequential damages, LBP will pay all costs and damages finally awarded or agreed upon by LBP that are directly related to any such claim. In the event of a charge of infringement LBP, at its option and expense, either: (i) procures for Purchaser the right to continue using such product(s): (ii) replaces the same with non-infringing product(s); (iii) modifies the same so as to make them non-infringing; or (iv) accepts the return of any infringing products(s) and refunds their purchase price. Notwithstanding the foregoing, LBP will have no liability with respect to any claim of infringement on use of the product(s) in combination with other product(s) not supplied by LBP. THIS PARAGRAPH SETS FORTH LBP’S ENTIRE LIABILITY WITH RESPECT TO INTELLECTUAL PROPERTY AND INFRINGEMENT OF PATENTS BY ANY PRODUCTS AND IS IN LIEU OF ALL WARRANTIES OR CONDITIONS RELATING TO INFRINGEMENT OR INTELLECTUAL PROPERTY, EITHER EXPRESS OR IMPLIED.
14. EXPORT: Product(s) purchased for export outside of the United States or its possessions are covered by the respective trade laws or other legal conditions specific to the country or possession in question so understood and agreed to by both parties. Purchaser shall be solely responsible for any permits, licenses, waiver or other requirements necessary to permit movement of any product outside of the United States.
15. GOVERNING LAW: LBP does not assume any responsibility for compliance with any foreign or federal, state, or local laws and regulations, except as expressly set forth herein, and compliance with any laws and regulations relating to the product(s) is the sole responsibility of the Purchaser. All laws and regulations expressly incorporated herein shall be those in effect as of the date hereof. In the event of any subsequent revisions or changes thereto, LBP assume no responsibility for compliance therewith. Nothing contained herein shall be construed as imposing responsibility or liability upon LBP for the obtaining of any permits, licenses or approvals from any agency or governmental entity, foreign or domestic, which may be required in connection with the supply of the product(s). All sales and purchases of product(s) from LBP, including terms and conditions thereof shall be governed by the laws now prevailing in the State of Maryland, without regard to its conflict of laws provisions.
16. PARTIAL INVALIDITY: If any provision herein or portion thereof shall for any reason be held invalid or unenforceable in accordance with prevailing law, such invalidity or unenforceability shall not affect any other provisions or portions thereof, but the terms and conditions herein shall be construed as if such invalid or unenforceable provision or portion thereof had never been contained herein.
