Terms and Conditions of Sale
1. Definition
1.1 The term “Atticus” or “Seller” as used herein shall mean Atticus, LLC. The term “Buyer”as used herein shall mean the purchaser of Seller’s goods. Seller and Buyer are collectively sometimes referred to as the “Parties” or singularly referred to as a “Party”.
2. Scope of Applicability
2.1. These General Terms and Conditions of Sale (the “Terms and Conditions”) apply to all sales of goods (“Product(s)”) by Seller to Buyer notwithstanding any conflicting, contrary or additional terms and conditions in any purchase order, acknowledgement, confirmation, writing or in any other prior or later communication from Buyer to Seller which are hereby expressly rejected. No such conflicting, contrary or additional terms and/or conditions shall by deemed accepted by Seller unless and until Seller expressly confirms its acceptance of them in a signed writing. Buyer’s commencement of performance hereunder (including Buyer’s ordering, purchasing, and/or taking delivery of Product hereunder) shall constitute Buyer’s unqualified and unconditional acceptance of these Terms and Conditions.
2.2. Seller reserves the right to change these Terms and Conditions at any time, and such amended Terms and Conditions shall become applicable upon posting to Seller’s website.
3. Title and Risk of Loss
3.1. Title to the Product shall remain with Seller until either such time as the Product reaches Buyer’s specified destination or Buyer or its contractor or agent picks up the Product at Seller’s facility, whichever occurs sooner. Risk of loss of the Product shall pass from Seller to Buyer when the Product is loaded on to the truck or railcar at the Seller’s facility (unless another location is expressly identified by Seller).
4. Payment and Taxes
4.1. Payment is due 30 days from the invoice date, and all payments shall be made in U.S. Dollars. Interest may be charged on all past due amounts owed by Buyer hereunder at an interest rate equal to the lesser of: (i) 18% per annum and (ii) the maximum rate permitted by applicable law, from the payment due date until paid in full. Buyer shall pay all taxes, duties, fees, levies, penalties, licenses, or charges imposed by any government authority, including sales, use, gross receipts, and excise taxes (“Taxes”), on or with respect to the Product at or after risk of loss passing to Buyer to the extent applicable law does not prohibit Buyer from bearing economic responsibility for such Taxes. Seller shall invoice Buyer accordingly if Seller is required to collect said Taxes in any jurisdiction.
5. Payment and Taxes
5.1. Seller may, at its sole discretion, extend credit to Buyer subject to approval of Buyer’s financial condition. Seller reserves the right to modify or revoke credit terms at any time. If Buyer’s financial condition becomes impaired, Seller may: (i) suspend deliveries of Product; (ii) require prepayment; or (iii) require other assurances of performance. Buyer hereby waives written notice of any such action.
6. Inspection and Acceptance of Product
6.1. Buyer shall, at its sole cost, inspect all Products immediately upon receipt after delivery. Any claims for shortages, defects, or nonconformity (a “Claim”) shall be waived unless they are submitted to Seller in writing within ten (10) days of delivery. If Buyer notifies Seller of a Claim, Buyer shall provide Seller with a prompt and reasonable opportunity to inspect all goods to which a Claim is made. No Product shall be returned to Seller without Seller’s express written consent.
7. Warranty; Limitations on Liability
7.1. Seller warrants to Buyer only that: (i) the Products shall materially conform to Seller’s specifications at the time of delivery and (ii) title to the Product shall be free from any security interest, lien, or encumbrance. BUYER ACKNOWLEDGES THAT SELLER’S SOLE AND EXCLUSIVE WARRANTIES WITH RESPECT TO THE PRODUCTS ARE SET FORTH IN THIS SECTION 7.1. SELLER MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE WARRANTIES CONTAINED IN THIS SECTION 7.1 IS LIMITED TO RECEIVING EITHER (I) A LIKE QUANTITY OF PRODUCTS TO REPLACE ANY QUANTITY SHOWN TO BE INCONSISTENT WITH SUCH WARRANTY OR (II) THE VALUE PAID FOR SUCH PRODUCT. THE CHOICE OF REMEDY IS SOLELY THAT OF SELLER. THIS SECTION SETS OUT SELLER’S EXCLUSIVE LIABILITY AND BUYER’S EXCLUSIVE REMEDY IN CONTRACT, TORT, LAW OR EQUITY HEREUNDER FOR BREACH OF SELLER’S WARRANTIES. UNDER NO CIRCUMSTANCES SHALL SELLER OR ANY OF ITS AFFILIATES BE LIABLE OR HAVE ANY RESPONSIBILITY TO BUYER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING LOST EARNINGS, LOST PROFITS, OR BUSINESS INTERRUPTION.
8. Default
8.1. Failure of Buyer to perform its obligations contained herein including, without limitation, payment in full of the purchase price for the Products, or the insolvency, bankruptcy, assignment for the benefit of creditors, or dissolution, liquidation, or winding up of the business of Buyer, shall constitute a default under these Terms and Conditions. In such event, Seller may decline to make further shipments, declare all outstanding amounts immediately due, repossess Product not yet paid for, or pursue any other remedies available at law or in equity. If Seller resorts to a third party or to litigation to collect amounts owed hereunder, Buyer agrees to pay all costs of collection, including attorneys’ fees, plus interest at the applicable statutory rate.
9. Force Majeure
9.1. Seller shall not be required to perform its obligations under these Terms and Conditions, or be liable for its failure to perform if nonperformance is caused by an act of god, war, civil disturbance, strike, work stoppage, pandemic, transportation contingencies, shortages of labor, fuel, raw materials or machinery, power failures, laws, regulations, ordinances, acts or orders of any governmental agency or official thereof or any cause not within the control of Seller where Seller exercised ordinary care in the prevention thereof. Seller reserves the right, in its full discretion, to allocate Products and current Production and to substitute materials when, in its sole discretion, circumstances warrant such allocation or substitution.
10. Indemnification
10.1. To the fullest extent permitted by law, Buyer hereby releases and shall defend, protect, indemnify, and save harmless Seller, its affiliates, and their respective owners, officers, directors, employees, and representatives from and against all claims, demands, lawsuits, causes of action, penalties, fines, losses, damages, expenses (including attorneys’ fees) and costs of every kind and character, on account of any reason whatsoever, including personal injuries, death, damage to property, damage to the environment, or infringement of any patent, trademark, copyright, or other property right arising out of: (i) the possession, use, misuse, storage, transportation, handling, disposal, importation, exportation, manufacture, marketing, sale, re-sale or distribution of any Product; (ii) the misuse of any intellectual property by or on behalf of Buyer or its affiliates, distributors, representatives, agents, contractors, or subsequent purchasers or their respective employees, officers, and/or directors; and (iii) the breach of any terms of these Terms and Conditions by Buyer.
11. Compliance with Laws
11.1. Buyer shall, at its sole cost and expense, comply with all applicable laws, ordinances, regulations, and industry standards relating to the purchase, use, and resale of the Products.
12. Compliance with Laws
12.1. Buyer acknowledges that in the course of its interaction with Seller, Seller may disclose information to Buyer that it considers proprietary and confidential (hereinafter “Confidential Information”). Confidential Information includes, but is not limited to, all unpublished information relating to Seller’s business operations, markets, processes, Products, research, development, manufacturing, purchasing, accounting, engineering, marketing, merchandising, selling, leasing, servicing, finances and business systems and techniques.
12.2. Buyer shall not use Confidential Information for any purpose other than for the intended purpose and shall not disclose such Confidential Information to a third Party except as required by law or with the written consent of Seller, unless such information (i) is published or can reasonably be considered a part of the public domain, through no act or failure to act on the part of Buyer, (ii) is obtained by Buyer from a third Party who is lawfully in possession of such information and not bound by any obligation not to disclose such information, or (iii) is obtained by Buyer through independent research without the use of Seller’s Confidential Information.
12.3. In the event that Buyer is required by law to disclose such Confidential Information, Buyer shall provide written notice of such impending disclosure to Seller as early as possible prior to disclosure and shall cooperate with Seller to prevent or limit the disclosure of such Confidential Information in such manner as may be allowed by law.
12.4. Buyer understands and acknowledges that any disclosure or misappropriation of any of the Confidential Information in violation of these Terms and Conditions may cause Seller irreparable harm, the amount of which may be difficult to ascertain, and therefore agrees that Seller shall have the right to apply to a court of competent jurisdiction for specific performance and/or an order restraining and enjoining any such further disclosure or breach and for such other relief as Seller shall deem appropriate. Such right of Seller shall be in addition to the remedies otherwise available to Seller at law or in equity.
13. Governing Law; Venue
13.1. These Terms and Conditions shall be governed by and construed in accordance with the 5 of 5 laws of the state of North Carolina, without regard to conflict-of-law principles. In the event of a dispute arising out of or relating to these Terms and Conditions, all lawsuits will be filed in Wake County, North Carolina.
14. Binding Effect
14.1. These Terms and Conditions shall be binding upon and inure to the benefit of the Buyer and Seller and to their respective successors and permitted assigns.
15. Entire Agreement
15.1. These Terms and Conditions, together with Seller’s quotation and invoice (if applicable), constitute the entire agreement between the parties and supersede all prior negotiations, discussions, and dealings concerning the subject matter hereof and, unless there is a signed contract between the Parties pertaining to the purchase and sale of Products described hereunder, constitutes the entire agreement between Seller and Buyer concerning the subject matter hereof.
16. Assignment
16.1. Buyer may not assign or transfer any rights or obligations under these Terms and Conditions without Seller’s prior written consent. Seller may assign its rights or obligations without restriction.
17. Severability
17.1. If any provision of these Terms and Conditions is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.
18. Attorneys’ Fees
18.1. In any action arising out of these Terms and Conditions, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs.