Effective November 1, 2022
1. DEFINITIONS. Certain terms, hereinafter defined, shall have the following meaning:
1.1 Contractee” shall mean the entity identified as the contractee in the Supply Agreement.
1.2 “Customer” shall mean the individual or entity identified as the customer in the Sales Order.
1.3 “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.
1.4 “Daxwell” shall mean Daxwell, LLC and its subsidiaries and affiliates, including F&W Plastics, LLC d/b/a Daxwell Distribution.
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 financially impractical for Daxwell to perform under the Sales Order or provide Product at the prices specified in the Sales Order.
1.6 The “Parties” shall mean Daxwell and Customer.
1.7 “Product(s)” shall mean the items set forth in the Sales Order issued to Customer by Daxwell.
1.8 “Purchase Order(s)” shall mean orders issued to Daxwell by Customer for the purchase of Products from Daxwell.
1.9 “Sale(s)” shall mean the provision by Daxwell and purchase by Customer of Products pursuant to the Sales Order.
1.10 “Sales Order” shall mean the sales order form or EDI 855 purchase order acknowledgment issued by Daxwell to Customer.
1.11 “Supply Agreement” shall mean the supply agreement from by and between Daxwell and Contractee.
2.1 These Sales Order Terms shall be applicable to and govern all Sales Orders to which they are incorporated, to any extent, including by reference, and all Sales which are made subject to these Sales Order Terms.
2.2 Notwithstanding the foregoing, and only to the extent that Daxwell and Customer (or Daxwell and Customer’s customer) are parties to an effective, binding Supply Agreement or similar master agreement, then these Sales Order Terms shall merely supplement the terms of the applicable Supply Agreement or similar master agreement and the terms, conditions, and obligations of the master supply agreement or similar master agreement shall control over any contrary terms, conditions, or obligations contained herein.
3.1 All Sales are subject to: (a) credit approval, (b) modification of delivery or pick-up dates by Daxwell at any time due to raw material availability or transportation availability, and (c) minimum order quantities. Any delivery appointment date(s) stated in a Sales Order is based on Customer’s timely compliance with Daxwell’s credit approval requirements and these Sales Order Terms.
3.2 The Sales Order may not be cancelled or modified by Customer without Daxwell’s express written consent. If Daxwell consents in writing to a cancellation or modification of the Sales Order, Customer may be subject to fees and charges. The Sales Order is considered final upon issuance to Customer. Daxwell reserves the right to cancel or modify the Sales Order at its discretion at any time.
3.3 Daxwell reserves the right to impose additional charges on Customer for any special handling, packaging, or transportation requested by Customer with respect to any Sale.
3.4 Daxwell objects to and explicitly rejects any terms or conditions in any Purchase Order and/or any other communication from or document of Customer that purports to be in addition to these Sales Order Terms, that attempts to modify any of these Sales Order Terms, or which are in in conflict with these Sales Order Terms. The Sales Order shall not operate as a rejection of Customer’s Purchase Order, if any, unless it contains material variances in the Products, price, or quantity, or unless Customer so notifies Daxwell after receipt of a Sales Order containing such different or additional terms.
4. SUPPLY OF PRODUCTS.
4.1 Daxwell does not guarantee Product availability, even if Daxwell has provided Customer with a quotation for Products.
4.2 In no event shall Daxwell be liable to Customer in any respect for any failure to supply Products to Customer in conformity with a quotation.
5. PRICING & PAYMENT.
5.1 The prices Customer has agreed to pay for the Products are set forth in the Sales Order.
5.2 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.
5.3 Daxwell will transmit standard invoices to Customer at the address set forth on the Sales Order. Customer 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 funds are received by Daxwell.
5.4 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.
5.5 If Customer disputes any portion of Daxwell’s invoice, then Customer shall notify Daxwell 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.
5.6 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.
5.7 Customer may not withhold, offset, or otherwise deduct any amount from Daxwell’s invoices without the written consent of Daxwell.
5.8 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.
5.9 Customer may not 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.
5.10 The provisions of Section 5 shall survive the termination of the Sales Order.
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 a 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 delivers any Products to Customer.
6.2 Customer’s failure to pay Daxwell an amount owed when due shall be immediate grounds to suspend or terminate further performance under the Sales Order, or require payment in advance of Daxwell delivering any Products to Customer.
7. DELIVERY & ACCEPTANCE.
7.1 Where applicable, Daxwell will palletize the Products to its standard palletization configuration based on (a) good commercial practices and industry standards, (b) a configuration that is acceptable to the common carrier for shipment at the lowest shipping cost per case, and (c) a layout that is appropriate for supporting structural integrity during shipping. If for any reason Customer requests custom pallet-configurations that otherwise result in an increased per-case shipping cost, Daxwell will not be responsible for any such additional shipping cost and those costs will be chargeable to Customer. Daxwell shall provide Customer with all necessary shipping documents, including packing lists, bills of lading, air waybills, and any other documents necessary to release the Products to Customer.
7.2 If Daxwell is to deliver the Products to Customer:
7.2.1 Daxwell will deliver the Products to Customer at the location(s) specified in the Sales Order. If Daxwell has included the cost of delivery in its price for the Products, then Daxwell will bear the delivery cost, subject to Section 7.1. If Daxwell has not included the cost of delivery in its price for the Products, then Customer shall be responsible for the delivery cost. In either case, Daxwell will select the carrier and decide on the method and route of transportation for delivery of Products to Customer.
7.2.2 Daxwell will be responsible for unloading or arranging for the unloading of the Products at Customer’s specified location(s) at Daxwell’s expense for up to two (2) hours. Customer is responsible for all unloading charges in excess of two (2) hours. Title to the products shall pass to Customer upon delivery.
7.2.3 Daxwell will attempt in good faith to schedule all deliveries with Customer at least forty-eight (48) hours in advance. If Daxwell is unable to deliver the Products within the pre-approved delivery window, through no fault of Customer, Customer may assess Daxwell a late fee consisting of Customer’s reasonable and actual expenditures for any additional freight, packaging, or labor costs related to the late delivery, not to exceed $80.00 per shipment and not including any Consequential Damages. Customer shall provide reasonable notice of any late fee assessment to Daxwell. Daxwell shall have the right to inspect Customer’s support for any such expenditures and be provided an adequate time to dispute the reasonableness and necessity of any such expenditures.
7.2.4 If Daxwell attempts to deliver the Products to Customer within the pre-approved delivery window but Customer is unable to receive the delivery, Daxwell may assess detention costs against Customer in the amount of $60.00 per hour. If a pre-approved delivery is delayed overnight, then Daxwell may assess an additional $300.00 storage fee per night, plus any actual re-delivery fees incurred. Daxwell shall provide reasonable notice of the assessment of any detention costs to Customer and Customer shall have an adequate time to dispute the reasonableness and necessity of any such costs.
7.3 If Customer is to pick-up the Products from Daxwell:
7.3.1 If Customer picks up the Products or has a third-party carrier pick up the Products from Daxwell, title to the Products shall pass to Customer upon pickup. Customer shall be responsible for all shipping expenses. Customer shall also be responsible for loading and unloading or arranging for the loading and unloading of the Products at Customer’s expense.
7.3.2 If the cost of delivery is included in the price, Daxwell will credit Customer the amount of the pick-up allowance in effect for the Products on the scheduled pick-up date.
7.4 Customer shall inspect the Products within five (5) days following delivery of the Products or ten (10) days following pick up from Daxwell (the “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 notify Daxwell of the decision 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.
7.5 The provisions of Section 7 shall survive the termination of the Sales Order.
8.1 Daxwell and Customer represent and warrant they are duly organized and validly existing under the laws of their respective jurisdiction of formation, and they are authorized to do business in each other jurisdiction wherein its ownership of property or conduct of business legally requires such authorization, licensing, or qualification.
8.2 Daxwell warrants to Customer, as of the date of acceptance of the Product, that:
8.2.1 Daxwell has transferred good title to Customer 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
8.2.2 the Product complies in all material respects on the date of acceptance with the written specification for the Product provided by Daxwell to Customer or published on its website at www.daxwell.com (the “Quality Warranty”).
8.3 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 notify Daxwell of any such warranty claim within this time period shall result in Customer’s waiver of any warranty claim under the Sales Order, the Product Claim Policy, or otherwise.
8.4 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 replacement, credit, or refund in accordance with the Product Claims Policy available by request or at www.daxwell.com/pages/product-claims-policy.
8.5 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 AND 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.
8.6 The provisions of Section 8 shall survive the termination of the Sales Order.
9. DEFAULT & TERMINATION.
9.1 If a Party breaches a material provision of the Sales Order or these Sales Order 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, Daxwell and Customer 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 Purchase Order or Sales Order to which these Sales Order Terms apply (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.
9.5 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 Purchase Order or Sales Order to which these Sales Order Terms apply (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.
9.6 The Sales Order shall terminate automatically upon (1) Daxwell’s full and complete provision or delivery of the Products to Customer and Customer’s full and complete payment to Daxwell for the Products or (2) as mutually agreed by Daxwell and Customer in writing.
10. LIMITATION OF LIABILITY.
10.1 Damages against Daxwell for any breach of the Sales Order or these Sales Order 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.
10.2 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 for the Product involved in the claim or occurrence.
10.3 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.
10.4 The provisions of Section 10 shall survive the termination of the Sales Order.
11. PROPRIETARY INFORMATION. Customer shall consider all information furnished by Daxwell to be confidential and shall not disclose any such information to any other person, or use such information itself for any purpose other than performing hereunder, unless Customer obtains written permission from Daxwell to do so. Financial (including price and cost information) and technical information disclosed in any manner by Daxwell to Customer shall be considered confidential. This non-disclosure covenant has no geographical, territorial, or time limitation and survives the termination of the Sales Order.
12. ALLOWANCES OR REBATES
12.1 If Customer is an authorized distributor for a company that is a party to a Supply Agreement or similar master agreement with Daxwell or if Customer is a Contractee, then Customer may be eligible for a price allowance or rebate.
12.2 Price allowances or rebates do not include any distributor mark-ups, distributor surcharges, or distributor allowances or rebates (if the Contractee is not the distributor), which must be negotiated solely between Contractee and the distributor. No distributor may make any binding commitment of final price on behalf of Daxwell.
12.3 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.
12.4 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.
12.5 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.
12.6 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.
13.1 Neither Daxwell nor Customer shall be liable to the other for any failure or delay in performance under the Sales Order 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.
13.2 If any one or more of the provisions contained in these Sales Order Terms 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 hereof, and these Sales Order Terms shall 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.
13.3 A waiver by either Daxwell or Customer of the breach or violation of any provision of the Sales Order or the Sales Order Terms shall not operate as, or be construed to be, a waiver of any subsequent breach of these Sales Order Terms.
13.4 Daxwell’s rights or obligations under a Purchase Order, Sales Order, of these Sales Order Terms may be freely assigned; Customers rights or obligations under a Purchase Order, Sales Order, of these Sales Order Terms may not be assigned, in whole or in part, by Customer without Daxwell’s prior written consent.
13.5 The Sales Order and these Sales Order Terms 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 any Sales Order or these Sales Order Terms 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 Sales Order.
13.6 Should Daxwell prevail in any legal proceeding against or concerning Customer related to the Sales Order or these Sales Order 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.
13.7 Subject to Section 2.2, the Sales Order and these Sales Order Terms constitute the entire agreement between the Parties unless specifically modified by a writing signed by Daxwell and Customer. Daxwell rejects any and all terms, conditions, or obligations proposed by Customer that may be set forth elsewhere or that are in addition to or contrary to the Sales Order or the Sales Order Terms, except as set forth in Section 2.2.
13.8 Daxwell is an independent contractor, and not an agent or employee of Customer. Nothing in the Sales Order or these Sales Order Terms shall be construed to create a joint venture, partnership, association, profit sharing arrangement, or like relationship between Daxwell and Customer, nor shall the Sales Order or these Sales Order Terms including 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 Sales Order or these Sales Order Terms shall create a contractual relationship with or a cause of action in favor of any third party against Daxwell.
13.9 Any notice under the Sales Order 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 any Sales Order, or to Daxwell at: Daxwell, LLC, Attn: Legal Department, 2825 Wilcrest Dr. #500, Houston, Texas 77042.