CADDYBAR™ Terms and Conditions of Sale

These Terms and Conditions of Sale (these “Terms”) govern any purchase by you (“Buyer”) of goods from Partee Group LLC (“Seller”). These Terms, together with any associated description of the products and quantity and price terms that are the subject of the purchase and sale transaction constitute a “Contract.”  The pre-printed terms on any purchase order submitted by Buyer, and any condition stated by Buyer in accepting or acknowledging a purchase order shall be not binding upon the parties if in conflict with, inconsistent with, or in addition to, these Terms. Any additional or different terms proposed by either party are objected to and rejected unless expressly assented to in writing by both parties.  

1.    Description of Products.  Seller agrees to sell, and Buyer agrees to purchase, the goods described as part of the Contract.
2.    Prices; Minimum Quantities.  The prices of the goods are as stated in the Contract.  Prices may be adjusted to the prices in effect at the time of delivery, whether because of fluctuations in commodity prices or otherwise.  
3.    Taxes and Fees.  All prices are exclusive of sales, use, excise, customs, export, import, commodity and/or any other taxes.  Buyer will pay all such taxes and any license fees or other charges incidental to the sale of products.  Buyer will, at Seller’s request, provide to Seller reasonable proof of payment by Buyer of such taxes, fees, and assessments or provide Seller with reseller’s certificate.  If Seller is required to prepay any taxes on behalf of Buyer, Buyer will promptly reimburse Seller for all such taxes paid.
4.    Payment Terms.  Unless provided otherwise in writing in a Contract (or for Buyer’s who are end-users and purchasing goods for their personal use, in which case payment terms are C.O.D.), payment terms are net 30 days from date of the earlier of delivery or shipment.   Buyer will pay any invoice issued by Seller without discount, setoff, or reduction.  Seller may, at its sole discretion, require payment by bank transfer, cash, certified check, C.O.D., or irrevocable letter of credit.  All trading accounts are subject to prior approval of Seller’s credit department in accordance with Seller’s credit policies and practices in effect from time to time.  Seller may revise the amount of credit or terms of payment at any time for any reason.  If Buyer fails to make payment when due or defaults in any other way, Seller may, at its option, without limiting any of its other rights or remedies available under these Terms or applicable law, and until Buyer’s account is current: (1) withdraw credit and suspend or cancel performance under any or all Contracts; and/or (2) reschedule shipment.  Seller may invoice separately for each shipment and, in any case, Buyer will pay for each shipment as invoiced without regard for other shipments.  
5.    Shipments; Returns.  Seller will deliver EXW (Incoterms 2020) Seller’s facility or such other location as Seller specifies in the Contract.  Seller may select the freight carrier, and Buyer accepts carrier selection by Seller unless Buyer timely specifies in writing an alternative carrier reasonably acceptable to Seller.  The Contract reflects shipping costs, which are the responsibility of Buyer. Delivery of products to the carrier constitutes delivery to Buyer; title to products will pass to Buyer, and Buyer will have all risk of loss or damage, at that time.  Any claims against Seller for shortages or non-conformance that could, with due diligence, be discovered by inspection upon receipt must be made within 10 days after receipt.  Seller will package the products in accordance with Seller’s standard practice.  Seller may make deliveries in installments with appropriate partial invoicing issued for each such installment.  Each shipment of products to be delivered is a separate sale and Buyer will pay the price for each shipment without regard for any failure to deliver, or non-conformity of, any previous or subsequent shipment.  Seller’s breach or default in the delivery of any particular shipment will not permit Buyer the right to refuse to receive any other shipment.  Time is not of the essence with respect to delivery, and Buyer is not entitled to reject an otherwise conforming tender made within a reasonable time.  Any failure by Buyer to pay for any shipment within the time stated for payment is an anticipatory material breach with regard to other shipments.  Once Seller commences production of products and/or provision of services and/or determines a shipping or delivery date with regard to the same, Seller will be entitled to provide, ship, and/or deliver such products and/or services and receive payment therefor and Buyer may not revise the timing for receipt of such products and/or services.  Any product return requires Seller’s prior approval, and Buyer must pay return freight, properly package the returned products for shipment to ensure their protection from damage in shipment, assume risk of loss until product is delivered to and accepted by Seller.  Buyer may be charged a restocking fee equal fifteen percent (15%) of the invoiced amount of the item returned.  An approved return will be issued an RMA Number that must be displayed prominently on the outside of the shipping container. Items without a proper RMA number will be returned to Buyer, freight collect.
6.    Security Interest.  To the extent Buyer is extended credit terms, Buyer grants to Seller a security interest in the products supplied under any Contract and any proceeds thereof and accessions thereto as security for Buyer’s obligations (payment and otherwise) to Seller.  Seller may file any financing statement or similar document and/or take any other action permitted by applicable law to perfect and enforce such security interest to and, if local law requires that a financing statement or similar document be signed or otherwise acknowledged by a debtor party, Buyer authorizes Seller to execute and deliver on Buyer’s behalf any such document.
7.    Termination; Default.
(a)    Termination for Default.  Either party may, without prejudice to its other rights or remedies, terminate the Contract by notice to the other party if: (1) the other party files a petition in bankruptcy or assignment generally for the benefit of creditors or initiates, or has initiated against it, any similar proceeding under any law with respect to creditor’s rights, adjustment of debts, or similar law, becomes insolvent, becomes, or admits that it is, unable to pay its debts generally as they become due, or has a third-party manager or receiver appointed over any of its assets or (2) the other party defaults under these Terms and does not remedy the default within 30 days (10 days in the case of payment defaults) following notice by the aggrieved party.
(b)    Adequate Assurance of Performance.  In any circumstance where Seller has the right to demand adequate assurance of Buyer’s performance (such as, but not limited to, under Section 2-609 of the Uniform Commercial Code, where applicable), Buyer will provide such assurance within a reasonable time not to exceed five (5) days.
(c)    Other Termination by Seller.  If Buyer fails to pay in accordance with the Contract or fails to comply with any provision of the Contract, Seller may terminate the Contract as to unshipped portions of the goods and terminate any applicable raw materials orders placed with its suppliers, and Buyer will remain liable for shipped products.  
8.    Technical Assistance.  Seller will not be required to provide technical advice, facilities or service in connection with the Contract or the goods supplied.
9.    Assignment.  Seller may subcontract the performance of any obligation of Seller under the Contract, provided only that Seller remains primarily liable for the performance of the obligation.  Buyer may not assign any right or obligation under the Contract.  Seller may assign any right or obligation under the Contract and, provided only that Seller’s assignee has assumed the obligation(s) of Seller, Seller will, upon such assignment, have no further liability as to the assigned obligations.
10.    Warranties.  
(a)    Limited Warranty.  Seller’s sole warranty with respect to any goods supplied under the Contract is that the goods are warranted to the end-user for a period of one year from date of delivery to Buyer  against material defects in material and workmanship.  This limited warranty shall be null and void in the following circumstances: (i) modification or repair of any good by the end user or any service provider not authorized in writing; or (ii) improper use or installation, failure to conduct regular maintenance, or damage by accident or neglect, of good by or behalf of the end user. Such warranty is solely for the benefit of the end user of such goods, and neither Buyer nor any intermediate purchaser or holder of such goods may claim under such warranty.  
(b)    Seller’s Obligations under the Limited Warranty. Seller’s sole obligation under the above warranty shall be to repair or replace goods during the warranty period.  Seller does not assume responsibility for delays in replacement or repair goods.  Goods repaired or replaced by Seller under warranty shall be warranted for the balance of the original warranty period or ninety (90) days, whichever is longer.  This limited warranty gives end users specific legal rights, and particular end users may also have other rights which may vary from jurisdiction to jurisdiction. The remedies provided for in this Section 10 are exclusive.
(c)    Disclaimer. EXCEPT AS EXPRESSLY DESCRIBED IN SECTION 10(a), ALL GOODS DELIVERED UNDER THE CONTRACT ARE SUPPLIED "AS IS" AND WITH ALL FAULTS.  SELLER MAKES NO OTHER REPRE- SENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY GOODS AND EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY AS TO THEIR QUALITY, PERFORMANCE, MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.  Some jurisdictions do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to particular end users.
11.    Limitation of Liability.  NOTWITHSTANDING ANYTHING IN THE CONTRACT OR OTHERWISE TO THE CONTRARY, SELLER WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUEN- TIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFITS) ARISING OUT OF, OR RELATED TO, DIRECTLY OR INDIRECTLY, (a) THE USE, SALE OF ANY GOODS BY BUYER OR (b) THE PERFORMANCE OR FAILURE OF SELLER TO PERFORM UNDER THE CONTRACT, OR (c) ANY OTHER ACT OR OMISSION OF SELLER; OR BY ANY OTHER CAUSE.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO PARTICULAR END USERS.
IN NO EVENT WILL SELLER’S TOTAL LIABILITY TO BUYER FOR ANY CLAIM EXCEED THE SUM PAID TO SELLER BY BUYER FOR THE GOODS SUPPLIED UNDER THE CONTRACT IN CON- NECTION WITH WHICH THE CLAIM ARISES. NO ACTION MAY BE BROUGHT BY BUYER FOR ANY BREACH OF THESE TERMS MORE THAN ONE YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION.  THESE LIMITATIONS OF LIABILITY APPLY NOTWITHSTANDING THAT SELLER KNEW OF, OR SHOULD HAVE KNOWN OF, THE POSSIBILITY OF ANY PARTICULAR KIND OF DAMAGES AND NOTWITHSTANDING THAT ANY LIMITATION CAUSES A REMEDY TO FAIL OF ITS ESSENTIAL PURPOSE.
12.    Indemnification.  
(a)    By Buyer.  Buyer will defend, indemnify, and hold harmless Seller and Seller’s direct and indirect parents, subsidiaries, and other affiliates, and the members, managers, directors, officers, employees, representatives, agents, and permitted assignees or successors of each of them, from and against any and all third party claims, suits, actions, demands, damages, losses, liabilities, penalties, fines, costs and expenses (including, without limitation, attorneys’ fees) whatsoever that are incurred by or made against any indemnitee that arise, in whole or in part, out of or result from (i) the death of, or injury to, any person, or damage to any person’s property, resulting (or allegedly resulting) from the acts, omissions, negligence or misconduct of Buyer,  (ii) if the goods are purchased for resale, any claim by any successor holder of any of the goods, or any other person or entity, related to the goods sold by Seller, or the purchase or use of such goods, or any undertakings, acts or omissions relating to such goods, to the extent such claim is not based upon a breach of an express warranty of Seller, (iii) if the goods are purchased for resale, any Buyer breach of any obligation in Sections 15 or 17; and/or (iv) any departure from, or modification of, any specification or direction of Seller with respect to the use of the goods by Buyer or, if the goods are purchased for resale, any successor holder of any of the goods, provided under the Contract. Seller will promptly give to Buyer notice of, and all pertinent information related to, any claim, suit, or cause of action that might or does lead to an indemnification obligation and will, at Buyer’s request, grant to Buyer exclusive control of the defense and/or settlement of any such claim, suit, or cause of action, provided, however, that no settlement shall involve an injunction or any admission of fault or liability by the indemnitee.  
(b)    By Seller.  Seller will defend, indemnify, and hold harmless Buyer and Buyer’s direct and indirect parents, subsidiaries, and other affiliates, and the members, managers, directors, officers, employees, representatives, agents, and permitted assignees or successors of each of them, from and against any and all third party claims, suits, actions, demands, damages, losses, liabilities, penalties, fines, costs and expenses (including, without limitation, attorneys’ fees) whatsoever that are incurred by or made against any indemnitee that allege that the goods, or their proper use by an indemnitee, infringe upon a copyright or patent of a third party.  Seller’s obligations under this Section 12(b) will not apply to any goods (a) not supplied by Seller, (b) used in a manner not expressly authorized by Seller or the applicable documentation, (c) to the extent made or modified in accordance with Buyer's specifications, (d) to the extent that the alleged infringement or misappropriation results from any customizations, modifications, alterations or changes not developed by Seller, (e) combined with other products processes, or materials where the alleged infringement would not exist but for such combination.  Buyer will promptly give to Seller notice of, and all pertinent information related to, any claim, suit, or cause of action that might or does lead to an indemnification obligation and will, at Seller’s request, grant to Seller exclusive control of the defense and/or settlement of any such claim, suit, or cause of action, subject only to Buyer’s consent (not to be unreasonably withheld, delayed, or conditioned) with respect to any settlement that purports to bind a Buyer indemnitee where the settlement involves injunction or any admission of fault or liability by the indemnitee.  The indemnification provided for in this Section 12 is Seller’s sole obligation, and Buyer’s sole remedy, in connection with any claim that any goods provided by Seller infringe upon, violate, or misappropriate any right of a third party.
13.    Confidentiality.  Buyer will, notwithstanding that the Contract may have terminated, keep in confidence and prevent the disclosure to any person the terms of the Contract and all information and data disclosed to it by Seller or learned by Buyer that is (a) not readily ascertainable by the public by proper means and (b) the subject of commercially reasonable efforts by Seller to maintain the information as confidential; including, but not limited to, quotes, business plans, techniques, prints, inventions, and research and development.  Notwithstanding the foregoing, Buyer will not be liable for disclosure of any confidential information if the same: (i) is or becomes readily ascertainable by the public by proper means without breach by Buyer of any obligation to Seller of confidentiality; (ii) is disclosed with the prior written approval of Seller; or (iii) becomes known to Buyer from a source other than Seller without breach of these Terms by Buyer or breach by the source of any obligation of confidentiality.  Seller will have no obligation of confidentiality or non-use with respect to information that Seller receives from Buyer unless such obligations are established in a separate written confidentiality agreement signed by Seller.
14.    Intellectual Property.  Except as expressly and particularly set forth in a separate written agreement signed by Seller, Buyer will obtain no right whatsoever in any copyright, patent, trademark, trade secret, mask work, or other intellectual property right of Seller or that Seller creates, originates, discovers, or reduces to practice, or in which Seller acquires author or other rights, whether in consequence of these Terms, the Contract, any transaction or dealing between Seller and Buyer, or otherwise.  Seller reserves all such rights to itself.  The parties acknowledge that, absent a specific and separate written and signed agreement between the parties expressly granting rights to Buyer, no contract, including the Contract, is intended to require that Seller perform any development work for Buyer or create for Buyer any work of authorship, invention, or other matter in which proprietary rights exist.
15.    Export Controls.  Unless an appropriate license, exemption or similar authorization has been duly obtained, Buyer shall not, nor shall Buyer authorize or permit its employees, agents, successors or assigns to, export or re-export any goods to any country identified as a prohibited destination by any applicable laws or regulations.  Furthermore, Buyer hereby agrees to undertake and perform all “denied party screening” or similar obligations imposed by or arising under applicable laws or regulations.  Buyer agrees and acknowledges that, to the extent applicable, these commodities will be/were exported from the United States or other country of origin solely in accordance with the United States Export Administration Regulations or other export regulations applicable in the jurisdiction of origin.  Any diversion contrary to U.S. or other applicable law is prohibited.
16.    Governing Law; Jurisdiction; Venue; Severability.  These Terms and the Contract will be governed by and construed in accordance with the laws of the State of Illinois without regard for their conflict of law rules.   The United Nations Convention on Contracts for the International Sale of Goods will not apply to these the Contract.  Any action or claim arising out of or related to the Contract may be brought only in the courts of the State of Illinois sitting in Cook County or the United States District Court for the Northern District of Illinois, and Seller and Buyer each irrevocably consent to the exclusive jurisdiction of, and venue in, such courts.  If any provision of the Contract is illegal or unenforceable such provision will be reformed to, insofar as is possible, permit it to confirm with applicable law and, in any case, the remaining provisions will continue in full force and effect.  
17.    Use of Products.  Buyer shall use, and require its employees, contractors, agents, and successor holders of the goods to use, all available safety precautions, in addition to any specifically set forth in any manuals, installation instructions, drawings, material safety data sheets, technical data sheets, and/or instruction sheets, if any, furnished by Seller relating to the goods (collectively, the “Documentation”).  If Buyer does not receive a required material safety data sheet or other safety-related materials for the goods from Seller. Buyer will request them from Seller.  If Buyer fails to strictly observe each and every one of the obligations set forth in this Section 17 or if Buyer’s or any successor holder’s use, installation, operation, possession, administration, or maintenance of, or the operation of any facility associated with, any of the goods is in violation of the Documentation, or if Buyer permits or suffers any other person to so use the goods, Buyer will indemnify, defend, and hold harmless Seller and Seller’s direct and indirect parents, subsidiaries, and other affiliates, and the members, managers, directors, officers, employees, representatives, agents, and permitted assignees or successors of each of them, from and against any all third party claims, demands, damages, actions, and causes of action, as well as any and all liability, loss, or expense of any kind, including reasonable attorneys’ fees arising from, connected with or in any way pertaining to any such failure by Buyer.
18.    Notification.  Buyer shall notify Seller promptly, and in any event within 30 days, after any accident or failure involving the goods that results in personal injury or damage to property and shall cooperate fully with Seller in investigating and determining causes of such accident or failure.
19.    Attorneys’ Fees and Costs.  Buyer will pay Seller’s reasonable attorneys’ fees and other costs and expenses for any legal or equitable action undertaken by Seller to enforce these Terms or the provisions of the Contract.
20.    Errors.  Any and all typographical or clerical errors made by Seller in these Terms, in Seller’s quotations or communications, the Documentation, or the Contract are subject to correction by Seller.
21.    Force Majeure.  Seller will not be liable for failure to deliver, or for delay in delivery of, the goods to the extent arising out of or related to causes beyond its reasonable control, including, without limitation, acts of God or of the public enemy, acts of any governmental authority, fires, floods, other casualties, severe weather, pandemics, epidemics, quarantine restrictions, strikes, labor disputes or shortages of labor, embargoes, wars, riots, civil commotion, shortage of rail cars or semi-tractors and trailers, delays in transit or inability to secure necessary parts or materials (whether at all or at commercially reasonable prices), and the existence of any such event as of the date of the Contract shall not be deemed to make any subsequent or exacerbated event foreseeable or within Seller’s reasonable control.  In no event will Seller be liable for any loss or damage, including in particular, direct, incidental, indirect, special, punitive or consequential damages (including loss of profits) due to any failure to deliver or delay in delivery.  If Seller is wholly or partially unable to perform because of any cause beyond its reasonable control, Seller may allocate production and deliveries among Seller’s customers or may terminate the Contract without any further liability to Buyer.
22.    Remedies Cumulative.  All rights and remedies of Seller under these Terms and the Contract are cumulative.  No pursuit or receipt by Seller of any particular remedy will constitute an exclusive election of remedies and Seller will have the benefit of all remedies available at law, in equity, or otherwise.
23.    Cross-Default.  Any default by Buyer under any other agreement to which Seller or any Seller affiliate is a party will be a default by Buyer under these Terms and of the Contract.  
24.    Third Parties.  Except for the indemnitees under the express indemnification obligations contained in these Terms (each of whom is an express third-party beneficiary of such indemnification obligations), there are no third-party beneficiaries of any right or obligation under these Terms or the Contract.
25.    Third-Party Terms.  Under no circumstances will Seller be obliged or liable to Buyer or to any third party with respect to any representation, warranty, covenant, duty, or liability to any third party, whether as part of a “directed sourcing” arrangement or otherwise.  Without limiting the foregoing, Seller expressly disclaims and rejects any obligation of any kind to comply with any terms or conditions of Buyer’s direct or indirect customer(s), regardless of any obligation to such persons taken on by, and/or imposed upon, Buyer and regardless of whether Seller is aware of any such requirement upon Buyer.  Seller will be liable to any third party, if at all, solely according to such separately negotiated, written, and signed agreement, if any, as Seller actually negotiates and executes with such third party.  Notwithstanding the foregoing, nothing herein is intended to modify Seller’s obligations to end-users under the limited warranty set forth in Section 10.
26.    Entire Agreement.  The Contract, and any separate written confidentiality agreement between the parties, embody the entire agreement between the parties with regard to the subject matter hereof and thereof and supersede all other prior agreements between the parties with regard to such subject matter, and any terms or conditions proffered by Buyer, regardless of whether such proffered terms or conditions contain any terms additional to, or different from, the Contract, are hereby disclaimed and shall have no force or effect.  The Contract may not be modified, except in writing and signed by the party against whom enforcement is sought.