1. Definitions. “Buyer” means the party identified in the Purchase Order. “Order” means any purchase order or similar instrument issued by Buyer to Seller to purchase goods. “Goods” means the products, items, and like offered by Lotus to Buyer under this Order. Lotus and Buyer are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
2. Acceptance of Order. All Orders include and incorporate the terms and conditions set forth in this Purchase Order Terms and Conditions. Buyer and Lotus shall be bound by this Order upon the earlier of (i) Buyer executing and returning the Order or Purchase Order to Lotus; (ii) commencing performance pursuant to this Order; or (iii) delivering to Buyer any of the Goods ordered herein.
3. Payment. Buyer shall make payment to Lotus to the address indicated on the Purchase Order. Payment shall be considered past due if not fully paid within payment terms stated on Purchase Order and Buyer shall be responsible for costs of collection, including but not limited to reasonable attorney’s fees, court costs, and the maximum monthly interest rate allowed by law.
4. Taxes. Prices are exclusive of taxes and Buyer is responsible for all federal, state, local and foreign taxes, levies and assessments associated with the Goods.
5. Delivery of Goods. Lotus shall deliver the Goods to a location designated by the Buyer (“Delivery Point”) in the Purchase Order.
6. Risk of Loss. Title and risk of loss passes from Lotus to Buyer upon Buyer’s receipt of Goods at the Delivery Point.
7. Returns and Replacement. All sales are final. Buyer shall be assumed to have accepted the Goods unconditionally unless a written claim that a Good is defective is made within seven (7) days from the date of delivery at the Delivery Point.
8. DISCLAIMER OF WARRANTIES. LOTUS HEREBY DISCLAIMS AND EXCLUDES ALL REPRESENTATIONS AND WARRANTIES, EXPRESSED OR IMPLIED, OF ANY TYPE WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY REPRESENTATION OR WARRANTY AS TO THE DESIGN, CONDITION, QUALITY, CAPACITY, MATERIAL, EQUIPMENT OR WORKMANSHIP IN OR OF ANY GOODS.
9. LIMITATION OF LIABILITY. THE TOTAL LIABILITY OF LOTUS, IF ANY, AND BUYER’S SOLE AND EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIM OF ANY KIND WHATSOEVER, REGARDLESS OF LEGAL THEORY, WILL NOT BE GREATER THATN THE ACTUAL PURCHASE PRICE OF THE ORDER WITH RESPECT TO WHICH SUCH CLAIM IS MADE. UNDER NO CIRCUMSTANCES SHALL LOTUS BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES IN CONNECTION WITH THE GOODS, ANY ORDER, THE PERFORMANCE, USE OF, OR INABILITY TO USE ANY OF THE GOODS, OR ANY MATTER RELATING TO THE GOODS, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER EQUITABLE THEORY, INCLUDING BUT NOT LIMITED TO DAMAGES FOR COMPENSATION, REIMBURSEMENT OR LOSS OF PROSPECTIVE PROFITS, EXPENDITURES, INVESTMENTS, COMMITMENTS, OR CLAIMS OF ANY THIRD PARTY, WHETHER MADE IN THE ESTABLISHMENT, DEVELOPMENT OR MAINTENANCE OF BUSINESS REPUTATION OR GOODWILL, OR ANY OTHER REASON WHATSOEVER.
10. Choice of Law and Jurisdiction. The parties acknowledge and agree that the terms and conditions of this paragraph have been expressly bargained for, are a material inducement to, and are an essential part of this Agreement. All disputes arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, without regard to conflict of laws principles. This Agreement shall be enforceable against each party in the United States District Court for the District of New Jersey, and in the Superior Court of the State of New Jersey located in Hudson County, New Jersey. Each party hereby irrevocably submits to the exclusive jurisdiction of such courts, and agrees that all claims arising under or pertaining to this Agreement, including, without limitation, the formation, performance, interpretation, construction and/or termination of this Agreement, shall be heard and determined only in such courts.
11. Entire Agreement. This Agreement, Purchase Order, and, Non-Disclosure Agreement constitute the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces all prior agreements between the Parties. No amendment, waiver or termination of any of the provisions hereof shall be effective unless in writing and signed by the Party against whom it is sought to be enforced. No person shall be deemed to be a third Party beneficiary under this Agreement, except as may be expressly provided herein.
12. No Assignment. No party shall or attempt to assign this Agreement, or delegate its obligations or assign its rights under this Agreement, in whole or in part, without the express written consent of every party hereto.
13. General. (a) If this Agreement, or any provision of this Agreement, is held to be illegal, invalid or unenforceable, in whole or in part, for any reason, then this Agreement or any provision hereof shall be deemed modified to the minimum extent necessary to render it legal, valid, and enforceable, and the legality, validity, and enforceability of the remaining provisions shall not be affected. (b) The parties shall perform their respective obligations hereunder in good faith, and without charge. (c) The headings of the sections of this Agreement have been inserted for convenience of reference only and shall in no way restrict or modify any of the terms or provisions hereof.
2. Acceptance of Order. All Orders include and incorporate the terms and conditions set forth in this Purchase Order Terms and Conditions. Buyer and Lotus shall be bound by this Order upon the earlier of (i) Buyer executing and returning the Order or Purchase Order to Lotus; (ii) commencing performance pursuant to this Order; or (iii) delivering to Buyer any of the Goods ordered herein.
3. Payment. Buyer shall make payment to Lotus to the address indicated on the Purchase Order. Payment shall be considered past due if not fully paid within payment terms stated on Purchase Order and Buyer shall be responsible for costs of collection, including but not limited to reasonable attorney’s fees, court costs, and the maximum monthly interest rate allowed by law.
4. Taxes. Prices are exclusive of taxes and Buyer is responsible for all federal, state, local and foreign taxes, levies and assessments associated with the Goods.
5. Delivery of Goods. Lotus shall deliver the Goods to a location designated by the Buyer (“Delivery Point”) in the Purchase Order.
6. Risk of Loss. Title and risk of loss passes from Lotus to Buyer upon Buyer’s receipt of Goods at the Delivery Point.
7. Returns and Replacement. All sales are final. Buyer shall be assumed to have accepted the Goods unconditionally unless a written claim that a Good is defective is made within seven (7) days from the date of delivery at the Delivery Point.
8. DISCLAIMER OF WARRANTIES. LOTUS HEREBY DISCLAIMS AND EXCLUDES ALL REPRESENTATIONS AND WARRANTIES, EXPRESSED OR IMPLIED, OF ANY TYPE WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY REPRESENTATION OR WARRANTY AS TO THE DESIGN, CONDITION, QUALITY, CAPACITY, MATERIAL, EQUIPMENT OR WORKMANSHIP IN OR OF ANY GOODS.
9. LIMITATION OF LIABILITY. THE TOTAL LIABILITY OF LOTUS, IF ANY, AND BUYER’S SOLE AND EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIM OF ANY KIND WHATSOEVER, REGARDLESS OF LEGAL THEORY, WILL NOT BE GREATER THATN THE ACTUAL PURCHASE PRICE OF THE ORDER WITH RESPECT TO WHICH SUCH CLAIM IS MADE. UNDER NO CIRCUMSTANCES SHALL LOTUS BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES IN CONNECTION WITH THE GOODS, ANY ORDER, THE PERFORMANCE, USE OF, OR INABILITY TO USE ANY OF THE GOODS, OR ANY MATTER RELATING TO THE GOODS, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER EQUITABLE THEORY, INCLUDING BUT NOT LIMITED TO DAMAGES FOR COMPENSATION, REIMBURSEMENT OR LOSS OF PROSPECTIVE PROFITS, EXPENDITURES, INVESTMENTS, COMMITMENTS, OR CLAIMS OF ANY THIRD PARTY, WHETHER MADE IN THE ESTABLISHMENT, DEVELOPMENT OR MAINTENANCE OF BUSINESS REPUTATION OR GOODWILL, OR ANY OTHER REASON WHATSOEVER.
10. Choice of Law and Jurisdiction. The parties acknowledge and agree that the terms and conditions of this paragraph have been expressly bargained for, are a material inducement to, and are an essential part of this Agreement. All disputes arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, without regard to conflict of laws principles. This Agreement shall be enforceable against each party in the United States District Court for the District of New Jersey, and in the Superior Court of the State of New Jersey located in Hudson County, New Jersey. Each party hereby irrevocably submits to the exclusive jurisdiction of such courts, and agrees that all claims arising under or pertaining to this Agreement, including, without limitation, the formation, performance, interpretation, construction and/or termination of this Agreement, shall be heard and determined only in such courts.
11. Entire Agreement. This Agreement, Purchase Order, and, Non-Disclosure Agreement constitute the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces all prior agreements between the Parties. No amendment, waiver or termination of any of the provisions hereof shall be effective unless in writing and signed by the Party against whom it is sought to be enforced. No person shall be deemed to be a third Party beneficiary under this Agreement, except as may be expressly provided herein.
12. No Assignment. No party shall or attempt to assign this Agreement, or delegate its obligations or assign its rights under this Agreement, in whole or in part, without the express written consent of every party hereto.
13. General. (a) If this Agreement, or any provision of this Agreement, is held to be illegal, invalid or unenforceable, in whole or in part, for any reason, then this Agreement or any provision hereof shall be deemed modified to the minimum extent necessary to render it legal, valid, and enforceable, and the legality, validity, and enforceability of the remaining provisions shall not be affected. (b) The parties shall perform their respective obligations hereunder in good faith, and without charge. (c) The headings of the sections of this Agreement have been inserted for convenience of reference only and shall in no way restrict or modify any of the terms or provisions hereof.