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NOTICE: The purchase of any Polybond Corporation (“Polybond”) products by Buyer is expressly limited to and governed by these Terms and Conditions of Sale (the “Terms”). These Terms are incorporated into and made a material part of any purchase order issued by Buyer. 

1.      Terms. These Terms shall be the complete and exclusive agreement with respect to any sale of goods by and between Polybond and any purchaser of such goods (“Buyer”) unless otherwise agreed to in writing by Polybond.  

 

2.      Enforceability. Upon Buyer’s issuance of a request for quotation or purchase order, Polybond’s issuance of an order acknowledgement or confirmation, or Polybond’s commencement of performance under Buyer’s purchase order, Buyer accepts and assents to these Terms.  Any different or additional terms or conditions in any request for quotation, order, proposal, acknowledgement form, or any other document of Buyer are hereby (i) deemed material alterations; (ii) null and void; and (iii) superseded by these Terms. Polybond reserves the right to revise these Terms from time to time at its sole discretion.

 

3.      Price.  All prices for goods shall be set forth in the order (“Order”), in U.S dollars, that Polybond provides to Buyer which shall remain valid for a period of thirty (30) days from the date of such Order.  If the Order is not executed by Buyer within such timeframe, then it shall expire and be of no further force or effect. Unless otherwise agreed to in writing by Polybond, prices are F.O.B. at the location of shipment, and are exclusive of all federal, state or local taxes. If Polybond is required to pay or collect any tax or duty owed by Buyer, then Polybond shall notify Buyer and Buyer shall reimburse Polybond for such taxes or duties within ten (10) calendar days from the date Buyer receives such notification from Polybond.  If there is a delay in completion or shipment of any Order due to any change requested by Buyer, or as a result of any delay on Buyer’s part in furnishing information necessary for completion of the Order, the price initially agreed upon at time of acceptance is subject to change at Polybond’s sole discretion as set forth in a Change Order (as defined below).

 

4.      Accuracy of Specifications.  All Orders are based on the accuracy of the specifications and information provided by Buyer to Polybond.  Polybond exclusively reserves the right to revise and reissue an Order due to any change requested by Buyer, due to receiving incomplete or inaccurate information from Buyer or as a result of any delay on Buyer’s part in furnishing information necessary for completion of the Order. 

 

5.      Delivery Date. The delivery date provided by Polybond in the Order is the best estimate possible of when the goods will be shipped, and Polybond shall have no liability whatsoever for Buyer’s lost profits or other incidental or consequential damages due to delays in delivery. The schedule for the delivery of goods set forth in the Order is an estimate only.  The time actually required to deliver the goods or any portion thereof may be affected by a number of factors including, but not limited to, design changes and modifications requested by Buyer pursuant to Change Orders and unforeseen, hidden, or other matters.  Under no circumstances shall Buyer have any remedy related to delivery of goods.

 

6.      Payment, Property and Risk.  Except as otherwise stated in the Order, payment shall be made to Polybond within fifteen (15) calendar days of invoice and in accordance with any terms specified by Polybond in the Order, as increased or decreased pursuant to any Change Order and Fees (as defined below).  Any amount which is not paid when due shall bear interest at a rate of one and one-half percent (1.5%) per month from the date such amount became due and payable through the date on which payment is received by Polybond.  Claims for defects, damages or issues relating to the goods must be made by Buyer in writing no later than ten (10) calendar days after delivery of the goods.  If no such claim is made, then Buyer acknowledges and agrees that the goods shall have been accepted as satisfactory and final.  By accepting the goods, Buyer acknowledges that Polybond’s performance has fully satisfied all terms, conditions and specifications. 

 

7.      Title. Any and all right, title, and interest in all goods shall remain with Polybond until the complete purchase price and all additional costs and charges, as adjusted, are paid by Buyer. Risk of loss or damage shall pass to Buyer upon delivery to the carrier, and unless otherwise agreed to in writing by Polybond, Buyer shall be solely responsible for the resolution of any carrier or freight claims.

 

8.      Change Orders.  All Orders are firm and Buyer may not cancel or modify an Order without the prior written consent of Polybond. In the event that Buyer requests any modifications to the Order, Polybond shall prepare and deliver to Buyer a written summary describing such modifications and changes necessary to effectuate such modifications (the “Change Order”).  The Change Order shall also set forth the additional fees, if any, (the “Fees”) and revised new estimated schedule for delivery of the goods as a result of such modifications to the goods.  After receipt of Buyer’s request, verbal or written, for modifications to the Order, Polybond may elect to withhold all goods until Polybond receives a signed copy, whether electronic or otherwise, of the Change Order from Buyer.  The execution and delivery of the Change Order by Buyer shall constitute authorization from Buyer to Polybond to proceed with the Order as modified by the Change Order, and shall constitute Buyer’s consent to the increase or decrease of the Fees, as set forth in the Change Order.

 

9.      Confidentiality.  Any specifications, drawings, plans, notes, instructions, technical data, Orders, quotes, Change Orders, visuals, reports and valuations, which have been furnished by Polybond to Buyer are incorporated herein by reference and are to be treated confidentially, and Buyer shall not disclose to any third party any of such information without Polybond’s prior express written consent. Upon Polybond’s request, Buyer shall promptly return to Polybond all documents and materials (and any copies) thereof provided by Polybond. Buyer acknowledges that the products sold by Polybond hereunder contain and embody trade secrets belonging to Polybond, and Buyer shall not reverse engineer any products purchased hereunder. Polybond owns all right, title and interest in and to all other intellectual property rights, including patents, copyrights, and trademarks.

 

10.  Collection and Enforcement Expenses.  If payment is not made when due, then Buyer is responsible for all collection and enforcement costs, fees, and expenses incurred by Polybond including, but not limited to, reasonable attorneys’ fees whether or not litigation is instituted.

 

11.  NO RETURN, EXCHANGE, OR REFUND. ORDERS FOR ANY AND ALL CUSTOM PRODUCTS ARE NOT CANCELLABLE AND CUSTOM PRODUCTS ARE NOT RETURNABLE, EXCHANGEABLE, OR REFUNDABLE. POLYBOND WILL NOT PROVIDE BUYER WITH CREDIT, REFUND, OR PRORATED BILLING FOR CUSTOM ORDERS.

 

12.  LIMITED WARRANTY.  POLYBOND MAKES NO OTHER WARRANTIES RELATING TO THE GOODS, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  POLYBOND DOES NOT AUTHORIZE ANYONE TO MAKE A WARRANTY ON POLYBOND’S BEHALF AND BUYER MAY NOT RELY ON ANY SUCH STATEMENT OF WARRANTY AS A WARRANTY OF POLYBOND.  THIS SECTION SHALL SURVIVE ANY TERMINATION OR CANCELLATION OF THE ORDER.

 

13.  Buyer Warranty.  Buyer warrants to Polybond that Polybond’s fulfillment of any Order and its performance hereunder shall not infringe upon the rights of any individual or entity.

 

14.  LIMITATION ON LIABILITY.  IN NO EVENT WILL POLYBOND HAVE ANY LIABILITY IN CONNECTION WITH THIRD PARTY EVENTS OUT OF ITS CONTROL INCLUDING, WITHOUT LIMITATION, INTERNET OR POWER OUTAGES OR ANY FORCE MAJEURE EVENT.  IN NO EVENT WILL POLYBOND HAVE ANY OBLIGATION OR LIABILITY FOR ANY EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUE, BUSINESS, USE, PRODUCTIVITY, GOODWILL OR COST OF CAPITAL, OR RECALL), INABILITY TO USE THE GOODS, TERMINATION OR SUSPENSION OF THIS AGREEMENT, DISCONTINUATION OF ANY OR ALL OF THE GOODS, THE COST OF PROCUREMENT OF SUBSTITUTE GOODS; ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY BUYER IN CONNECTION WITH THIS AGREEMENT OR BUYER’S USE OF OR ACCESS TO THE GOODS, ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE GOODS PROPERLY, BUYER’S USE OF THE GOODS, WHETHER BASED ON CONTRACT (INCLUDING, WITHOUT LIMITATION, WARRANTY), TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OR FORM OF ACTION, WHETHER OR NOT BUYER HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.  THE TOTAL LIABILITY OF POLYBOND, INCLUDING ITS SUBCONTRACTORS, LICENSORS AND AGENTS, IF ANY, FOR DAMAGES SHALL NOT EXCEED THE FEES PAID BY BUYER FOR THE APPLICABLE UNIT OF PRODUCT TO WHICH THE CLAIM RELATES. IN THE EVENT THAT A COURT OF COMPETENT JURISDICTION AND VENUE DETERMINES POLYBOND TO BE LIABLE FOR BODILY INJURY, DEATH OR DAMAGE TO TANGIBLE PROPERTY, IN NO EVENT SHALL POLYBOND’S LIABILITY FOR SUCH BODILY INJURY, DEATH OR DAMAGE TO TANGIBLE PROPERTY EXCEED THE AMOUNTS ACTUALLY RECOVERED BY POLYBOND FROM ITS INSURERS WITH RESPECT TO THE INCIDENT IN QUESTION. POLYBOND SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR EQUIPMENT OR SERVICES SUPPLIED BY PERSONS OTHER THAN POLYBOND FOR USE OF THE PRODUCT WITH ATTACHMENTS, ACCESSORIES, MATERIALS, OR SUPPLIES NOT SUPPLIED OR APPROVED BY POLYBOND, OR FOR MODIFICATIONS TO ANY WHICH ARE MADE BY PERSONS OTHER THAN POLYBOND PERSONNEL.  

 

15.  Release and Indemnification.  Buyer hereby releases and forever discharges Polybond and its affiliates, if any, and shall indemnify, protect, defend and hold harmless Polybond and its shareholders, directors, officers, employees, affiliates and agents from and against any and all claims, actions, suits, proceedings, obligations, liabilities, orders, damages, government inquiries and investigations of any nature (including, but not limited to subpoenas, expressions of interest, audits  and  all  other  phases  of  inquiries  or  investigations)  costs  and  expenses  (including attorneys’ and paralegals’ fees and expenses) resulting from, arising out of, related to or in connection with any claim brought by any party based on contract (including indemnification regardless of whether such claim is due to Polybond providing express or implied indemnification to any third party including third party testing or certification companies), tort (including negligence, regardless of whether the negligence is by Polybond or its affiliates acting alone, Polybond or its affiliates acting with others, negligence of Buyer or the negligence of third parties), strict liability, or any other theory or form of action, even if such party has been advised of the possibility thereof, arising out of or in connection with, or incidental to (a) Buyer’s breach of the Terms, (b) Buyer’s action or inaction, or (c) any of the goods,  including, but not limited to:  (i)  any violation or infringement upon the rights of any individual or entity, including, but not limited to any rights in patents, trademarks, trade designs, copyrights, trade secrets or any other intellectual property rights or (ii)  any bodily injury, property damage, loss of use of a product, or any other damages, including but not limited to consequential damages, with respect to the Terms.

 

16.  Insurance.  Buyer shall, at its own cost and expense, purchase and maintain general commercial liability, product liability and completed operations liability insurance in an amount of not less than $50,000.00 per occurrence and $100,000.00 in the aggregate, all in such amounts, upon such terms and written by such companies as Polybond shall approve.  All such insurance policies shall name both Polybond and Buyer as insureds, shall provide for at least thirty (30) days’ prior written notice to Polybond of any cancellation or alteration thereof, and shall provide that all amounts payable by reason of loss, theft or damage to the product shall be payable only to Polybond.  Buyer shall deliver a certificate of insurance coverage to Polybond upon the effective date of the Order, and thereafter immediately upon request.  These insurance requirements in no way limit Buyer’s indemnification obligations.  

 

17.  Safety; Warnings.  Buyer accepts and assumes all liability and responsibility for any and all safety testing and warnings in connection with any of the products. 

 

18.  Force Majeure.  Polybond shall not be liable for any loss or damages caused by nonperformance or delay in performance of any of its obligations pursuant to these Terms where the delay or nonperformance is due to any cause beyond Polybond’s control including, without limiting the foregoing, Acts of God, legislation, war, fire, flood, drought, failure of power supply, lockout, strike or other action taken by employees or other in contemplation or furtherance of a dispute or owing to any inability to procure materials, goods, or services required for the performance hereunder.  In such event, Polybond expressively reserves the right terminate or suspend the Terms with no liability for loss and/or damage thereby occasioned.

 

19.  No Assignment.  Buyer shall not assign or transfer the Terms hereof, without the prior express written consent of Polybond by a duly authorized officer.

 

20.  Interpretation.  These Terms constitute the sole and entire agreement between Polybond and Buyer with regard to the subject matter hereof, unless a Change Order is executed and delivered by Buyer and received and confirmed by Polybond, in which case the Change Order shall become incorporated into these Terms.  No course of prior dealings between the parties and no usage of trade shall be relevant or admissible to supplement, explain or vary any of these Terms.  Acceptance of, or acquiescence in, a course of performance rendered pursuant hereto or any prior agreement shall not be relevant or admissible to determine the meaning of these Terms even though the accepting or acquiescing party has knowledge of the nature of performance and an opportunity to make objection.  No representations, understandings or agreements have been made or have been relied upon in the making of these Terms other than those specifically set forth herein. 

 

21.  Waiver.  No term or provision herein shall be waived, and no breach or default excused, unless such waiver or consent is explicitly in writing, of subsequent date hereto, and signed by the party to which it is attributed.  No consent by a party to, or waiver of, a breach or default by the other, whether expressed or implied, shall constitute a consent to or waiver of any subsequent breach or default.

 

22.  Severability.  If any provision of these Terms shall be deemed to be invalid or unenforceable by a court of competent jurisdiction and venue, then such invalidity or unenforceability shall not invalidate or render the entire Terms unenforceable, but rather the Terms shall be construed as if not containing the invalid or unenforceable provision.  In the event that certain provisions are deemed invalid or unenforceable, then the parties hereto shall promptly attempt to negotiate, in good faith, a substitute therefor.

 

23.  Governing Law.  The Terms and any other contracts arising therefrom shall be governed, construed and interpreted by, and in accordance with, the laws of the State of New Hampshire without regard to conflicts of laws rules or rulings and regardless of location of Buyer.  Any and all disputes, actions, and/or suits arising out of, or related to these Terms and/or the sale of good hereunder must be brought exclusively in New Hampshire state courts and Buyer hereby consents to the exclusive jurisdiction of the state courts located in New Hampshire, submits to jurisdiction of New Hampshire, and hereby waives the right to request a change of venue. 

 

24.  Entire Agreement. The Terms contained herein constitute the entire agreement between Polybond and Buyer, and supersede all prior oral or written statements of any kind whatsoever made by Polybond or Buyer, or their representatives. No statement purporting to modify any of these terms or conditions shall be binding unless expressly agreed to, in writing, by Polybond and Buyer.

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