THESE TERMS AND CONDITIONS APPLY WHEN WE SELL PRODUCTS/SERVICES TO YOU.

OneSource Supply Solutions, LLC (“Seller”) is a wholesale distributor and service provider engaged in the business of selling third-party manufactured products, goods, materials, equipment, and tools (“Products”), and providing logistics and other services, such as warehousing, vendor manages inventory, storage, kitting, assembly, staging, modification, shipping, yard management, and fabrication services. These Terms and Conditions of Sale (“T&Cs”) govern all sales and services provided by Seller.

1.         Governing Terms. By accessing, browsing, or otherwise using our website, requesting a quotation, bud or proposal, receiving a quotation, bid or proposal, establishing a line of credit, placing an order, issuing a release, or accepting Products or services from Seller, you acknowledge and agree that all Product sales and services provided by or on behalf of Seller to you and/or your subsidiaries or affiliates (collectively, “Customer”) shall be governed exclusively by:  (i) these T&Cs; and (ii) the additional terms of any credit application provided by Seller and executed by Customer (each a “Credit Application”), which shall together control all sales of Products and the providing of services regardless of any additional or conflicting terms and/or conditions contained on or referenced in any request for quotation, bid or proposal, order, acknowledgement, invoice, website, release, correspondence, request, quotation, bid or proposal, or any other document or form used or issued by or on behalf of Customer, including, but not limited to, at any time in the course of dealing or performance, all of which are hereby rejected and deemed void and of no force or effect. Seller’s acknowledgment and/or acceptance of an order shall not be deemed an acceptance of any such other terms and/or conditions or a waiver of the provisions hereof; instead, these T&Cs may only be modified, waived, supplemented, or superseded with the express prior written consent of an authorized officer of Seller (i.e., with title of Vice President or President or their designee). While the terms and conditions set forth in these T&Cs and a Credit Application are intended to supplement one another, in the event of a conflict between the terms and conditions set forth in these T&Cs and a Credit Application (if any), the terms and conditions that are more favorable to Seller, as determined by Seller in its sole discretion, shall control. Notwithstanding the foregoing, Seller reserves the right, in its sole discretion, to periodically revise these T&Cs on our website without further notice, which shall be binding on all Product sales and services provided by or on behalf of Seller to Customer occurring subsequent to the revision date. Seller reserves the right to accept or reject any order in its sole discretion.

2.         Payment Terms. Payment terms are thirty (30) days from date of invoice (the “Payment Date”) unless otherwise expressly agreed by Seller and Customer in writing; provided, however, Seller may, in its sole discretion, require full payment in cash before order entry, shipment, or delivery. Payments not received when due will be subject to a late fee of 1.5%, unless this fee is in violation of law, then the late fee will be at the maximum lawful rate, of the outstanding invoice balance for each 30-day period or portion thereof past due. All costs of collecting monies due from Customer, including, but not limited to, legal expenses, legal interest, attorneys’ fees and collectors’ expenses, shall be paid by Customer to Seller upon demand. When Seller deems itself insecure with respect to Customer’s ability to pay, Seller may, in its sole discretion do any or all of the following: (a) withhold, defer, or cancel shipments and/or orders and/or services; (b) require cash in advance; and/or (c) demand immediate payment of all amounts then owed and pursue collection actions (including attorneys’ fees and costs of collection). Seller may also impose, revoke, or revise Customer’s credit limits, if any, at any time and for any reason. Customer agrees to give Seller current credit information, current annual financial statements, and proper authorizations for Seller to request financial information on Customer (including its subsidiaries and affiliates) from third parties, in each case, within five (5) days of request from Seller as a condition (in Seller’s sole discretion) to beginning and/or continued credit extension or for any other reasonable purpose. All amounts and payments are in U.S. dollars. Seller may set-off and/or deduct for any sums owed by Customer (including its subsidiaries and affiliates). Customer has no right to withhold or set-off amounts owed by Customer or its subsidiaries and affiliates against Seller or its affiliates.

3.         Returns. Orders that were factory special orders or otherwise fabricated and altered to accommodate Customer are not returnable; otherwise, returns will be accepted prior to the Payment Date if prior authorization is obtained from Seller, which authorization shall be in Seller’s sole discretion, and only if the product is in resalable condition and in the original, undamaged manufacturer’s package with sales receipt or invoice. Credit will be issued, if at all, based on Customer’s purchase price for the returned product less any restocking charges, freight, insurance, and/or expenses of disposal.

4.         Deliveries. Customer shall accept partial or pro rata deliveries in commercial units as full performance under Customer’s order if Seller is unable to fill Customer’s entire order. All Products shall be shipped FCA SHIPPING POINT, prepaid and billed, unless otherwise agreed by Seller in writing. Title and risk of loss pass to Customer on tender of delivery to the carrier. If Products are damaged in transit, Customer’s sole recourse is to file a claim with the carrier. Customer understands that delivery dates are estimates only and Seller shall not be liable for any late or delayed delivery. The estimated time for delivery of any Products or services will be extended by a reasonable period of time due to delays caused by: (1) changes requested by Customer; (2) Customer’s delay in obtaining approved submittals or responses to requests for information; (3) Customer’s delay in providing a written release for manufacturing any Products; (4) or a force majeure event as described in Section 10 below. Should the shipment of any Products or performance of any services be delayed due to a cause or event which is reasonably within Seller’s control, then in no event shall: (a) Seller be subject to damages or extra costs for such delay unless such delay is the sole cause of an actual delay in the completion of the project and Customer suffers actual damage due to such delay, and (b) the aggregate amount of liability that Seller has under any Order for any and all such delays shall not be greater than 10% of the value of the delayed Products or services provided, or $20,000.00, whichever is less, and this aggregate amount shall be the sole and exclusive liability that Seller shall have for delays.

5.         Warranties and Disclaimer. Customer acknowledges that Seller is a distributor and not a manufacturer and that Seller is not, except as otherwise expressly provided in Section 13 below, responsible for the design, fabrication, or manufacture of any materials, equipment, tools, or other Products provided by or on behalf of Seller, including for any defects therein. Seller is also not liable for defects in information, labeling, instructions, or packaging provided by the manufacturer or other secondary sources. Any warranty issued by the manufacturer shall be solely that of the manufacturer and not of Seller. Seller warrants good title to Customer and otherwise Seller shall assign to Customer, effective upon transfer of title, all assignable warranties of the manufacturer. Seller authorizes Customer to make or settle any claims under such manufacturer’s warranties directly with any such manufacturer and Customer acknowledges that it shall have recourse only under such warranties and only as against each such manufacturer. Each jurisdiction’s laws, regulations, codes, and standards may vary regarding product labeling, warnings, instructions, specifications, manufacture, and installation, as well as regarding construction, zoning, and/or use of Products for a specific purpose; thus, Customer agrees that certain Products may not be appropriate for all areas or applications and Customer hereby agrees that Customer is solely responsible for ensuring proper compliance with all such laws, rules, regulations, codes, and standards. Customer shall comply with all applicable laws, rules, codes, standards, and regulations including, but not limited to, those concerning exports, imports, anti-corruption, anti-bribery, child labor, affirmative action, conflict minerals, trade, economic or financial restrictions or trade embargoes and any amendments thereto (collectively, the “Laws”) imposed by any applicable governmental authority, including, where applicable, the United States and the European Union. Customer agrees to indemnify, defend, and hold harmless Seller and its parent, subsidiaries, and affiliates, and its/their officers, directors, employees, agents, contractors and representatives, for any breach of Laws by Customer or its affiliates, subsidiaries, officers, directors, managers, shareholders, members, employees, contractors, or agents. Customer agrees that it shall not, except as otherwise permitted under applicable Laws, transship, re-export, or otherwise divert Products purchased from Seller. If applicable, Customer undertakes to timely provide all information and documentation necessary for export, shipment and import. Seller shall not be liable, and Customer shall indemnify, defend and hold Seller harmless, for delays or any other losses resulting from Customer’s failure to timely provide accurate information and documentation, export/import reviews, or any related permitting procedures. To the extent permitted by law, Customer shall, promptly upon becoming aware, provide to Seller details of any claim, action, suit, proceedings or investigation against it with respect to the Laws brought by any enforcement authority. In the event that Seller should believe, acting in good faith, that Customer has violated, or is under investigation for violating, any Laws, or if Customer is identified on any applicable sanctions list, Seller shall have the immediate right to terminate its relationship and/or any contract with Customer without liability.

EXCEPT FOR THE WARRANTIES OF TITLE ABOVE, SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, AND DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ANY WARRANTY AGAINST DEFECTS IN DESIGN, MATERIALS OR WORKMANSHIP, AND ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. CUSTOMER’S EXCLUSIVE REMEDIES AGAINST SELLER FOR BREACH OF WARRANTY ARE REPAIR OR REPLACEMENT OF PRODUCTS, REPERFORMANCE OF SERVICES, OR CREDIT OF THE PURCHASE PRICE PAID, AT SELLER’S OPTION, WHICH MAY ONLY BE EXERCISED WITHIN ONE (1) YEAR OF PERFORMANCE (FOR SERVICES) OR SHIPMENT (FOR PRODUCTS). SELLER’S OBLIGATIONS UNDER THIS SECTION SHALL BE VOID UNLESS CUSTOMER PROVIDES SELLER WITH WRITTEN NOTICE OF THE NON-CONFORMITY IN THE GOOD OR SERVICE WITHIN THIRTY (30) DAYS OF DISCOVERY.

6.         LIMITATIONS OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES AGREE THAT IN NO EVENT SHALL SELLER BE LIABLE TO CUSTOMER OR ITS OWNERS OR AFFILIATES, OR ITS/THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CUSTOMERS, AGENTS, CONTRACTORS, ASSIGNEES, OR REPRESENTATIVES, OR END USERS OF ANY PRODUCTS OR SERVICES FOR: (A) ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, LIQUIDATED, INCIDENTAL, OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, FOR LOSS OF PROFITS, USE, TIME, DATA, FINANCING, OR INCOME, OR FOR RENTAL EXPENSES, FOR LEASE EXPENSES (BOTH REAL PROPERTY OR EQUIPMENT), OR FOR LOSS OF BUSINESS AND REPUTATION, FOR LOSS OF MANAGEMENT OR EMPLOYEE PRODUCTIVITY OR OF THE SERVICES OF SUCH PERSONS, FOR PRINCIPAL OFFICE EXPENSES INCLUDING THE COMPENSATION OF PERSONNEL STATIONED THERE, WHETHER IN CONTRACT, TORT, OR OTHERWISE PERTAINING TO OR ARISING OR RESULTING FROM ITS PERFORMANCE, NON PERFORMANCE, OR DELAY HEREUNDER, AND WHETHER OR NOT SELLER HAD NOTICE OF THE POSSIBILITY THEREOF; AND/OR (B) CLAIMS PERTAINING TO OR RESULTING OR ARISING FROM ORDINARY WEAR AND TEAR, MISUSE, ABUSE, MISREPAIR, MISAPPLICATION, MODIFICATION, UNAUTHORIZED COMBINATION, IMPROPER SELECTION, FAILURE TO MAINTAIN, AND/OR IMPROPER INSTALLATION OF PRODUCTS.  CUSTOMER EXPRESSLY AGREES THAT UNDER NO CIRCUMSTANCE SHALL SELLER’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER PERTAINING TO, RESULTING FROM, OR ARISING OUT OF OR IN CONNECTION WITH PROVIDING PRODUCTS AND/OR SERVICES PURSUANT TO AN ORDER OR FOR A PROJECT EXCEED THE AMOUNT PAID FOR THE GOOD OR SERVICE GIVING RISE TO THE CLAIM AT ISSUE, OR $100,000, WHICHEVER IS LESS, EXCEPT SELLER’S LIABILITY FOR CLAIMS COVERED BY SELLER’S INSURANCE POLICIES SHALL NOT EXCEED $2,000,000.

7.         SUBSTITUTE LIMITATION. IF A COURT OF COMPETENT JURISDICTION HOLDS THAT THE ABOVE LIMITATIONS OF WARRANTIES, LIABILITIES, AND REMEDIES CONTAINED HEREIN, OR ANY PORTIONS THEREOF, ARE VOID OR UNENFORCEABLE FOR ANY REASON, CUSTOMER’S EXPRESS AGREEMENT AS TO THE THE FOLLOWING SHALL NONETHELESS APPLY: UNDER NO CIRCUMSTANCE SHALL SELLER’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER PERTAINING TO, RESULTING FROM, OR ARISING OUT OF OR IN CONNECTION WITH PROVIDING PRODUCTS AND/OR SERVICES PURSUANT TO AN ORDER OR FOR A PROJECT EXCEED THE AMOUNT PAID FOR THE GOOD OR SERVICE GIVING RISE TO THE CLAIM AT ISSUE, OR $100,000, WHICHEVER IS LESS, EXCEPT SELLER’S LIABILITY FOR CLAIMS COVERED BY SELLER’S INSURANCE POLICIES SHALL NOT EXCEED $2,000,000.

8.         Governing Law; Limitations; Dispute Resolution. SOME STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, AND/OR LIMITATIONS MAY NOT APPLY AND OTHER RIGHTS MAY BE AVAILABLE. The validity, interpretation, and performance hereof, and any dispute connected herewith, shall be governed and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles. The provisions of the Uniform Commercial Code as adopted by the State of California shall apply, with no application of the 1980 United Nations Convention on Contracts for the International Sale of Goods. The parties shall exercise their best efforts to resolve by negotiation any and all disputes, controversies, or differences arising out of or relating to these T&Cs or the Products or services provided by or on behalf of Seller to Customer in connection herewith.  Notwithstanding the foregoing, any legal action by Customer concerning these T&Cs and/or any Products or services provided by or on behalf of Seller must be commenced within one (1) year after the cause of action has arisen. The parties irrevocably submit to the jurisdiction of the state and federal courts located in San Diego, California for all disputes, controversies or differences between the parties that are not settled by negotiation and the parties waive any right to object to such jurisdiction, except, at Seller’s sole discretion, a suit filed in order to perfect a lien or stop payment notice claim of bond claim, may be filed in the state in which the project is located. For disputes, controversies or differences between the parties resolved by litigation or arbitration (if both parties agree to arbitration), the prevailing party shall be entitled to recover its reasonable attorneys’ fees and all expenses and costs, including, arbitration fees and costs (as applicable) and expert witness fees, incurred, as against the non-prevailing party in addition to any other relief to which the prevailing party is entitled.

9.         Taxes and Other Governmental Amounts. Customer shall pay all taxes, duties, tariffs, import fees, export fees, penalties, and similar charges levied by any government authority or agency in connection with Products and/or services provided by or on behalf of Seller to Customer. Unless otherwise expressly agreed by Seller in writing, such charges are not included in the price of Products or services and will be added to amounts due by Customer. Customer is responsible for all additional taxes, fees, tariffs, duties, charges, and penalties from taxing or other governmental authorities or agencies, and all legal expenses incurred by Seller, where arising due to changes in such amounts between the date of order and shipping or from incorrect or incomplete documentation or other information furnished by or on behalf of Customer.

10.       Force Majeure. Seller shall not be liable for any delay, impairment, or prevention of Seller’s performance, in whole or in part, due to any event, circumstance, or occurrence that is not within Seller’s control, including, but not limited to, acts of God, labor disruptions, acts of war, acts of terrorism (actual or threatened), governmental decrees or controls, imposition of or changes to tariffs or duties, changes to commodity markets, insurrections, epidemics, quarantines, shortages, communication or power failures, fires, accidents, explosions, inability to procure or ship Products or obtain permits or licenses, inability to procure supplies or raw materials, severe weather, catastrophic events, or any other event, circumstance, or cause beyond Seller’s reasonable control within the normal conduct of its business (collectively, “Force Majeure”). If Seller’s performance is so delayed, impaired, or prevented by Force Majeure, Customer agrees that Seller may, at Seller’s option: (i) suspend or terminate performance; and/or (ii) increase pricing and/or schedules for delivery or performance, in each case, without liability or penalty to Seller.

11.       Hazardous Substances. Customer acknowledges that Seller has neither created nor contributed to the creation or existence of any hazardous or otherwise dangerous substances or conditions at Customer’s or its client’s sites, and Seller’s compensation hereunder is not commensurate with the potential risk of injury or loss that may be caused by exposure to, contamination by, or the presence of such substances or conditions.

12.       Product-Specific Clauses.

(a) ELECTRONIC AND PHOTOGRAPHIC CLEANING FLUIDS CUSTOMERS — It is a violation of federal law to sell, distribute, or offer to sell or distribute any chlorofluorocarbon (CFC) containing cleaning fluid for electronic and photographic equipment or aerosol hydrochlorofluorocarbon (HCFC) containing cleaning fluid for electronic and photographic equipment to anyone who is not a commercial user of this product. The penalty for violating this prohibition can be up to $25,000 per unit sold. Customers purchasing such Products must present proof of their commercial status in accordance with 40 CFR 82.68(a) or (c). A “Commercial User,” as defined in the regulation, means a person that uses the product in the purchaser’s business, or sells it to another person and has one of the following identification numbers: (i) a Federal employer identification number; (ii) a State sales tax exemption number; (iii) a Local business license number; or (iv) a Government contract number.

(b) MOLD RELEASE AGENT CUSTOMERS – It is a violation of federal law to sell mold release agents containing hydrochlorofluorocarbon (HCFC) as propellants to anyone, except for use in applications where no other alternative except a class I substance is available. The penalty for violating this prohibition can be up to $25,000 per unit sold.

(c) WASP AND HORNET SPRAY CUSTOMERS – It is a violation of federal law to sell or distribute wasp and hornet sprays containing hydrochlorofluorocarbon (HCFC) as solvents to anyone, except for use near high-tension power lines where no other alternative except a class I substance is available. The penalty for violating this prohibition can be up to $25,000 per unit sold.

(d) REFRIGERANT CUSTOMERS — Effective November 14, 1994, in accordance with the Federal Clean Air Act, sale of class I (CFC) and class II (HCFC) refrigerant will be restricted to resale purchases and/or to certified professional service technicians. To purchase regulated refrigerant Products, Customer must present a certification card or sign a statement of resale to complete the purchase.

(e) OSHA HAZARDOUS SUBSTANCE & CALIFORNIA PROPOSITION 65 PRODUCT INFORMATION— MSDS for OSHA-defined hazardous substances are available at your local Seller branch, or by contacting Seller’s U.S. corporate headquarters. Seller makes no warranty with respect to the accuracy of the information or the suitability of the recommendations in the MSDS, all of which are provided by the manufacturers at issue, and, to the maximum extent permitted by applicable law, Seller disclaims any and all liability to Customer or any user or consumer with respect thereto. Proposition 65 is a California law requiring the state to maintain a list of chemicals that may cause cancer, birth defects, or reproductive harm. There are over 850 listed chemicals and Seller will attempt to provide a reasonable warning before potentially exposing Californians to such chemicals, but Customer acknowledges and agrees that Seller is a distributor and not a manufacturer of such Products and that Seller thus makes no warranty with respect to the accuracy, reasonableness, or suitability of the information or warnings provided in connection therewith, it being understood and agreed that such information and warnings are provided by the manufacturers at issue. Thus, to the maximum extent permitted by applicable law: (i) Seller disclaims any and all liability with respect thereto; and (ii) Customer releases Seller and its parents and affiliates from and for any and all claims, fines, penalties, and damages pertaining to, or resulting or arising from or in connection therewith, it being agreed that Customer’s sole recourse under Proposition 65 shall be against the manufacturer at issue. To learn more about Proposition 65, please visit www.oehha.ca.gov. 

(f) MATERIALS OF TRADE — Customer represents that if it is purchasing Products as its “materials of trade” as defined in the Hazardous Materials Regulations in Title 49 of the Code of Federal Regulations, that the Products will be used in direct support of its business, which is not transportation, and that such Products shall not be resold or transported in a vehicle other than one owned by itself.

13.       Warehousing Terms and Conditions. THIS SECTION SHALL ONLY APPLY WHEN AND TO THE EXTENT SELLER IS PROVIDING, WITHIN PREMISES OWNED, LEASED, SUBLEASED, AND/OR LICENSED BY SELLER OR ITS AFFILIATES (AS APPLICABLE, THE “SPACE”), STORAGE, KITTING, ASSEMBLY, STAGING, MODIFICATION, FABRICATION AND/OR RELATED SERVICES (COLLECTIVELY, “WAREHOUSING SERVICES”) INVOLVING EQUIPMENT, INVENTORY, PRODUCTS, MATERIALS, TOOLS, AND/OR OTHER GOODS THAT ARE OWNED BY CUSTOMER OR A THIRD-PARTY THAT HAS AUTHORIZED CUSTOMER TO POSSESS AND PROVIDE SAME TO SELLER FOR THE PROVISION OF WAREHOUSING SERVICES (COLLECTIVELY, “WAREHOUSED GOODS”).  The scope, duration, and extent of the Warehousing Services, as well as the quantities and descriptions of the Warehoused Goods and, except as otherwise set forth in this Section, the commercial (i.e., non-legal) terms associated therewith, shall be agreed to in writing between Customer and Seller (e.g., through a quote, bid or proposal from Seller that is accepted by Customer).  This Section shall be read to compliment and supplement the other sections of these T&Cs, which shall also apply to Warehousing Services, but with the provisions of this Section controlling over any conflicting provisions in any other Section(s) of these T&Cs solely when and to the extent concerning Warehoused Goods and/or Warehousing Services.  Accordingly, solely with respect to the Warehoused Goods and/or Warehousing Services: 

(a) Customer Warranties.  Customer warrants that:  (i) it owns and has good and clear title to the Warehoused Goods or, if a third-party owns the Warehoused Goods, is otherwise entitled to possess and provide same to Seller for the provision of Warehousing Services; and (ii) the Warehoused Goods are non-hazardous, non-explosive, and not highly flammable and will not require refrigeration or other specialized storage unless otherwise expressly agreed by Seller in writing.

(b) Rates for Warehousing Services.  Rates and charges for Warehousing Services may be changed from time to time by: (i) Seller’s provision of at least thirty (30) days’ written notice to Customer; or (ii) the mutual written agreement of the parties. Unless otherwise agreed in writing, rates for Warehousing Services shall cover only Seller’s reasonable and ordinary labor involved in receiving the Warehoused Goods at the Space, placing the Warehoused Goods into storage in the Space (if applicable), and returning Warehoused Goods to the loading door or dock of the Space for pick-up by the Customer or its carrier. Unless otherwise agreed in writing, Customer shall be solely liable for all shipping, packaging, cargo insurance, and other charges, as well as any demurrage and/or detention charges incurred in connection with loading, unloading, packaging, receipt, and/or delivery of the Warehoused Goods. Customer shall reimburse Seller on demand for all other costs incurred by Seller in connection with performing the Warehousing Services, including non-routine labor and other special services (i.e., other than ordinary handling and storage) at Seller’s then prevailing rates, which shall include reasonable overhead and profit.

(c) Warehousing Services Warranties; Disclaimer and Exclusive Remedies.  Seller warrants that it will perform the Warehousing Services with a reasonable degree of care. Claims for breach of such warranty must be submitted to Seller in writing, along with photographs and other reasonable supporting documentation, no more than three (3) business days after Customer first becomes aware or first reasonably should have become aware of such claim, but in no event more than ten (10) calendar days after the conclusion of the Warehousing Service(s) at issue. Seller’s good faith determination of the validity of any such warranty claim shall control and Customer shall comply with Seller’s instructions regarding the use, return, and/or disposal of any such Warehoused Goods as part of the warranty process. EXCEPT AS EXPRESSLY PROVIDED IN THIS SUBSECTION IMMEDIATELY ABOVE, SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, RESPECTING WAREHOUSED GOODS OR WAREHOUSING SERVICES, AND SELLER SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY USAGE OF TRADE, OR COURSE OF DEALING OR PERFORMANCE. CUSTOMER’S EXCLUSIVE REMEDIES FOR BREACH OF SUCH LIMITED WARRANTY ARE REPAIR OR REPLACEMENT OF THE WAREHOUSED GOOD(S), CORRECTION OR RE-PERFORMANCE OF THE WAREHOUSING SERVICE(S), OR REFUND OR CREDIT FOR THE ORIGINAL PURCHASE PRICE PAID BY CUSTOMER TO SELLER FOR THE WAREHOUSED GOOD(S) AND/OR WAREHOUSING SERVICE(S) AT ISSUE, AT SELLER’S OPTION.

(d) Title and Risk of Loss; Care, Custody, and Control.  Title to and ownership of the Warehoused Goods shall, as between Customer and Seller, remain exclusively with Customer. Except to the extent of Seller’s limited warranty and exclusive remedy obligations, Customer is solely responsible for all risk and actual loss of, damage to, or destruction of the Warehoused Goods. Care, custody, and control over the Warehoused Goods shall at all times, as between Customer and Seller, remain exclusively with Customer, except that Seller shall be deemed to have care and custody solely when and to the extent the Warehoused Goods are in Seller’s physical possession in the Space for purposes of the Warehousing Services, in which case Seller’s obligations are limited to the fulfillment of its limited warranty and exclusive remedy obligations. For the avoidance of doubt, and notwithstanding anything herein to the contrary, Customer is solely responsible and shall release, defend, and indemnify Seller, its affiliates, and its/their employees, agents, officers, directors, and insurers from and against all loss of, damage to, or destruction or costs of or resulting from the Warehoused Goods in connection with any latent defects in the Warehoused Goods or any event or occurrence outside of Seller’s reasonable control, including, but not limited to, as a result of theft, vandalism, riot, pandemic, flood, fire, earthquake, hurricane, war, tornado, major storm, government takings, or other “force majeure” events or occurrences.

(e) Relocation of Warehoused Goods.  Customer shall be responsible for ensuring that the Warehoused Goods are safely and securely loaded and transported away from the Space on or before the termination or expiration of the Warehousing Services at issue.  Except in the event of an emergency or Customer’s failure to load and transport away all Warehoused Goods on or before termination or expiration of Warehousing Services at issue, Seller will not relocate the Warehoused Goods away from the Space without the Customer’s consent, which consent shall not be unreasonably withheld, conditioned, or delayed. If Seller relocates the Warehoused Goods to a location other than the Space due to emergency or Customer’s failure to load and transport such Warehoused Goods away on or before the termination or expiration of the applicable Warehousing Services, all risk of loss shall immediately transfer back to Customer, including during such relocation, and all costs and expenses related thereto, including, but not limited to, packaging and transportation costs, cargo insurance, additional storage costs, legal fees and court costs, plus reasonable overhead and profit, shall be immediately reimbursed to Seller by Customer on demand.

(f) Insurance Requirements for Warehoused Goods.  Customer is solely responsible for insuring the Warehoused Goods, at all times, including, without limitation, while in the Space and through and including handling, packaging, loading, unloading, and transport to and from all locations. Customer and its insurers shall waive all rights of subrogation and recovery against Seller and its affiliates and its and their insurers, officers, directors, and employees with respect to the Warehoused Goods.  At a minimum, Customer, at its sole cost, shall procure and maintain throughout the duration of the Warehousing Services, and for at least three (3) years thereafter, the following types and amounts of insurance:  (1) Commercial General Liability Insurance on an occurrence basis, with coverage for premises liability, personal and advertising injury, products and completed operations, bodily injury, property damage and contractual liability, in limits of at least $2,000,000 per occurrence; (2) Worker’s Compensation & Employer’s Liability (stop gap) Insurance as required by statute and with benefits in all states in which Warehousing Services are performed; (3) Auto Liability Insurance  for Customer’s owned, leased, hired or non-owned vehicles with a combined single limit of at least $1,000,000 for any one loss; (4) Umbrella Liability Insurance with limits of at least $3,000,000 per occurrence and coverage to apply in excess of underlying Commercial General and Auto Liability policies; and (5) All-Risk Property Insurance at no less than full replacement cost for all Warehoused Goods and all of Customer’s real and other personal property, machinery, equipment, fixtures and any other property owned or leased by Customer and in any way related to the Warehousing Services and/or Warehoused Goods.  Such policy shall be on an “all-risks” basis (i.e., providing coverage for all-risks, including, but not limited to, fire, theft, flood, water damage, etc.), endorsed to name Seller and its parent and affiliates and each of their officers, directors, and employees as additional insureds, and endorsed to provide a Waiver of Subrogation in favor of Seller and its parents and affiliates and each of their insurers, officers, directors, and employees.  All insurance required to be maintained in this subsection shall be written with insurers having A.M. Best Ratings of A- VII or better and Customer shall be solely responsible for all premiums, deductibles, and self-insured retentions.

14.       Intellectual Property. Customer shall have no right, title, or interest in, to, or under Seller’s trademarks, tradenames, patents, copyrights, domain names, trade dress, product names, catalogs, or other intellectual property rights, or to any such intellectual property rights of the manufacturers or sub-suppliers of Products provided by or on behalf of Seller pursuant hereto.

15.       Independent Contractor. The status of Seller and its personnel and any subcontractors is and will be that of independent contractors, and no such personnel or subcontractors will, at any time or for any purpose, be deemed Customer’s employees or agents.

16.       Security Interest. Customer hereby grants Seller a first priority purchase money security interest and/or chattel mortgage in the Products and any accounts receivable, cash, or other proceeds resulting from insurance or the resale thereof until full and final payment is made to Seller. Customer shall file, and it hereby permits and authorized Seller to file, all financing statements and other applicable documentation necessary to perfect, confirm and continue the validity, priority and enforceability of such liens and/or security interests. Customer further authorizes Seller to notify any creditor asserting a security interest in Customer’s assets that Seller has been granted a purchase money security interest and/or chattel mortgage in the Products.

17.       Assignment. Customer shall not assign any order, or interest therein, without Seller’s express prior written authorization. Actual or attempted assignment without Seller’s prior written consent shall be void and unenforceable and shall entitle Seller to cancel such order upon notice to Customer.

18.       Construction Funds. Customer acknowledges that the funds paid to or on behalf of Customer related to any projects for which the Products or services provided by Seller are used are construction trust funds expressly earmarked and to be kept in trust for the payment to Seller for such Products and services, and Customer holds such funds as a fiduciary to Seller.

19.       Third Parties. These T&Cs are solely for the benefit of Customer and Seller and no other person or party is conferred any rights, benefits or claims.

20.       Severability. If any term, provision, or subsection in these T&Cs is to any extent found illegal, invalid or unenforceable, the same shall be excluded to the extent of such illegality, invalidity or unenforceability and all other terms, provisions, and subsections hereof shall remain in full force and effect. To the extent permitted and possible, the illegal, invalid or unenforceable term, provision, or subsection shall be deemed replaced by one that is legal, valid, and enforceable and that comes closest to expressing the intent of such illegal, invalid, or unenforceable term, provision, or subsection. If such replacement is not permitted and possible, the illegal, invalid, or unenforceable term, provision, or subsection shall be severed from these T&Cs and the remainder of these T&Cs shall be valid and fully enforced as written.

21.       Entire Agreement. These T&Cs, together with the Credit Application (if any), and the commercial and technical terms of Seller’s forms, acknowledgements, quotations and invoices, constitute the entire and exclusive agreement between Seller and Customer, with any conflict therein being resolved in favor of the terms and conditions that are more onerous on the Customer, as determined by Seller in its sole discretion. All typographical or clerical errors made in these T&Cs or by Seller in any quotation, acknowledgement, or publication are subject to correction by Seller, in its sole discretion.