1.  CONDITIONS OF PURCHASE. These terms and conditions of sale (these "Terms") govern the sale of goods (the "Goods") by Marie, LLC d/b/a Volunteer Industrial Supply, a Tennessee corporation having an address of 12744 Kingston Pike, Suite 201, Farragut, Tennessee 37934 (the "Seller") to the purchaser indicated in the "Bill To" space on the accompanying Order Confirmation (the "Buyer"). Notwithstanding anything herein to the contrary, the provisions of our Order Confirmation, or a written contract signed by both parties covering the sale of the Goods, shall prevail to the extent they are inconsistent with these Terms. The Order Confirmation and these Terms (collectively, the "Agreement") prevail over any of Buyer's general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Our 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.

 

2. DELIVERY.

 

A. Unless otherwise agreed in writing by the parties, Seller shall endeavor to ship the Goods to Buyer endeavor to on or before the requested ship date indicated on the Order Acknowledgment using Seller's standard methods for packaging and shipping the Goods.  Seller shall not be liable for any delays, loss or damage in transit.

 

B. Seller may, in its sole discretion, without liability or penalty, make partial shipments of the 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.

 

C. The quantity of any installment of Goods as recorded by Seller on dispatch from Seller's place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence to the contrary.

 

D. Unless otherwise provided for in the Order Confirmation, delivery shall be made PP&A (prepay and add) whereby Seller pays for the freight charges using a carrier of Seller’s choice, and then passes along full or partial charges (which may include a reasonable handling fee) to Buyer by adding the charges to Buyer’s invoice.

 

3. TITLE AND RISK OF LOSS; SECURITY INTEREST. Title and risk of loss pass to Buyer upon Seller’s shipment 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 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. The security interest granted under this provision constitutes a purchase money security interest under the Tennessee Uniform Commercial Code.

 

4. INSPECTION AND REJECTION OF NONCONFORMING GOODS.  

 

A. Buyer shall inspect the Goods within five (5) days of receipt ("Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods (defined below) during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. "Nonconforming Goods” means product shipped that is materially different than identified in Buyer's purchase order. 

 

B. If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the price paid for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller's facility located at the Shipping Point. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer's shipment of Nonconforming Goods, make available to Buyer, at Seller's expense and risk of loss, the replaced Goods at the Shipping Point. 

 

C. Buyer acknowledges and agrees that the remedies set forth in Section 4B are Buyer's exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 4B, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return to Seller Goods purchased under the Agreement.

 

5. PRICE. 

 

A. Buyer shall purchase the Goods, consistent with the prices set forth on the Order Confirmation.

 

B. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided that Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller's income, revenues, gross receipts, personnel or real or personal property or other assets. 

 

6. PAYMENT TERMS.  

 

A. Payment terms are net thirty (30) days from the date of Seller’s invoice. Buyer shall make all payments hereunder by wire transfer or check and in US dollars. Past due invoices are subject to late charge at the lesser rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer is responsible for all costs incurred in collecting any late payments, including attorney’s fees. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller's breach, bankruptcy or otherwise.

 

B. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for five (5) days following written notice thereof.

 

7. MANUFACTURER’S LIMITED WARRANTY.  

 

A. Seller is a distributor of the Goods it sells.  It is not a manufacturer and, accordingly, Seller is not making express or implied warranties of any kind to Buyer with respect to the Goods. Rather, if Buyer has a warranty claim or other problem/issue with the Goods, and Buyer promptly informs Seller of same, Seller will work with Buyer in good faith to address the problem and/or to permit Buyer to assert against the manufacturer whatever claims Buyer may have.

 

B. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 7.A., SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

 

8. LIMITATION OF LIABILITY. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, 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.

 

9. 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 the Agreement.

 

10. TERMINATION. In addition to any remedies that may be provided under these Terms, Seller may terminate the Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under the Agreement and such failure continues for thirty (30) days after Buyer's receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, declares itself to be insolvent, admits in writing its inability to pay its debts generally, filed a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

 

11. NO WAIVER. No waiver by Seller of any of the provisions of the 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 the 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.

 

12. CONFIDENTIAL AND PROPRIETARY INFORMATION. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential” in connection with the Agreement is confidential, solely for the use of performing the Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.

 

13. FORCE MAJEURE. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement when such failure is due to (i) strikes, labor stoppages or slowdowns, pandemics or government mandated business closures, or other industrial disturbances, (ii) acts of God, fire, explosion, floods, unusually severe storms, earthquakes, wars, military operations, national emergencies, or (iii) restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown, or power outage.

 

14. ASSIGNMENT. Buyer shall neither assign any of its rights nor delegate any of its obligations under the 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 the Agreement.

 

15. DISPUTES. In the event of a dispute between the parties regarding the construction of the Agreement or their rights and obligations hereunder, a party may notify the other party of such a dispute. The parties shall attempt in good faith to resolve the dispute within thirty (30) days of receipt of such notice. If the dispute is not so resolved, then the parties agree first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration, litigation, or some other dispute resolution procedure. If the dispute is not resolved by mediation and either party brings an action to enforce any remedy set forth herein, (i) such party shall not be entitled to any damages for lost profits, lost business, or any consequential, punitive or exemplary damages related to the other party’s failure to perform hereunder; and (ii) the prevailing party shall be entitled to receive reasonable legal fees and other litigation costs incurred.

 

16. NO THIRD-PARTY BENEFICIARIES. The Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

 

17. GOVERNING LAW. The laws of the State of Tennessee shall govern the validity, enforcement, and interpretation of the Agreement, including but not limited to the laws applicable to the sales of Goods under the Uniform Commercial Code, without regard to conflicts or choice of law provisions.

 

18. SUBMISSION TO JURISDICTION. Any legal suit, action or proceeding arising out of or relating to the Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Tennessee in each case located in the City of Knoxville and County of Knox, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

 

19. NOTICES. All notices allowed or required hereunder shall be in writing and shall be deemed given if sent by personal delivery or by an overnight commercial delivery service that provides receipt to the address given for Buyer and Seller on the Order Confirmation, or to such other address as either party may notify the other party in writing to use for future notices.

 

20. SEVERABILITY. Wherever possible, each provision of the Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision shall be prohibited by or invalid under applicable law, said provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions.