Shield Pals – Terms and Conditions
1. Agreement and Acceptance. These terms and conditions of sale (“Terms”) govern the sale of the products specified on the front of this document, in any quote or invoice, on any purchase order, or on any order form (collectively “Products”) by Shield Pals, LLC (“Shield Pals”) to the buyer named thereon (“Buyer”). Buyer and Shield Pals may be referred to individually as a “Party” and collectively as the “Parties.” SHIELD PALS’ DELIVERY OF PRODUCTS TO BUYER AND BUYER’S ACCEPTANCE OF THE DELIVERY OF PRODUCTS SHALL CONSTITUTE ACCEPTANCE OF THESE TERMS BY THE PARTIES. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE SALE OF PRODUCTS BY SHIELD PALS TO BUYER SHALL NOT BE GOVERNED BY ANY TERMS OR CONDITIONS SET FORTH ON BUYER’S ORDER OR ANY OTHER AGREEMENT. THESE TERMS CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES REGARDING THE SUBJECT MATTER CONTAINED HEREIN, AND SUPERSEDE ANY AND ALL PRIOR OR CONTEMPORANEOUS WRITTEN OR ORAL COMMUNICATIONS, UNDERSTANDINGS, AND AGREEMENTS OF THE PARTIES. NO ADDITIONS OR MODIFICATIONS OF THESE TERMS SHALL BE EFFECTIVE UNLESS MADE IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF BOTH PARTIES.
2. Orders; Changes to Orders. Buyer may, from time to time, submit to Shield Pals an order for Products (each, an “Order”). Each Order shall, at a minimum, specify the quantity of each type of Products, the proposed delivery date(s), the proposed delivery site(s), and shipping instructions. Shield Pals may, within seven (7) business days after receiving an Order, accept or reject the Order by providing proper notice to Buyer. If an Order has not been accepted by Shield Pals after seven (7) business days, the Order shall be deemed rejected. Buyer acknowledges and agrees that upon acceptance of an Order, Buyer shall be bound to purchase the quantity of Products specified in the Order and shall be required to take delivery of all such Products within the time period specified in the Order. SHIELD PALS’ ACCEPTANCE OF AN ORDER IS EXPRESSLY CONDITIONED ON THE BUYER’S ACCEPTANCE OF THESE TERMS. At any time, Shield Pals may make changes to the design or composition of Products that, in its judgment, do not materially change the form, fit, function or quality of the Products. Changes in design or composition made at the request of Buyer shall be at Buyer’s risk and responsibility, at the expense of Buyer, and shall be paid for upon receipt of Shield Pals’ invoice. Shield Pals will not incur any liability for reasonable delay in shipment of Products attributable to Buyer’s change to the design or composition of Products.
3. Shipping; Title; Risk of Loss. Shield Pals shall use commercially reasonable efforts to deliver all Products within the time period specified in the Order. Products shall be delivered F.O.B. Shield Pals’ facility unless otherwise agreed to by Shield Pals. Shield Pals will select the shipping carrier unless otherwise agreed to by Shield Pals. All shipping costs shall be borne by Buyer unless specified otherwise. Shield Pals shall not be liable for shipment delays, or any loss or damage to Products while in transit, and all claims therefore shall be made immediately by Buyer to the shipping carrier. Title to Products shall transfer to Buyer upon payment for the Products in full.
(a) As used in this Section 4, “Nonconforming Products” means only the following: (i) the Products shipped are a different quality from those identified in Buyer’s purchase order; (ii) the labels or packaging of the Products incorrectly identifies them; or [(iii) the Products do not conform to the Limited Warranty (as defined in Section 9 below)]. Buyer will inspect the Products within two (2) days following receipt thereof (the “Inspection Period”). The Products will be deemed accepted at the end of the Inspection Period unless Buyer notifies Shield Pals in writing of any Nonconforming Products and furnishes Shield Pals with written evidence or other documentation reasonable required by Shield Pals.
(b) If Buyer timely and properly notifies Shield Pals of any Nonconforming Products, then Shield Pals will, in its sole discretion, (i) replace the Nonconforming Products with conforming Products or (ii) credit or refund the purchase price for the Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer. At Shield Pals’ request, Buyer will dispose of the Nonconforming Products or return the Nonconforming Products to Shield Pals at Shield Pals’ expense. Upon receipt of the Nonconforming Products, Shield Pals will promptly refund the monies owed or ship the replacement Products to Buyer’s deliver location.
(c) Buyer acknowledges and agrees that the remedies set forth in this Section 4 are Buyer’s exclusive remedies for the delivery of Nonconforming Products, and except as set forth in this Section 4, Buyer has no right to return the Products to Shield Pals without Shield Pals’ written authorization.
5. Prices and Taxes. The price of Products shall be Shield Pals’ price in effect for Products at the time the Order is accepted. Shield Pals specifically rejects any price of Products specified by Buyer on any Order or on any other order form submitted by Buyer to Shield Pals. Buyer shall pay all federal, state, and local taxes or other charges imposed by law in connection with the sale and/or shipment of Products.
6. Payment Terms; Retained Security Interest. Shield Pals shall provide an invoice to Buyer on or before shipment of Products. All invoices are due and payable within the agreed upon terms of the invoice. Any amounts owed by Buyer and not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month from the original due date until paid in full or, if lesser, the highest rate permitted under applicable law. Buyer shall be liable for and shall reimburse Shield Pals for Shield Pals’ actual costs and expenses incurred in connection with the collection of any amounts owed to Shield Pals or enforcement of Shield Pals’ rights, including, without limitation, attorneys’ fees, court costs, and disbursements. Buyer hereby grants Shield Pals a security interest in the Products to secure the payment of same until the entire purchase price has been paid in full. Without restricting the generality of the foregoing, Buyer also hereby grants to Shield Pals a purchase money security interest in the Products (including, but not limited to, a purchase money security interest in inventory) together with all replacements thereof, and all accessories and parts related thereto (collectively the “Inventory”). A security interest and a purchase money security interest are likewise granted in the proceeds of sale of the Inventory. Buyer hereby authorizes Shield Pals to take all action necessary to preserve, perfect or continue the aforesaid security interests including, without limitation, filing financing and related statements under the Uniform Commercial Code.
(a) For purposes of these Terms, a “Buyer Default” shall mean that Buyer: (i) fails to pay all or any part of the sums due or to become due to Shield Pals, (ii) fails to comply with these Terms, or (iii) becomes insolvent or becomes a party to any insolvency proceeding or receivership, or becomes a judgment debtor.
(b) Upon a Buyer Default, Shield Pals may, at Shield Pals’ option: (i) immediately suspend performance and cancel the unfinished portion of any outstanding Orders, (ii) declare all unpaid amounts for the Products delivered immediately due and payable, (iii) withhold further deliveries to Buyer, or (iv) exercise any other remedies available under applicable law. Waiver by Shield Pals of any Buyer Default shall not be a waiver of any other subsequent Buyer Default.
8. Indemnification. Buyer hereby agrees to indemnify, defend and hold harmless Shield Pals and its directors, officers, employees, agents, successors and assigns from and against any and all damages, losses, expenses, costs (including without limitation reasonable attorneys’ and accountants’ fees), claims, suits, actions, judgments or other liability asserted against or incurred by Shield Pals directly or by reason of any third-party suite arising out of or in connection with (i) negligence, gross negligence, or intentional misconduct by Buyer, or its employees, agents or customers, (ii) breach of this Agreement by Buyer, or (iii) misuse or misapplication of the Products or damage to the Products caused by Buyer or its employees, agents or customers.
9. Warranties. Shield Pals warrants to Buyer that the Products delivered to Buyer will be free from defects in material and workmanship (the “Limited Warranty”). BUYER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9, ALL PRODUCTS ARE PURCHASED AND SOLD “AS IS” AND “WITH ALL FAULTS,” AND SHIELD PALS MAKES NO REPRESENTATIONS OR WARRANTIES RELATED TO PRODUCTS INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND THAT THE WARRANTIES IN THIS SECTION 9 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT TO PRODUCTS, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
10. Limitation of Liability. NOTWITHSTANDING ANYTHING IN THESE TERMS TO THE CONTRARY, SHIELD PALS’ SOLE LIABILITY ON ANY CLAIM, WHETHER IN TORT, CONTRACT, WARRANTY, OR OTHER LEGAL OR EQUITABLE THEORY, ARISING OUT OF OR RELATED TO SHIELD PALS’ BREACH OF THESE TERMS OR THE SALE OR USE OF PRODUCTS, SHALL BE LIMITED TO REIMBURSEMENT OF BUYER’S ACTUAL COST OF PRODUCTS GIVING RISE TO THE CLAIM. NOTWITHSTANDING ANYTHING IN THESE TERMS TO THE CONTRARY, IN NO EVENT SHALL SHIELD PALS BE LIABLE TO THE BUYER OR ANY OTHER PERSON FOR ANY EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OR LOSSES, OR THE LIKE (INCLUDING, WITHOUT LIMITATION, LOSS OF USE OF PRODUCTS, LOSS OF PROFITS, OR LOSS OF GOODWILL), EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER SHIELD PALS HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Compliance with Laws; Recalls. Buyer shall comply with all laws, rules and regulations, and government orders and ordinances that are in any way related to Products. If Buyer is directed by Shield Pals or any governmental authority to assist in any suspension of supply or recall of Products for any reason, Buyer must cooperate and comply with all such reasonable directions to ensure the most effective response to the suspension or recall.
12. Force Majeure. Shield Pals shall not be responsible for cancellation or delay in delivery or performance resulting, in whole or in part, from causes beyond its reasonable control, including, but not limited to: acts of God; acts of Buyer; strikes or other labor disturbances; supplier or facility conditions; temporary or permanent supplier or facility closures; equipment failure; inability to obtain fuel, material, or parts; war; acts of terrorism; sabotage; riot; delays in transportation; repairs to equipment; natural disasters; epidemics and pandemics; floods; fires; action of governmental authorities (valid or invalid); severe weather conditions; accidents; explosions; failure of or inability to obtain power, raw materials, suppliers, labor, equipment or transportation; a court or administrative injunction or order; or any other contingency the non-occurrence of which was a basic assumption on which these Terms were set forth.
13. Confidentiality; Intellectual Property. All manufacturing processes, pricing, designs, formulas, data, or other technical information of Shield Pals, shall remain Shield Pals’ confidential information and property, and Buyer shall not have any rights thereto, nor any rights to disclose such items or information to any third party. Nothing in these Terms or an Order shall be construed (by implication, estoppel or otherwise) as granting, or as an undertaking by Shield Pals to subsequently grant, to Buyer any license, right, title or interest in or to any present or future patent, patent application, know-how, copyright, trademark, trade secret or other proprietary right.
14. Setoff. Shield Pals shall have the right to credit toward the payment of any monies that may become due Buyer hereunder any amounts which may now or hereafter be owed by Buyer to Shield Pals or any of its subsidiaries or affiliates. Buyer shall pay Shield Pals’ invoices without discount, setoff, retention or reduction for any reason, including asserted warranty claims or other claims of non-performance by Shield Pals.
15. Accord and Satisfaction. Checks or payments, whether full or partial, received from or for the account of Buyer, regardless of writings, legends or notations upon such checks or payments, or regardless of other writings, statements or documents, shall be applied by Shield Pals against the amount owing by Buyer with full reservation of all Shield Pals’ rights and without an accord and satisfaction of Buyer’s liability.
16. Government Contracts. Buyer shall promptly notify Shield Pals if Buyer is purchasing the Products for a government contract or sub-contract, and Buyer shall specify any contractual terms or government procurement laws and regulations that Buyer is obligated to comply with for such Products. Shield Pals shall not be obligated to comply with any government procurement provisions unless agreed to in a writing signed by an authorized representative of Shield Pals.
17. Acknowledgement. Buyer acknowledges that the Products have not been tested by Shield Pals for safety or efficacy in any particular application. Buyer further acknowledges its responsibility to test and effectively evaluate Products to determine to Buyer’s own satisfaction, whether the Products are suitable for Buyer’s intended uses and applications. Buyer understands its application-specific analysis must at least include testing to determine suitability from a technical as well as health, safety, and environmental standpoint. Buyer assumes responsibility for compliance with regulatory requirements related to Products purchasing, handling, storage, transportation, sale, use and/or disposal.
18. Miscellaneous. Shield Pals and Buyer are acting hereunder as independent contractors. These Terms and Orders are not assignable by Buyer. Any assignment made in contravention of this Section shall be void in all respects. The waiver by either Party of any of its rights or remedies or of any breaches by the other Party under these Terms in a particular instance shall not be considered as a waiver of the same or different rights, remedies, or breaches in subsequent instances. These Terms shall be interpreted and enforced exclusively under the laws of the State of Maryland, exclusive of any conflict of laws principles, and the Parties shall exercise any right or remedy thereunder exclusively in, and hereby consent to the exclusive jurisdiction of, the courts in Anne Arundel County, Maryland. If any provision in these Terms is found to be invalid, illegal, or unenforceable, then the remainder of these Terms shall not be affected, and shall remain in full force and effect.