TERMS AND CONDITIONS OF SALE
OKIN AMERICA INC. | STANDARD TERMS AND CONDITIONS OF SALE
Applicability: These terms and conditions (these “Terms”) govern the sale of goods by Okin America, Inc. (“Seller”). These Terms are available at [Terms and Conditions of Sale - DewertOkin] and may be referenced in Seller’s quotations, order acknowledgments, invoices, sales confirmations, and other documents issued by Seller in connection with the sale of goods. These Terms are not intended to serve as consumer-facing terms for sales through Amazon, Wayfair, any other e-commerce marketplace, or any Seller-operated e-commerce website unless Seller expressly incorporates these Terms in writing for such sales. These Terms, together with Seller’s quotation, order acknowledgment, invoice, sales confirmation, and any permitted addenda or schedules, as applicable, shall collectively constitute the agreement of sale (the “Sales Contract”) between Seller and Buyer. Acceptance of any offer made hereunder must be made on these exact terms, and Buyer shall be deemed to accept these Terms by issuing a purchase order in response to Seller’s quotation, signing any document referencing these Terms, accepting delivery of goods, making payment, or otherwise assenting to or accepting the goods. These Terms shall take precedence over Buyer’s additional or different terms and conditions (including but not limited to terms and conditions contained in a purchase order) to which notice of Seller’s objection is hereby given. These Terms control over Buyer’s additional or different terms and conditions regardless of whether Seller has signed or agreed to any of Buyer’s terms and conditions, even if Seller has been advised of such additional or different terms. Neither Seller’s commencement of performance nor shipment by Seller nor delivery to Buyer shall be deemed or constituted as acceptance of such additional or different terms and conditions. Seller’s additional written or typed terms and conditions for any particular sale take precedence over these printed Terms in the event of a conflict. Seller may amend, revise, or update these Terms from time to time by posting the revised Terms on Seller’s website or otherwise making them available in writing. Unless Seller expressly agrees otherwise in writing, the version of these Terms in effect on the date of Seller’s applicable quotation, order acknowledgment, invoice, sales confirmation, or other transaction document shall apply to the relevant transaction and shall supersede all prior versions with respect to such transaction only. Buyer is responsible for reviewing the then-current Terms before submitting any purchase order or otherwise entering into a new transaction with Seller.
Offer to Sell: These Terms and any price quotation submitted herewith represent an offer to sell and not a preliminary negotiation or a solicitation of an offer to buy. Any purchase order received in response to Seller’s offer shall constitute an acceptance of Seller’s offer even though such purchase order may purport to be an offer which contemplates acceptance. The price of the goods sold is that price specified by Seller in the applicable quotation, order acknowledgment, invoice, or other document issued by Seller. Unless otherwise specified by Seller in writing, all sales are FOB the applicable shipping point specified by Seller, which may include Seller’s U.S. facility or, for goods shipped from outside the United States, a facility or other shipping point in China, Vietnam, the European Union, or another non-U.S. location specified by Seller. References to “FOB China,” “FOB Vietnam,” “FOB EU,” or similar non-U.S. shipment terms refer to the applicable shipping point stated in Seller’s transaction documents and do not constitute a representation regarding country of origin, manufacturing location, tariff classification, or customs origin. Any price quotations, unless otherwise stated, may be canceled or amended by Seller upon written notice to Buyer and shall automatically expire thirty (30) calendar days from the date of the quotation. After acceptance of an order by Seller, no order may be canceled by Buyer except upon Seller’s written acceptance of such cancellation and upon Buyer’s agreement to indemnify Seller against loss resulting from such cancellation.
Production, Lead Time: The price quoted by Seller for goods includes such production and design work that is normal and standard in the industry. In the event such goods require unforeseen or extraordinary work, or Buyer requests or requires additional work, then Seller, at its sole option and discretion, may cancel the sale or increase the price to be paid by Buyer. Due to Seller supply chain and inventory procurement considerations, all orders for manufactured items placed by Buyer must be made at least sixty (60) days in advance of the anticipated delivery date. Seller shall not be responsible for delays in delivery of manufactured items resulting from Buyer’s failure to place orders at least sixty (60) days in advance. Seller may cancel any order for which Buyer does not take delivery within one-hundred-twenty (120) days of the date the order is placed. Any adjustments in production that are not forecast at least one hundred-twenty (120) days in advance may result in the assessment of additional freight charges and other costs and fees, and Buyer agrees to pay all such additional charges.
Reimbursement for Inventory: Buyer shall reimburse Seller for the cost of purchasing, warehousing, and/or disposing of any and all goods and related inventory purchased by Seller based on Buyer’s forecasts or resulting from any order(s) placed by Buyer, including but not limited to all orders cancelled by Buyer or component inventory and materials purchased in excess due to inaccurate Buyer forecasts. Buyer agrees to purchase or reimburse Seller for any and all unique inventory (i.e., inventory which cannot be used by any other customer of Seller) purchased by Seller as a result of Buyer’s order(s) but which, for any reason, is not ultimately used by Seller.
Payment: Payments shall be due on or before the due date stated on Seller’s invoice or other document issued by Seller. If Seller’s invoice or other applicable document does not state a due date or other payment term, then, unless otherwise specified by Seller in writing, (a) for goods shipped from China, Vietnam, the European Union, or another non-U.S. shipping point specified by Seller, payment shall be due ninety (90) days after the initial shipment date, and (b) for goods shipped from Seller’s U.S. facility, payment shall be due thirty (30) days after the shipment date. If, for any reason beyond the control of Seller, or at Buyer’s request, shipment cannot be made when the goods are ready for shipment, Seller may invoice Buyer and payment shall be due on the date stated in Seller’s invoice or, if no date is stated, within the applicable period that would have applied had shipment occurred when the goods were ready. If the time for shipment is deferred or delayed at Buyer’s request, Buyer shall, in addition to its other payment obligations hereunder, be obligated to pay additional charges for storage, handling, and insurance until delivery has been effected. Buyer shall pay all freight charges, tariff surcharges, governmental charges, fuel surcharges, carrier charges, and other pass-through or itemized charges stated in Seller’s quotation, order acknowledgment, invoice, sales confirmation, or other transaction document. Buyer’s failure to pay any amount when due shall constitute a material breach by Buyer, and Seller shall thereafter not be obligated to perform its obligations under the Sales Contract and shall be relieved of all warranty and contractual obligations related to the sale, including but not limited to cessation of production, cancellation of future shipments, or return of shipments in transit, and may cease any other performance at its discretion, without liability and without prejudice to its other rights under these Terms. All amounts not paid when due shall be charged interest at the rate of one and one-half percent (1.5%) per month or the maximum rate allowable by law (whichever is less) computed on a daily basis from the due date until paid in full.
Taxes: All prices quoted are exclusive of all government taxes and governmental charges, and any government tax or governmental charge shall not reduce the price paid by Buyer to Seller. All excise, privilege, occupation, sales, use, value-added, personal property, and other taxes and governmental charges (whether federal, state, local, or foreign) applicable to the sale, purchase, storage, erection, use, ownership, importation, exportation, or transportation of any goods sold by Seller and for the payment or collection of which Seller shall be liable shall be added to the selling prices of goods or services sold by Seller even if not specifically set forth as a line item in the prices quoted. Buyer agrees to pay any and all taxes and charges for which it is liable, to give Seller documentation of taxes paid and tax exemptions, and to indemnify Seller for any liability for tax or governmental charge hereunder, including any penalties and interest.
Shipment from Seller: All shipments shall be made on or about the time stated in the Sales Contract, although time of shipment shall not be deemed to be of the essence. The carrier(s) for all shipments made pursuant to the Sales Contract shall be selected by Seller unless otherwise agreed by the parties. In no event shall Seller be liable for any delay in delivery, nor shall the carrier be deemed an agent of Seller. For purposes of the Sales Contract, goods may be shipped from Seller’s U.S. facility or from a facility or other shipping point of Seller’s affiliate or designated supplier, including a shipping point in China, Vietnam, the European Union, or another non-U.S. location, as specified by Seller in the applicable transaction document. Seller shall have the right to ship all of the goods at one time or in portions from time to time, within the time for shipment provided in the Sales Contract.
Passage of Title and Risk of Loss: Title to any goods sold hereunder shall pass to Buyer upon the earliest of (a) tender of the goods to Buyer or Buyer’s designee at the applicable shipping point, including when goods are made available for pickup by Buyer, (b) tender of the goods to the carrier at the applicable shipping point, or (c) if Seller expressly agrees in writing to deliver goods to Buyer’s location, tender of the goods at Buyer’s location, unless the applicable Sales Contract specifies a different point for transfer of title. Notwithstanding transfer of title, Buyer remains obligated to pay any and all amounts due under the Sales Contract. Delivery shall be deemed complete, and risk of loss or damage to the goods shall pass to Buyer, at the same time title passes under the preceding sentence, unless the applicable Sales Contract specifies a different risk-transfer point. Any breach of these Terms shall have no effect with respect to such passage of title or risk of loss.
Importation; Customs; Duties: Unless otherwise expressly stated by Seller in writing in the applicable Sales Contract, for goods shipped from China, Vietnam, the European Union, or another non-U.S. shipping point, Buyer shall be the importer of record and shall be solely responsible for all importation, customs clearance, broker fees, duties, tariffs, taxes, demurrage, detention, port charges, storage charges, and other governmental, port, or carrier-imposed charges arising after delivery of the goods to the carrier or other applicable point of transfer at the applicable shipping point. Seller shall have no liability for delays, losses, or additional costs arising from customs holds, inspections, governmental actions, import restrictions, export restrictions, port congestion, carrier delay, or Buyer’s failure to timely provide accurate information or documentation required for export, import, customs, transportation, or regulatory compliance. Buyer shall timely furnish all information and documents reasonably requested by Seller or its carriers in connection with export, import, customs, transportation, and regulatory compliance. If, after quotation or order acceptance, any tariff, duty, surcharge, governmental charge, or similar cost applicable to the goods is imposed or increased, or if Seller states any tariff surcharge or similar pass-through charge in a quotation, order acknowledgment, invoice, sales confirmation, or other transaction document, Seller may adjust the price accordingly, invoice such surcharge or charge to Buyer, suspend performance, or cancel the affected order upon notice to Buyer, without liability, unless otherwise agreed by Seller in writing.
Acceptance by Buyer: After Buyer has placed an order for purchase of goods which has been confirmed by Seller, Buyer shall accept the goods shipped under such order and shall have no right to reject them. Acceptance shall take place automatically upon tender of the goods to Buyer, and in the event Buyer refuses to receive the goods, Seller shall have no obligation to resell the goods for Buyer’s benefit but may instead take whatever steps are necessary to preserve their maximum value and to recover the full purchase price from Buyer.
Seller’s Security Interest in Goods: Seller retains a security interest in the goods sold, and any accessories, replacements, accessions, proceeds, and products relating thereto, and all proceeds thereof, including accounts receivable (collectively the “Collateral”) to secure payment of any and all monies due to Seller. If Buyer fails to pay any amount when due, Seller shall have the right to repossess and remove all or any part of the Collateral from Buyer. Any repossession or removal shall be without prejudice to any other remedy of Seller, at law or in equity. Buyer agrees, from time to time, to take any act and execute and deliver any document (including, without limitation, financing statements) reasonably requested by Seller to transfer, create, perfect, preserve, protect and enforce this security interest, and Buyer appoints Seller as Buyer’s attorney-in-fact to take such acts and execute and deliver such documents on behalf of Buyer as may be necessary and proper for that purpose.
Government Contracts, Harmonized Tariff System: Seller shall not be required to conform to any regulations applicable to Seller’s products’ use by the United States government unless specifically advised in advance of such regulations and agreed to in writing between Seller and Buyer. Upon Buyer’s request, Seller will provide Buyer with a country of origin and Harmonized Tariff System Code for all goods supplied to Buyer under the Sales Contract.
Third-Party Components; Installation; Table Systems: Seller’s obligations with respect to any adjustable table system, lift table system, component, part, or other goods are limited to the goods supplied by Seller. Unless expressly agreed by Seller in writing, Seller does not supply, select, design, test, warrant, or assume responsibility for tabletops, work surfaces, accessories, components, materials, installation services, field modifications, or other items supplied, selected, specified, installed, modified, or provided by Buyer, Buyer’s customers, installers, end users, or other third parties. Buyer is solely responsible for ensuring that any tabletop, work surface, accessory, component, configuration, field modification, or installation used with Seller’s goods is compatible with Seller’s goods and specifications and complies with all applicable laws, standards, instructions, and end-user requirements. Seller shall have no liability, and Seller’s warranties shall not apply, to the extent any defect, failure, damage, loss, injury, or claim arises out of or relates to any third-party component, custom or customer-selected tabletop or work surface, improper installation, field modification, misuse, failure to follow Seller’s specifications or instructions, or other act or omission of Buyer, Buyer’s customers, installers, end users, or other third parties.
Seller’s Statement of Warranty:
For Goods Sold: Seller warrants to Buyer that the goods manufactured and sold by Seller will be free from defects in material and workmanship, under normal use and service, for a period of ninety (90) days from date of delivery to Buyer, provided that (i) the goods are inspected by Buyer promptly upon arrival, and (ii) the goods are installed, used, and/or operated under factory recommended procedures. For goods shipped from outside the United States, and solely for purposes of the warranty period, the date of delivery to Buyer shall mean the date Buyer receives the goods at the destination specified in the applicable transaction document. Seller warrants that all goods sold by Seller will be designed and manufactured to perform the mechanical functions expressly stated in Seller’s specifications provided the machinery and equipment are maintained and operated under proper conditions by competent trained personnel using such raw materials as may be specified.
For Parts Sold: Seller warrants to Buyer that parts sold separately from completed goods shall be free from defects in material and workmanship for a period of ninety (90) days from the date of delivery to Buyer, provided the part is installed and used under factory recommended procedures, except that sales of all used parts shall be sold on an “as is” basis and the warranties stated herein shall not apply to used parts. For parts shipped from outside the United States, and solely for purpose of the warranty period, the date of delivery to Buyer shall mean the date Buyer receives the parts at the destination specified in the applicable transaction document.
General Terms Applicable to Warranty: THE WARRANTIES STATED IN THIS PARAGRAPH ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES (WHETHER EXPRESSED, IMPLIED, OR STATUTORY). ANY IMPLIED WARRANTY OF MERCHANTABILITY IN RESPECTS OTHER THAN AS EXPRESSLY SET FORTH ABOVE AND ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. Seller neither assumes nor authorizes any person to assume for it any other warranty liability whatsoever other than as set forth in this statement. Goods sold but not manufactured by Seller are subject only to the manufacturer’s warranty, if any. Buyer is solely responsible to enforce any warranty by others and Seller shall have no obligation to enforce the warranty of any other manufacturer. Seller does not warrant the amount or quality of production by Buyer. If any goods are found by Buyer within the warranty period to have been defective and notification of such defect and claim has been reported to Seller in accordance with these Terms, then Seller will replace or repair (at its option), F.O.B. Seller’s facility, such goods as are defective, provided that Buyer returns to Seller, upon Seller’s request, the original goods to Seller’s plant, charges prepaid, and further provided that inspection of such goods by Seller establishes Buyer’s claim. Goods repaired or replaced under this warranty continue under warranty only for the remainder of the original warranty period. All damage claims of Buyer beyond repair or replacement of whatever nature, including without limitation Buyer’s labor costs, are excluded and not covered under this warranty. Correction by Seller of non-conformities, whether obvious or latent, in the manner and for the period of time provided above, shall constitute fulfillment of all liabilities of Seller for such non-conformation, whether based on contract, warranty, negligence, indemnity, strict liability or otherwise, with respect to or arising out of the sale or use of such goods. If Buyer makes any repairs, replacements, or modifications to goods sold under the Sales Contract without Seller’s prior written consent, uses any spare part not manufactured or sold to Buyer by Seller which causes or contributes to a defect, uses Seller’s goods with any incompatible or improperly installed third-party component or custom or customer-selected tabletop or work surface, or fails to follow Seller’s specifications or instructions, then Seller shall be relieved of its warranty obligations to the extent arising from or relating to any of the foregoing. Seller shall not be liable to Buyer for the cost of repairs, alterations, replacements, installation, removal, reinstallation, field service, or any other expenses related thereto, made or incurred by Buyer or any of its employees or agents, except as previously authorized by Seller in writing. Failure on the part of Buyer to comply fully with the terms of payment shall relieve Seller of any obligation under this warranty. Any advertising material, submitted with the Sales Contract or separately, is intended exclusively for the purpose of illustrating Seller’s products and shall not be deemed part of the specifications or these Terms unless expressly stated in writing.
Warranty Claims, Limitation on Remedy: Buyer’s remedies under the Sales Contract and for breach of warranty shall, at the sole option of Seller, be limited to repair or replacement of the defective goods provided that any claim for breach of warranty be filed within ninety (90) days after delivery to Buyer, that any such defective goods be returned to Seller with transportation charges prepaid within the timeframe provided for under these Terms, and that Seller’s examination shall disclose to its satisfaction that such goods are indeed defective. For goods or parts shipped from outside the United States, and solely for purposes of the warranty claims period, delivery to Buyer shall mean Buyer’s receipt of the goods or parts at the destination specified in the applicable transaction document. Seller shall not be liable for any other damages or costs, including freight or transportation costs, customs charges, duties, tariffs, removal costs, installation costs, reinstallation costs, field labor costs, loss of time, inconvenience, lost profits, loss of use, or for any claimed incidental or consequential damages (as those terms are understood under UCC § 2-715). All goods returned to Seller shall become property of Seller. Buyer agrees that the exclusion of consequential damages for breach of this Sales Contract is reasonable. Notwithstanding the foregoing, any claims for errors, omissions, damages, defective materials, or shortages on any order, must be made in writing and sent to Seller within five (5) days after the arrival of goods. Any claim for shortage must be accompanied by a sworn affidavit by an employee of Buyer with knowledge of the shortage. If claims are made by Buyer which require Seller’s investigation prior to any settlement of such claims, Buyer shall be responsible for any and all reasonable costs relating to such inspection if Buyer’s claims are found to be unwarranted or if the claim is denied by Seller for valid reasons. No goods may be returned to Seller for any reason without prior written authorization from Seller. Any claim for defect(s) in the goods sold under the Sales Contract, or for breach of any warranty contained herein, must be presented to Seller in writing within five (5) days after discovery of such defect(s) or breach and be accompanied by satisfactory proof of such claim.
Indemnity: Buyer agrees to indemnify, hold harmless, and defend Seller, its shareholders, directors, officers, agents, and employees from and against all liabilities, claims, damages, losses, costs, and expenses, including attorneys’ fees, arising out of any claim for injuries to persons, deaths of persons, or damage to any property arising directly or indirectly out of or in connection with Buyer’s use of goods sold by Seller under the Sales Contract.
Confidential Information: Seller’s “Confidential Information” includes any price quotation, trade secrets, and any and all information not publicly available and which provides a competitive advantage in the industry, including, but not limited to, technical specifications, designs, plans, know how, instruction manuals, financial information, costs, pricing information, and Seller’s ideas that are reasonably related to the business of the Seller that have not been previously publicly disclosed. Buyer, or other recipient of Seller’s Confidential Information, will treat the Confidential Information as secret and confidential to the same reasonable extent the Buyer or other recipient protects its own valuable proprietary confidential information. Buyer, or other recipient of Seller’s Confidential Information, shall not divulge, directly or indirectly, Seller’s Confidential Information to any other person for any purpose whatsoever and shall not make use of Seller’s Confidential Information without the prior written consent of the Seller.
Prohibition Against Reverse Engineering: The goods furnished to Buyer by Seller may contain or embody valuable trade secrets, technical know how and/or confidential subject matter owned by Seller, and Buyer agrees that Buyer and any of its employees, agents, officers, or representatives shall not reverse engineer, disassemble, copy, distribute, or otherwise deconstruct any of the goods (including but not limited to specifications, drawings, samples, or other descriptions) furnished to Buyer by Seller, shall not attempt to do so, and shall not permit any other party to do so.
Intellectual Property: The sale of equipment to Buyer in no way constitutes a license or authorization to Buyer under Seller’s patents, trademarks, or trade names. Such sale shall only entitle Buyer to use the equipment, machinery, or part sold, and any unauthorized use shall constitute an infringement by Buyer. If any goods are manufactured or sold by Seller to Buyer’s specifications or requirements and are not a part of Seller’s standard line of products offered by it to the trade generally and in the usual course of Seller’s business, Buyer agrees to defend, indemnify, and hold Seller harmless from and against any and all suits at law or in equity and from all damages, expenses, claims, and demands for actual or alleged infringement of any United States or foreign patent, trademark, copyright, unfair competition, or other claims relating to third party intellectual property asserted with respect to the goods and to defend any and all suits or actions which may be brought against Seller for any infringement resulting from the manufacture or sale of such goods to Buyer.
Tools and Equipment: Unless otherwise agreed in writing between Seller and Buyer, any equipment (including tools, dies, and jigs) which Seller may acquire or contract specifically for use on Buyer’s behalf and for purposes of completing Buyer’s order (collectively, the “Equipment”) shall be and remain the property of Seller, to always remain in its possession and control, and Seller shall be entitled to charge Buyer for the reasonable costs of acquiring, storing, and maintaining the Equipment. When, for a period of one (1) year, no orders have been accepted from Buyer for the manufacture of products utilizing the Equipment, Seller shall have the right to dispose of the Equipment as it may determine in its sole discretion, without liability to Buyer whatsoever. In the event that Buyer shall furnish Seller with any materials or equipment belonging to Buyer, Seller shall care for and store said materials or equipment as it would reasonably care for and store its own but shall not be liable for loss or damage to such materials or equipment.
Buyer’s Bankruptcy or Insolvency: Should Buyer become insolvent, or should Buyer file or have filed against it a petition in bankruptcy, or should a receiver be appointed for Buyer, then Seller may refuse further performance and may terminate the Sales Contract immediately and without prior notice.
Limitations on Court Actions: No action by Buyer may be brought at any time more than twelve (12) months after a cause of action accrues, and Buyer expressly acknowledges and agrees that the statute of limitations as to its claims shall be shortened to twelve (12) months.
Dispute Resolution – Arbitration and Mediation: Any controversy or claim arising out of, or relating to, the Sales Contract or the breach of any of the Terms shall be finally settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Arbitration proceedings shall take place in Baltimore, Maryland, U.S.A. in the English language. The arbitrator(s) shall have the discretion and authority to assess against the losing party, as part of the award, the cost and reasonable attorney’s fees of the prevailing party. Judgment upon the award rendered by the arbitrator(s) may be entered in any federal or state court in the United States having jurisdiction. Within forty-five (45) days after the American Arbitration Association has received from Seller or Buyer a written demand for arbitration, representatives of both Seller and Buyer shall meet in Baltimore, Maryland, U.S.A., with a mediator designated by the American Arbitration Association in an effort to reach a settlement of any dispute or claim by mediation, provided that arbitration proceedings shall continue and proceed in accordance with the rules of the American Arbitration Association regardless whether such a meeting and/or mediation has occurred. Notwithstanding the foregoing dispute resolution provisions, Seller shall have the right to seek interim injunctive relief from any court having jurisdiction with respect to any claim of use or disclosure by Buyer of Seller’s Confidential Information or any claim of infringement by Buyer of Seller’s patent, trademark, copyright, or trade secret rights.
Prohibition Against Assignment: Buyer may not assign its rights, duties, or obligations under this Sales Agreement without the express, written consent of Seller.
Force Majeure: In the event that Seller is prevented from delivering goods or otherwise performing its obligations on account of any law or locally binding order, regulation, direction, or act of any government or any department, agency, or corporation having jurisdiction over such party, or on account of wars, strikes, or other labor disturbances, fires, floods, acts of God, acts of terror, epidemics, pandemics, embargoes, transportation delays, port congestion, customs delays, carrier unavailability, supply shortages, delays or failures of suppliers, inability to obtain materials or components, governmental inspections, import or export restrictions, or any other causes beyond the control of Seller, Seller shall be excused from delivering the goods or otherwise performing for the period that it is prevented from doing so by any of the foregoing, and any and all deliveries so suspended or delayed shall be made after such causes have ceased to exist and nothing herein shall be construed as lessening, in any event, the full amount of goods purchased by Buyer, but only as deferring delivery and payment in the event and to the extent provided for hereinabove.
Entire Agreement: The Sales Contract is intended to be the entire and final expression of the sales transaction and a complete and exclusive statement of the terms and conditions of the agreement by and between the parties. These Terms may be made available on Seller’s website and incorporated by reference in Seller’s quotations, order acknowledgments, invoices, sales confirmations, or other documents issued by Seller in connection with the sale of goods. All addenda and exhibits must specifically reference the Sales Contract and/or the Terms (as applicable) and must be signed and dated by both Buyer and Seller. No course of prior dealings between Seller and Buyer and no usage of the trade shall be relevant to supplement or explain any term contained in the Sales Contract. Acceptance or acquiescence in a course of performance rendered hereunder shall not be relevant to determine the meaning of these Terms even though the accepting or acquiescing party has knowledge of the performance and opportunity for objection. Except as otherwise expressly contemplated herein, these Terms shall not be modified or supplemented except by a writing signed by Seller’s authorized signatory. If any provision of these Terms is modified by statute or declared invalid, the remaining provisions shall nevertheless continue in full force and effect. Seller’s amendment or update of these Terms shall apply only to transactions entered into after the effective date of such amendment or update, unless otherwise expressly agreed by Seller in writing.
Miscellaneous: Headings have been inserted for convenience and reference only and shall not affect, modify, amend, or otherwise change the meaning of any of the expressed terms and provisions contained herein. The pronouns and relative terms used herein with reference to the Buyer are in the singular and neuter only, and if more than one party shall place an order as Buyer, or if Buyer shall be an individual rather than a business entity, such words shall be read as if written in the plural, masculine, or feminine, as appropriate. No course of dealing or failure of Seller to enforce any term, right, or condition of these Terms shall be construed as a waiver of that term, right, or condition. Buyer and Seller agree that jurisdiction is appropriate in the State of Maryland, that they are subject to the jurisdiction of the federal or state courts in Maryland, and that venue is proper in the federal or state courts in Maryland. The Sales Contract shall be governed by and construed in accordance with the laws of the State of Maryland. All notices required or permitted to be given to Buyer shall be in writing and mailed, by certified mail, return receipt requested, and addressed as follows:
Okin America Inc., 291 CDF Blvd, Shannon, MS 38868
100575173.v3