SafeTouch Antimicrobial Coating Services (“SafeTouch”) is a trade name of DAB Services, LLC, a Kentucky limited liability company and referenced herein as “Seller.” The following terms shall be used in connection with this purchase order.
1. Acceptance. The Purchase Order constitutes SafeTouch’s offer to Seller upon these Terms and shall become a binding contract when it is accepted either by Seller’s acknowledgment or performance. The Purchase Order expressly limits acceptance to these Terms. Upon acceptance, the Purchase Order shall constitute the entire agreement between SafeTouch and Buyer. Buyer will be deemed to have assented to these Terms if all or any part of the goods and services (collectively “goods”) covered by the Purchase Order are applied or an invoice is presented in connection with such goods. Except as hereinafter provided, the Purchase Order may not be altered or modified except in writing, duly executed by an appropriate representative of each party.
2. Changes. The quantities, prices, terms, conditions or other pertinent specifications of the Purchase Order shall not be changed except by SafeTouch’s written authorization.
3. Taxes. All taxes, duties and fees arising out of the transaction contemplated by the Purchase Order shall be borne by Buyer except as otherwise specified by the parties in writing.
4. Payment. Payments shall be made as stated on the front of the Purchase Order less customary cash discount, unless SafeTouch agrees otherwise in writing.
5. Contingencies/Force Majeure. Neither party shall be held responsible for any delay or failure in performance hereunder caused by acts of God, war, riots, fire, explosion, flood, strike, lock-out, injunction, governmental laws or regulations, or any other cause beyond the control of such party, preventing the manufacture, shipment, acceptance or use of goods; provided that the party who is affected or threatened by such event immediately notifies an authorized individual of the other party as to the nature and estimated effect upon its performance hereunder. Each party shall use its best efforts to remove any force majeure event to the extent possible.
6. Waiver of Subrogation. Buyer and Seller will look to their own insurers for recovery of any loss. Buyer and Seller release each other from claims. Buyer and Seller waive any right of recovery of insured claims by anyone claiming through them, by way of subrogation or otherwise, including their respective insurers. This release and waiver remains effective despite either party; failure to obtain insurance. If either party fails to have insurance in force, it bears the full make of loss.
7. Warranties. The warranty, obligation and liabilities of Seller and the rights and remedies of Buyer set forth in this agreement are exclusive and all in lieu of and Buyer hereby waives and releases all other warranties, obligations, representations or liabilities, express or implied arising by law, in contract, civil liability or as in tort including but not limited to any implied warranty of merchantability of fitness for a particular purpose. Buyer waives any claim for punitive damages, consequential damages and incidental damages. While the products used by SafeTouch are safe and effective, no product or application can completely eliminate the risk of illness.
8. Governing Law. The Purchase Order, and all transactions relating thereto, shall be interpreted under, and governed by, the laws of the State of Kentucky in the United States of America without regard to its conflict of law principles. SafeTouch and Buyer agree that the proper venue for all actions arising in connection herewith shall be deemed exclusively proper only in state court in Henderson County, Kentucky or in the federal court for the -Western District of Kentucky, and the parties agree to submit to such jurisdiction.
9. Entire Agreement and Miscellaneous. These Terms constitute the full understanding of the parties, and no terms, conditions, understandings or agreements purporting to modify or vary the Purchase Order or agreement shall be binding unless hereafter made in writing with reference to the Purchase Order and signed by authorized representatives of both parties.