TERMS AND CONDITIONS FOR SALE OF GOODS

 1. Applicability. These terms and conditions (“Terms”) are the only terms which govern the sale by PCAT, LLC, a Delaware limited liability company doing business as Casa Branca (“Seller”) to the buyer identified on this Order Acknowledgement (“Buyer”) of the goods (“Goods”) identified on this Order Acknowledgment. The parties’ Letter Agreement, the Order Acknowledgment and these Terms (collectively, this “Agreement”) shall comprise the entire agreement between the parties with regard to the terms of sale of the Goods. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.

 2. Delivery. The goods will be delivered within a reasonable time after Seller sends Buyer this Order Acknowledgment form. Seller shall not be liable for any delays, loss or damage in transit.  Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to the “ship to” or delivery address shown on the Order Acknowledgment (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Goods. Buyer shall be deemed to take delivery of the Goods when delivered to the Delivery Point. If for any reason Buyer fails to accept delivery of any of the Goods upon their delivery to the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed delivered to Buyer; and (iii) Seller, at its option, may store the Goods at Buyer’s expense and cost until Buyer picks them up.

 3. Non-Delivery. Any liability of Seller for non-delivery shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.

 4. Shipping. Unless otherwise agreed in writing, the Goods shall be shipped and delivered FOB destination, freight prepaid and added. Title and risk of loss passes upon delivery of the Goods at the Delivery Point.

5. Price/Payment. Price of the Goods is exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any other Goods if Buyer fails to pay any amounts when due to Seller.  Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.

6. Exclusion of Warranties/Limitation of Liability. SELLER WARRANTS THAT THE GOODS WILL BE MERCHANTABLE AS DEFINED IN 810 ILCS 5/2-314(2). OTHER THAN THE AFORESAID EXPRESS WARRANTY OF MERCHANTABILITY, SELLER MAKES NO OTHER WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) IMPLIED WARRANTY OF MERCHANTABILITY or (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.  IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.  IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNT PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.  

7. Insurance. For a period of two years from taking delivery of the Goods the Buyer shall, at its own expense, maintain and carry insurance in full force and effect which covers the Goods and Buyer’s use or resale of the Goods, which insurance shall include, but is not be limited to, commercial general liability insurance including product liability insurance in a reasonable sum acceptable to Buyer with financially sound and reputable insurers.

 

‌8.  Compliance with Law. Buyer shall comply with all applicable laws, regulations and ordinances regarding the Goods. Buyer shall maintain all licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms.

 

‌9. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate any transaction pursuant to this Order Acknowledgment  with immediate effect upon written notice to Buyer if Buyer: (i) fails to pay any amount when due to Seller; (ii) has not performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

10. Waiver. No waiver by Seller of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by Seller. No failure by Seller to exercise, or delay in exercising, any right, remedy, power or privilege hereunder operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

11. Confidential Information. All non-public, confidential or proprietary information of Seller, including but not its source of Goods or pricing which may be disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed 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, solely for the use of performing this Agreement and may not be disclosed or copied or used for any commercial or other purpose unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.

12. Force Majeure. The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached these Terms, for any failure or delay in fulfilling or performing any of the Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of third parties, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

13. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.

14. Relationship of the Parties/No Third-Party Beneficiaries. The parties are independent contractors. Neither party shall have authority to contract for or bind the other party in any manner whatsoever. These Terms are for the sole benefit of Buyer and Seller and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever.

15. Governing Law. To the extent permitted by law, all matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Illinois, and specifically including the Illinois version of the Uniform Commercial Code and its Sales provisions, without giving effect to any choice or conflict of law provision or rule (whether of the State of Illinois or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Illinois.

16. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Illinois in each case located in the City of Chicago and County of Cook, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

17. Notices. All notices, claims, demands, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of this Agreement or to such other address that may be designated by the receiving party in writing. Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

18. Severability/Survival. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.. The provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Insurance, Compliance with Law, Confidential Information, Governing Law, Submission to Jurisdiction, and Severability/Survival.