CONSUMERS SUPPLY DISTRIBUTING, LLC (“CSD”) GENERAL TERMS & CONDITIONS OF SALE
1. Entire Agreement. These Terms and Conditions of Sale (the Terms), together with other sales terms, if any, agreed to by CSD and Seller in a writing signed by both parties (Sales Terms), contain the entire and exclusive contract and agreement between the parties regarding the sale of each product and shall not be supplemented or amended except by separate written agreement signed by both parties. CSD expressly rejects terms and conditions additional to or varying from these Sales Terms, and any such additional or varying terms and conditions shall not be binding on CSD unless specifically agreed to in writing by CSD. CSD’s receipt of an acceptance of acknowledgement by Seller of CSD’s order or the receipt of conflicting terms and conditions by Seller shall not constitute such written agreement. Any action by Seller in furtherance of a sale or shipment of products by Seller to CSD under these Sales Terms shall also constitute Seller’s acceptance of these Sales Terms. All terms and conditions contained in any prior or subsequent oral or written communication concerning the sale of products to which this contract relates, including, without limitation, terms and conditions contained in Seller’s acceptance or acknowledgement of a purchase order, which are different from or in addition to the contract are hereby rejected and shall not be binding on CSD, and CSD hereby objects thereto. Once Seller accepts or otherwise acknowledges CSD’s order, Seller shall be obligated to complete its sale stated in the order and may not cancel its order for any reason.
2. Payment; Taxes. The price for product is the price in effect on the date CSD places the purchase order, unless otherwise agreed by the parties. Payment for the invoice shall be made to Seller in United States currency. The price for product is exclusive of any sales, use or other tax of levy imposed upon this sale. Such taxes shall be CSD’s responsibility.
3. Breach; Termination; Waiver. If Seller breaches any term of the contract or ceases to conduct its operations in the normal course of business, including inability to meet its obligations as they mature, and fails to cure such breach within ten (10) days, then CSD may defer performance under the contract until such breach has been cured. This election by CSD shall not affect the obligation of Seller to make and deliver any contracted product. No waiver by CSD of any default or breach shall be deemed a waiver of any other prior or subsequent default or breach.
4. Force Majeure. CSD shall not be responsible for any delay or failure to take delivery of product due to any cause beyond its reasonable control, including without limitation (a) fire, storm, flood, strike, lockout, accident, act of war or terrorism, riot, civil commotion, embargo; (b) any regulation, law, order or restriction of any governmental department, commission, board, bureau, agency, court, or other similar governmental authority; or (c) inability of CSD to obtain any equipment, labor or transportation, at prices and on terms CSD deems practicable from CSD’s usual sources of supply.
5. Limitation of Liability. CSD'S TOTAL LIABILITY AND SELLER'S EXCLUSIVE REMEDY FOR ANY CLAIM OR LIABILITY ASSOCIATED WITH THE CONTRACT OR ANY PRODUCT, WHETHER BASED IN TORT, CONTRACT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY IS EXPRESSLY LIMITED TO PAYMENT IN AN AMOUNT NOT TO EXCEED, IN THE AGGREGATE, THE PURCHASE PRICE OF THE SPECIFIC PRODUCT FOR WHICH DAMAGES ARE CLAIMED. IN NO EVENT SHALL CSD BE LIABLE FOR ANY OTHER DAMAGES, LOSSES OR EXPENSES, INCLUDING, WITHOUT LIMITATION, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, AGGRAVATED, EXEMPLARY OR SPECIAL DAMAGES OR DAMAGES, LOSSES OR EXPENSES ASSOCIATED WITH LOSS OF PROFITS, BUSINESS, CONTRACTS OR SAVINGS, LOSS OF GOODWILL, LOSS OF PRODUCTION, LOSS OF USE, BUSINESS INTERRUPTION AND ANY OTHER DAMAGES, LOSSES OR EXPENSES OF ANY KIND OR CHARACTER TO SELLER, ITS CUSTOMERS, OR OTHER PERSONS OR ENTITIES.
6. Limitation of Action. SELLER’S FAILURE TO COMMENCE ANY CAUSE OF ACTION ARISING UNDER THE CONTRACT WITHIN ONE YEAR AFTER THE DATE OF DELIVERY SHALL FOREVER BAR ALL RIGHTS OF SELLER TO COMMENCE ANY CAUSE OF ACTION WITH RESPECT THERETO NOTWITHSTANDING ANY APPLICABLE STATUTE OF LIMITATIONS.
7. Confidential Information. All of CSD’s non-public, confidential or proprietary information, including but not limited to documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by CSD to Buyer, whether disclosed orally or 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 and may not be disclosed or copied unless authorized in advance by CSD in writing.
8. Compliance with Law. Seller shall comply with all applicable laws, regulations and ordinances and shall maintain in effect all licenses, permissions, authorizations, consents, and permits necessary to carry out its obligations under this contract.
9. Assignment; Survival. Seller shall not assign all or any portion of the contract without CSD’s prior written consent. The contract shall bind and inure to the benefit of the successors and permitted assigns of the respective parties. In order that the parties may fully exercise their rights and perform their obligations arising under the contract, any provisions of the contract that are required to ensure such exercise or performance (including any obligation accrued as of the termination date) shall survive the termination of the contract.
10. Governing Law; Miscellaneous. The contract shall be governed by the laws of the State of South Dakota, USA, excluding its conflict of laws principles. The parties agree, consent and waive contest to the exclusive jurisdiction and venue of the federal or state courts of South Dakota for all disputes arising out of or relating to this contract. Failure of either party to exercise any right it has under the contract on one occasion shall not operate or be construed as a waiver by such party of its right to exercise the same right on another occasion or any other rights it has. Any waiver must be in a writing signed by the waiving party. If any provision of the contract shall be adjudicated to be invalid or unenforceable, it is the parties’ intent that the remaining provisions of the contract will remain in full force and effect, and the affected provision or portion thereof will be deemed modified so that it is enforceable to the maximum extent permissible to reflect as closely as possible the intentions of the parties as evidenced from the provisions of the contract. The terms of the contract are confidential, with the understanding that Seller will not disclose such terms to any third party. The section headings used herein are intended for convenience of reference only and shall not be considered in interpreting the contract. Nothing in the contract shall be construed as creating any direct or beneficial right in or on behalf of any third party.