General Terms and Conditions
1. Applicability.
(a) These terms and conditions of sale (“Terms”) are the only terms which govern the sale of the goods (“Goods”) by Loop Method, Inc., a Utah corporation (“Seller”) to the buyer designated on all applicable Order Form (“Buyer”). Notwithstanding anything herein to the contrary, if a separate written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
(b) These Terms together with all applicable Order Forms 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. Notwithstanding anything to the contrary therein, these Terms prevail over any of Buyer’s general terms and conditions of purchase contained on a Buyer purchase order, Buyer order form, or any other Buyer documentation. Fulfillment of Buyer’s order does not constitute acceptance or incorporation of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
2. Order Forms. Buyer shall initiate the purchase of all Goods from Seller through completion of a Seller order form (“Order Form”). Each Order Form is incorporated into these Terms and you agree to these Terms as if fully set forth in each Order Form. Each Order Form is effective when Seller accepts such Order form, by signing the Order Form and delivering a copy of the signed Order Form to Seller. To the extent a duly executed Order Form accepted by Seller conflicts with the provisions of these Terms, the provisions of the Order From prevail.
3. Shipping and Delivery.
(a) Seller will cause the Goods to be delivered to Buyer in accordance with the provisions of the applicable Order Form.
(b) Unless otherwise agreed in writing by the parties, Seller shall facilitate the delivery of the Goods to the “Ship To” address specified on the applicable Order Form (“Delivery Point”) using standard methods for packaging and shipping such Goods.
(c) If for any reason Buyer fails to accept delivery of any of the Goods, or if Seller is unable to facilitate the delivery of the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses, or authorizations: (i) to the extent not already provided, risk of loss of the Goods shall pass to Buyer; and (ii) the Goods shall be deemed to have been delivered.
(d) Unless specified in an Order Form, Seller does not guarantee shipment or delivery of any Goods by a certain date. Notwithstanding the foregoing, Buyer acknowledges that shipping and tracking information are estimates only and not guarantees of actual receipt.
4. Title and Risk of Loss; Security Interests.
(a) Title and risk of loss passes to Buyer upon delivery of the Goods by the supplier of the Goods (“Supplier”) to the freight forwarder located at the port where the Goods are manufactured (“Freight Forwarder”).
(b) 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 Utah Uniform Commercial Code (“PMSI”). Until complete and final payment for the Goods under any applicable Order Form, Seller may exercise any of its rights under applicable law. Upon complete payment of all fees in an applicable Order Form, Seller’s PMSI automatically terminates.
5. 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.
6. Price. Buyer shall purchase the Goods from Seller at the prices set forth for each item on the applicable Order Form.
7. Payment Terms.
(a) Buyer shall pay [_50_]% of all amounts detailed on a Purchase Order Form at the time an Purchase Order Form is executed by Buyer. Seller may withhold services and not initiate manufacture of the Goods until Buyer has paid amounts due at execution of a Purchase Order Form. Buyer shall pay the remaining [_50_]% of the amounts due to Seller under an applicable Order Form within thirty (30) business days after receiving notice from Seller that the Goods are ready to be released to be shipped from Supplier to Buyer. Terms set forth above shall apply to all Purchase Order payments unless agreed upon in writing by both parties. Seller will not facilitate the shipment or delivery of the Goods to the Delivery Point until payment of the amounts due to Seller have been paid in full. Buyer shall make all payments hereunder by credit card, wire or ACH transfer and in U.S. dollars. If paid by credit card, all processing fees will be paid by the buyer.
(b) 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.
(c) Seller may charge interest on any outstanding balance at an annual rate of 18% or the highest rate allowed by law, whichever is more, until such balance is paid in full. Seller may apply payments made after accrual of interest first against such interest charges and second to past due amounts.
8. Ownership of Designs; License to Buyer’s IP; Indemnification.
(a) Seller owns all intellectual property rights in the designs and specifications of Goods and has the right to use and reproduce such designs and specifications for Seller’s other customers. Buyer has no ownership in any of the intellectual property rights related to the designs and specifications of Goods and shall have no right to reproduce such designs and specifications without Seller’s prior written consent. For the avoidance of doubt, Seller has no rights to use or reproduce any of Buyer’s intellectual property used in the design of the Goods, including Buyer’s trademarks, service marks, trade dress, logos, trade names (whether registered or not), corporate names, slogans, fictitious names, “dbas,” other source identifiers, and internet domain names (“Buyer’s IP”).
(b) Buyer grants to Seller a perpetual, worldwide, sublicensable, transferable, license to use Buyer’s IP, solely for purposes of: (a) providing Seller’s design and manufacturing services; (b) facilitating the manufacture of the Goods; and (c) identifying Buyer as one of Seller’s customers through marketing materials, Sellers’ website, and other promotional activities.
(c) Buyer shall indemnify, defend, and hold harmless Seller, its employees, officers, directors, members, and agents (“Seller Parties”) from any actual or threatened third-party claim arising out of or related to: (a) Buyer’s use of the Seller’s services and purchase of any Goods, including but not limited to, infringement claims by any third party related to Buyer’s IP or other information provided by Buyer to Seller; (b) Buyer’s failure to comply with any of the provisions of applicable law; and (c) Buyer’s breach of any of the provisions of these Terms. Buyer’s indemnification obligations include payment for: (i) all damages, costs, and attorney fees finally awarded against the Seller Parties in any proceeding under this section; (ii) all out-of-pocket costs (including reasonable attorney fees) reasonably incurred by the Seller Parties in connection with the defense of such proceeding (other than when Buyer has accepted defense of such claim); and (iii) if any proceeding arising under this section is settled, any amounts to any third party agreed to by Buyer in settlement of any such claims.
(d) Seller shall hold you harmless and indemnify you with respect to any final judgment obtained by a third party based on a claim that Seller’s services infringe on the intellectual property rights of such third party.
9. Non-Solicitation. During the Term and for a period of twenty-four (24) months after the conclusion of the Term, Buyer shall not directly or indirectly, either for itself or for any person, corporation, or other entity, call upon, solicit, divert, or work with: (a) any of the Suppliers, vendors, business partners, or other third parties that were developed and supported by Seller, including any businesses involved in supplying the Goods to Buyer under these Terms; (b) business contacts that Buyer was introduced to by Seller; or (c) do any of the foregoing to or otherwise create a business or conduct business operations that substantially compete with Seller’s business. Buyer acknowledges that this provision is an integral part of the consideration offered by Seller and accepted by Buyer to enter into these Terms and any applicable Order Form. Buyer acknowledges and agrees that any breach of this provision may not be compensable solely through monetary damages; thus Seller is entitled to immediate preliminary and permanent injunctive relief against Buyer due to any breach by Buyer of this provision.
10. Warranty. SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. SELLER’S SERVICES AND THE GOODS ARE PROVIDED “AS-IS” AND “AS AVAILABLE.” Because some jurisdictions may not allow the exclusion of implied warranties, such limitation may not apply in its entirety to Buyer. Any warranties made in these Terms are for Buyer’s benefit only.
11. Colors and Styles May Vary. Color shade variations are inherent with any fabric during the dyeing and printing processes. Loop Method does not guarantee color shades will match previous shipments. Prolonged exposure to light or moisture may cause fading or discoloration and is not a defect of the product. Slight imperfections in pigment-dyed and garment-washed products are a natural feature of these styles.
12. Limitation of Liability.
(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA 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.
(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, 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.
(c) The limitation of liability set forth in above does not apply to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s acts or omissions.
13. 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 these Terms. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under these Terms or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate these Terms immediately, without notice, if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
14. Term; Termination.
(a) These Terms commence on the date when Seller accepts the first Purchase Order Form from Buyer (as detailed in Section 2) and continues for a period of one (1) year (“Initial Term”). These Terms automatically renew for consecutive one (1) year periods, unless earlier terminated as provided herein (each a “Renewal Term” and together with the Initial Term, the “Term”). Notwithstanding the foregoing, if there are no active Order Forms for a period of six (6) months, these Terms automatically terminate.
(b) Either party may terminate these Terms by giving the other party written notice at least (30) days prior to the conclusion of the Initial Term or any Renewal Term, with termination effective at the conclusion of the then-current Term. In addition to any remedies that may be provided under these Terms, Seller may terminate these Terms with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under these Terms and such failure continues for fifteen (15) business 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, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
15. Waiver. No waiver by Seller of any of the provisions of these Terms 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 these Terms 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.
16. Confidential Information; Non-Disclosure. All non-public, confidential, or proprietary information of Seller, including but not limited to identification and use of Suppliers, 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 these Terms is confidential, solely for the use of performing these Terms (“Confidential Information”).
Buyer shall not: (a) copy or disclose to any third party, unless authorized in advance by Seller in writing, any Confidential Information, or (b) use any Confidential Information for Buyer’s or any third party’s benefit. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller is 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.
17. Force Majeure. The Seller is not liable or responsible to Buyer, nor be deemed to have defaulted or breached these Terms, for any failure or delay in fulfilling or performing any provision of these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage. Buyer is not excused from any payment obligations under this Section for any reason.
18. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under these Terms without Seller’s prior written consent. 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 these Terms.
19. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms can 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 has authority to contract for or bind the other party in any manner whatsoever.
20. No Third-Party Beneficiaries. These Terms are 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 confers 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.
21. Governing Law. All matters arising out of or relating to these Terms is governed by and construed in accordance with the internal laws of the State of Utah without giving effect to any choice or conflict of law provision or rule (whether of the State of Utah or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Utah.
22. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to these Terms shall be instituted in the federal courts of the United States of America or the courts of the State of Utah in each case located in the City of Salt Lake City and County of Salt Lake, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
23. Attorney Fees. In case of an action to enforce any rights or conditions of these Terms, or appeal from said proceeding, it is mutually agreed that the losing party in such suit, action, proceeding or appeal shall pay the prevailing party’s reasonable attorney fees and costs incurred.
24. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) must be in writing and addressed to the parties at the addresses set forth on an applicable Order Form or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
25. Severability. If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
26. Survival. Provisions of these Terms which by their nature should apply beyond the Term will remain in force after any termination or expiration of these Terms including, but not limited to, the following provisions: Confidential Information, Governing Law, Submission to Jurisdiction and Survival.