Terms of Sale

These Terms and Conditions of Sale (“Terms of Sale”) govern the sale of all products (the “Products”), by CQ Partners LLC (“Seller” or “CQ Partners”) to the buyer (each a “Buyer”). These Terms of Sale are subject to change by Seller, without prior written notice, at any time, in the Seller’s sole discretion. Any changes to these Terms of Sale will be in effect as of the “Last Modified Date” referenced above. Buyer should review these Terms of Sale prior to purchasing any Products. Buyer shall be bound by the Terms of Sale in effect at the time the order is placed. In the event of any inconsistency between these Terms of Sale and any other document signed by Seller and Buyer, the other signed document shall take precedence and govern.

1. Purchase Orders.
   
   1. 1.1   Buyer may, at its discretion, purchase Products: (i) directly from Seller by phone, facsimile, or on Seller’s online member portal or by submitting a written purchase order or electronic order (each, a “Purchase Order”); or (ii) directly from the Product’s manufacturer. Each Purchase Order will designate the desired quantities of Products, delivery dates, and destination.
   2. 1.2   Buyer understands that all Purchase Orders are an offer to buy the Products under these Terms of Sale. Each Purchase Order must be accepted by Seller, or Seller is not obligated to sell the Products. Seller may choose not to accept orders, in its sole discretion, even after Seller’s acceptance of an order. Seller specifically rejects any additional, different, or inconsistent terms or conditions proposed by Buyer in any Purchase Order.
2. Pricing and Payment Terms.
   1. 2.1   Pricing.
      
      1. Buyer shall purchase the Products from Seller at the price set forth in Seller’s online member portal. All prices on that portal are subject to change without notice. Seller strives to display accurate price information, but Seller may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. Seller reserves the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.
      2. Prices do not include taxes or delivery charges. Accordingly, (i) taxes, charges, levies, duties, assessments, and other fees of any kind imposed by any governmental authority and (ii) charges for handling, freight, shipping, packaging of Products or the cost of insurance from the time the Products leave Seller’s premises shall be added to the price payable by Buyer for the Products.
      3. Any discount, rebate, and other price reduction (collectively “Discounts”) given by Seller to Buyer constitutes a discount under applicable law (42 U.S.C. § 1320a-7b(b)(3)(A)). Seller’s invoice may detail the Discounts and the allocation of net purchase dollars appearing on that invoice. As applicable, each party hereto will report Discounts and provide information as required under 42 C.F.R. § 1001.952(h). The Discounts posted on Seller’s online member portal are subject to change. If there is a conflict between the terms of a Discount and these Terms of Sale, the written terms of such Discounts will govern, unless otherwise agreed upon in writing.
   2. 2.2   Payment.
      
      1. On the second day of each month Seller shall issue a monthly statement showing purchases made by Buyer during the previous month and the amount owed by Buyer. Buyer shall pay the amount owed within thirty (30) days from the receipt of the statement. Seller’s credit department may, in its sole discretion, impose more stringent payment requirements, including requiring payment in advance of Buyer’s receipt of the Product or requiring provision of an irrevocable letter of credit.
      2. Buyer shall pay all sales, use, value-added, excise, or similar taxes and duties applicable to the Products. In case where Buyer is exempt from such taxes, Buyer shall provide Seller with applicable tax exemption certificates acceptable to the taxing authorities. Buyer agrees to reimburse Seller for any such amounts which Seller incurs on behalf of Buyer. All payments to Seller shall be made in U.S. Dollars.
      3. Should Buyer become delinquent in any payment due hereunder, Seller shall not be obligated to continue performance under these Terms of Sale or any Purchase Order. Any amounts not paid when due will be subject to a service charge of one and one-half percent (1.5%) of the amount due per month or the highest rate permitted by applicable law, whichever is greater.
      4. If any Product is not paid for in accordance herewith, then Seller may, without prejudice to any other lawful remedy available to it, defer any further shipments until settlement is made or terminate these Terms of Sale.
   3. Shipping and Delivery. Buyer will pay all shipping and handling charges specified during the ordering process. All Products are shipped by the manufacturer of the Product and are subject to the manufacturer’s terms of shipping and delivery.
   4. Returns and Credit Policy. All Product returns are covered by the manufacturer’s return policy.
   5. Limited Warranty.
      
      1. All Products are covered by the manufacturer’s warranty as detailed in the documentation included with the Product. Any warranty service for defective Products shall be in accordance with the instructions included in the manufacturer’s warranty.
      2. ALL PRODUCTS ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, TO THE EXTENT PERMITTED BY APPLICABLE LAW.
      3. SELLER SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY BREACH OF WARRANTY CLAIMS OR FOR ANY DAMAGES ARISING OUT OF THE MANUFACTURER’S FAILURE TO HONOR ITS WARRANTY OBLIGATIONS.
   6. Limitation of Liability. NOTWITHSTANDING ANYTHING IN THESE TERMS OF SALE TO THE CONTRARY, THE MAXIMUM CUMULATIVE LIABILITY, IF ANY, OF SELLER FOR ALL DIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, CONTRACT DAMAGES AND DAMAGES FOR INJURIES TO PERSONS OR PROPERTY, WHETHER ARISING FROM SELLER’S BREACH OF THESE TERMS OF SALE, INDEMNITY OBLIGATIONS, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, OR OTHERWISE WITH RESPECT TO THESE TERMS OF SALE WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL FEES PAID TO SELLER BY BUYER UNDER THE PURCHASE ORDER WITH RESPECT TO THE PRODUCT TO WHICH THE CLAIM RELATES. IN NO EVENT SHALL SELLER OR ITS REPRESENTATIVES, AGENTS, OR AFFILIATES BE LIABLE TO BUYER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, ENHANCED, OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST REVENUES, LOST PROFITS, OR DIMINUTION IN VALUE,  REGARDLESS OF (I) THE FORESEEABILITY OF SUCH DAMAGES, (II) WHETHER SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (III) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
   7. Indemnification. Buyer shall defend, indemnify, and hold harmless Seller and its officers, directors, employees, agents, affiliates, successors, and permitted assigns against any and all losses, damages, liabilities, claims, judgments, or settlements, including reasonable attorney’s fees and the costs of enforcing any right to indemnification under these Terms of Sale, incurred by Seller, arising out of a claim, suit, action, or other proceeding brought by a third party to the extent related to: (i) Buyer’s negligence, fraud, willful misconduct, or material breach of these Terms of Sale; (ii) Buyer’s improper servicing, repair or transport of Product; (iii) any violation of applicable laws; and (iv) Buyer’s misuse or unintended use of Product.
   8. Intellectual Property.
      1. 8.1  “Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to (i) patents; (ii) trademarks; (iii) copyrights; (iv) works of authorship, expressions, designs, design registrations, internet domain names, software, firmware, application programming interfaces, schematics, data, data files, databases, and other documentation, whether or not copyrightable or otherwise registrable, and whether or not registered; (v) trade secrets; and (vi) all industrial and other intellectual property rights, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of any of these rights under the laws of any
      2. 8.2  Buyer acknowledges and agrees that: (a) any and all of Seller’s Intellectual Property Rights and Intellectual Property Rights of Seller’s affiliates and licensors are the sole and exclusive property of Seller, Seller’s affiliates or its licensors, as the case may be (collectively, “Seller Intellectual Property Rights”); (b) Buyer shall not acquire any ownership interest in any of Seller Intellectual Property Rights under these Terms of Sale; (c) any goodwill derived from Buyer’s use of Seller Intellectual Property Rights inures to the benefit of Seller, its affiliates, or its licensors, as the case may be; (d) if Buyer acquires any Seller Intellectual Property Rights in or relating to any products by operation of law, such rights are hereby irrevocably assigned to Seller, its affiliates, or its licensors, as the case may be, without further action by either of the parties; and (e) Buyer shall use Seller Intellectual Property Rights only in accordance with these Terms of Sale and the instructions of Seller.
      3. 8.3  Buyer shall not: (a) take any action that interferes or infringes in any way with Seller Intellectual Property Rights; (b) challenge any right, title, or interest in or to Seller Intellectual Property Rights; (c) make any claim or take any action adverse to the ownership of Seller Intellectual Property Rights; (d) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the products or any of Seller Intellectual Property Rights; or (e) alter, obscure, or remove any trademarks, copyright notices, or any other proprietary rights notices placed on the products or other materials supplied by Seller.
      4. 8.4  All other Product trademarks, names, and company names or logos are the property of the respective manufacturer or its licensors.
   9. Confidentiality
      
      1. 9.1   “Confidential Information” means all non-public, confidential, or proprietary information disclosed by Seller, which is related, directly or indirectly, to these Terms of Sale and the Product pricing provided by Seller to Buyer hereunder (the “Purpose”), that is either (i) marked or otherwise identified as confidential when disclosed or, if given orally, is confirmed in writing as being Confidential Information within thirty (30) days; or (ii) that a reasonable person would understand to be confidential or proprietary due to the context of its disclosure and/or its scope, content, or nature.
      2. 9.2   Buyer shall not have any obligation with respect to the Confidential Information, or any part thereof, which: (i) was already in the Buyer’s possession prior to receipt from Seller, as evidenced by the Buyer’s written records, without any obligation to keep it confidential; (ii) is disclosed to the Buyer by a third party having a legal right to make such disclosure; (iii) is or becomes part of the public domain other than through breach of these Terms of Sale; (iv) is developed independently of the Confidential Information received from Seller; or (v) is disclosed pursuant to a subpoena, order, government request, law, regulation, or other legal proceedings, provided, however, that prior to any such disclosure Buyer shall first provide Seller with (a) prompt written notice of such requirement so that Seller may seek a protective order or other remedy; and (b) reasonable assistance in opposing such disclosure or seeking a protective order or other limitations on disclosure, at the Seller’s expense.
      3. 9.3   Buyer agrees to protect the Confidential Information disclosed by Seller with the same degree of care used to protect its own Confidential Information from unauthorized use or disclosure, but in no event less than commercially reasonable care.
      4. 9.4   Seller hereby retains its entire right, title, and interest, including all intellectual property rights, in and to all of its Confidential Information. Any disclosure of Confidential Information hereunder shall not be construed as granting an assignment, grant, option, license, or transfer of any other such title, interest, or right under any patent, copyright, or other Intellectual Property Rights of Seller, nor shall these Terms of Sale grant Buyer any rights in or to Seller’s Confidential Information other than the limited right review such Confidential Information solely to accomplish the Purpose.
   10. Restrictions on Use.
       
       1. 10.1  Buyer must comply with all Product use restrictions that may be in any documentation or label accompanying the Product or any other use restrictions otherwise provided in writing to Buyer by Seller or the manufacturer (“Use Restriction”). For clarity, the Use Restrictions include Buyer’s compliance with all applicable federal and state laws and regulations including, without limitation, those applicable to the sale, resale, and distribution.
       2. 10.2  Buyer shall not re-sell, assign, transfer or distribute the products to any other reseller, distributor, or third party other than an end-user without express written permission to do so from Seller, and Buyer shall not export the products outside the country to which Seller delivers the products. Without limiting the generality of the foregoing, Buyer shall not sell, export, or re-export any products supplied to it by Seller, directly or indirectly, (i) to the Russian Federation or Belarus, (ii) for end-use in the Russian Federation or Belarus, or (iii)to a third party in violation of sanctions laws, rules, or regulation enacted or issued by the United Nations, the European Union, or the United States. Buyer shall ensure that the purpose of this clause 10(c) is not frustrated by any third parties further down the commercial chain. Any violation of this clause 10(c) shall be considered a material breach of the agreement between Buyer and Seller, and Seller shall be entitled to terminate the agreement as well as any other agreements between or among Buyer and Seller (or their respective affiliates) with immediate effect without any right to compensation for Buyer (or its affiliates).
   11. Miscellaneous.
       
       1. 11.1   Entire Agreement. These Terms of Sale, including and together with any related exhibits, schedules, attachments, and any other documents incorporated herein by reference, constitutes the sole and entire agreement between Seller and Buyer with respect to the subject matter contained herein, and supersedes all other understandings, agreements, representations, and warranties, both written and oral. In the event of any inconsistency between the statements in the body of these Terms of Sale and any other document, these Terms of Sale shall control. Notwithstanding the foregoing, if Buyer has entered into a supply or other agreement with Seller, in the event of any inconsistency between the statements in these Terms of Sale and the supply agreement, the terms of the supply or other agreement shall take precedence, govern and control.
       2. 11.2   Severability. If any term or provision of these Terms of Sale is found by a court to be invalid, illegal, or unenforceable, such a determination shall not affect any other term or provision of these Terms of Sale or invalidate or render unenforceable such term or provision in any other jurisdiction.
       3. 11.3   Amendments and Modification. These Terms of Sale may only be amended, modified, or supplemented by an agreement in writing signed by each of the parties.
       4. 11.4   Waiver. No waiver by any party of any of the provisions of these Terms of Sale shall be effective unless explicitly set forth in writing and signed by the party so waiving. No failure to exercise or delay in exercising any right or remedy arising from these Terms of Sale shall be construed as a waiver thereof, nor shall any single or partial exercise of any right or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right or remedy.
       5. 11.5   Assignment. Buyer may not assign any of its rights or delegate any of its obligations hereunder without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Buyer of any of its obligations hereunder.
       6. 11.6   Successors and Assigns. These Terms of Sale shall be binding on and inures to the benefit of the parties to these Terms of Sale and their respective successors and permitted assigns.
       7. 11.7   No Third-Party Beneficiaries. These Terms of Sale do not and are not intended to confer any rights or remedies upon any person or entity other than Buyer.
       8. 11.8   Choice of Law. These Terms of Sale and all related documents, including all exhibits attached hereto, and all matters arising out of or relating to these Terms of Sale shall be governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule (whether of the Commonwealth of Pennsylvania or any other jurisdiction).
       9. 11.9   Choice of Forum. Any legal suit, action, or proceeding arising out of or relating to these Terms of Sale shall be instituted exclusively in the United States District Court for the Eastern District of Pennsylvania, if such court does not have subject-matter jurisdiction, the courts of the Commonwealth of Pennsylvania, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. The parties irrevocably and unconditionally waive any objection or claim based on the venue or inconvenient forum of any suit, action, or proceeding in such courts.
       10. 11.10   Force Majeure. Seller shall not be held responsible for delays or non-performance caused by activities or factors beyond its reasonable control, including without limitation, war, government action, labor stoppages or slowdowns, fires, acts of God, natural disasters, terrorism, riots, epidemics, pandemics, or any other activities or factors beyond its control, whether similar or dissimilar to any of the foregoing (“Force Majeure Event”). In the event of a Force Majeure Event, Seller shall provide written notice thereof to Buyer, along with Seller’s best estimate of the length of time such Force Majeure Event will delay or prevent performance hereunder.