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STANDARD TERMS AND CONDITIONS OF SALE

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  1. TERMS & CONDITIONS OF SALE. The goods that are the subject of a sale by ZALO USA LLC ("Seller") to the individual, partnership, LLC, or corporation (“Buyer”) are referred to as the "Products". All sales of Products by the Seller are governed by and subject to (a) Sellers quotation, order acknowledgement, or a separate written agreement signed by an authorized representative of Seller, as applicable, and (b) these terms and conditions, whether or not they are specifically referenced in or incorporated by Seller's quotation, order acknowledgement, or the separate written and signed agreement. Any irreconcilable conflict between these terms and conditions and any terms in Sellers's quotation, order acknowledgement, or the separate written and signed agreement shall be resolved in favor of the quotation, order acknowledgement, or the separate written and signed agreement. Seller's acceptance of Buyer's purchase order (“Order”) shall not constitute acceptance of any of Buyer's terms and conditions. TERMS ADDITIONAL TO OR DIFFERENT FROM THESE TERMS AND CONDITIONS, INCLUDING BUT NOT LIMITED TO TERMS CONTAINED IN BUYER'S PURCHASE ORDER OR BUYER'S STANDARD TERMS AND CONDITIONS OF PURCHASE, ARE DEEMED MATERIAL AND HEREBY REJECTED UNLESS OTHERWISE ACCEPTED BY SELLER IN WRITING.
  2. BUYER'S ASSENT TO THESE TERMS AND CONDITIONS. Buyer's assent to these terms and conditions shall be conclusively presumed from Buyer's (1) receipt of Sellers order acknowledgment without written objection sent to Seller within ten (10) days after receipt of the order acknowledgement, (2) instructing Seller to ship any of the Products after receipt of Sellers's order acknowledgement, (3) acceptance of or payment for all or any part of the Products, or (4) taking any other action evidencing Buyer's acceptance of the benefits of the agreement between the parties. Seller may commence performance in reliance upon Buyer's acceptance of these terms and conditions, and Seller will not be obligated to fulfill an order or request for the Products unless Seller affirmatively acknowledges the order. BUYER AND SELLER AGREE THAT THESE TERMS AND CONDITIONS ARE ACCEPTED IN GOOD FAITH BY BOTH PARTIES AS THE CONTROLLING AND FINAL TERMS AND CONDITIONS.
  3. ENTIRE AGREEMENT. Except as otherwise agreed to by Seller in writing, the terms and conditions set forth herein, together with Seller's quotation, order acknowledgement, or a separate written and signed agreement, as applicable, shall constitute the complete and final agreement between Seller and Buyer (hereinafter, this "Agreement"), superseding completely any prior oral or written communications.
  4. MODIFICATION. No modification of this Agreement or waiver of any of its terms will be binding on Seller unless clearly expressed in writing and signed by an authorized representative of Seller. This paragraph excludes, among other things, purported modifications and waivers by oral agreement, course of performance, and usage of trade. Seller and Buyer expressly agree that Seller may modify these terms and conditions from time to time, and such modifications shall be binding upon Buyer.
  5. DELIVERY. Delivery dates are approximate. The failure to meet an indicated delivery date will not constitute a breach of this Agreement. In no event shall Seller be liable for any claims for labor or for any special, indirect, incidental, or consequential damages including, but not limited to, demurrage charges, cost of shipment, downtime, lost profits (whether direct or indirect), lost sales, or any other damages resulting from delay in delivery. If Seller's production or delivery is delayed, Seller may allocate production and delivery among its customers in a manner it deems reasonable. Seller reserves the right to change or redesignate any product source listed in this Agreement. ACCEPTANCE OF THE PRODUCTS BY BUYER UPON DELIVERY SHALL CONSTITUTE A WAIVER BY BUYER OF ANY CLAIM FOR DAMAGES ON ACCOUNT OF DELAY IN DELIVERY.
  6. SHIPMENT AND RISK OF LOSS. All shipments are FOB Orland Park, Illinois. Seller will package the Products for domestic shipment in accordance with standard commercial practices. All shipments shall be delivered by Seller to the Buyer’s designated point of delivery at the Buyer’s expense unless otherwise agreed by Seller in writing. Unless otherwise agreed in writing, Seller may, in its sole discretion, select the shipping method, the carrier and the applicable freight charges. If Buyer desires to pick up the Products at Seller's facility, Buyer must contact Seller to arrange a mutually convenient time for pick up. Buyer shall indemnify and hold harmless Seller from and against any claims, damages or liabilities suffered by Seller resulting from any acts or omissions of carrier. Title to the Products and risk of loss to the Products shall pass to the Buyer at the point of shipment from Seller's facility, whether freight prepaid or freight collect to destination, regardless of which party selects the carrier and arranges the freight charges or particulars of shipment. Risk of loss for damage or delay in transit shall be borne by Buyer. Buyer shall file and pursue any claims directly with the carrier related to loss, damage or delay in transit, and Buyer shall not assert such claims against Seller or deduct from amounts owing to Seller.
  7. RELEASE OF GOODS FOR SHIPMENT. Buyer must release the Products for shipment within twenty (20) days after Seller notifies Buyer that the Products are ready for shipment. After such 20-day period, Buyer will pay a holding charge determined in good faith by Seller and/or Seller may ship the Products to Buyer without further notification. Buyer agrees to accept delivery of all shipped Products and to pay the applicable price. Seller has the right to sell or scrap any Products without notice to Buyer if Buyer has not released the Products for shipment within forty-five (45) days after Seller notifies Buyer that the Products are ready for shipment, and Buyer shall be responsible for any difference between the agreed purchase price and the sale price or the scrap allowance. With respect to any order of a single item of a truckload or less, Buyer must release the entire order for shipment at one time or pay the additional LTL charges required by Seller.
  8. DELAYS AND CANCELLATIONS BY BUYER. "Delay/Cancellation Costs" include all labor, materials, overhead, general and administrative costs, restocking charges, surcharges levied on material by outside suppliers, sub-vendor cancellation charges, excess inventory charges, value of storage space, inventory tax charges, banking and finance charges, scrapping and disposal fees, and other harm, costs and charges incurred directly or indirectly by Seller in connection with a delay or cancellation of an order for the Products. The "Firm Order Period" is determined according to, as applicable, the quotation, order acknowledgement or separate written and signed agreement. If there is no quotation, order acknowledgement or separate written and signed agreement, or if none of those items specifies the Firm Order Period, the Firm Order Period will be determined according to Seller's then current cancellation and orderbook management policy. If a Firm Order Period cannot be determined in any of the preceding methods, the entire order will be considered to be within the Firm Order Period. Buyer is not entitled, without Seller's prior written consent, which may be withheld or conditioned in Seller's sole discretion, to cancel or delay a delivery of the Products for all or any part of an order within the Firm Order Period. Seller may treat as a cancellation any proposed delay greater than 60 days. If Seller consents to the cancellation or delay, Buyer shall pay a cancellation or delay charge in an amount determined in Seller's sole discretion to reflect any and all unrecoverable costs resulting from the cancellation of any order.
  9. PURCHASE PRICE. The purchase price of the Products shall be as stated in Seller's quotation, order acknowledgement, or separate written agreement signed by an authorized representative of Seller, as applicable. Unless agreed by Seller in writing, the purchase price does not include shipment costs. If the Products are shipped freight prepaid, the charge for freight shall be added to the invoice. Prices are based on and assume Buyer's compliance with all of the terms and conditions of this Agreement. Seller may adjust prices, in its sole discretion, if the circumstances do not coincide with the forgoing assumptions. In addition, Seller may at any time adjust prices based on changes to energy costs, raw material costs, labor costs and exchange rates.
  10. TAXES. Prices do not include any taxes or other assessments. All taxes, duties, fees, assessments or other charges of any kind imposed by any federal, state, municipal or other governmental authority which Seller is required to collect or pay with respect to the provision, production, sale or shipment of the Products shall be the responsibility of Buyer. Buyer agrees to pay all such taxes and further agrees to reimburse Seller for any such payments made by Seller. Buyer hereby affirms that it is purchasing the Products referenced herein for resale, and/or that Buyer is not the end user of the Products, so as to be exempt from any otherwise applicable sales tax.
  11. PAYMENT TERMS. Payment terms are net thirty (30) days from the date of the invoice. Any payments not made within thirty (30) days of the date of invoice shall be subject to a late payment charge of 1 ½ % per month (compounded) on the unpaid balance of any amount then passed due.
  12. FAILURE OF PAYMENT. If Buyer fails to make payment in full or in part when due or refuses to pay any applicable price increases or surcharges, Seller shall have the right to: (i) immediately suspend performance and cancel the unfinished portion of any outstanding orders, (ii) declare all unpaid amounts for the Products delivered immediately due and payable, and (iii) withhold further deliveries. If Seller elects to proceed with an order after the suspension of performance, Seller shall have an extension of time for performance as is necessitated by the suspension. Seller shall have the right to enforce payment of the full purchase price, including any price increase or surcharge, for Products already delivered or in process. Buyer shall reimburse Seller for all costs of collection, including reasonable attorney's fees, incurred as a result of Buyer's failure to make payments when due.
  13. BUYER'S FINANCIAL CONDITION. All new customers must supply a current financial statement, three (3) trade references, and completed credit questionnaire. Seller shall have the right, by written notice, to suspend performance, terminate this Agreement, cancel any order, modify any payment terms, or require full or partial payment or adequate assurance of performance from Buyer, without liability to Seller, in the event of a material adverse change in the Buyer's financial condition or if reasonable grounds for insecurity arise with respect to Buyer's performance of this Agreement, evidence of which might include, among other things, (i) a default under any of Buyer's financing agreements, (ii) Buyer's inability to obtain financing, (iii) a reduction in Buyer's credit rating by a recognized rating agency, (iv) Buyer's insolvency, (v) the filing of a bankruptcy by or against Buyer (whether voluntary or involuntary), (vi) the appointment of a receiver or trustee for Buyer, (vii) the execution by Buyer of an assignment for the benefit of creditors, (viii) the failure by Buyer to make a payment to Seller when due, or (viii) any other event which raises reasonable doubts as to Buyer's creditworthiness. The modifications Seller may make to payment terms include shortening the payment period, requiring advance payment, or requiring payment of cash on delivery. Seller shall notify Buyer in writing of any modifications to payment terms, which may be made retroactive to include amounts then accrued but unpaid. Seller reserves the right to cancel Buyer's credit at any time for any reason, without notice.
  14. ACCORD AND SATISFACTION. Checks or payments, whether full or partial, received from or for the account of Buyer, regardless of writings, legends or notations upon such checks or payments, or regardless of other writings, statements or documents, shall be applied by Seller against the amount owing by Buyer with full reservation of all Seller's rights and without an accord and satisfaction of Buyer's liability.
  15. LIMITED WARRANTY. EXCEPT AS EXPRESSLY SET FORTH IN SELLER'S QUOTATION, ORDER ACKNOWLEDGEMENT OR SEPARATE WRITTEN AND SIGNED AGREEMENT, SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXPRESSLY DISCLAIMED. AT SELLER'S DISCRETION, BUYER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THE CONFORMANCE OF ANY PRODUCTS FURNISHED BY SELLER UNDER THIS AGREEMENT SHALL BE LIMITED TO EITHER: (1) REPLACEMENT OF SUCH PRODUCTS AT THE POINT OF SHIPMENT FROM SELLER'S FACILITY, OR (2) REPAYMENT OF OR CREDIT AGAINST THE PURCHASE PRICE OF SUCH PRODUCTS UPON AUTHORIZED RETURN THEREOF. In the event Seller has authorized Buyer to scrap all or any portion of the Products, the scrap allowance is to be credited to Seller. The employees and representatives of Seller are not authorized to make any statement or representation as to the Products inconsistent with this Agreement and no such statements made will be binding upon Seller or be grounds for any claim.
  16. NON-CONFORMING GOODS. No claim for damages for non-conforming Products or will be allowed unless Buyer provides Seller with written notice of the claim within sixty (30) days of the date the Products were delivered to Buyer. To assert such a claim, Buyer must (a) at Seller's request, return to Seller 100% or, if agreed by Republic, a lesser but still statistically relevant percentage of the Products claimed to be non-conforming, and (b) provide reasonable evidence to support the claim, including, if requested by Seller, results of diagnostic tests, evaluations and investigations performed by Buyer. Products for which damages are claimed shall not be returned, repaired, or discarded without Seller's prior written consent. If requested by Seller, the non-conforming Products must be returned to Seller at Buyer's expense within ten (10) days of Seller's request. No claims, rejections or returns for non-conforming Products will be permitted unless Buyer cooperates in full with Seller's technical personnel to determine the cause of the non-conformance.
  17. SHORTAGE OF GOODS OR DAMAGED GOODS. Claims by Buyer with respect to shortage of Products invoiced or for damaged Products must be made to Seller in writing no later than sixty (30) days from the date the Products were delivered to Buyer. All claims must be made only for substantial cause, must be in writing, and must specify the reason(s) for the claim. THE FAILURE TO NOTIFY SELLER OF ANY CLAIM WITHIN THE TIME PERIOD SPECIFIED BY THIS SECTION SHALL CONSTITUTE A WAIVER OF AND BAR SUCH CLAIM. SELLER SHALL INCUR NO LIABILITY FOR SHORTAGE OR DAMAGE ALLEGED TO HAVE OCCURRED OR EXISTED AT OR PRIOR TO DELIVERY TO THE CARRIER UNLESS BUYER SHALL HAVE ENTERED FULL DETAILS THEREOF ON CARRIER'S DELIVERY RECEIPT WHICH MUST BE SIGNED BY THE CARRIER'S AGENT. SELLER MUST BE GIVEN AN OPPORTUNITY TO INVESTIGATE THE CLAIM BEFORE BUYER DISPOSES OF THE PRODUCTS. ANY DAMAGED PRODUCTS OR SHALL NOT BE RETURNED, REPAIRED OR DISCARDED WITHOUT SELLER'S WRITTEN PERMISSION.
  18. CONFIDENTIALITY. Any pricing or other sensitive commercial information provided by Seller to Buyer is proprietary to Seller and shall be held in confidence by Buyer, shall only be used by Buyer in connection with this sale, and shall not be used for any other purposes or disclosed to third parties without Seller's prior written consent. Buyer shall be liable for any loss to Seller or commercial gain by others from unauthorized use of confidential information occasioned by Buyer's failure to comply with this provision.
  19. AUDIT. Unless otherwise agree to in writing by an authorized representative of Seller, Buyer shall have no right to audit any books or records of Seller and Buyer shall have no right to enter into any facility owned or controlled by Seller.
  20. LIMITATION OF LIABILITY. SELLER'S LIABILITY, WHETHER IN CONTRACT, IN TORT, UNDER WARRANTY, IN NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCTS OR SERVICES, AND UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, DEMURRAGE CHARGES, COSTS OF SHIPMENT, DOWNTIME, LOST PROFITS (WHETHER DIRECT OR INDIRECT), LOST SALES, DAMAGE TO EQUIPMENT, OR CLAIMS OF BUYER'S CUSTOMERS OR OTHER THIRD PARTIES FOR DAMAGES OR PENALTIES, WHETHER OR NOT BUYER IS LEGALLY OBLIGATED TO PAY THEM. SELLER'S LIABILITY HEREUNDER SHALL BE LIMITED TO EITHER: (1) THE OBLIGATION TO REPAIR OR REPLACE, AT SELLER'S SOLE DISCRETION, ONLY THOSE PORTIONS OF THE PRODUCTS OR SERVICE ITEMS PROVEN TO HAVE FAILED TO MEET IN MATERIAL RESPECT THE SPECIFICATIONS ON THE SELLER'S QUOTATION, ORDER ACKNOWLEDGEMENT, OR SEPARATE WRITTEN AND SIGNED AGREEMENT AT THE TIME OF SHIPMENT FROM SELLER'S FACILITY, OR (2) REPAYMENT OF OR CREDIT AGAINST THE PURCHASE PRICE OF THE PRODUCTS. SELLER AND BUYER EXPRESSLY AGREE TO THIS ALLOCATION OF RISK AND THE PRICE STATED FOR THE PRODUCTS IS CONSIDERATION FOR THE LIMITATION ON SELLER'S LIABILITY. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXCLUSIVE REMEDY DESCRIBED IN THIS SECTION FAILS ITS ESSENTIAL PURPOSE.
  21. INDEMNIFICATION. Buyer agrees to indemnify, defend and hold harmless Seller, its directors, officers, employees, agents, successors and assigns from and against any and all damages, losses, expenses, costs (including without limitation reasonable attorney's and accountant's fees), claims, suits, actions, judgments or other liability asserted against or incurred by Seller arising out of (a) Buyer's breach of its obligations hereunder, (b) Buyer's negligence or misconduct, or (c) Buyer's misuse or misapplication of the Products or damage to the Products caused by Buyer or its employees, agents or customers.
  22. FORCE MAJEURE. Seller shall not be responsible for cancellation or delay in delivery or performance resulting, in whole or in part, from causes beyond its reasonable control, including, but not limited to: acts of God; acts of Buyer; strikes or other labor disturbances regardless of whether or not Seller is capable of settling such strike or disturbance; mill or facility conditions; temporary or permanent mill or facility closures; equipment failure; inability to obtain fuel, material, or parts; war; acts of terrorism; sabotage; riot; delays in transportation; repairs to equipment; natural disasters; epidemics; floods; fires; action of governmental authorities (valid or invalid); severe weather conditions; accidents; explosions; failure of or inability to obtain power, raw materials, suppliers, labor, equipment or transportation; a court or administrative injunction or order; or any other contingency the non-occurrence of which was a basic assumption on which this Agreement was made.
  23. STATUTE OF LIMITATIONS. BUYER AND SELLER AGREE THAT, UNLESS OTHERWISE SPECIFIED IN THIS AGREEMENT, ANY ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT OR THE SALE OF THE PRODUCTS MUST BE BROUGHT WITHIN ONE YEAR AFTER THE DATE ON WHICH THE PRODUCTS IN QUESTION WERE DELIVERED TO BUYER OR THE DATE ON WHICH THE EVENT GIVING RISE TO THE ACTION OCCURRED, WHICHEVER IS EARLIER.
  24. DISPUTE RESOLUTION. Buyer and Seller will attempt in good faith to resolve promptly any dispute arising out of or relating to this Agreement or the breach thereof. If a dispute should arise, BUYER AND SELLER AGREE TO SUBMIT THE DISPUTE TO MEDIATION. BUYER AND SELLER FURTHER AGREE THAT THEIR PARTICIPATION IN MEDIATION IS A CONDITION PRECEDENT TO ANY PARTY PURSUING ANY OTHER AVAILABLE REMEDY IN RELATION TO THE DISPUTE. Mediation involves no formal court procedures or rules of evidence, and the mediator does not have the power to render a binding decision or force an agreement on the parties. Buyer and Seller agree that the entire mediation procedure will be confidential. Buyer or Seller must give written notice of their desire to commence mediation, and a mediation session must take place within forty-five (45) days after the date such notice is given. The mediation shall be attended by representatives of each party with authority to resolve the dispute, and counsel for the parties shall not attend the mediation unless otherwise agreed to by the parties. Buyer and Seller will jointly appoint a mutually acceptable and neutral mediator. If Buyer and Seller are unable to agree upon the appointment of a mediator within seven (7) days after notice of desire to mediate is given, Buyer or Seller may apply to the American Arbitration Association for appointment of a mediator. The mediation shall be held in Orland Park, Illinois. Buyer and Seller agree that the expenses of mediation shall be borne equally by both parties. Buyer and Seller agree that arbitration will not be used to settle a dispute arising out of or relating to this Agreement or the breach thereof.
  25. NONWAIVER. The failure of Seller to enforce any of the provisions of this Agreement shall not be construed as a waiver of Seller's right to enforce each and every provision hereof. Seller reserves the right to enforce these terms and conditions at any time and none shall be deemed waived unless such waiver is in writing signed by an authorized representative of Seller. Seller's rights and remedies set forth in this Agreement are in addition to all legal and equitable rights and remedies available to Seller.
  26. ASSIGNMENT OR DELEGATION. Buyer shall not assign or delegate any or all of its rights or obligations under this Agreement without the prior written consent of Seller, and any attempt to do so will be ineffective.
  27. NO THIRD PARTY RIGHTS. This Agreement is for the sole and exclusive benefit of the parties hereto and their permitted successors and assigns. Nothing expressed or referred to in this Agreement will be construed to give any other person any legal or equitable right, remedy or claim under or with respect this Agreement.
  28. INDEPENDENT PARTIES. Seller and Buyer are independent parties and nothing in this Agreement shall make either party an agent, partner, joint venturer, or legal representative of the other.
  29. HEADINGS. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
  30. SEVERABILITY. If any provision or part of a provision of this agreement is declared invalid, illegal, or unenforceable under applicable law, the affected provision will be considered omitted or modified to conform to applicable law. The validity, legality, and enforceability of all other remaining provisions or parts of provisions will remain in full force and effect.
  31. TRACEABILITY. If the Agreement obligates Seller to provide traceability on Products, Seller's obligation with respect to the Products returned to Seller (a) is limited by the accuracy and completeness of the information provided by Buyer with respect to the returned Products, and (b) will terminate if the return was not authorized in advance by Seller.
  32. GOVERNING LAW; FORUM SELECTION. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Illinois, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Buyer, acting for itself and its successors and assigns, hereby expressly and irrevocably consents to the exclusive jurisdiction of the state and federal courts having authority over the territory of Cook County, Illinois, for any litigation which may arise out of or be related to this Agreement or the purchase or use of the Products. Any action brought in any such court may not be transferred or removed to any other court. Buyer waives any objection based upon forum non-conveniens or any objection to venue of any such action.