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1. SALES TAX: Buyer shall be responsible for all sales tax or other applicable taxes, other than income taxes, as well as necessary shipping, storage, or handling costs, if any, incurred in connection with the sales order.
2. PAYMENT OBLIGATIONS: Big Sky Scientific, L.L.C. (the “Company”) shall invoice Buyer upon notification the Product(s) are ready for shipment or are ready for pickup. Buyer shall, at the time of the Sales Order is accepted, pay in full (100%) on the total value of all Product contemplated in a Sales Order, unless credit terms are established. Buyer agrees that, unless agreed to and otherwise provided for in writing by the Parties, the Company shall not ship any Product, or allow pickup, until full payment has been made. If Buyer fails to make a payment due under this Sales Order within 10 days after the final payment’s due date, Buyer shall pay Seller a late payment fee of five percent (5%) of the total purchase price for the Product on the Purchase Order. Thereafter, interest shall accrue on Buyer’s outstanding payment obligations at the rate of two percent (2%) per month, compounding monthly, or the highest allowable rate under Montana law. If Buyer has not completed payment within three (3) months of the date of the final payment invoice for the Product, such Product shall be considered abandoned and Buyer shall have no further right or title to the Product. In the event Buyer utilizes a credit card or debit card (“Card”) to pay for the Product, Buyer authorizes the Company to charge the full amount reflected on this sales order to the Card that Buyer provides in connection with this sale. Buyer agrees that, except as otherwise provided herein, all Card payments to the Company are nonrefundable. Buyer further agrees that it shall not initiate or request any chargeback or associated amounts (a “Chargeback”) from the Card issuer, the issuing bank, or the Card processor. In the event Buyer violates this provision, it shall be solely and exclusively responsible for any Chargeback and for reimbursing the Company in full, within seven (7) days, in the event of any Chargeback.
3. DELIVERY/RISK OF LOSS: The Company shall either ship the Product to the provided address or provide for pickup at the Company’s specified facility as provided for in the Sales Order. Title and risk of loss will transfer from the Company to the Buyer upon shipment of the Products. If Buyer chooses to pick up the Product at the Company’s facility after processing, then title and risk of loss will transfer to Buyer at the earlier of: (i) time that Buyer picks up the Product, or (ii) five business (5) days after the Company notifies Buyer of the availability of the Product for pick up.
4. The Company and the Buyer shall maintain, and shall cause its agents to maintain, all records necessary to comply with all applicable laws relating to the sale, storage and shipment of the Product. All such records shall be maintained for such period as may be required by applicable governing jurisdiction’s laws.
5. Neither Party shall use, or authorize others to use, the name, symbols, or marks of the other in any
advertising or publicity material or make any form of representation or statement with regard to the services provided hereunder which would constitute an express or implied endorsement by such other of any commercial product or service without the other’s prior written approval.
6. The Company, in the Company’s sole discretion, shall determine whether or if any Products placed in the market by any party must be withdrawn or recalled from the market. In the event that the Company
determines a recall is necessary, Buyer agrees to comply with the Company’s recall procedures.
7. RIGHT OF INSPECTION: Upon the Company supplying Products to Buyer pursuant to this Sales Order, Buyer shall have seven (7) days to inspect such shipment of Products upon receipt to verify such shipment’s conformity to the specifications provided by the Company as of the time the Product was delivered to Buyer. If Buyer alleges that any portion or all of any shipment of the Products did not conform to the specifications provided as of the time it was delivered to Buyer (each non-conforming Product, a “Defective Product”), and the Company agrees with the claim, then Buyer shall be entitled to reject such portion that includes Defective Product. Buyer shall notify the Company in writing if the shipment of Products includes Defective Product that existed at the time of the delivery of the Products. Such notification shall be made as soon as reasonably practicable after discovery of the nonconformity, but not later than seven (7) days after delivery. Such notice shall: (i) specify the reasons for rejection, and (ii) contain the testing results and methodology used to determined non-conformance of the Finished Products. If Buyer does not so reject the Products within seven (7) days after delivery, Buyer shall be deemed to have accepted the Products. If notice of rejection is received by the Company, Buyer shall cooperate with the Company in determining whether such rejection is justified. The Company shall notify Buyer as soon as reasonably possible, but not later than twenty-one (21) days after receipt of the notice from Buyer, whether it accepts Buyer’s basis for rejection. In the event of a dispute between the Parties as to non-conformance of the Products, then Buyer and the Company shall jointly select an independent third party to determine whether the Product conforms with the Sales Order (the “Third Party
Determination”). If the Third-Party rules that the Product conformed to the Purchase Order as of the time the Product was delivered to Buyer or that the Product is conforming and has no other defect, then Buyer shall be deemed to have accepted the Product at the agreed upon price and Buyer shall bear the cost of the Third-Party Determination. If the Third-Party rules that the Product does not conform to the Purchase Order at the time the Product was delivered to Buyer, then Buyer’s sole and exclusive remedy shall be to return the nonconforming product, with new shipment of product provided, and the Company shall bear the cost of the Third-Party Determination.
8. ACKNOWLEDGMENT: Buyer acknowledges that it has not relied on, and the Company has not made, any representations or warranties with respect to the quality or condition of the Products except that they confirm to the specifications provided in the Purchase Order, and that Buyer is purchasing the Products on an “as is” basis. The Company expressly disclaims all warranties, whether express or implied, including any implied warranty of merchantability or fitness, for the Products, except as may otherwise be provided for herein.
9. REPRESENTATIONS AND WARRANTIES: Buyer represents and warrants that (i) the Buyer will not make any false claims in any packaging, labeling, advertising, promotional material, or other sales and marketing efforts regarding the Products; (ii) Buyer shall comply with all applicable laws relevant to the Products and Purchase Order and the subject matter hereof and shall actively assist the Company in its compliance with same. Buyer shall immediately cease distribution of any Products and any other activity under this Agreement with respect thereto upon written notice by the Company to the extent reasonably required in the Company's reasonable discretion in connection with the Company's efforts to cooperate or comply with any actual or potential government action relevant to any Product.
10. INDEMNIFICATION: Buyer shall indemnify and hold the Company harmless from and against any actual incurred liability, including reasonable attorney’s fees and disbursements, arising out of any third party claim for death, injury or damage to property resulting from: (i) Buyer’s gross negligence or willful act or omission in the transfer or handling of Products, or the marketing or sale of Products; or (iii) breach of any representation or warranty herein.
11. GOVERNING LAW/JURISDICTION: This Purchase Order, the terms and conditions herein, and any dispute arising therefrom or related thereto, shall be governed by and construed in accordance with the internal laws of the State of Montana without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any jurisdiction other than the State of Colorado. Any legal suit, action, or proceeding arising out of or related to this Purchase Order or the matters contemplated hereunder shall be instituted exclusively in a state or federal court located in Great Falls, Montana that has subject matter jurisdiction over the dispute, and the parties irrevocably consent to the jurisdiction of such courts and agree that venue in such courts shall be and is proper and exclusive. In addition to any other fees, costs, or damages to which the Company is entitled, in the event of any dispute arising out of or relating to this Purchase Order, the Company shall be entitled to recover from Buyer all reasonable attorneys’ fees, costs, and other expenses it incurs in such a dispute, through all appeals.