All orders fulfilled by Quantum Materials, LLC are governed by the “QTI FIBERS HOLDINGS, LLC Terms and Conditions of Acceptance and Sale”, which can be viewed in their entirety below.
QTI FIBERS HOLDINGS, LLC and its SUBSIDIARIES
STANDARD TERMS AND CONDITIONS
OF ACCEPTANCE AND SALE
- CONTROLLING TERMS AND CONDITIONS. Buyer’s
purchase order, whether written or verbal, is accepted only upon
these terms and conditions. Seller objects to, and shall not be
bound by, any term or condition on Buyer’s order that is different
from or in addition to Seller’s terms and conditions. Any additional
or different terms or conditions proposed by Buyer are hereby
expressly rejected regardless of how presented, including, without
limitation, any such terms or conditions presented in any of Buyer’s
business forms, on Buyer’s website, through any ‘click through’
acceptance, or an EDI system. These terms and conditions
constitute the entire agreement between Buyer and Seller and
supersede any prior or contemporaneous representations,
warranties, proposals, terms, conditions, or agreements, whether
oral or written. No term, condition, description, price, quantity,
specification, or delivery schedule shall be changed, and no
agreement or understanding in addition to or different from the
terms and conditions stated herein shall be binding upon Seller,
unless signed by an authorized representative of Seller. - PROPOSAL/QUOTATIONS. Proposals/quotations made by
Seller are only valid in writing and for thirty (30) days from the date
of the quotation unless otherwise set forth in Seller’s
prospoal/quotation. All proposals/quotations are subject to change
or withdrawal without prior written notice to Buyer prior to
acceptance by Buyer unless otherwise specifically stated in the
quotation. Quotations are made subject to approval by Seller of
Buyer’s credit. - PRICE. Unless otherwise specifically agreed to in writing by
Seller, all prices are exclusive of any freight costs and any sales,
use, value added, excise, gross receipts, business and occupation
or similar present or future taxes imposed by any governmental
body on the sale, delivery, use or other handling of the goods or in
connection with any transactions contemplated herein. Prices
assume order quantities sufficient to meet Seller’s standard
minimum order requirements for applicable products. Unless
otherwise agreed in writing, any variation in quantities shipped over
or under the quantities ordered (not to exceed 10%) shall constitute
compliance with Buyer’s order and the stated price per item will
continue to apply. Seller reserves the right to adjust prices on
undelivered products to reflect changes in raw material costs. All
orders are accepted subject to Seller’s price in effect at time of
shipment. All prices are F.O.B. Seller’s shipping point. - PAYMENTS, LATE CHARGES, AND COSTS. Unless
otherwise specifically agreed to in writing by Seller, terms are net
thirty (30) days from date of Seller’s invoice. If Buyer fails to pay by
the due date any sum required to be paid by Buyer to Seller
hereunder, Buyer will pay to Seller for each delinquent payment or
part thereof interest from the due date until paid at the lesser of: (i)
the highest rate published from time to time by the Wall Street
Journal as the “prime rate” plus 6%; or (ii) the highest rate permitted
by applicable law. Seller shall also have the right, among other
remedies, either to terminate the order or to suspend further
performance in the event Buyer fails to make any payment when
due. Buyer shall also pay to Seller all reasonable costs and
expenses (including but not limited to attorney’s fees) incurred by
Seller in connection with Seller’s efforts to collect such delinquent
payment(s) or to otherwise enforce the terms and provisions of this
contract. Any check or remittance received from or for the account
of Buyer may be accepted and applied by Seller against any
indebtedness or obligations owing by Buyer as shown by the books
and records of Seller, without prejudice to or the discharge of the
remainder of any such indebtedness or obligation, regardless of
any condition, proviso, statement, legend, or notation appearing
on, referred to, or accompanying such check or remittance. - SEPARATE SALE. Each delivery hereunder shall be
deemed a separate sale, and failure of Seller to make
delivery hereunder shall not affect any contract with
respect to any other delivery. - DELIVERY. Unless otherwise agreed upon in writing
by Seller, all products ordered by Buyer shall be shipped
F.O.B. Seller’s facilities. Buyer shall have all risk of loss
following delivery of the product to Buyer at Seller’s
facilities. Title and ownership to products shall remain with
Seller until Seller has received full payment therefore. Any
claims for shortages or damages suffered in transit shall
be submitted by Buyer directly to the carrier within ten (10)
days of delivery. While Seller will use all reasonable
commercial efforts to maintain the delivery date(s), all
shipping dates are approximate. Seller reserves the right
to make partial shipments. Seller, at its option, shall not be
bound to tender delivery of any goods for which Buyer has
not provided shipping instructions. If the shipment of the
goods is postponed or delayed by Buyer for any reason,
Buyer agrees to reimburse Seller for any and all storage
costs and other additional expenses resulting therefrom,
including spoilage or obsolescence. Delivery times shall
be agreed between Seller and Buyer at the time of each
order, but shall in any event be subject to Seller’s
customary lead times. - CREDIT APPROVAL AND ORDER ACCEPTANCE.
All orders are subject to acceptance at Seller’s corporate
office and no order is binding upon Seller until such
acceptance occurs. Acceptance of any order submitted by
Buyer shall be subject to credit approval by Seller. If, after
initial credit approval, Buyer’s credit becomes
unsatisfactory to Seller, Seller reserves the right to
terminate any order upon written notice to Buyer. In that
event, Seller shall have no liability to Buyer for such
termination and Buyer shall not be entitled to assert any
claim against Seller for such termination. In lieu of
termination, Seller, at its sole discretion, may require cash
or security satisfactory to Seller prior to subsequent
shipments or deliveries hereunder. The election by Seller
to require such cash or security shall not affect the
obligation of Buyer to take and pay for all products. - SECURITY INTEREST AND LIEN: Buyer grants to
Seller a security interest and lien upon all goods and
property of Buyer in the possession of Seller, now and in
the future (including goods billed and held and including
goods in the possession of any parent, subsidiary or
affiliate of Seller), to secure all present and future
obligations of Buyer to Seller, including without limitation
the obligations arising out of this contract. Acceptance of
a note, bill, acceptance, or additional security shall not
constitute a waiver of Seller’s security interest and lien
upon such goods. In the event Buyer fails to pay or perform
any obligation to Seller when due, Seller shall have the
option to sell all or any part of the goods subject to the
foregoing security interest and lien at public or private sale
after ten (10) days written notice to Buyer mailed to Buyer
by registered mail at Buyer’s last-known address. Seller
shall be entitled to purchase all or any part of the goods at
such sale and the proceeds of sale shall be applied first to
the costs of sale, including reasonable attorneys’ fees, and
then to Buyer’s obligation to Seller. Buyer shall be
responsible for any deficiency existing after application of
the proceeds. The security interest and lien provided for
herein shall be in addition to all liens and remedies in favor
of Seller provided by law. - TOOLING/MOLDS/DIES. Unless otherwise agreed to in
writing by Seller, all Tooling and Molds for which Seller has
received payment in full and which are used in the manufacture of
finished products shall remain the property of Buyer. All
preventative maintenance and refurbishment costs of the above
items are to be paid for by the owner. Buyer has three years from
date of last production to take possession of Buyer-owned
molds/tools/fixtures. After such period has elapsed, Seller reserves
the right to destroy any unclaimed molds/tools/fixtures. - WARRANTIES. Seller warrants that the products delivered
hereunder shall (A) conform to any written specifications previously
communicated to Buyer by Seller; (B) be conveyed free and clear
of any lien, security interest, or encumbrance created by Seller; and
(C) be free from substantial defects in material and workmanship.
Seller makes NO OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. SELLER
SPECIFICALLY DISCLAIMS ANY WARRANTY RELATING TO
THE SUITABILITY, INTEGRITY, FUNCTIONALITY, OR ANY
OTHER ASPECT OF ANY PARTS DESIGN SPECIFICATIONS,
CONCEPTS, OR IDEAS. BUYER ASSUMES ALL RISKS
INCURRED IN THE USE OF ANY MATERIAL DELIVERED
HEREUNDER. NO VERBAL STATEMENTS BY SELLER’S
AGENTS OR EMPLOYEES, MADE BEFORE OR AFTER THE
PERFORMANCE OF THIS CONTRACT, AND NO SAMPLES
SUBMITTED TO BUYER SHALL BE CONSTRUED AS
CREATING ANY WARRANTIES, EXPRESS OR IMPLIED, FROM
SELLER.
In the event of any defect or non-conformity which causes Seller’s
product not to comply with the foregoing limited express warranty,
Buyer’s remedy for such breach of warranty shall be limited to
having Seller repair or replace the product, subject to the
requirement that Seller is provided with prompt notice of the defect
or non-conformity and is able to verify the same. Any claim by
Buyer for any breach of Seller’s limited express warranty with
respect to any product must be made by Buyer to Seller in writing
within fifteen (15) days after delivery of the product by Seller or
such claim shall conclusively be deemed to have been waived by
Buyer. Buyer shall pay all freight costs incurred in returning the
defective or non-conforming product to Seller for examination and
repair or replacement, if appropriate. IN NO EVENT SHALL
BUYER BE ENTITLED TO CLAIM OR RECOVER ANY
INCIDENTAL OR CONSEQUENTIAL DAMAGES FROM SELLER
OF ANY NATURE WHATSOEVER, INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOST PROFITS OR LOSS OF USE
RESULTING FROM ANY DEFECT OR NON-CONFORMITY IN
SELLER’S PRODUCTS. In the event Seller fails to repair or replace
a defective or non-conforming product as aforesaid, Seller’s liability
shall be limited to return of the purchase price paid by Buyer to
Seller for such item. Furthermore, in the event that,
notwithstanding the foregoing, Seller is determined to be obligated
to Buyer for any damages or costs related in any manner to Seller’s
product or the performance of any purchase order, Seller’s liability
will in no event exceed the price paid by Buyer to Seller for the
product. These provisions allocate the risks related to any defect
or nonconformity in Seller’s products or performance of any
purchase order between Buyer and Seller and Seller’s pricing to
Buyer reflects such allocation of risk and the contractual limitation
of Seller’s liability stated herein. - FORCE MAJEURE. Seller shall not be liable for any default
in, delay, reduction, or failure of delivery due to causes beyond its
control, including, without limitation, strikes, pandemic, floods, lock
outs, disputes or disagreements resulting in work stoppages,
inability to timely acquire the products from Seller’s supplier for
reasons beyond Seller’s control, embargoes, government
regulations, military service, war, delays by carriers, lack of
shipping facilities, unavoidable casualties, fires, storms,
explosions, epidemics, civil disturbances, acts of God or
public enemy, or any other causes or conditions in addition
to the foregoing which are beyond Seller’s control. In any
such circumstances, Seller may, without liability on
Seller’s part, cancel or terminate the contract or parts
thereof or suspend and thereafter, upon removal of the
difficulty or cause of such default in, delay, reduction, or
failure of delivery, resume delivery of all or part of the
products remaining undelivered, and Buyer shall accept
such deliveries, provided that if such delay in delivery
exceeds sixty (60) days, Buyer may demand delivery of
the products so delayed by providing Seller with a written
demand by registered or certified mail and if said products
are not shipped by Seller within ten (10) days after receipt
of such demand, the order at issue shall be deemed
terminated without liability on Seller’s part, as to said
products. Seller may, during any period of shortage due to
any of the above circumstances, allocate its available
supply of products, services, and resources among itself
and its customers in such manner as Seller, in its sole
judgment, deems fair and equitable and/or eliminate
any/all quantities of product(s) affected from this contract
without liability. - LIMITATION ON DAMAGES. SELLER SHALL NOT
BE LIABLE TO BUYER FOR ANY SPECIAL,
INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL
DAMAGES (including loss of anticipated profits, business
interruption, loss of use or revenue, cost of capital or loss
or damage to property or equipment) arising in any way
from the relationship of the parties or the production, sale,
or delivery of the goods by Seller. Seller’s liability to Buyer
shall be in all cases limited to the price paid by Buyer for
goods or services provided by Seller relating to the claims
for damages. Seller will not be liable to Buyer for any loss,
damage, or injury to persons or property resulting from the
handling, storage, transportation, resale, or use of its
products after delivery or from the design of products to
the extent provided by Buyer. Buyer may not set off any
payments due hereunder against any other amounts
Seller or its affiliate may owe to Buyer. - DEFAULT: The occurrence of any of the
following shall constitute an event of default under this
contract: (a) Buyer shall be in default if Seller shall not
have received a payment from Buyer, when due, and such
failure of payment shall remain uncured for a period of five
(5) days; (b) a party shall be in default if it shall fail to
perform any other obligation under the contract and such
failure is not excused or cured within ten (10) days after
written notice thereof, or if it files a petition in bankruptcy
or otherwise commences or acquiesces in the
commencement of a proceeding under any bankruptcy,
insolvency, reorganization, or similar law, or makes an
assignment for the benefit of creditors, or has a bankruptcy
petition filed against it which is not withdrawn or dismissed
within thirty (30) days after filing, or has a liquidator,
administrator, custodian, receiver, trustee, conservator, or
similar official appointed with respect to it or any
substantial portion of its assets or otherwise becomes
insolvent. In the event of default, the non-defaulting party,
in its sole discretion, may do any one or more of the
following: (i) suspend performance under the contract or
any other agreement between the parties, or (ii) cancel the
contract or any other agreement between the parties. The
foregoing rights shall be cumulative and alternative and in
addition to any other rights or remedies to which the non-
defaulting party may be entitled under applicable law. - TERMINATION. Seller shall have the right in its sole
discretion, by notice given to Buyer, to terminate any order upon
the occurrence of any direct or indirect, voluntary or involuntary,
sale, lease, transfer, assignment, merger, consolidation, or other
disposition of Buyer’s assets, it being understood that in the event
such shall occur (and without prejudice to the termination remedy
specified), (x) Buyer shall remain fully liable for its obligations under
this contract, and (y) the transferee of such assets or such facility
shall also be liable for all obligations of Buyer under this contract.
In addition, Seller may cancel any purchase order or releases
thereunder that are not scheduled for shipment within the
succeeding thirty (30) days. If Buyer notifies Seller of Buyer’s
intention not to fulfill any obligation under a purchase order, Buyer
shall be liable to Seller for all finished goods, work in process, and
unique or surplus raw materials and supplies produced or ordered
in reliance on such purchase order. Any and all purchase orders
for tooling, fixtures, and equipment shall be paid for at the contract
price, regardless of the stage of completion. - INTELLECTUAL PROPERTY AND PROPRIETARY
RIGHTS. All drawings, know how, inventions, devices,
developments, processes, copyrights, trademarks, patents and
applications therefore, and other information or intellectual property
disclosed or otherwise provided to Buyer by Seller, including
intellectual property developed by Seller as a part of its relationship
with Buyer, and all rights therein will remain the property of Seller
and will be kept confidential by Buyer in accordance with these
terms and conditions. Buyer shall have no claim to, nor ownership
interest in, any intellectual property and such information, in
whatever form and any copies thereof, shall be promptly returned
to Seller upon written request of Seller. Buyer shall indemnify and
hold Seller harmless against any and all claims, demands, suits
and/or costs whatsoever arising out of or relating to any violation
or infringement or any alleged violation or infringement of any
patent, trademark, or copyright in relation to any product
manufactured in accordance with any designs and/or specifications
provided by Buyer. - CONFIDENTIAL INFORMATION. All information furnished
or made available by Seller to Buyer in connection with the subject
matter of these terms and conditions, Seller’s quotation, or Buyer’s
purchase order shall be held in confidence by the Buyer. Buyer
agrees not to use such information or disclose such information to
others without Seller’s prior written consent. The obligations in this
paragraph will not apply to any information in the public domain
which Buyer can show by written records was in Buyer’s
possession prior to disclosure by Seller, or any information which
is legally made available to Buyer by or through a third party having
no direct or indirect confidentiality obligation to Seller with respect
to such information. The provisions of this paragraph shall survive
the delivery of, and payment for, Seller’s products. - INDEMNITY. Buyer agrees to defend, indemnify, and hold
Seller, its affiliates, successors and assigns, officers, partners,
directors, shareholders, members, employees, independent
contractors, and agents harmless against claims by any third party
(including Buyer’s employees and customers) arising out of Buyer’s
negligence, misrepresentation, or unloading, handling, storage,
transportation, disposal, use, or resale of the products. - ASSIGNMENT. This contract binds and inures to the benefit
of Buyer and Seller and their respective successors and permitted
assigns. Buyer may not assign any interest in, nor delegate any
obligation under the contract, by operation of law or otherwise,
without Seller’s prior written consent. Any assignment or attempted
assignment in contravention of the foregoing shall be null and void,
shall be considered a breach of the contract, and shall permit
Seller, in addition to any other rights that it may have, to terminate
the contract. - WAIVER. No waiver by either party, whether express or
implied, of any provision of this contract or any breach or
default by either party, shall constitute a continuing waiver
or waiver of any other provision or provisions of this
contract and no such waiver by either party shall prevent
such party from enforcing any and all provisions of this
contract as to any subsequent breach or default by the
other party under any provisions of this contract. - SEVERABILITY. If any provision herein shall be
held to be unlawful or unenforceable, the remaining
provisions herein shall remain in full force and effect. - APPLICABLE LAW AND JURISDICTION.
(A) APPLICABLE TO ORDERS FROM QUANTUM
MATERIALS, LLC. This contract shall be
governed and construed in accordance with the
laws of the State of North Carolina, without
regard to principles of conflicts of law. Buyer
hereby consents to the personal jurisdiction of
the state and federal courts in Guilford County,
North Carolina, with regard to any lawsuit
arising out of this contract, or any goods or
services provided by Seller to Buyer or any
agreement, obligation, or transaction between
Seller and Buyer. The United Nations
Convention on Contracts for the International
Sale of Goods or any subsequently enacted
treaty or convention shall not apply to this
contract or any dispute arising therefrom.
(B) APPLICABLE TO ORDERS FROM
TWITCHELL TECHNICAL PRODUCTS, LLC,
OR INFINITY WOVEN PRODUCTS, LLC. This
contract shall be governed and construed in
accordance with the laws of the State of
Alabama, without regard to principles of
conflicts of law. Buyer hereby consents to the
personal jurisdiction of the state and federal
courts in Houston County, Alabama, with regard
to any lawsuit arising out of this contract, or any
goods or services provided by Seller to Buyer or
any agreement, obligation, or transaction
between Seller and Buyer. The United Nations
Convention on Contracts for the International
Sale of Goods or any subsequently enacted
treaty or convention shall not apply to this
contract or any dispute arising therefrom. - ITAR/ EXPORT COMPLIANCE. Seller’s products
and materials may be subject to U.S. ITAR and export
laws, regulations, rules, treaties, and international
agreements. Buyer assumes responsibility for abiding with
all ITAR and export laws, rules, regulations, treaties, and
international agreements when exporting, re-exporting, or
transferring, directly or indirectly, any products or technical
data received hereunder, to any country or user to which
such export, re-export, or transfer is restricted by United
States or local country law or regulation without first
obtaining all required licenses, authorizations,
certifications, or approvals. By placing an order with Seller,
Buyer represents that Buyer is not in a sanctioned country,
nor has Buyer been found in violation of any ITAR or other
export laws, rules, regulations, treaties, or international
agreements and had commercial restrictions placed on
Buyer by the Department(s) of State, Treasury, Justice, or
Commerce, and Buyer is not listed on the BIS Denied
Persons List (DEN), the DDTC Debarred List (DBL) or the
OSOFAC Specially Designated Nationals (SDN) list. - ANTI-CORRUPTION. Buyer agrees that it will conduct itself
in compliance with all applicable anti-corruption laws, including
without limitation the Foreign Corrupt Practices Act, in connection
with any import, export, use, resale, or further distribution of the
Product. - PRODUCT INFORMATION. Buyer acknowledges that it has
received and is familiar with Seller’s labeling and literature
concerning the product(s), and Buyer agrees to forward such
information to its employees, independent contractors, agents,
customers, and others who unload, handle, store, transport,
dispose, use, or resell the Product for Buyer. - BUYER’S USE. Buyer agrees that Buyer has independently
determined the suitability of the product(s) for Buyer’s application
or use and assumes all responsibility for the results obtained by
use of the product(s) whether alone or in combination with other
materials. Buyer will comply with all laws, rules, and regulations
pertaining to the handling of the product(s), and Buyer assumes all
risks and liability arising out of Buyer’s unloading, handling,
storage, transportation, disposal, use, and resale of the product(s). - CUMULATIVE RIGHTS. All rights and remedies of Seller
under this contract are in addition to Seller’s other rights and
remedies under this contract and as otherwise provided by law and
are cumulative, not alternative.