Terms of service.
These terms of service (this “Agreement”) is entered into between You (“Buyer”) and Container Logic SRP, LLC (“Seller”). Seller is in the business of selling and leasing stainless steel containers utilized in the fermentation, brewing, food and beverage industries and Buyer desires to purchase from Seller, and Seller desires to sell to Buyer the Containers. In consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Sale of Containers. Seller shall sell to Buyer and Buyer shall purchase from Seller the containers and/or associated equipment, parts, components or accessories set forth on the Sales Order (collectively, the “Containers”) in the quantities and at the Prices (as defined in Section 3) and upon the terms and conditions set forth in this Agreement.
2. Delivery. Seller shall deliver the Containers to Buyer’s place of business identified on the Sales Order within a reasonable period of time after the date of this Agreement using Seller’s standard methods for packaging and shipping such Containers. Title and risk of loss passes to Buyer upon delivery of the Containers at Buyer’s place of business. Buyer shall inspect the Containers within 24 hours of receipt and Buyer will be deemed to have accepted the Containers unless it notifies Seller in writing of any (a) nonconformities of the Containers to the make(s) or model number(s) set forth on the Sales Order or (b) Containers that were delivered to Buyer in damaged condition (collectively, “Nonconforming Containers”) within 24 hours of Buyer’s receipt and furnishes such written evidence or other documentation as reasonably required by Seller. If Buyer timely notifies Seller of any Nonconforming Containers, Seller shall, in its sole discretion, (i) replace such Nonconforming Containers with conforming Containers, or (ii) credit or refund the Price for such Nonconforming Containers. Unless otherwise agreed by Seller, Buyer shall ship, at its expense and risk of loss, the Nonconforming Containers to Seller’s facility located in Indianapolis, Indiana or such other location as may be designated by Seller. If Seller replaces any Nonconforming Containers, Seller shall, after receiving Buyer’s shipment of Nonconforming Containers, ship to Buyer, at, unless otherwise agreed by Seller, Buyer’s expense and risk of loss, the replaced Containers to Buyer. Buyer acknowledges and agrees that the remedies set forth in this Section 2 are Buyer’s exclusive remedies for the delivery of Nonconforming Containers. Except as provided under this Section 2, all sales of Containers to Buyer are made on a one-way basis and Buyer has no right to return Containers purchased under this Agreement to Seller.
3. Payment Terms. Buyer shall purchase the Containers from Seller at the prices (the “Prices”) set forth in the Sales Order. 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 AND BUYER SHALL BE RESPONSIBLE FOR ALL SUCH CHARGES, COSTS AND TAXES. Buyer shall pay all invoiced amounts by the due date on Seller’s invoice in US dollars by automated clearing house (ACH) direct debit transfer to Seller’s bank account designed by and pursuant to Seller’s instructions. 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.
4. Warranties and Liability. Subject to the terms, conditions and limitations set forth in this Section 4 and all other terms and conditions of this Agreement, if any Container’s welds or stainless steel materials fail during the 10 year period from the date of shipment of the Containers (the “Warranty Period”), Seller shall, in its sole discretion, either: (a) repair or replace such failed Containers (or the defective part) or (b) credit or refund the price of such failed Containers to Buyer provided that, if Seller so requests, Buyer shall, at Buyer’s expense and risk of loss, return such Containers to Seller or such other delivery location as may be designated by Seller. THIS LIMITED WARRANTY DOES NOT APPLY TO WEAR PARTS LIKE GASKETS, VALVES, PLASTIC PARTS AND SO ON. EXCEPT FOR THE WARRANTY SET FORTH IN THIS SECTION 4, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE CONTAINERS, 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. The Seller shall not be liable for a breach of the warranty (i) unless Seller is given a reasonable opportunity after receiving the notice to examine such Containers and Buyer (if requested to do so by Seller) returns such Containers to Seller’s place of business at Seller’s cost for the examination to take place there; (ii) unless Seller reasonably verifies Buyer’s claim that the Containers are defective; (iii) if the defect arises because Buyer failed to follow any of Seller’s oral and written instructions regarding the installation, use, cleaning, commissioning, operation, storage and maintenance of the Containers as well as the instructions and requirements set forth in the operational manual for the Containers which Buyer hereby acknowledges having received; (iv) if any Containers have been subjected to abuse, misuse, neglect, negligence, accident, improper installation, improper storage, improper cleaning, abnormal physical stress or abnormal environmental conditions; or (v) if Buyer alters, paints, sands or repairs such Containers without the prior written consent of Seller. Any delay or failure of Seller to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused by an event beyond Seller’s control (which events may include, 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, 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).THE REMEDIES SET FORTH IN THIS SECTION 4 SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF WARRANTY. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL OF THE PRICES PAID TO SELLER FOR THE CONTAINERS SOLD HEREUNDER.
5. Compliance with Laws. Buyer shall at all times comply with all applicable laws, regulations and ordinances applicable to Buyer’s purchase, ownership and/or use of the Containers. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to conduct its business relating to the purchase, ownership or use of the Containers.
6. Indemnification. Buyer shall indemnify, defend and hold harmless Seller and its officers, directors, managers, members, shareholders, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers arising out of or occurring in connection with Buyer’s purchase, ownership, use and/or operation of the Containers.
7. Amendments and Waivers. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party. No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
8. Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties or otherwise. Notwithstanding the previous sentence, the parties intend that Buyer’s rights under Section 2 and Section 4 are Buyer’s exclusive remedies for the events specified therein.
9. Assignees and Beneficiaries. Buyer shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Seller. Any purported assignment, transfer, delegation or subcontract in violation of this Section shall be null and void. This Agreement is binding on and inures to the benefit of the parties to this Agreement and their respective permitted successors and permitted assigns. This Agreement benefits solely the parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
10. Choice of Law and Forum. This Agreement is governed by, and construed in accordance with, the laws of the State of Indiana, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State Indiana. Each party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other party in any way arising from or relating to this Agreement and all contemplated transactions, in any forum other than the federal and state courts sitting in Indianapolis, Indiana, and any appellate court from any thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts. Each party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
11. Entire Agreement. Subject to the limitations and other provisions of this Agreement, any provision that, in order to give proper effect to its intent, should survive the purchase and sale of the Containers, shall survive. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. Without limiting the generality of the foregoing, the terms of this Agreement expressly exclude any of Buyer’s general terms and conditions contained in any purchase order or other document issued by Buyer. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.