PENN EMBLEM COMPANY
SALE OF GOODS AGREEMENT
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PARTIES; SALE OF GOODS
PENN EMBLEM COMPANY, a Pennsylvania corporation, with a place of business at 2577 Interplex Drive, Suite A, Trevose, Pennsylvania 19053 (“Seller”) and BUYER (“Buyer,” and together with Seller, the “Parties,” and each, a “Party”), 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, agree that Seller shall sell to Buyer and Buyer shall purchase from Seller the goods set forth in the purchase order referenced herein (the “Goods”) in the quantities and at the prices (as defined in Section 5) referenced in the purchase order and upon the terms and conditions set forth in this Agreement. Once an order has been accepted by Seller, it may not be modified or cancelled by Buyer. Orders for custom Goods may not be cancelled.
DELIVERY
(a) The Goods will be delivered within a reasonable designated time after the date of this Agreement. Seller shall not be liable for any delays, loss, or damage in transit.
(b) Seller shall deliver the Goods FOB Origin or FCA (as applicable) (the “Delivery Point“) using Seller’s standard methods for packaging and shipping such Goods.
(c) Unless the Parties agree otherwise in writing, Seller may, in its sole discretion, without liability or penalty, make partial shipments of 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 the quantity purchased under this Agreement.
TITLE AND RISK OF LOSS
Title and risk of loss pass to Buyer upon delivery of the Goods at the Delivery Point. 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 Pennsylvania Uniform Commercial Code (“UCC”).
INSPECTION AND REJECTION OF NONCONFORMING GOODS
(a) Buyer shall inspect the Goods within thirty (30) days of receipt (“Inspection Period“). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) Goods shipped are different than identified in this Agreement; (ii) the Goods’ label or packaging incorrectly identifies its contents; or (iii) Buyer can demonstrate that the Goods are of defective quality, for example, inadequate backing, loose threading, mottled or unreadable design.
(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 for such Nonconforming Goods at the pro rata contract rate. Seller shall provide Buyer with a ground carrier return label for such Nonconforming Goods for return shipment to Seller’s facility as determined by Seller’s Customer Service Department. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 4(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 4(b), all sales of Goods to Buyer are final.
PRICE
Buyer shall purchase the Goods from Seller at the price[s] (the “Price[s]“) set forth in the purchase order or Seller’s written quote. All price quotes are valid for six (6) months only. 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. If and to the extent that Seller shall incur any additional fees or surcharges in Seller’s performance of this Agreement, then Seller reserves the right to pass on to Buyer such fees and surcharges.
PAYMENT TERMS
Unless stated otherwise in Seller’s invoice(s), Buyer shall pay all invoiced amounts due to Seller within the agreed upon payment terms from the date of Seller’s invoice. If no credit has been extended by Seller, a valid credit card or cashier’s check (if credit card is not permitted) shall be required to cover the entire amount of the order, plus applicable taxes and estimated shipping costs. Credit card payments may incur a surcharge of three percent (3%). Buyer shall make all payments hereunder in US Dollars. Buyer agrees to 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.
To secure payment by Buyer of the amounts due to Seller under this or any other agreement between Seller and Buyer, Buyer hereby grants to Seller a purchase money security interest in the goods purchased hereunder. Buyer agrees to execute, deliver and file any financing statements, security agreements or other documents, and to do any and all acts, which are requested by Seller to perfect, continue, or evidence such security interest and any other security interests granted to Seller hereunder. If Buyer fails to execute, deliver or file such documents promptly as requested by Seller, Buyer hereby appoints Seller as Buyer’s attorney-in-fact to, at the option of Seller, all acts which Seller may deem necessary to perfect and to continue perfected any security interest created hereby. Buyer will be deemed to have accepted all invoices for which Seller does not receive timely notification of dispute and shall pay all undisputed amounts due under such invoices within the period set forth in the invoice.
NO SETOFF
Buyer shall not, and acknowledges that it will have no right, under this Agreement, any other agreement, document, or law, to withhold, offset, recoup, or debit any amounts owed (or to become due and owing ) to Seller or any of its affiliates, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by Seller or its affiliates, whether relating to Seller’s or its affiliates’ breach or non-performance of this Agreement or any other agreement between Buyer or any of its affiliates, and Seller or any of its affiliates, or otherwise.
WARRANTIES
(a) Seller warrants to Buyer that for a period of six (6) months from the date of shipment of the Goods, such Goods will materially conform to the Seller’s published specifications in effect as of the date of this Agreement and will be free from material defects in material and workmanship, provided however, that the Goods must be stored by Buyer unstacked and in a properly ventilated and temperature controlled environment. Seller passes through to Buyer and all manufacturer’s warranties on Goods manufactured by other than Seller.
(b) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 8(a), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; OR (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (iii) WARRANTY OF TITLE; OR (iv) 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.
(c) With respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods or (ii) credit or refund the Price of such Goods at the pro-rata contract rate, provided that if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller.
(d) THE REMEDIES SET FORTH IN SECTION 8(c) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 8(a).
LIMITATION OF LIABILITY
(a) 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, OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (i) WHETHER SUCH DAMAGES WERE FORESEEABLE, (ii) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (iv) 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 THIS AGREEMENT, 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 UNDER THIS AGREEMENT.
COMPLIANCE WITH LAW
Both Buyer and Seller are in compliance and each Party shall comply with all applicable laws, regulations, and ordinances in effect during the performance of this Agreement. Each Party has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its respective obligations under this Agreement.
TERMINATION
In addition to any remedies that may be provided in this Agreement, Seller may terminate this Agreement upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement and such failure continues for five (5) days after Buyer’s receipt of written notice of nonpayment; (b) has not otherwise performed or complied materially with any of the terms of this Agreement, in whole or in part; or (c) 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.
CONFIDENTIAL INFORMATION
All non-public, confidential, or proprietary information of Seller, including, but not limited to, trade secrets, 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 this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by Seller in writing. Seller shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Buyer at the time of disclosure; or (c) rightfully obtained by the Buyer on a non-confidential basis from a third party.
INFRINGEMENT CLAIMS
Buyer agrees to promptly notify Seller of the assertion against Buyer, in litigation or otherwise, of any claim of intellectual property infringement respecting any of the Goods purchased by Buyer under this Agreement. Seller shall have the right (but not the obligation) to assume control of any litigation arising out of such claims. In the event such notice is given to Seller and Buyer provides all necessary cooperation assistance requested by Seller and allows Seller to so conduct the litigation, Seller shall indemnify and hold the Buyer harmless from and against any such claim relating to any of Seller’s standard Goods. The foregoing provisions shall not apply to any intellectual property furnished to Seller by Buyer.
ENTIRE AGREEMENT
This Agreement, including and together with any related exhibits, schedules, attachments, purchase orders and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, constitutes a complete and exclusive statement of agreement, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. Any terms specified in any other writing are rejected and shall be superseded by the terms herein and shall not be binding upon Seller. THESE TERMS AND CONDITIONS SHALL BE DEEMED ACCEPTED AND AGREED TO BY BUYER IN ANY EVENT UPON ACCEPTANCE OF DELIVERY OF ANY OR ALL GOODS.
SURVIVAL
Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of the Parties contained herein, as well as any other provision that, to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement.
NOTICES
All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement must be in writing and addressed to the other Party at its address set forth in this purchase order (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.
SEVERABILITY
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. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to affect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
AMENDMENTS
No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
WAIVER
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.
ASSIGNMENT
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. No assignment, transfer, delegation, or subcontract shall relieve Buyer of any of its obligations hereunder. Seller may at any time assign, transfer, delegate, or subcontract any or all its rights or obligations under this Agreement without Buyer’s prior written consent.
SUCCESSORS AND ASSIGNS
This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
NO THIRD-PARTY BENEFICIARIES
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 or legal entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
CHOICE OF LAW
This Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the Commonwealth of Pennsylvania, United States of America, without giving effect 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 Commonwealth of Pennsylvania. The United Nations Convention on the International Sale of Goods shall not apply.
CHOICE OF FORUM
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, including all exhibits, schedules, attachments, purchase orders, and appendices attached to this Agreement, and all contemplated transactions, in any forum other than the U.S. District Court for the Eastern District of Pennsylvania or the courts of the Commonwealth of Pennsylvania sitting in Philadelphia County, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the U.S. District Court for the Eastern District of Pennsylvania or the courts of the Commonwealth of Pennsylvania sitting in Philadelphia County. 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.
WAIVER OF JURY TRIAL
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY KNOWINGLY, VOLUNTARILY, 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, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, PURCHASE ORDERS, OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
COUNTERPARTS
This Agreement may be executed in counterparts, including via electronic or digital means, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
FORCE MAJEURE
(a)No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of the Buyer to make payments to Seller), when and to the extent such failure or delay is caused by or results from acts beyond the reasonable control of the impacted Party (“Impacted Party”).
(b)The Impacted Party shall give notice to the other Party, within three (3) days of the Force Majeure Event, stating the period the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
LICENSE
Buyer grants Seller a limited non-exclusive, royalty-free, worldwide, perpetual license to use, reproduce, and display Buyer’s artwork, trademarks, logos, and other intellectual property in Seller’s performance of this Agreement and for marketing and promotional purposes.