Patents, Trademarks and Terms


FJORD INC. GENERAL TERMS AND CONDITIONS OF SALE 1. ENTIRE AGREEMENT. These Terms and Conditions (“Terms”), together with the provisions in any written proposal, purchase order acknowledgement, application for credit, or other document issued or executed by Seller (collectively, “Sales Agreement”), constitute the entire agreement between Seller and Buyer concerning the sale of goods by Seller to Buyer (“Goods”). Buyer’s issuance of any purchase order to Seller or acceptance of any Goods or Services supplied by Seller shall constitute Buyer’s acceptance of these Terms. If Seller is deemed to have made an offer to Buyer, acceptance shall be limited to the terms offered in writing by Seller, including these Terms, and Seller hereby objects to any additional, omitted or inconsistent terms submitted or proposed by Buyer. If Buyer is deemed to have made an offer to Seller, Seller’s acceptance is expressly conditioned upon Buyer’s assent to any additional, omitted or inconsistent terms (from the terms in Buyer’s offer) contained in Seller’s written acceptance, including these Terms. No change to these Terms or the Sales Agreement shall be binding upon Seller, unless signed by its authorized representative. 2. LIMITED WARRANTY. Buyer’s sole and exclusive liability for any breach of warranty will be, at its expense and its option, to either repair, replace or credit Buyer’s account with respect to any nonconforming Goods returned to Seller. SELLER MAKES NO IMPLIED WARRANTIES, WHETHER AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, WITH RESPECT TO THE GOODS OR SERVICES WHICH ARE THE SUBJECT OF THIS CONTRACT. EXCEPT TO THE EXTENT THAT AN EXPRESS WARRANTY IS STATED IN THIS CONTRACT, SELLER MAKES NO EXPRESS WARRANTIES WITH RESPECT TO THE GOODS OR SERVICES WHICH ARE THE SUBJECT OF THIS CONTRACT. NO VERBAL STATEMENT BY SELLER’S AGENTS OR EMPLOYEES, AND NO SAMPLES SUBMITTED TO SELLER OR TO BUYER, SHALL BE CONSTRUED AS CREATING ANY WARRANTIES, EXPRESS OR IMPLIED. 3. LATE CHARGES AND COSTS. Buyer shall pay interest at the rate of 10% per month on all overdue contract or invoice balances. Buyer further agrees to pay all costs and expenses, including reasonable attorneys’ fees, incurred by Seller in collecting overdue contract or invoice balances or in otherwise enforcing the terms and provisions of this contract. 4. CREDIT APPROVAL AND ORDER ACCEPTANCE. All orders are subject to acceptance in writing by Seller and no order is binding upon Seller until acceptance occurs. Acceptance of any order where credit is requested shall be subject to completion by Buyer of Seller’s Application for Credit and 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 or require that Buyer pay cash before delivery. In that event, Seller shall have no liability to Buyer for such termination or prepayment requirement. If any invoices are not paid when due, then at Seller’s discretion, all sums owing by Buyer to Seller shall at once become due and payable, regardless of the original terms of sale, and Seller may withhold further delivery of Goods to Buyer until all sums have been paid in full. The foregoing remedies are not exclusive, but are in addition to all other remedies available to Seller under applicable law. 5. ORDER CANCELLATION AND RETURNED GOODS. No order or firm release for Goods which are in process is subject to cancellation, deferment or change in specifications without written agreement by Seller. Cancellation charges shall be determined by Seller, in its sole discretion, and will include the cost of all labor and material ordered by Seller or in process for the Buyer’s order or release. No Goods shall be returned to Seller without Seller’s prior written consent and Buyer’s payment of any return charges assessed by Seller. All custom orders once processed are final. There will be no refunds or company credits for cancelled orders once processing of custom orders is complete. 6. 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 by Seller), to secure all present and future obligations of Buyer to Seller, including without limitation the obligations arising under the Sales Agreement. 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. 7. BUYER’S INSOLVENCY, ETC. If Buyer shall become insolvent, call a meeting of its creditors, or make an assignment or trust for the benefit of creditors or if bankruptcy, insolvency, reorganization or arrangement proceedings shall be commenced by or against Buyer: (1) Seller may stop the goods in transit and/or cease providing any unpaid for Services; (2) Buyer shall not accept delivery of any goods; (3) title to and ownership of the goods shall remain in Seller; (4) if title to any of the goods has passed, Seller may rescind such transfer of title; (5) Buyer shall at Seller’s written request, return the goods or any part thereof to Seller freight prepaid; (6) risk of loss shall remain in Buyer until Seller regains possession of the goods. 8. DELIVERY, TITLE, RISK OF LOSS. Unless otherwise agreed in writing by Seller, Buyer shall be responsible for paying all shipping costs for ordered Goods. Title and ownership to the Goods shall remain with Seller until Seller has received full payment thereto. Buyer shall have all risk of loss following delivery of the Goods to the common carrier used by the manufacturer or Seller, as the case may be. 9. CLAIMS AND ALLOWANCES. If Buyer claims Goods or Services do not conform to the express warranty given herein, upon request by Seller, the Goods must be properly and promptly offered to Seller for examination in the same condition as when delivered by Seller to Buyer. Prior to approving any such claim, Seller reserves the right to evaluate and analyze any failed Good. If Buyer fails to afford Seller full opportunity for such evaluation and analysis Buyer shall not be entitled to make or have any deduction, allowances, claim or cause of action based upon or relating to such Goods. 10. LIMITATION OF REMEDIES. NOTWITHSTANDING ANYTHING IN THE SALES AGREEMENT OR ANY OTHER DOCUMENT TO THE CONTRARY, IN NO EVENT WILL SELLER BE LIABLE TO BUYER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST OR PROSPECTIVE PROFITS, LOST EARNINGS OR BUSINESS INTERRUPTION, WHETHER OR NOT BASED UPON SELLER’S NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY IN TORT OR ANY OTHER CAUSE OF ACTION. Buyer’s exclusive remedy from Seller for any breach of Seller’s limited express warranty, failure to deliver or delivery of defective or non-conforming Goods or Services, shall be at Seller’s option to (a) replace or repair the non-conforming Goods, or (b) refund to Buyer of the sales price paid for the Goods or Services. In no event shall Seller’s cumulative liability exceed the price of Goods or Services which were the direct cause of the alleged loss, damage or injury. BUYER ACKNOWLEDGES AND AGREES THAT THE RETURN OF THE FULL SALES PRICE FOR THOSE GOODS OR SERVICES WHICH WERE THE DIRECT CAUSE OF THE ALLEGED LOSS, DAMAGE OR INJURY WILL PREVENT THE FOREGOING REMEDIES FROM FAILING OF THEIR ESSENTIAL PURPOSE AND THAT SUCH REMEDY IS FAIR AND ADEQUATE. 11. FORCE MAJEURE. Seller shall have no liability for any non-performance delay or delay in performance caused by circumstances beyond Seller’s control including, but not limited to, acts of God, fire, flood, war, government action, accident, labor trouble or shortage, inability to obtain material, equipment or transportation, or failure of Seller’s suppliers to furnish goods. 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 Goods remaining undelivered and shall continue at a rate proportionate to the original specifications thereafter until the entire quantity purchased hereunder has been delivered, and Buyer shall accept such deliveries, provided that if such delay in delivery exceeds thirty (30) days, Buyer may demand delivery of the Goods so delayed by providing Seller with a written demand by registered or certified mail and if said Goods 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 Goods. 12. APPLICABLE LAW. The Sales Agreement, including these Terms, shall be governed and construed in accordance with the laws of the State of North Carolina. 13. ACCORDANCE AND SATISFACTION. Any check or remittance received from or for the account of the 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 appealing on, referred to or accompanying such check or remittance. 14. WAIVER. No waiver by either party, whether express or implied, of any provision of the Sales Agreement or any breach or default by either party, shall constitute a continuing waiver or waiver of any other provision or provisions and no such waiver by either party shall prevent such party from enforcing any and all provisions of the Sales Agreement as to any subsequent breach or default by the other party. 15. CUMULATIVE RIGHTS. All rights and remedies of Seller under the Sales Agreement are in addition to Seller’s other rights and remedies provided by law and are cumulative, not alternative. 16. SEPARABILITY. If any provision of the Sales Agreement is or becomes, at any time, under any law, rule, or regulation, unenforceable or invalid, no other provision of the Sales Agreement shall be affected thereby and the remaining provisions of the Sales Agreement shall continue with the same effect as if such unenforceable or invalid provisions shall not have been inserted in the Sales Agreement. 17. ASSIGNMENT. These Terms are binding upon and inure to the benefit of Buyer and Seller and the successors and assigns of the entire business and goodwill of either Seller or Buyer, but will not otherwise be assignable except that the Seller has the right to assign an order to an affiliate, as well as the right to assign accounts receivable or the proceeds of from the sale of Seller’s products. Nothing in these terms and conditions shall inure to the benefit of or be deemed to give rise to any rights in any third party, whether by operation or law or otherwise.