Except as otherwise provided on this Order, the parties agree to the following provisions:
Definition. “Buyer” means, respectively, the party identified on the Order. “End User(s)” means any customer or other consumer that owns or possesses the windshields to which the Products are applied. “Order” means the written purchase order or instruction to which these Carlex Purchase Order Terms and Conditions (“Terms”) apply or are attached, and hereby incorporated by reference thereto. These Terms are hereby incorporated into the Order by this reference. “Products” mean the VistaClear ProTM windshield treatment and related Products. “Seller” or “Carlex” means Carlex Glass America, LLC, and its affiliates located at 7200 Centennial Blvd., Nashville, TN. Unless described differently in the Order, “Territory” means Canada, Mexico, the United States and its territories.
Acceptance and Modification. This Order can be accepted only upon the provisions expressed herein and may not be modified, amended or waived except in writing by Carlex’s duly authorized representative. Carlex hereby objects to any additional or different terms or conditions, whether or not material, contained in any acknowledgment or confirmation of the Order, or other writing of Seller. Buyer may accept the Order by acknowledging or confirming it, by accepting receipt of the Products, or by other means manifesting assent to be bound.
Risk/Property.Any Products delivered hereunder shall be at the risk of Buyer once Carlex places the Products with the carrier. To the extent that any (a) materials, equipment, tools, dies, molds, (b) any copyright, trade secret, patent, design rights and any other forms of intellectual property rights (collectively, “IP Rights”), and (c) drawings, specifications and data are supplied by Carlex to Buyer in connection with the Products, all such items shall at all times be and remain the exclusive property of Carlex and shall be held by Buyer in safe custody at its own risk and maintained and kept in good condition until returned to Carlex, and shall not be disposed of other than in accordance with Carlex’s written instructions, nor shall such items be used otherwise than as authorized by Carlex in writing.
Price. The price of the Products shall be as stated in the Order and, unless otherwise agreed in writing by Carlex. Buyer is responsible for all taxes, including sales and use taxes.
Payment. Unless otherwise agreed in writing by Carlex, Buyer shall pay amounts owed under the Order within thirty (30) days of receipt of the Products. Time is of the essence for the payment obligations under the Order. Carlex reserves the right to offset any amount owing at any time from Buyer to Carlex against any amount payable by Carlex to Buyer in respect of the Order or previous purchases.
Compliance With Law and Carlex Policies. Buyer shall comply with all applicable laws, statutes, rules, regulations, orders, conventions, ordinances and standards of foreign and domestic federal, state and local governments applicable to its use of and resale of the Products (“Laws”), including but not limited to the California Transparency in Supply Chains Act of 2010, Laws relating to data protection and privacy, subcontractor selection and motor vehicle safety, and all Laws otherwise referenced in these Terms. BUYER SHALL ONLY (1) USE THE PRODUCTS IN THE TERRITORY FOR ITS OWN INTERNAL BUSINESS USES IN ORDER TO PROVIDE PROFESSIONAL SERVICES TO ITS CUSTOMERS OR TO RESELL OR DISTRIBUTE TO ANOTHER COMMERICAL ENTITY TO SO USE, (2) RE-SELL, DISTRIBUTE OR SUPPLY THE PRODUCTS IN THE TERRITORY AND SHALL NOT RE-SELL, DISTRIBUTE OR SUPPLY THE PRODUCTS DIRECTLY TO CONSUMERS, OR TO THIRD-PARTY DISTRIBUTORS FOR SALE THROUGH CONSUMER CHANNELS. Buyer shall also comply with all written policies and procedures provided to Buyer, which shall include, without limitation, the Carlex Buyer/Distributor Quality Manual. Buyer represents that neither it nor any of its subcontractors, vendors, agents or other associated third parties will (a) allow its officers, employees, and representatives to use the Products for personal, non-business use, and (b) utilize child, slave, prisoner or any other form of forced or involuntary labor, or engage in abusive employment or corrupt business practices, in the re-sale or distribution of Products provided pursuant to the Order and these Terms.
Customs and Labeling Regulations. Buyer may not remove any of Carlex’s or its licensors’ copyright, trademark or other proprietary notices contained on or in the Products or documentation or any other materials delivered to Buyer pursuant to the Order. Any feedback, criticism, concepts, suggestions and ideas shared with Carlex by Buyer related to the Products provided by Carlex may be used by Carlex to improve, enhance or create derivative works of such Products without consideration or creating IP Rights in Buyer regarding such use. Within thirty (30) days of Carlex’s written request, Carlex shall provide all reasonably requested content, information and certificates for trade preference valuation (including NAFTA).
End User Warranty. To the extent thatCarlex offers any warranty on the Products, such warranty runs to the ultimate end user/consumer of the Products (“End User”), and not to any party reselling, distributing, or applying or installing the Products for another party. Buyer agrees to register any application of the Products on Carlex’s website for the Products, and to handle any such warranty claims from its End User/customers. Seller and Buyer may make any adjustments for registered and valid warranty claims handled by Buyer upon Carlex being providing sufficient documentation of the claim, including without limitation a valid and legible receipt for services performed by Buyer that include application of the Products; provided, that in no event shall Carlex have obligations to Buyer or any End User in excess of its warranty obligations as set forth on its website, which can be viewed at this link: www.vistaclearpro.com.
Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTY TO THE END USER REFERRED TO ABOVE, THE PRODUCTS, RELATED MATERIALS, DOCUMENTATION, AND/OR ANY SERVICES RELATED TO THE PRODUCTS, ARE PROVIDED “AS-IS, WITH ALL FAULTS,” AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CARLEX DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, OR STATUTORY, REGARDING OR RELATING TO THE PRODUCTS, RELATED MATERIALS, DOCUMENTS, CONTENT AND ANY SERVICES FURNISHED OR PROVIDED TO BUYER UNDER THIS AGREEMENT, INCLUDING FITNESS FOR A PARTICULAR PURPOSE, SECURITY, QUALITY, MERCHANTABILITY, AND NON-INFRINGEMENT. WITHOUT LIMITATION OF THE FOREGOING, CARLEX EXPRESSLY DOES NOT WARRANT THAT THE PRODUCTS WILL MEET BUYER’S OR ANY END USERS’ REQUIREMENTS.
Indemnity. Buyer shall indemnify and hold harmless Carlex, its affiliates and its and their directors, officers, employees, agents and contractors against all claims, losses, liabilities, damages and expenses (including legal and other professional fees and expenses) (collectively, “Claims”) arising as a result of or in connection with (a) Buyer’s failure to comply with the use and re-sale limitations under this Order, including but not limited to the restriction to not resell the Products outside the Territory and not to sell or distribute the Products to consumers, (b) any actual or alleged infringement of any intellectual property rights caused in any way by the acts or omissions of Buyer; and (c) Buyer’s negligence or breach of the Order. Upon Carlex’s written request, Buyer shall, at its own expense, defend any suit, action or other proceeding asserting a claim covered by the foregoing indemnity, and Buyer shall pay all costs, including attorneys’ fees and litigation costs incurred therefore.
Termination. Carlex may terminate the Order at any time and without cause, in accordance with this Paragraph, by giving written notice to Buyer. In such event, Carlex shall refund to Buyer all payments made by Buyer for purchases under the Order not fulfilled prior to termination. Termination under this paragraph shall not affect any other right Carlex may have.
Confidentiality.The parties shall adhere to the duties of confidentiality set forth in any confidentiality agreement in place between them. In the absence of such confidentiality agreement, Buyer, on behalf of itself, its employees and agents, agrees to keep in strict confidence, and not disclose or allow the disclosure to any third parties, all information (including without limitation all IP Rights owned or purported to be owned by Carlex, technical or commercial data, know- how, specifications, ideas, inventions, technology, processes, initiatives and all documentation relating to the foregoing) disclosed by or relating to Carlex, its affiliates or their businesses or activities and of which Buyer becomes aware in connection with the Order and, if the Order involves creative or developmental tasks, created or generated by Carlex or Buyer (collectively “Information”). Buyer shall use the Information only in performing the Order and shall restrict disclosure of Information to those of its employees, and agents as need to know for the purpose of performing the Order, and it shall ensure that such employees and agents are subject to like obligations of confidentiality. Ownership of the Information shall be vested in Carlex. Upon any expiration or termination of the Order, Buyer shall promptly return, or at Carlex’s option, destroy, all Information of Carlex in Buyer’s possession. Buyer’s obligations of confidentiality and non-use shall survive any expiration or termination of the Order.
Use of Carlex IP Rights. Buyer shall not attempt to (i) register any trademark, service mark, logo, or any other mark confusingly similar to any of the Carlex IP Rights, alone or in composite form; or (ii) take any action in violation of Carlex IP Rights. Buyer shall not authorize any third party to use any of Carlex IP Rights. Buyer agrees not to (i) decompile, reverse engineer, reverse compile, modify, translate, create derivative works thereof, or perform any similar type of operation on the Products (including any software or firmware therein); or (ii) tamper, alter, merger, bundle or service (including the loading of additional software packages) the Products without prior written authorization from Carlex
Buyer’s Obligations in Use of the Products. Buyer shall be responsible for the proper use, protection, supervision, and ultimate disposition of the Products in accordance with good business practices and any written instructions Seller may give to Buyer. Seller shall not be liable for any injury or damage to Buyer, End User or their respective employees, agents, or property resulting from Buyer’s or End User’s negligence, breach of the Order, including without limitation these Terms, or the misuse of any Products provided by Seller.
No Buyer Warranties. Buyer shall not make any representations, warranties or commitments to any End User or other third party with respect to the specifications, features and/or capabilities of Products inconsistent with or beyond those set forth in the written documentation provided by or available from Carlex. Fulfillment and/or satisfaction of any guarantee, warranty, condition, or representation, whether express or implied, made by Buyer to End Users with respect to the Products shall be the sole responsibility of Buyer.
End User Satisfaction. Buyer agrees to: (a) report to Carlex promptly in writing all suspected and actual problems with any of the Products; (b) conduct business in a professional manner that reflects favorably on the Products and goodwill and reputation of Carlex; (c) limit any representations and claims concerning the Products to those expressly authorized in writing by Carlex; (d) avoid deceptive, misleading, illegal, or unethical practices, including making misrepresentations with respect to the Products, which are or might be detrimental to Carlex and/or the reputation and market for the Products or any other Products offered by Carlex; and (d) provide to the End Users all original Carlex documentation designated and provided by Seller with the Products as End User documentation accompanying each of the Products.
Insurance; Waiver of Liens. Unless Carlex agrees otherwise in writing, Buyer agrees to procure and maintain in full force and effect, with an insurance carrier reasonably acceptable to Carlex, a commercial general liability policy, which includes Products/completed operations and contractual liability coverage (including coverage of the indemnity obligations herein), with a combined single limit of liability not less than $1 million per occurrence and an aggregate of not less than $5 million. Buyer shall obtain an endorsement to such policy that names Carlex as an additional insured on a primary and noncontributory basis as to any other insurance available to Carlex, which endorsement shall not exclude Products/completed operations coverage. Such policy shall provide for the severability of interests and cross-liability coverage. Buyer shall deliver a certificate of such insurance to Carlex promptly upon issuance of such policy and, from time to time upon reasonable request of Carlex, as evidence of the maintenance of such insurance. Buyer shall immediately notify Carlex of any discontinuance, reduction in coverage due to revised limits or claims made, or any other change in such insurance. The certificates shall be executed by an authorized representative of the insurer, addressed to or for the benefit of Carlex, provide evidence of all coverages required by this paragraph and specifically set forth the insurance carriers, amounts of coverage, deductibles or self-insured retentions, if any, endorsements, policy numbers, dates of expiration and a statement to the effect that the policies may only be cancelled or not renewed after thirty (30) calendar days by written notice to Carlex. The amount of insurance coverage called for herein or obtained shall not limit Buyer’s liability.
Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA, BUSINESS, OR REVENUE) WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, EQUITY, PRODUCTS LIABILITY, FUNDAMENTAL BREACH, OR OTHERWISE SUSTAINED OR INCURRED IN CONNECTION WITH, ARISING FROM OR RELATED TO THIS AGREEMENT AND/OR THE PRODUCTS OR SERVICES THAT ARE SUBJECT TO THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE TOTAL CUMULATIVE LIABILITY OF CARLEX, IN THE AGGREGATE, FOR ALL DIRECT DAMAGES INCURRED BY BUYER UNDER THIS AGREEMENT FOR ANY AND ALL CAUSES WHATSOEVER, AND WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, EQUITY, PRODUCTS LIABILITY, FUNDAMENTAL BREACH, OR OTHERWISE SUSTAINED OR INCURRED IN CONNECTION WITH, ARISING FROM OR RELATED TO THIS AGREEMENT AND/OR THE PRODUCTS OR SERVICES THAT ARE SUBJECT TO THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION, IS LIMITED TO THE LESSER OF (A) $1,000 USD OR (B) THE PRICE PAID FOR THE PRODUCTS AND/OR SERVICES THAT CAUSED THE DAMAGES OR GAVE RISE TO THE FIRST CAUSE OF ACTION.
THE LIMITATIONS ON LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO, OR LIMIT THE LIABILITY OF A PARTY FOR ANY BREACH OF ITS CONFIDENTIALITY OR INDEMNITY OBLIGATIONS HEREUNDER.
Jurisdiction and Applicable Law. The Order shall be interpreted and enforced in accordance with the local, domestic laws of the State of Tennessee and of the United States of America, exclusive of the choice of law rules thereof; and (ii) the state courts presiding in Davidson County, Tennessee or the federal courts in the Middle District of Tennessee shall have exclusive jurisdiction and venue over any lawsuit arising out of or related to the Order. Buyer irrevocably waives and agrees not to raise any objection it might now or hereafter have to any such claim or proceeding in any court having jurisdiction under this Section, including any objection that the place where such court is located is in an inconvenient forum or that there is any other claim or proceeding in any other place relating in whole or in part to the same subject matter.
Arbitration. Except for actions by Carlex to collect outstanding amounts due under the Order from Buyers located in the United States, the parties hereby agree to submit any disputes or controversies arising from, relating to or in connection with an Order or the parties’ respective obligations in connection therewith to confidential, binding arbitration in Nashville, Tennessee in accordance with the rules of the American Arbitration Association (“AAA”). The arbitration will be conducted by an individual selected jointly by the parties, or selected by the AAA if the parties fail to agree on an arbitrator within a reasonable period. The award of such arbitration shall be final and non-appealable, except to the extent provided for in the rules of AAA. The arbitrator will have the discretion to impose the costs of the arbitration upon the losing party or divide it between the parties upon any terms which (s)he deems appropriate. A judgment upon an award rendered by the arbitrator may be entered in any court having jurisdiction thereof and the award may be judicially enforced.
No Third-Party Beneficiaries. Except as otherwise expressly stated herein, the Order and these Terms shall not be construed to create a right or cause of action in favor of any third party against either Buyer or Carlex.
Waiver. Either party’s failure to insist on the performance by the other party of any provision of, or failure to exercise any right or remedy in or with respect to, the Order, or either party’s waiver of any breach or default by the other party, shall not, thereafter, waive any other terms, conditions, rights, remedies, breaches or defaults, whether or not of the same or a similar type.
Severability. If any provision of the Order, or portion of any provision, is declared or found to be unenforceable, the balance of the Order or such provision shall be interpreted and enforced to the greatest extent possible as if the unenforceable provision or portion had never been a part hereof. In particular, if any interest rate provided for is higher than that permitted by applicable law, it shall automatically be amended to the highest legal rate.
Survival. All rights and obligations arising prior to the cancellation, termination or expiration of the Order, and all provisions of the Terms allocating responsibility or liability between Carlex and Buyer that logically should survive cancellation, termination or expiration of the Order, shall survive cancellation, termination or expiration of the Order, including all rights, responsibilities, liabilities and obligations with respect to warranties, ownership and use of Carlex IP Rights, indemnification and insurance.
Relationship of Parties. Carlex and Buyer are independent contracting parties, and, except as otherwise specifically stated herein, nothing in or related to the Order will make either party the employee, agent, legal representative, partner or joint venturer of the other for any purpose. The Order does not grant either party any authority to assume or to create any obligation on behalf of or in the name of the other. No party shall have authority to act as agent for, or to bind the other party in any other way. Carlex acknowledges and agrees that Carlex’s business is conducted in English. Carlex will be solely responsible for all employment and income taxes, insurance premiums, charges and other expenses, obligations and liabilities it incurs in connection with the Order, except as expressly provided in the Order or other written agreement signed by Buyer. All employees and agents of Buyer and Buyer’s agents, subcontractors and suppliers are employees or agents, as applicable, solely of Buyer or such third parties, and not of Carlex, and are not entitled to employee benefits or other rights accorded to Carlex’s employees. Carlex is not responsible for any obligation with respect to employees, agents, subcontractors or suppliers of Buyer.
Conflicts. To the extent that any terms and/or conditions of these Terms conflict with the terms and/or conditions of the Order, the terms and conditions of these Terms shall control. Seller’s acceptance of any Order shall not be construed as assent to any additional terms and conditions, nor will that constitute a waiver by Seller of any of the terms and conditions contained herein.
Miscellaneous. Buyer may neither assign the Order or any part hereof, nor delegate performance hereunder without Carlex’s prior written consent, and any attempted assignment or delegation without such consent shall be null and void. The rights and remedies available to Carlex under the Order shall be cumulative and in addition to those implied by or available at law or equity. The Order (which shall for the avoidance of doubt include these Terms) shall constitute the whole agreement between the parties relating to the subject matter thereof. If any provision of the Order, including without limitation these Terms, is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Order shall remain in effect.
For Professional Use or Installation Only Not For Individual Or Consumer Sale
Not For Sale Outside Of North America
Carlex Purchase Order Terms & Condition- VistaClear Pro™
Rev. 18 Sep 2017