ALEXANDER STEARNS, LLC
d/b/a MAX DISTRIBUTING
PRODUCT PURCHASE AGREEMENT
TERMS AND CONDITIONS
Last Updated Date: July 10, 2023
THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
These terms and conditions (these “Terms” or this “Agreement”) apply to the purchase of products by you (“Buyer”) ordered from Alexander Stearns, LLC, d/b/a “MAX Distributing” (“Distributor,” “we, or “us”) through the submission of a purchase order from Buyer. These Terms are subject to change by Distributor without prior written notice at any time, in our sole discretion. Any changes to these Terms will be in effect as of the “Last Updated Date” referenced on the Distributor website. Buyer shall be deemed to have accepted these Terms upon submission of any purchase order and Distributor hereby expressly rejects any portion of any purchase order or other writing that attempts to modify these Terms. Purchase orders may only be supplemented by written agreement of the Parties. Distributor and Buyer are sometimes referred to in these Terms individually as, a “Party,” and collectively, the “Parties.”
Article 1 – Supply of Products
1.1 Purchase of Products. Buyer agrees to purchase the Products ordered via a purchase order in accordance with these Terms.
1.2 Purchase Orders. The Parties agree that these Terms shall govern the purchase order. The purchase order will describe the Products ordered, and quantity, method of delivery, and the desired delivery date.
1.3 Delivery. The Products will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability. Distributor shall not be liable for any delays, loss or damage in transit. Unless otherwise agreed in writing by the parties, Distributor shall deliver the Products to Distributor’s place of shipment (the “Delivery Point”) using Distributor’s standard methods for packaging and shipping such Products.
1.4 Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Products at the Delivery Point. As collateral security for the payment of the purchase price of the Products, Buyer hereby grants to Distributor a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Arkansas Uniform Commercial Code.
Article 2 – Pricing and Payment
2.1 Prices. Buyer agrees to pay Distributor the amount set forth in the purchase order. All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Distributor’s income, revenues, gross receipts, personnel or real or personal property or other assets.
2.2 Payment Terms. Payments for each order shall be made in U.S. dollars within thirty (30) days from the invoice date. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Distributor for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Distributor does not waive by the exercise of any rights hereunder), Distributor shall be entitled to suspend the delivery of any Products if Buyer fails to pay any amounts when due hereunder and such failure continues for twenty (20) days following written notice thereof.
Article 3 – No Warranty
DISTRIBUTOR MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
BUYER ACKNOWLEDGES AND AGREES THAT ALL PRODUCTS ARE MANUFACTURED, PACKAGED AND LABELED BY A THIRD-PARTY MANUFACTURER AND SUCH MANUFACTURER IS SOLELY RESPONSIBLE FOR ANY MANUFACTURING OR OTHER DEFECTS, DEFICIENCIES IN PRODUCT LABELLING AND PACKAGING, AND ANY OTHER LEGAL AND/OR REGULATORY COMPLIANCE FAILURES.
Article 4 – Indemnification
Buyer, at Buyer’s sole cost and expense, shall defend, indemnify, and hold Distributor, its affiliated and subsidiary companies, and its and their agents, directors, officers, and employees, (“Distributor Group”) harmless from and against any and all losses, liabilities, costs, damages, fees, or expenses (including reasonable attorney’s fees) arising out of or in connection with (a) Buyer’s marketing, promotion, sale and distribution of any Products, including, (b) Buyer’s failure to comply with the applicable law, or (c) the negligence or wilful misconduct of Buyer or any of its employees, agents or contractors.
Article 5 – Limitation of Liability
TO THE EXTENT PERMITTED BY APPLICABLE LAW, DISTRIBUTOR WILL NOT BE LIABLE TO BUYER FOR LOST PROFITS, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, EXEMPLARY, OR INDIRECT DAMAGES OF ANY KIND, EVEN IF BUYER HAD BEEN ADVISED OF THESE TYPES OF DAMAGES IN ADVANCE OR IF THESE TYPES OF DAMAGES WERE FORESEEABLE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL, CUMULATIVE LIABILITY OF DISTRIBUTOR ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED ON CONTRACT, IN TORT, OR ON ANY OTHER LEGAL OR EQUITABLE THEORY, WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY BUYER UNDER THE PURCHASE ORDER.
Article 6 – Dispute Resolution
6.1 Governing Law. All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Arkansas without giving effect to any choice or conflict of law provision or rule (whether of the State of Arkansas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Arkansas.
6.2 Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Arkansas in each case located in the City of Little Rock, Arkansas and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
Article 7 – Miscellaneous
7.1 Force Majeure. Neither Party shall be held liable or responsible to the other Party nor be deemed to have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any term of this Agreement when such failure or delay is caused by or results from causes beyond the reasonable control of the affected Party, including fire, floods, earthquakes, natural disasters, embargoes, war, acts of war (whether war be declared or not), acts of terrorism, insurrections, riots, civil commotions, acts of God, pandemic or epidemic, omissions or delays in acting by any governmental authority, provided that such Party promptly notifies the other Party and resumes performance as soon as possible.
7.2 Waiver. Except as specifically provided for herein, the waiver from time to time by either Party of any right or failure to exercise any remedy shall not operate or be construed as a continuing waiver of the same right or remedy or of any other of such Party’s rights or remedies provided under this Agreement. All waivers must be in writing.
7.3 Relationship of the Parties. The relationship of Distributor and Buyer under this Agreement is that of independent contractors, and neither Party nor its employees or agents shall be deemed to be employees or agents of the other for any purpose or under any circumstances. No partnership, joint venture, alliance, fiduciary, or any relationship other than that of independent contractors is created hereby, expressly or by implication. Neither Party has any authority under this Agreement to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third Party.
7.4 Severability. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, void, or unenforceable, then such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement will continue in full force and effect.
7.5 Entire Agreement. This Agreement (together with the purchase order) sets forth all the agreements and understandings between the Parties with respect to the subject matter hereof and supersedes and terminates all prior agreements and understandings between the Parties with respect to the subject matter hereof.
7.6 Construction. The provisions of this Agreement shall be construed and interpreted fairly to both Parties without regard to which Party drafted the same. Whenever the context requires, words used in the singular shall be construed to mean or include the plural and vice versa, and pronouns of any gender shall be deemed to include and designate the masculine, feminine, or neuter gender. The word “including” and words of similar import when used in this Agreement means “including without limitation. The headings are for convenience only and shall have no substantive meaning or shall not impact the meaning or interpretation of this Agreement.
7.7 Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Distributor. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
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