Supply Agreement Terms
DAXWELL, LLC
SUPPLY AGREEMENT TERMS
1. DEFINITIONS. Certain terms, hereinafter defined, shall have the following meaning:
1.1 “Customer” shall mean the entity identified as the customer in the Supply Agreement.
1.2 “Consequential Damages” shall mean (a) any and all indirect, incidental, special, punitive, exemplary, or consequential damages or consequential losses of any nature whatsoever (whether or not foreseeable) and (b) damages or losses, whether direct or indirect, for lost products or production, lost profits or revenues, loss of or inability to use property or equipment, lost business, failure to meet contractual commitments or deadlines, or business interruption.
1.3 “Daxwell” shall mean Daxwell, LLC and its subsidiaries and affiliates, including F&W Plastics, LLC d/b/a Daxwell Distribution.
1.4 The “Designated Rebate Processor” shall be that person or entity set forth in the Supply Agreement.
1.5 “Force Majeure Event” shall mean an act of nature, epidemic, pandemic (including COVID19), strike, fire, flood, war, civil unrest, embargo, governmental authority, tariffs, strike or work stoppage, cybersecurity incident, or any other cause which is beyond Daxwell’s reasonable control and materially or adversely impacts Daxwell or renders it financial impractical for Daxwell to perform under the Supply Agreement or provide Product at the prices specified in the Supply Agreement.
1.6 “Initial Term” shall mean the term of months stated on the Supply Agreement, commencing on the Start Date and terminating on the End Date.
1.7 The “Parties” shall mean Daxwell and Customer, each of which may individually be referred to as a “Party.”
1.8 “Product(s)” shall mean the items set forth in the Supply Agreement between Daxwell and Customer.
1.9 “Purchase Order(s)” shall mean the orders issued by Purchaser for the purchase of Products from Daxwell pursuant to a Supply Agreement.
1.10 “Purchaser” shall mean the Customer or ordering account specified in the Supply Agreement.
1.11 “Sale(s)” shall mean the provision by Daxwell and purchase by Customer of Products pursuant to the Supply Agreement.
1.12 “Sales Order” shall mean any sales order form or EDI 855 purchase order acknowledgment issued by Daxwell to Purchaser.
1.13 “Supply Agreement” shall mean the quote form, wherein “Supply Agreement” is indicated as the quote type, issued by Daxwell and accepted by Customer, including through its issuance of a Purchase Order.
2. APPLICABILITY.
2.1 These Supply Agreement Terms shall be applicable to and govern all Supply Agreements to which they are incorporated, to any extent, including by reference, and all Sales which are made subject to these Supply Agreement Terms.
2.2 These Supply Agreement Terms shall control over any contrary terms, conditions, or obligations contained, referenced, or incorporated in any Purchase Order.
3. PLACING ORDERS.
3.1 To order Products from Daxwell under the Supply Agreement, Purchaser must deliver a Purchase Order to Daxwell:
3.1.1 by mail or personal delivery to the company headquarters at 2825 Wilcrest Dr., Ste. 500, Houston, Texas 77042;
3.1.2 by facsimile to 281-669-0617;
3.1.3 by electronic mail to so.distribution@daxwell.com; or
3.1.4 through an electronic ordering system approved by Daxwell.
3.2 Within two (2) business days of Daxwell’s receipt of a Purchase Order from Purchaser, Daxwell will provide Purchaser with notice of acceptance or rejection of the Purchase Order. If Daxwell does not respond within the two (2) business day period above, the Purchase Order, less any additional or conflicting terms therein, will be deemed to have been accepted by Daxwell. Daxwell’s issuance of a Sales Order to Purchaser shall constitute an acceptance of the Purchase Order, less any additional or conflicting terms therein.
3.3 Purchaser may change or cancel any Purchase Order at any time before acceptance of the Purchase Order by Daxwell without any liability to Customer. After Daxwell has accepted a Purchase Order, Customer or Purchaser may not cancel or modify a Purchase Order without the written consent of Daxwell. Allowed alteration or cancellation of an accepted Purchase Order may result in fees being assessed against Customer at Daxwell’s discretion.
3.4 If Daxwell accepts a Purchase Order that requires special handling, packaging, or transportation, Daxwell may impose additional charges on Customer in supplying the Product.
3.5 Daxwell objects to and explicitly rejects any terms or conditions in any Purchase Order and/or any other communication from or document of Customer or Purchaser that purports to be in addition to these Supply Agreement Terms, that attempts to modify any of these Supply Agreement Terms, or which are in in conflict with these Supply Agreement Terms.
3.6 In no event shall Daxwell be liable to Customer or Purchaser in relation to a rejected Purchase Order.
4. SUPPLY OF PRODUCTS.
4.1 Based on the Product volume forecasts as specified in the Supply Agreement, Daxwell will manufacture the Products and reserve inventory for Customer. The reserved quantity of Products will be held for Customer’s sole use.
4.2 The Parties will work together to monitor demand and identify any deviation between actual demand and the applicable Product volume forecast. If significant deviation is identified, the Parties will inform each other and amend the Product volume forecast accordingly, in writing and as agreed by each Party, if needed. In no event shall a revised Product volume forecast take effect earlier than 120 days from the date the Parties agree to the revised forecast.
4.3 In no event shall Daxwell be liable to Customer in any respect for any failure to supply Products to Customer in excess of the average monthly Product volume forecast.
4.4 In the event of the termination of the Supply Agreement by either Party, Customer shall nevertheless purchase from Daxwell all merchantable Products in actual production, Products in transit, and any reserved inventory of Products for Customer. This provision shall survive the termination of the Supply Agreement.
5. PRICING & PAYMENT.
5.1 The prices Customer has agreed to pay for the Products are set forth in the Supply Agreement.
5.2 Product pricing adjustments shall be reviewed as indicated in the Supply Agreement. The available options are described in more detail below:
5.2.1 Annual Review: Product pricing adjustments will be considered on an annual basis. Daxwell will submit all Product pricing adjustments to Customer sixty (60) days before each anniversary of the start date of the Supply Agreement. Submitted price adjustments shall take effect on the anniversary date, unless otherwise agreed.
5.2.2 Semi-Annual Review: Product pricing adjustments will be considered every six (6) months. Daxwell will submit all Product pricing adjustments to Customer forty-five (45) days before the expiration of each six (6) month period from the start date of the Supply Agreement. Submitted price adjustments shall take effect on each semi-anniversary date, unless otherwise agreed.
5.2.3 Quarterly Review: Product pricing adjustments will be considered every three (3) months. Daxwell will submit all Product pricing adjustments to Customer thirty (30) days before the expiration of each annual quarter. Submitted price adjustments shall take effect at the beginning of each new annual quarter, unless otherwise agreed.
5.2.4 Semi-Annual Review after 12 Months: After the expiration of twelve (12) months from the start date of the Supply Agreement, Product pricing adjustments will be considered every six (6) months. Daxwell will submit all Product pricing adjustments to Customer forty-five (45) days before the expiration of each six (6) month period. Submitted price adjustments shall take effect on each semi-anniversary date, unless otherwise agreed.
5.2.5 Quarterly Review after 12 Months: After the expiration of twelve (12) months from the start date of the Supply Agreement, Product pricing adjustments will be considered every three (3) months. Daxwell will submit all Product pricing adjustments to Customer thirty (30) days before the expiration of each annual quarter. Submitted price adjustments shall take effect at the beginning of each new annual quarter, unless otherwise agreed.
5.2.6 Custom: As specified in an Addendum.
5.3 Customer is responsible for any and all sales, use, excise, and similar taxes and impositions imposed by governmental authorities on the Products or the Sale, except for any taxes or impositions based upon or measured by Daxwell’s income, property, or personnel.
5.4 Should Daxwell experience an increase in its cost to manufacture (including raw materials) and/or supply (including shipping) any Product equal to or in excess of ten percent (10%) of the average monthly manufacturing (including raw materials) and/or supply (including shipping) cost for any Product for a period of thirty (30) days or more, then Daxwell will provide evidence of the increase to Customer and engage in discussions with Customer for a potential emergency price adjustment (an “Emergency Price Adjustment”), which must be agreed to by the Parties within fourteen (14) days of notice hereunder, and if agreed to in writing by the Parties would go into effect immediately. Solely for purposes of example, if Daxwell’s cost to manufacture a Product increased 5% and its cost to supply increased 6% from the average monthly costs for a period of 30 days due to one of the enumerated circumstances, then this provision would be implicated. If the Parties cannot come to an agreement on an Emergency Price Adjustment, then either Party may terminate any Purchase Order, accepted, pending or otherwise, specifically implicated by the Emergency Price Adjustment request without recourse.
5.5 Daxwell will transmit standard invoices to Customer, directly or through Purchaser, at the address supplied by Customer. Customer, directly or through Purchaser, shall pay all undisputed portions of Daxwell’s invoices by the due date set forth in the invoice or within thirty (30) days of receipt, whichever is shorter. Payments shall be made in U.S. Dollars and must be made by ACH, check, or another form of funds transfer approved by Daxwell. A payment will be considered made on the date Customer’s or Purchaser’s funds are received by Daxwell.
5.6 If the due date of an invoice or payment deadline falls on a Saturday, Sunday, or U.S. federal holiday, the due date or payment deadline will be extended to the next business day.
5.7 If Customer disputes any portion of Daxwell’s invoice, then Customer shall notify Daxwell, directly or through Puchaser, of any such dispute within ten (10) days of receipt of Daxwell’s invoice. If Customer does not dispute all or any portion of an invoice within ten (10) days of receipt, then the invoice shall be deemed undisputed for all purposes. Customer’s failure to provide timely notice of an invoice dispute will be deemed a specific waiver of any defense to non-payment of an invoiced amount.
5.8 If Customer fails to pay Daxwell an amount owed by the due date, including, without limitation, if Customer takes an unearned discount or other unauthorized deduction, then the delinquent amount will bear interest from the date of delinquency until the date of payment at an annual interest rate of eighteen percent (18%) or the maximum interest permitted under Texas law, whichever is lower. In addition, Customer shall reimburse Daxwell for any attorney fees, expert fees, court costs, and other expenses incurred by Daxwell in collecting a delinquent amount and accrued interest on such delinquent amount.
5.9 Customer may not withhold, offset, or otherwise deduct any amount from Daxwell’s invoices without the written consent of Daxwell.
5.10 In the event of Customer’s insolvency, Daxwell’s invoice shall constitute a demand for reclamation of the Products identified on the invoice under UCC section 2-702 and United States Bankruptcy Code section 546(c). Customer hereby: (a) agrees to promptly notify Daxwell in case of insolvency; (b) waives any defenses to Daxwell’s right of reclamation to the Products identified in Daxwell’s invoice; and (c) shall promptly return possession of such Products to Daxwell.
5.11 Neither Customer nor Purchaser may charge, and Daxwell shall not be liable to pay, any set-up fee or initiation fee of any kind related to the Sale, purchase, or distribution of the Products, unless Daxwell agrees to such fees in advance and in writing.
5.12 The provisions of Section 5 shall survive the termination of the Supply Agreement.
6. CREDIT.
6.1 Daxwell reserves the right in its sole and absolute discretion to determine the credit limit of Customer and to adjust it at any time. If the credit limit of Customer has been or will be exceeded, or if Daxwell determines that there has a been an adverse change in the creditworthiness of Customer, Daxwell may require payment in advance or other adequate assurance acceptable to Daxwell before Daxwell accepts any Purchase Order or delivers any Products to Customer or for Customer’s benefit.
6.2 Customer’s failure to pay Daxwell an amount owed when due shall be immediate grounds to suspend or terminate further performance under any accepted Purchase Order, or require payment in advance of Daxwell accepting any Purchase Order or delivering any Products to Customer or for Customer’s benefit.
7. INSPECTION, ACCEPTANCE & WARRANTIES.
7.1 Customer, directly or through Purchaser, shall inspect the Products within five (5) days following delivery of the Products or ten (10) days following pick up from Daxwell (“Inspection Period”) and shall accept or reject the Products within the applicable Inspection Period. If Customer determines within the Inspection Period that the Products may be unsafe, expired, or otherwise non-conforming for any reason and desires to reject the Products, in whole or in part, then Customer shall immediately submit a claim to Daxwell pursuant to the Product Claims Policy thereby notifying submit a claim to Daxwell pursuant to the Product Claims Policy thereby notifying Daxwell of the issue and basis for the rejection and cooperate with Daxwell in its investigation of the claimed defect. Daxwell shall, at its option, replace the Products or issue a credit or refund for such Products if Daxwell agrees with Customer that the Products are unsafe, expired, or otherwise non-conforming, provided that Customer shall, if requested in writing by Daxwell, return the alleged nonconforming Products to Daxwell (at Daxwell’s expense) in the same condition as when received. If Customer determines within the Inspection Period that the Product quantity is incorrect, Customer shall immediately submit a claim to Daxwell pursuant to the Product Claims Policy and cooperate with Daxwell in its investigation of the claimed error. Daxwell shall, at its option, correct the quantity error, issue a credit or refund for such missing Products, or take other action in line with the Product Claim Policy if Daxwell agrees with Customer. After the expiration of the Inspection Period, the Products shall be deemed accepted by Customer. Once Customer has accepted a delivered Product, Customer may not revoke its acceptance for any reason or make any claim outside of any warranty provided herein. After acceptance, Customer’s sole recourse and remedy with respect to the Products is by warranty.
7.2 Each Party represents and warrants it is duly organized and validly existing under the laws of its jurisdiction of formation, and it is authorized to do business in each other jurisdiction wherein its ownership of property or conduct of business legally requires such authorization, licensing, or qualification.
7.3 Each Party represents and warrants it has all requisite power, authority, insurance, bonds, permits, and licenses to execute and deliver this Agreement and any other document, agreement, certificate or instrument necessary to consummate the transactions and perform its obligations hereunder.
7.4 Daxwell warrants that the Products are adequately packaged, marked, and labelled and in new and merchantable condition.
7.5 Daxwell warrants to Customer, as of the date of acceptance of the Product, that:
7.5.1 Daxwell has transferred good title to Customer, directly or indirectly through Purchaser, on the date of delivery or pick-up, free and clear of all liens and encumbrances arising by, through, or under Daxwell (the “Title Warranty”); and
7.5.2 the Product complies in all material respects on the date of delivery or pick up with the written specification for the product provided by Daxwell to Customer or published on its website at www.daxwell.com (the “Quality Warranty”).
7.6 The Quality Warranty is valid for a period of sixty (60) days from the date of acceptance of the Product. If there has been an alleged breach of the Quality Warranty, Customer shall submit a claim to Daxwell pursuant to the Product Claims Policy thereby notifying Daxwell of the alleged event of default within sixty (60) days of acceptance of the allegedly defective Product. Customer’s failure to submit a claim and notify Daxwell of any such warranty claim within this time period shall result in Customer’s waiver of any warranty claim under the Supply Agreement, the Product Claim Policy, or otherwise.
7.7 If Daxwell determines, in its sole discretion, that a warranty herein has been breached, Customer’s sole remedy for any such breach of warranty will be to return the defective product to Daxwell for replacement, credit, or refund in accordance with the Product Claims Policy available by request or at www.daxwell.com/pages/product-claims-policy.
7.8 DAXWELL HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING AT LAW, BY STATUTE, OR IN EQUITY, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THOSE EXPLICITLY STATED HEREIN. CUSTOMER ACKNOWLEDGES THAT IT HAS NOT RELIED ON, AND WAIVES ANY CLAIM BASED ON, ANY OTHER ALLEGED WARRANTIES OR REPRESENTATIONS MADE BY DAXWELL.
7.9 The provisions of Section 7 shall survive the termination of the Supply Agreement.
8. TERM & TERMINATION.
8.1 Unless either Party provides notice to the other Party not less than (90) days prior to the end of the Initial Term or a Renewal Term, the then current term of the Supply Agreement shall automatically extend for additional annual periods (each a “Renewal Term”).
8.2 Either Party may terminate the Supply Agreement for any or no reason upon one-hundred twenty (120) days prior written notice to the other party, whereupon the Agreement shall terminate at the end of the notice period. In the event of the termination of this Agreement by either Party under this provision, Customer shall nevertheless purchase from Daxwell all merchantable Products in actual production, Products in transit, and any reserved inventory of Products for Daxwell.
8.3 In the event that Customer becomes insolvent, is adjudicated bankrupt, voluntarily or involuntarily files a petition of bankruptcy, is placed into receivership, or seeks any other similar relief under any bankruptcy law, then Daxwell may terminate the Supply Agreement, including any Purchase Order or Sales Order issued thereunder (after providing notice of termination to the other Party and without prejudice to any rights or remedies Daxwell may have hereunder) and may take any additional action, legal or equitable, provided by applicable law.
9. DEFAULT.
9.1 If a Party breaches a material provision of the Supply Agreement or these Supply Agreement Terms, then the non-defaulting Party shall give written notice to the defaulting Party of such event of default. The defaulting Party will have thirty (30) days following receipt of the notice to cure the default, and no legal action against the defaulting Party shall be permitted during this cure period.
9.2 In the event that the defaulting Party does not cure the material breach within the thirty (30) day period set forth in Section 9.1 and a dispute persists, the Parties agree that they shall submit the dispute to mediation, to take place in Houston, Texas within sixty (60) days of the expiration of the cure period, unless extended by mutual agreement, and that no legal action against the defaulting Party shall be permitted until mediation has concluded.
9.3 If the Parties cannot resolve the dispute at mediation, the non-defaulting Party may terminate the Supply Agreement and any Purchase Order or Sales Order issued under or pursuant to the Supply Agreement (after providing notice of termination to the defaulting Party and without prejudice to any rights or remedies it may have hereunder) and may take any additional action, legal or equitable, provided hereunder or by applicable law.
9.4 Notwithstanding the foregoing, if Customer breaches its payment duties and obligations, Daxwell may immediately take any action, legal or equitable, provided hereunder or by applicable law; no cure period is required, nor must the matter be referred to mediation.
10. INDEMNITY.
10.1 DAXWELL SHALL DEFEND, INDEMNIFY, AND HOLD CUSTOMER HARMLESS FROM AND AGAINST ALL CLAIMS, LOSSES, LIABILITIES, DAMAGES, CAUSES OF ACTION, OR JUDGMENTS (INCLUDING REASONABLE AND NECESSARY ATTORNEYS’ FEES) MADE AGAINST CUSTOMER BY ANY THIRD PARTY (i) FOR THE INJURY OR DEATH OF ANY THIRD PARTY WHERE THE INJURY OR DEATH ARISES FROM ANY DEFECT OR NON-CONFORMANCE OF ANY PRODUCT OR (II) FOR OR ON ACCOUNT OF ANY ALLEGATION OR FINDING OF A VIOLATION BY DAXWELL OF ANY PATENT, TRADEMARK, COPYRIGHT, OR CONTRACTUAL OR OTHER RIGHTS OF ANY THIRD PARTIES ARISING FROM THE MANUFACTURE OR SUPPLY OF THE PRODUCTS OR THE PURCHASE, USE OR SALE OF THE PRODUCTS BY CUSTOMER. THE INDEMNITY PROVIDED HEREUNDER DOES NOT APPLY WHERE THE DEATH, INJURY, DAMAGE, OR LOSS IS A RESULT OF THE NEGLIGENCE, GROSS NEGLIGENCE, OR THE WILLFUL MISCONDUCT OF CUSTOMER. DAXWELL SHALL HAVE THE RIGHT TO HIRE AND DIRECT DEFENSE COUNSEL. DAXWELL SHALL NOT ENTER INTO ANY SETTLEMENT THAT AFFECTS THE RIGHTS OR INTERESTS OF CUSTOMER WITHOUT CUSTOMER’S PRIOR WRITTEN CONSENT, WHICH SHALL NOT BE UNREASONABLY WITHHELD. DAXWELL’S INDEMNITY OBLIGATION TO CUSTOMER SHALL NOT EXCEED $250,000 PER YEAR DURING THE TERMS OF THIS AGREEMENT.
10.2 Customer shall notify Daxwell in writing of any action, claim, or other matter in respect of which Customer intends to claim such indemnification. The failure to provide such notice within a reasonable period of time shall relieve Daxwell of any of its obligations hereunder. Customer shall cooperate with Daxwell and its legal representatives in the investigation, negotiation, compromise, settlement, and defense of any action, claim, or other matter covered by this indemnification.
11. INSURANCE.
11.1 In support of the indemnity obligations under this Agreement, Daxwell shall maintain throughout the Initial Term and any extension thereof, at its sole expense, policies of insurance for commercial general liability, workers’ compensation, and auto liability, each with limits of not less than $1,000,000.00 per occurrence. Daxwell will submit certificates of insurance evidencing its insurance coverage when requested by Customer. Daxwell’s insurance shall name Customer as an additional insured, or equivalent, but only to the extent of Daxwell’s indemnity obligations under this Agreement. All insurance coverage provided to Customer by Daxwell pursuant to these terms and conditions shall be primary insurance with respect to policies of insurance.
12. LIMITATION OF LIABILITY.
12.1 Customer’s damages against Daxwell, without reference to Daxwell’s indemnity obligation in Section 10, for any breach of the Supply Agreement or these Supply Agreement Terms or for any other reason as it relates to any defective or non-conforming Products or the failure to supply any Products shall be limited to replacement of the Products or a refund of the purchase price of the Products at issue; in no event shall Daxwell be liable to Customer for the difference in cost to Customer to obtain a like or similar Product from another source.
12.2 Any liability assessed against Daxwell in favor of Customer or to Customer’s benefit related to strict liability, product liability, product recall liability, negligence, willful action, or any other cause or theory of liability shall be limited to Customer’s actual, direct damages and shall not exceed, in the aggregate, the amount actually received by Daxwell from Customer, directly or through Purchaser, for the Product involved in the claim or occurrence.
12.3 DAXWELL SHALL NOT BE LIABLE TO CUSTOMER FOR, AND CUSTOMER HEREBY WAIVES AND RELEASES DAXWELL FROM AND AGAINST, ANY AND ALL CLAIMS FOR CONSEQUENTIAL DAMAGES.
12.4 The provisions of Section 12 shall survive the termination of the Supply Agreement.
13. CONFIDENTIALITY & NON-DISCLOSURE
13.1 Customer acknowledges that it has received or will receive information from Daxwell that is non-public, confidential, and proprietary in nature, which may include, but is not limited to trade secrets, technical data, processes, product information, samples, manufacturing and processing techniques, marketing data, methods and plans for carrying out business, customer and supplier information, operations data, analyses, compilations, studies, financial data, costs, pricing, margins, software, computer programming, customer lists, sources of supply, salaries, working relationships, and other information concerning employees, any advertising, promotion, any product or program concepts, plans or proposals, or any other information of a proprietary or non-public nature (the “Proprietary Information”).
13.2 Customer shall not, without the express written consent of Daxwell, copy, publish, use, discuss, disclose or divulge to any person, firm, corporation, or other entity, directly or indirectly, or use for its own benefit or for the benefit of any other person, firm, corporation, or other entity, Daxwell’s Proprietary Information. Daxwell’s Proprietary Information will be used by Customer only for the purpose of performing under the Supply Agreement. Further, the Proprietary Information will be disclosed only to the respective officers, directors, partners, employees, affiliates, agents, attorneys, accountants, or representatives (the “Representatives”) of Customer who have a need to know the Proprietary Information for the purposes described herein. Customer acknowledges that it is responsible to ensure that all such Representatives will, prior to their receipt of the Proprietary Information, be aware of, and agree to be bound by, the provisions of Section 13 herein.
13.3 Within five (5) business days of receipt of a written request from Daxwell or of the termination of the Supply Agreement, Customer shall turn over to Daxwell or destroy all Proprietary Information, including without limitation materials, papers, emails, memoranda, and all other documents, copies, reproductions, and summaries thereof and other tangible materials received, as well as all materials, documents, memoranda, notes, and other writings whatsoever prepared by any officers, employees, agents, or advisors based on any Proprietary Information. If Customer elects to destroy such Proprietary Information, Customer shall certify, in writing and within the same time period, that all Proprietary Information was destroyed and further identify therein the steps it took to identify and destroy the Proprietary Information.
13.4 The restriction upon the use and disclosure of the Proprietary Information will not apply to information which:
13.4.1 is available or becomes available to the general public without restriction through no wrongful act or omission of Customer;
13.4.2 is known by Customer prior to its disclosure, as evidenced by either Party’s written records, without limitation on use or disclosure;
13.4.3 is received from a third party having the right to transfer said information, without limitation on use or disclosure;
13.4.4 is required to be disclosed pursuant to a subpoena or order of a court, agency, or government authority of competent jurisdiction which is binding on Customer, provided that Customer shall immediately notify Daxwell of and permit Daxwell to contest any such subpoena or order;
13.4.5 is independently developed by Customer without reference to Proprietary Information; or
13.4.6 is ascertainable from a visual inspection of Daxwell’s public premises, products, services, news releases, or advertising or promotional literature/material disseminated by Daxwell without restriction.
13.5 Customer acknowledges that the Proprietary Information has been developed by Daxwell with substantial effort and at substantial cost and, therefore, has value to Daxwell; and that breach of any of the provisions of this Section 13 could cause Daxwell irreparable injury for which no adequate remedy at law exists. Accordingly, Daxwell shall have the right, in addition to any other rights it may have, and Customer hereby consents, to the entry in any court having jurisdiction of a temporary or permanent restraining order or injunction restraining or enjoining Customer from any violation of the provisions of this Section 13. Customer further agrees to waive, and to use its best efforts to cause its directors, officers, employees, and agents to waive, any requirement for the securing or posting of any bond in connection with such remedy. Nothing in this section will be deemed to limit remedies at law or in equity for any breach of any of the provisions of this Supply Agreement, which may be pursued by or are availed to the parties hereto.
13.6 No licenses or rights under any patent, copyright, trademark, trade secret, or other form of intellectual property are granted or are to be implied by the Supply Agreement. All Proprietary Information disclosed under or pursuant to the Supply Agreement shall be and shall at all times remain the property of Daxwell.
13.7 This non-disclosure covenant has no geographical, territorial, or time limitation.
13.8 The provisions of Section 13 shall survive the termination of the Supply Agreement.
14. ALLOWANCES OR REBATES
14.1 If Customer purchases Products under the Supply Agreement, directly or indirectly, Customer may be eligible for a price allowance or rebate.
14.2 Price allowances or rebates do not include any distributor mark-ups, distributor surcharges, or distributor allowances or rebates (if the Customer is not the distributor), which must be negotiated solely between Customer and the distributor. No distributor may make any binding commitment of final price on behalf of Daxwell.
14.3 Allowance or rebate claims must be directed to the Designated Rebate Processor and must include proof of purchase. Claims sent via email shall be directed to the Designated Rebate Processor’s email address or mailing address.
14.4 Please reference the service agreement number located on the Supply Agreement on all claim submissions. Electronic claim submission is the preferred method for timely claim settlement. The Designated Rebate Processor can accept electronic data transmission via EDI, FTP retrieval, or email. The file preference is EDI, formatted text delimited, Excel or CSV formats. To obtain more information regarding allowance or rebate claim submissions please contact the Designated Rebate Processor directly; please include the service agreement number located on the Supply Agreement in all communications with the Designated Rebate Processor.
14.5 The Designated Rebate Processor will, at its discretion, approve the claim, in whole or in part; recalculate the requested claim amount, in whole or in part; or reject the claim, in whole or in part, due to Product ineligibility, claim duplication, or other reason.
14.6 Allowance or rebate claims will be processed for payment within thirty (30) business days of receipt by the Designated Rebate Processor. Only claims made for eligible Products received by the Designated Rebate Processor within 365 days of the transfer of title to the eligible Product will be considered.
15. MISCELLANEOUS
15.1 Neither Daxwell nor Customer shall be liable to the other for any failure or delay in performance under the Supply Agreement if that failure or delay is due to or on account of a Force Majeure Event. With respect to any Force Majeure Event, the Party whose performance is prevented or delayed will use all reasonable efforts to minimize the duration and consequences of any failure or delay.
15.2 The Parties, and their respective counsel, had the opportunity to participate fully in the review of the Supply Agreement. The Supply Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
15.3 If any one or more of the provisions contained in the Supply Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision therein, and the Supply Agreement will remain in full force and effect, adjusted as necessary so as to give maximum effect to the original intent and economic effect of Daxwell and Customer.
15.4 A waiver by either Daxwell or Customer of the breach or violation of any provision of the Supply Agreement or the Supply Agreement Terms shall not operate as, or be construed to be, a waiver of any subsequent breach of the Supply Agreement.
15.5 Neither Daxwell nor Customer may assign the Supply Agreement, or any interest therein, without the prior written consent of the other party, which shall not be unreasonably withheld.
15.6 The Supply Agreement shall be governed by and construed in accordance with the laws of the State of Texas without giving effect to any choice of law provision or rule. Any action or proceeding arising out of or relating to the Supply Agreement shall be brought in the state or federal courts situated in Harris County, Texas, and both Daxwell and Customer hereby submit to the personal jurisdiction and exclusive venue of such courts in any such action or proceeding. This provision shall survive the termination of the Supply Agreement.
15.7 Should Daxwell prevail in any legal proceeding against or concerning Customer related to the Supply Agreement or these Supply Agreement Terms, Daxwell shall have the right to an award of its reasonable attorneys’ fees, costs, and expenses incurred. This provision shall survive the termination of the Sales Order.
15.8 The Supply Agreement and these Supply Agreement Terms constitute the entire agreement between the Parties unless specifically modified by a writing signed by Daxwell and Customer; provided, however, that all non-conflicting terms, conditions, and obligations contained in or incorporated into any Sales Order issued pursuant to the Supply Agreement shall be in addition to the terms, conditions, and obligations herein.
15.9 Daxwell is an independent contractor, and not an agent or employee of Customer. Nothing in the Supply Agreement shall be construed to create a joint venture, partnership, association, profit sharing arrangement, or like relationship between Daxwell and Customer, nor shall the Supply Agreement or the relationships established in connection herewith be deemed to give rise to any fiduciary obligation on the part of either Daxwell or Customer. Nothing in the Supply Agreement shall create a contractual relationship with or a cause of action in favor of any third party against the Daxwell.
15.10 Any notice under the Supply Agreement will be given in writing and deemed to be given at the time received when delivered personally, provided such delivery is confirmed by the courier or delivery service, or sent by expedited delivery service with proof of delivery, or by registered or certified mail, return receipt requested, to Customer at the mailing address specified in the Supply Agreement, or to Daxwell at: Daxwell, LLC, Attn: Legal Department, 2825 Wilcrest Dr. #500, Houston, Texas 77042.
