4. Price; Payment Terms. The price for each Order will be the price in effect at the time Cast21 accepts the 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 unless otherwise noted. 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, Cast21’s income, revenues, gross receipts, personnel or real or personal property or other assets. Buyer shall pay all invoiced amounts due to Cast21 promptly following receipt of Cast21’s Sales Confirmation. Unless otherwise agreed to and set forth on the Sales Confirmation, in no event will an Order be shipped prior to receipt of payment for the Order.
5. Shipping Charges; Insurance. Delivery shall be made in accordance with the terms on the face of the Order. Cast21 shall give notice of shipment to Buyer when the Products are delivered to a carrier for transportation. Buyer shall pay for shipping charges and insurance costs in accordance with the commercial terms selected by the Parties, unless otherwise agreed to and set forth on the Sales Confirmation.
6. Title and Risk of Loss. Title passes to Buyer upon delivery of the Products to the Ship-To Location (as defined below).
7. Need-By Delivery Date; Location Adherence and Delivery.
a. Cast21 shall deliver the Products in the quantities and on the date(s) specified in this Order (the “Need-By Delivery Date”) using Cast21’s standard methods for packaging and shipping such Products, or as otherwise agreed in writing by the Parties. All Products shall be delivered to the “ship to” address specified in this Order (the “Ship-To Location”) during Buyer’s normal business hours or as otherwise agreed in writing by the Parties. If applicable, Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Products at the Ship-To Location.
b. If any Products arrive damaged, and the Buyer submits written evidence that the Product is damaged, Cast21 may, in its sole discretion, either refund the price Buyer paid for or replace such damaged Products. The foregoing shall be Buyer’s sole remedy with respect to damaged Products and Cast21 shall not otherwise be liable for any damage, loss or damage in transit.
c. Cast21 may, in its sole discretion, without liability or penalty, make partial shipments of Products 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 Order.
d. If for any reason Buyer fails to accept delivery of any of the Products on the date fixed pursuant to Cast21’s notice that the Products have been delivered at the Ship-To Location, or if Cast21 is unable to deliver the Products at the Ship-To Location on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations, the Products shall be deemed to have been delivered.
8. Contingencies. Fire, flood, strikes, lock-out, epidemic, pandemic, accident or other causes beyond the control of the Parties, which prevent Cast21 from delivering, or Buyer from receiving and/or using any of the Products covered by an Order, shall operate to suspend deliveries during the period required to remove such cause. In the event that the impacted Party's failure or delay remains uncured for a period of fourteen (14) days following written notice given by it under this Section 8, either Party may thereafter terminate the applicable Order. Unless otherwise agreed in writing by the Parties, such termination shall only apply to the applicable Order and not any other agreements between the Parties, including, without limitation, any Sales Agreement.
9. Product Warranty.
a. Limited Warranty. Cast21 warrants to Buyer that, at the time of delivery, all Products furnished pursuant to an order will materially conform to Cast21’s published specifications in effect as of the date of manufacture and are free from material defects in material and workmanship (“Limited Warranty”). If the Products do not meet Limited Warranty, Cast21 shall either, in Cast21’s sole discretion, (i) replace the Product or (ii) a refund the charges paid by the Buyer for the Product. The foregoing shall be Cast21’s sole liability and entire obligation and the Buyer’s exclusive remedy for any such breach of this Section 9(a).
b. DISCLAIMER. EXCEPT FOR THE LIMITED WARRANTY ABOVE, CAST21 MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (I) WARRANTY OF MERCHANTABILITY; (II) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (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.
10. Indemnification. Subject to Section 17, Cast21 shall defend, indemnify and hold harmless Buyer against any and all third-party claim for loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and fees (collectively, “Losses”) arising out of or occurring in connection with any grossly negligent or more culpable act or omission of Cast2 or its personnel and agents (including any reckless or willful misconduct) in connection with the performance of its obligations hereunder. Buyer will indemnify, defend and hold harmless Cast21 and its directors, officers, agents and employees from any and all Losses, arising out of any third-party claim alleging: (a) breach or non-fulfillment of any representation, warranty, or covenant under this Agreement by Buyer or its personnel and agents, (b) any negligent or more culpable act or omission of Buyer or its personnel and agents (including any reckless or willful misconduct) in connection with the performance of its obligations hereunder or use of the Product, (c) any bodily injury, death of any person, or damage to real or tangible personal property caused by the negligent or more culpable acts or omissions of Buyer or its personnel and agents (including any reckless or willful misconduct), or (d) any failure by Buyer or its personnel and agents to comply with any applicable federal, state, or local laws, regulations, or codes in the performance of its obligations hereunder or use of the Product.
11. Assignment. Buyer shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Order without the prior written consent of Cast21. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Buyer of any of its obligations hereunder. Cast21 may at any time assign, transfer or subcontract any or all of its rights or obligations under the Order without Buyer’s prior written consent.
12. Feedback. Seller is constantly working on improving its products based in part on Buyer feedback. While Cast21 welcomes feedback from its Buyers regarding its products, Buyer agrees to not send any unsolicited drawings, photos, or concepts to the Seller regarding any product or technology modifications to said products.
13. Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”) must be in writing (including email) and addressed to the other Party at its address set forth on the signature page (or to such other address that the receiving Party may designate from time to time in accordance with this section). 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). Notice by email to the email address on the signature page will satisfy the requirements of this Section 14
14. Governing Law. This Agreement shall be governed by and interpreted under the laws of the State of Illinois applicable to contracts made and to be performed therein without giving effect to the principles of conflict of laws thereof. The Parties hereto agree that any legal suit, action, or proceeding against them arising out of or relating to this Agreement shall be brought exclusively in the United States Federal Courts in the State of Illinois or the state courts, in the State of Illinois. The Parties hereby accept the jurisdictions of such courts for the purpose of any such action or proceeding, and agree that venue for any action or proceeding brought in the State of Illinois shall lie in the United States Federal Courts in the Northern District or any state court located in Cook County, Illinois, as the case may be. By its execution hereof, the Parties hereby irrevocably waive any objection and any right of immunity on the ground of venue, the convenience of the forum or the jurisdiction of such courts or from the execution of judgments resulting therefrom. The Parties hereby irrevocably accept and submit to the jurisdiction of the aforesaid courts in any such suit, action or proceeding.
15. Severability. If any term or provision of this Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Order or invalidate or render unenforceable such term or provision in any other jurisdiction.
16. Limitation of Liability. IN NO EVENT SHALL CAST21 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 CAST21 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL CAST21’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 CAST21 FOR THE PRODUCTS SOLD HEREUNDER DURING IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD.
17. Survival. Provisions of this Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order.
18. Entire Agreement, Purchase Order Terms Prevail; Order of Precedence. These Terms and all related Orders and exhibits constitute the sole and entire agreement of the Parties with respect to the subject matter of these Terms, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to the subject matter, including without limitation. In the event of any inconsistency between the statements in the body of these Terms and the related exhibits and the terms of a Sales Agreement, the statements in the body of these Terms shall control. Notwithstanding the foregoing, if any terms and conditions contained in a purchase order conflict with any terms and conditions contained in these Terms, the applicable term or condition of these Terms or the Sales Agreement, as applicable, will prevail and such additional, contrary or different terms will have no force or effect. Except for such additional and contrary terms, the terms and conditions of all purchase orders are incorporated by reference into these Terms for all applicable purposes hereunder. Without limitation of anything contained in this Section 19, any additional, contrary or different terms contained in any invoices or other communications, and any other attempt to modify, supersede, supplement or otherwise alter this Agreement, are deemed rejected by Cast21 and will not modify these Terms or be binding on the Parties unless such terms have been fully approved in a signed writing by authorized representatives of both Parties.