PURCHASE ORDER TERMS & CONDITIONS

 

  1. ACCEPTANCE. The acknowledgment by PEN Brands, LLC (“Seller”) to its customer (“Purchaser”) named thereon (the “Acknowledgment”) constitutes Seller’s acceptance of Purchaser’s order (“Purchase Order”) for the Products and/or services specified in the Acknowledgment solely in accordance with the terms set forth in these Terms and Conditions. Any terms and conditions proposed by Purchaser which are in addition to or which conflict with these Terms and Conditions are expressly rejected by Seller and shall be of no force or effect.
 
  1. PURCHASER OBJECTION. Purchaser may object to any of the terms or conditions of the Acknowledgment that differ from any referenced Purchaser document by delivering to Seller written notice specifying the objection within one (1) business day after the date of the Acknowledgment. If Purchaser does not deliver any such objection within the time specified, the Acknowledgment shall be deemed to be binding between the parties.
 
  1. CANCELLATION. After the Acknowledgment and before shipment, any cancellation is subject to an administrative fee equal to 25% of the price for the affected Products. Same day cancellations may be permitted if approved in writing by Seller if the the order has not been processed. No cancellations are permitted after Product shipment.
 
  1. PRICE AND DELIVERY. All Products supplied hereunder shall be at the price, payment terms and shipping terms agreed upon by the Purchaser and Seller in the confirmed/acknowledged Purchase Order (“Purchase Price”).
 
  1. WARRANTY. Seller expressly warrants to Purchaser that the Products supplied hereunder will be fit for the specified purpose for which they are intended and will be substantially free from manufacture defect, and in accordance to the PO.
 
  1. DEFAULT. Upon the occurrence of a default, Seller may terminate this Purchase Order at any time upon written notice without prejudice to any other rights or remedies it may have in law or equity. The term “default” as used herein means of any of the following: (i) the failure of Purchaser to punctually and properly perform any covenants, agreements or conditions contained herein; (ii) the insolvency of the Purchaser; (iii) the appointment of a receiver of the Purchaser; (iv) the adjudication of the Purchaser as a bankrupt; or (v) the reasonable belief by Seller that the prospect of performance by the Purchaser or any of Purchaser’s covenants, agreements and other duties hereunder is impaired. If Seller terminates, Seller shall be relieved of all further obligations hereunder, and Purchaser shall indemnify Seller against and hold Seller free and harmless from all costs incurred by Seller in completing or procuring the completion of performance in excess of the Purchase Price specified in this Purchase Order.
 
  1. INTELLECTUAL PROPERTY RIGHTS. All trademarks, patents, copyrights and other intellectual property rights owned by Seller shall continue to be owned solely by Seller, and nothing herein shall be deemed to confer any rights to any such intellectual property on or to Purchaser.
 
  1. LIABILITY. IN NO EVENT SHALL THE SELLER OF THE PRODUCTS BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS OR REVENUES, EVEN IF MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
 
  1. SEVERABILITY. If any provision of these terms and conditions shall be determined by a court of competent jurisdiction to be invalid, illegal, or in any manner unenforceable, such determination shall not affect or impair the validity, legality, or enforceability of the remaining provisions.
 
  1. FORCE MAJEURE. Seller shall be excused for any failure to make, or delay in making, delivery as specified herein, if such failure or delay in caused by an accident, fire, flood, earthquake, explosion, epidemic, war, civil commotion, act of terrorism, act of God or government restriction or regulation or any other event beyond the control of Seller (“Force Majeure Events”). Upon the occurrence of a Force Majeure Event, Seller shall promptly notify Purchaser and use reasonable effort to end the failure or delay of its performance.
 
  1. JURISDICTION AND GOVERNING LAW. Any action or proceeding arising out of or related to the Acknowledgment shall be instituted and litigated in any federal or state courts located in Cuhahoga County Ohio. Purchaser hereby submits to the exclusive jurisdiction of courts located in Cuyahoga County,f Ohio with respect to any action or proceeding arising out the Acknowledgment and Purchaser hereby waives any venue or other objection which it may have to any such action or proceeding being brought in any such court .
 
  1. ENTIRE AGREEMENT. These Terms and Conditions and any other documents expressly incorporated herein by reference contain the entire agreement and understanding of the parties as to the subject matter, and supersede all other prior agreements, understandings and arrangements, written or oral, between the parties relating to the PO.