Crown Source, LLC and/or its affiliates ("Company", “we,” us,” or “our”) provide website features to include an ecommerce marketplace and procure-to-pay (P2P) system (collectively, “CrownSource”). Company provides CrownSource and other procurement services subject to the following conditions.
These terms and conditions ("Terms") govern your access to and use of a set of features, services, and functionality provide by Company for registered business customers to purchase products and use services for business purposes.
These Terms constitute an agreement between Company and the entity you represent ("you"). Please note that your use of CrownSource and Services is also governed by all other applicable terms, including the Conditions of Use, Privacy Policy, and any other requirements on the CrownSource website, all of which (as changed over time) are incorporated into these Terms.
1. REGISTRATION
An organization has a Business Account with Company once an individual associated with the organization registers the business and creates the first business user account associated with that organization. That individual can invite others to be part of the organization's Business Account. Each additional user that acts on behalf of the business and joins the organization's Business Account must create a new business user account that is part of, and associated with, the organization's Business Account.
2. ACCOUNT MANAGEMENT
You are responsible for all activities (including account administration activities, such as inviting new users to be part of your organization’s Business Account) that occur under your organization's Business Account and for all activities that occur under any associated business user accounts, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents). You are responsible for ensuring that all users affiliated with your organization's Business Account are aware of and comply with these Terms.
We and our affiliates are not responsible for unauthorized access to your Business Account or business user accounts. You are solely responsible for maintaining the security of your password. You may not disclose your password to any third party (other than third parties authorized by you to use your Business Account or associated business user accounts in accordance with these Terms) and are solely responsible for any use or action taken under your password. You will contact us immediately at [email protected] if you believe an unauthorized third party may be using your Business Account or associated business user accounts or if your Business Account or any business user account information is lost or stolen.
We may give you the ability to invite other individuals affiliated with your organization to create business user accounts that are associated with the organization's Business Account and purchase, approve or act as an Administrator on behalf of your organization. As Administrator, you will have the ability to invite other users to join the Business Account and to administer, manage, or close business user accounts. You will be responsible for all actions taken by users affiliated with your Business Account. You acknowledge that such users may have access to information from your Business Account and associated business user accounts, such as shipping addresses, payment methods, and order history. Administrators are responsible for inviting only people affiliated with, and authorized to act on behalf of, your organization to create a business user account that is associated with your organization's Business Account. Any user designated as an Administrator will have similar capabilities to manage Business Account features and invite new users to purchase, approve or act as an Administrator on behalf of your organization. You agree that Company is not responsible for, and will have no liability arising from, the disclosure of the information of your organization, your Business Account, or any associated business user accounts to any user associated with your organization.
If any user with a business user account that is associated with your Business Account leaves your organization or is no longer authorized to purchase, approve or otherwise act on behalf of your organization, you are solely responsible for contacting us to have that user's business user account closed, disabled or removed from the organization's Business Account. Company disclaims all liability for, and you are solely responsible for, any actions taken, or purchases made prior to closing, disabling or removing the user's business user account from the organization's Business Account.
3. SUBSCRIPTION AND BILLING
There is NO Fee to gain access to the CrownSource eCommerce Marketplace populated with national account discounted pricing across more than 3 million products.
For customers who wish to customize the eCommerce Marketplace to best meet their specific needs, the fee sturucture is as follows:
Base Tier: $6 per power unit, per month. This is a fully customized offering.
Tier 1: $2 per power unit, per month. If customer purchases < $75 per power unit, per month with
CrownSource contracted suppliers which are pre-loaded on the Marketplace.
Tier 2: $1 per power unit, per month. If customer purchases between $75-$150 per power unit, per month with
CrownSource contracted suppliers which are pre-loaded on the Marketplace.
Tier 3: NO FEE per power unit, per month if customer purchases > $150 per power unit, per month with
CrownSource contracted suppliers which are pre-loaded on the Marketplace.
By providing a credit card or other payment method accepted by Company, you are expressly agreeing that we are authorized to charge you a periodic subscription fee on a recurring basis corresponding to the term of your subscription and module solution selection.
Billing shall indicate either a charge or debit, as applicable, against your payment method. The subscription fee will be billed the first day after your 60-day free trial period and on each periodic renewal date thereafter unless and until you cancel your subscription, or the account or Service is otherwise suspended or discontinued pursuant to these Terms.
If we offer, or you qualify for a promotion price (e.g. a promotional price associated with a Company agreement), the specific terms of the promotion will be disclosed during your sign-up or in other materials provided to you describing the promotion. In the case of promotion pricing, we will begin billing your payment method for your subscription using the promotional price. After your promotion ends, you will be charge at the regular subscription price.
Company reserves the right to change the terms of your subscription, including price, from time to time, effective as of the beginning of your next billing period following the date of the change. If Company changes the subscription fee or other charges of your subscription, we will give you advance notice of the changes.
4. SERVICES
The Company provides website features to include an ecommerce marketplace and procure-to-pay (P2P) system.
5. BUSINESS AND ORDER VERIFICATION
We may use the business name, address, taxpayer ID# and any other information you provide about your organization or users or that we may requestor determine is necessary to verify accuracy and eligibility for CrownSource. We may make, directly or through third parties, inquiries to validate information that you provide to us. We may accept or refuse use of CrownSource at our discretion and may modify purchasing rights or privileges at any time. We may share any information or documents you provide with third-party sellers that offer certain CrownSource features for verification purposes.
6. THIRD-PARTY SERVICE PROVIDERS
Company may enable third party service providers ("providers") to integrate with CrownSource. If you choose to use such a provider in connection with your Business Account, you authorize Company to disclose to the provider account information, including, without limitation, information regarding you, your Users, your employees or agents, and your and your User's orders. You acknowledge this information will be governed by the provider's privacy, data and security policies. You and your Users consent to Company's sharing this information with the provider and agree that Company is not responsible for and will have no liability arising from Company's disclosure of, or any provider's use of, this information.
You are responsible for the approvals of CrownSource orders, verification of shipping addresses and any disputes regarding orders, and you agree that Company will have no liability arising in any way from your use of the provider, including, but not limited to, any unauthorized charges you or your employees or agents incur.
In addition to the disclaimers and limitations of liability set forth in sections 10 and 11, below, Company is not responsible for, and you agree that Company is not and will not be liable for, any services provided by providers.
7. YOUR PURCHASES FROM THIRD-PARTY VENDORS ON CROWNSOURCE
Purchases, sales, and fulfillment shall take place solely between you and third-party vendors and distributors (“Sellers”). Listings for goods and services on CrownSource, including without limitation the pricing for such, are subject to change at any time. You are not required to purchase any goods and services through CrownSource as a condition of maintaining your Business Account.
Prices for goods and services listed on CrownSource are subject to adjustment by Company or a Seller. If you or another user associated with your Business Account receive better pricing on goods and services on CrownSource than is publicly available, you acknowledge such CrownSource-specific pricing also may be freely adjusted by Company or a Seller.
Contracts to acquire goods and services on CrownSource will be solely between you and a Seller, and each purchase order issued by you to a Seller. In addition to the disclaimers and limitations of liability set forth in sections 10 and 11, below, Company is not responsible for, and you agree that Company is not and will not be liable for, any injuries or damages caused by the purchase or use of products from Sellers on CrownSource.
8. AUDIT RIGHTS
You hereby grant to Company the right to audit purchases made using your Business Account or any associated business user accounts at any time, whether the audit occurs through Company’s operation of CrownSource or directly by you providing Company access to your and your company’s CrownSource purchasing records and other relevant information requested by Company. In the case of a physical audit, Company or a contractor acting on Company’s behalf will conduct such audits at Company’s expense, after reasonable advance notice, and during normal business hours.
9. PRODUCT AND SELLER INFORMATION
Seller Credentials. Any diversity, industry and other certifications made available to you are provided by Sellers on CrownSource and have not been independently verified by Company. You should carefully review and validate any certifications and supporting information that you use to make your purchasing decisions. We take no responsibility and assume no liability for any certifications or supporting information provided by Sellers.
Product Information. Company does not warrant that product descriptions or other content of CrownSource is accurate, complete, reliable, current, or error-free. We recommend that you do not rely solely on the information presented on our website. Please always read labels, warnings and directions provided with the product before use.
Product Compliance and Suitability. Company does not guarantee compliance or suitability of products or services with any laws, nor does Company accept responsibility for installation and/or use of a product, or the provision of a service. It is your responsibility to review the product application or the service and all applicable laws for each relevant jurisdiction to be sure that the installation and/or use involving the products, or the provision of the service, comply with applicable laws.
10. REPRESENTATIONS, WARRANTIES AND COVENANTS
You represent, warrant and covenant that:
(a) your organization is duly organized, validly existing and in good standing in the jurisdiction in which your organization is registered;
(b) you, the individual agreeing to these Terms on behalf of your organization, have all necessary legal authority to bind your organization to these Terms;
(c) you have all requisite right, power, and authority to agree to these Terms, perform your obligations, and grant the rights and authorizations in these Terms;
(d) any information provided or made available by you to Company or its affiliates is at all times accurate and complete;
(e) you and all your subcontractors and agents will comply with all applicable laws, rules, regulations, codes, orders and other requirements of governmental agencies ("Laws") in your performance of your obligations and exercise of your rights under these Terms and with your purchase and use of any products from CrownSource;
(f) all users who use CrownSource features or purchase on behalf of your organization are authorized to do so and all purchases made by these users are authorized purchases of your organization;
(g) if your Business Account has a tax exemption certificate associated with it, any tax-exempt purchase made from business user accounts are paid for with the organization's funds;
(h) taxes or fees levied by federal, state, county or other municipalities in which you are located, based upon sales to you, will be the responsibility of and will be paid for by you;
(i) unless authorized by Company, you will not use any product purchased from CrownSource in connection with, or to fulfill, a federal, state, or local government contract or subcontract, if doing so could subject Company to any term, condition, obligation or other provision different from or in addition to the provisions of these Terms;
(j) you will use any products purchased from CrownSource as intended by the manufacturer and in compliance with all product information provided by the manufacturer;
(k) your purchase of products from us will not, either by your export of those products, your sale or use of those products, your legal status or otherwise, cause us to violate any Law; and
(l) you are not an agent of Company and agree to comply with the applicable provisions of the Foreign Corrupt Practices Act. You are not on, or associated with, any person or entity on any of the blocked, denied or debarred persons and entities lists maintained by the U.S. Department of Commerce's Bureau of Industry and Security, the U.S. Department of the Treasury's Office of Foreign Assets Control or the U.S. Department of State's Directorate of Defense Trade Controls (collectively, "Denied Persons Lists"); or subject to a denial order issued by the U.S. Department of Commerce. You agree (i) not to export any product to any entity or person within any country subject to United States economic sanctions or embargoes without obtaining prior authorization from the United States government, (ii) not to export or provide items to persons that are ineligible under United States Law to receive those items, including but not limited to persons on any Denied Persons List, and (iii) that any products purchased by you will not be used, or made available to a third party for use, in any activities directly or indirectly related to Weapons of Mass Destruction (WMD) proliferation activities.
11. INDEMNIFICATION
You agree to indemnify, defend and hold harmless us and our affiliates, and our and their respective officers, directors, employees, representatives and agents against any loss, claim, damage, settlement, cost, expense, tax or other liability (including, without limitation, reasonable attorneys' fees) (each a "Claim") arising from or related to (a) any breach of the Terms, (b) any unlawful or improper use by anyone of any product ordered by you, or (c) your negligence or willful misconduct. You will use counsel reasonably satisfactory to us to defend each indemnified Claim. If at any time we reasonably determine that any indemnified Claim might adversely affect us, we may take control of the defense at our expense. You may not consent to the entry of any judgment or enter into any settlement of a Claim without our prior written consent, which may not be unreasonably withheld.
12. DISCLAIMER
Company makes no warranty or representation concerning the accuracy of product information provided and our sole liability for any losses or damages by you arising from any inaccuracy in the product information will be limited to reimbursement of the price paid for that product. Company disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose or noninfringement of intellectual property rights to the fullest extent permissible by applicable law. Company also disclaims any liability for claims arising out of misuse, improper selection, improper installation, modification, mis-repair or misapplication of the product, or any claims arising from the provision of services by a third party.
13. LIMITATIONS OF LIABILITY
Under no circumstances will Company be liable for any consequential, incidental, special, exemplary or punitive damages, including but not limited to any lost profits that result from your purchase of any products on CrownSource, even if Company has been advised of the possibility of such damages. Company’s liability in all events is limited to the purchase price paid for the product or service that gives rise to any liability.
14. FORCE MAJEURE
We will not be liable for any delays in delivery or failure to perform any of our obligations under these Terms by reasons, events or other matters beyond our reasonable control.
15. CONFIDENTIALITY; CONFIDENTIAL BUSINESS PRICING; PUBLICITY
You will (a) protect and not disclose information made available by us that is identified as confidential or that reasonably should be considered confidential, including but not limited to information on business pricing or discounts made available to you via CrownSource; (b) use this information only for internal purposes and in connection with your use of CrownSource; and (c) destroy or return all such information to us promptly when the Terms terminate (and, upon request, confirm such destruction in writing). This section covers all confidential information regardless of when you receive it.
We may provide you access to discounts. You agree that any business pricing or discounts that Company provides to you are the confidential information of Company. You agree not to manually copy or use any datamining, scraping, or similar data gathering and extraction tools with respect to such pricing or discounts. If you have negotiated pricing with a supplier and choose to have pricing that is specific to you available on CrownSource, you acknowledge and agree that we may share sales information regarding products purchased by you at these prices with the applicable supplier (including any business or shipping addresses). You acknowledge that we may share contact information for your organization's administrator or other applicable employees with the supplier in connection with this pricing.
Unless you have received our express written permission, you will not otherwise use any trademark, service mark, commercial symbol or other proprietary right of ours, issue press releases or other publicity relating to us or these Terms, or refer to us in promotional materials.
16. ENTIRE AGREEMENT
The terms and conditions in these Terms and any applicable terms, conditions, policies, requirements or limitations contained on the CrownSource website constitute the exclusive and complete agreement between Company and you. Company will not be bound by, and specifically rejects, any term, condition, obligation, or other provision which is different from or in addition to the provisions of these Terms or which may be in any order, receipt, acceptance, confirmation, correspondence or other document.
Any purchase order (PO) number or other internal information particular to your organization that is provided by a user during the purchasing process is provided only for your internal purchase tracking. Company does not agree to terms, conditions, obligations, or provisions that are different from or added to these Terms and the policies and information on the CrownSource website.
17. AGREEMENT CHANGES
We may in our discretion change these Terms or add, change, or remove any benefits, features, or other aspects of CrownSource, without notice to you. If any change to these Terms is found invalid, void, or for any reason unenforceable, that change is severable and does not affect the validity and enforceability of any remaining changes or conditions. Any changes to these Terms will not apply retroactively to events that occurred prior to such changes. Your continued use of CrownSource after we change these terms constitutes your acceptance of the changes. If you do not agree to any changes, you must cancel your business account and all associated business user accounts.
18. TERM AND TERMINATION
The term of these Terms will begin on the date you accept it and will continue until you or we terminate it. We may terminate these Terms and access to your Business Account, business user account or use of any business features at our discretion with or without notice. You are entitled to terminate these Terms by giving us 60-day written notice. Upon termination, all rights and obligations under these Terms will automatically terminate except for any right of action occurring prior to termination, payment obligations, and obligations that are intended to survive termination, including, without limitation, Sections 4 - 21 of these Terms. Please note that termination of these Terms will not affect your obligations under any agreements with third parties, including any agreements to purchase products and services with Sellers.
19. SUGGESTIONS
If you elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to us in connection with or related to CrownSource (including any related technology), we will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing information or materials in any manner.
20. NOTICES; ELECTRONIC COMMUNICATIONS
When you use CrownSource, or send e-mails, text messages, and other communications from your desktop or mobile device to us, you may be communicating with us electronically. You consent to receive communications from us electronically, such as e-mails, texts, mobile push notices, or notices and messages on CrownSource or related sites, and you can retain copies of these communications for your records. Notices under these Terms may be provided electronically or by mail. Unless otherwise indicated in these Terms, notices to Company must be sent electronically to [email protected] or in paper form to 10955 Lowell Ave, Suite 600, Overland Park, KS 66210. We will send notices to you at the email address that we have on file for your Business Account. You are responsible for providing Company with up-to-date contact information. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You can retain copies of these communications for your records.
Standard maintenance windows are:
i. Monday, 10PM to 4AM, Eastern Time (U.S.)
ii. Thursday, 10PM to 4AM, Eastern Time (U.S.)
iii. Saturday, 5AM to 10AM, Eastern Time (U.S.)
In most cases the System maintenance does not require scheduled downtime, however in some cases downtime during the maintenance window may be required. For cases when non-standard maintenance is required, Company will notify one (1) week in advance of the maintenance.
21. TITLE AND RISK OF LOSS
Title and risk of loss shall transfer to you upon delivery to you.
22. AGREEMENT TO ARBITRATE
Any dispute between the parties arising out of these Terms (including formation, performance, breach, enforceability, and validity of these Terms) or our operation of CrownSource shall be settled by final and binding arbitration in the English language in the City of Overland Park, Kansas, in accordance with the rules of the American Arbitration Association, and judgment on any award rendered upon arbitration may be ordered in any court having requisite jurisdiction. The costs of such arbitration shall be shared equally by the parties hereto; provided, however, notwithstanding any other provision of these Terms, each party shall bear the full cost of any legal, accounting, expert witness or other consultant retained by that party on its own behalf.
Without prejudice to the agreement to resolve disputes in binding arbitration set forth in the previous paragraph, either party to these Terms may obtain preliminary injunctive relief in the Johnson County District Court, Johnson County, Kansas, located in the City of Olathe, Kansas, for the purpose of enforcing any of these Terms pending a final determination in arbitration or permanent relief for the purpose of enforcing arbitral awards.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow the terms of these Terms as a court would.
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
23. APPLICABLE LAW
By using CrownSource, you agree that the Federal Arbitration Act, applicable federal law, and the laws of the state of Kansas, without regard to principles of conflict of laws, will govern these Terms and any dispute of any sort that might arise between you and Company.
24. MISCELLANEOUS
The parties to these Terms are independent contractors. These Terms do not create any third-party beneficiary rights in any individual or entity that is not a party to these Terms. You may not assign these Terms, by operation of law or otherwise, without our prior written consent. Subject to that restriction, these Terms will be binding on, inure to, and be enforce able against the parties and their respective successors and permitted assigns.
We may perform any of our obligations or exercise any of our rights under these Terms through one or more of our affiliates.
Descriptive headings contained in these Terms are for convenience only and shall not control or affect the meaning or construction of any of these Terms.
Our failure to strictly enforce any provisions of these Terms will not constitute a waiver of our right to enforce such provisions or any other provision of these Terms subsequently.
If any provision of these Terms is deemed unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions.
25. STAPLES PROGRAM PARTICIPATION AGREEMENT
The Participating Member is eligible to purchase products and services from Staples under the program as governed by the terms and conditions of the November 1st, 2017, Master Agreement, number CNR0130176, entered between Staples and Company. Participating Member agrees to purchase from Staples and Staples agrees to sell to Participating Member various products and services as offered under the program in accordance with the terms and conditions of the Master Agreement and this Agreement.
26. GRAINGER PARTICIPATION AGREEMENT
The Participating Member declares its intent to purchase maintenance, repair and operations supplies and equipment (MRO) from Grainger, Inc. pursuant to the Letter of Understanding between Company and Grainger dated August 1, 2019. Participating Members acknowledges that it may participate in only one Grainger contract at any given time and agrees that this Participation Agreement supersedes all previous declarations regarding the purchase of MRO products from Grainger. Upon receipt and processing of this form, Grainger will use commercially reasonable efforts to enroll all Member accounts within ten (10) business days, unless otherwise notified by Grainger.
27. MANSFIELD OIL COMPANY OF GAINESVILLE, INC. ACKNOWLEDGEMENT AND AGREEMENT TO DEF PRODUCT PURCHASE TERMS
This Acknowledgment and Agreement to DEF Product Purchase Terms is made effective and agreed to by you and Mansfield Oil Company of Gainesville, Inc. (“Mansfield”). From time to time, you may order DEF Products from Mansfield via your arrangement with Crown Source, LLC. In such event, Supplier and/or its common carrier shall deliver DEF Products to your locations. You hereby agree to purchase and use such DEF Products in accordance with the following:
1. Purchase of DEF Products. “DEF Products” shall refer to diesel exhaust fluid, that meets applicable A.S.T.M. specifications of the respective jurisdictions where any such Product shall be supplied, that you may purchase from Supplier from time to time.
2. Delivery. You, at your cost, shall provide Supplier with unimpeded and adequate ingress to and egress from your Location(s) at all times during all weather conditions.
3. Ownership of DEF Products. You shall take control, possession, ownership, and risk of loss of all DEF Products at the time of delivery at your Location(s).
4. Storage and Handling of DEF Products. The parties hereto agree that Supplier is not the owner/operator of any DEF storage containers, totes, and other related equipment (the "DEF Containers") into which Supplier is to place the DEF Product acquired by you hereunder. You understand and agree that all materials in direct contact with DEF Products, including, without limitation, DEF Containers, tubes, tanks, piping, gaskets, valves, fittings and hoses must be made of materials specifically tested and approved for DEF Products in order to avoid contamination (the general requirements and recommendations for materials and equipment in direct contact with DEF Products are set forth in Section 5 below). As such, you are solely responsible for any losses and contamination of DEF Products that may result if you use improper materials. Supplier has no maintenance and/or ownership interest, right, or responsibility whatsoever regarding any of such DEF Containers. You warrant that its DEF Containers are and will be in good condition, free of leaks, and otherwise in compliance with all applicable rules and regulations. You acknowledge that the leakage of DEF Product from the DEF Containers, except to the extent directly caused by the negligence of Supplier or its agents or subcontractors, is a matter that is solely the responsibility of you.
5. General Recommendations and Requirements for DEF Materials and Equipment. In order to ensure avoidance of any potential for contamination, all materials in direct contact with DEF Products shall be compatible with DEF Products, to avoid contamination of the product. Such materials include, but are not limited to containers, tubes, tanks, piping, gaskets, valves, fittings, hoses, etc. Approved materials are, for example: stainless steel 304 (S30400), 304L (S30403), 316 (S31600) and 316L (S31603) in accordance with ASTM A240, ASTM A276 and ASTM A312; polyethylene; polypropylene; polyisobutylene; perfluoroalkoxyl (PFA); polyfluoroethylene (PFE); polyvinylidene fluoride (PVDF); polytetrafluoroethylene (PTFE) all free of additives. Plastic materials not specifically tested and approved for DEF Products should be composed of compatible materials and be documented by the manufacturer that they are compliant with ISO 22241, before use to avoid contamination of various kinds of additives. Materials not recommended are, for example: carbon steel, zinc coated carbon steels, mild iron, copper, copper alloys, zinc, lead, soldering containing lead, silver, zinc or copper, aluminum and aluminum alloys, magnesium and magnesium alloys, plastics or metals coated with nickel. All equipment used for filling shall be cleaned with distilled or de-ionized water and flushed with DEF in the last cleaning step. Tap water could be used for cleaning if distilled or de-ionized water are not available; however use of tap water must be approved in writing. The components of the filling equipment and emptying equipment should be emptied, cleaned and closed off after use. Hoses should be dedicated and closed after every use. This paragraph and the paragraph above are not applicable, if using dedicated equipment for DEF Products only.
6. Payment for DEF Products. For each purchase of DEF Product by you, Your credit card on file with Supplier will be charged at the time of such order placement. Supplier shall issue a corresponding invoice, and shall provide copies of each such invoice to you, upon your request. If Supplier over- or undercharges your credit card in conflict with the corresponding invoice, then Supplier shall credit or rebill your credit card for the correct amount, with notice to you. You hereby expressly agrees that Supplier shall bear no responsibility and no liability for any such charges made to your credit card for its purchase of DEF Products from Supplier, except to the extent of Supplier’s gross negligence or willful misconduct. If, for any reason, Supplier is unable to properly process payment via your credit card, then Supplier shall have no obligation to deliver your order, nor shall it process any future orders until such time as you provide a valid credit card to keep on file with Supplier. In the event Supplier processes and delivers an order for which payment is denied or fails to be properly processed by your credit card, interest shall accrue at the rate of 1.5% per month on any unpaid balance, and you shall be responsible for all costs of collection, including 15% of the unpaid balance as attorney’s fees, if collected through an attorney.
7. Indemnification. A. You agree to defend and indemnify Supplier (and its officers, directors, employees, successors and assigns) against all claims, suits, liabilities, fines, penalties, assessments, losses and expenses (including attorney’s fees and expenses of litigation) arising out of (i) your negligence, non-performance or breach of its obligations, representations or warranties herein; (ii) your or its affiliates’ use, sale, storage, handling, leakage or spillage of the DEF Products; and (iii) your operation of their business or businesses wherever located; except to the extent of Supplier’s indemnification obligations as set forth below or caused by the negligence or willful misconduct of Supplier.
B. Supplier agrees to defend and indemnify you (and its officers, directors, employees, successors and assigns) against all claims, suits, liabilities, fines, penalties, assessments, losses and expenses (including attorney’s fees and expenses or litigation) arising out of (i) Supplier’s negligence, non-performance or breach of its obligations, representations or warranties herein; (ii) Supplier’s negligent delivery of DEF Products; and (iii) Supplier’s delivery of DEF Product which fails to meet applicable ASTM specifications of any such DEF in the jurisdiction where such Product is delivered; except to the extent of your indemnification obligations as set forth above or caused by the negligence or willful misconduct of you.
C. This provision shall survive any expiration or termination of this Agreement.
8. Force Majeure. Any delay in performance or failure to perform (other than to make payments when due) by either Supplier or you shall not constitute a breach or default hereunder, or give rise to any claims for damages hereunder, if such delay or failure is caused by circumstances, events or occurrences beyond the reasonable control of the affected party (or in the case of Mansfield, circumstances, events, or occurrences affecting a supplier), including but not limited to, acts of God, floods, fires, explosions, extreme heat or cold, hurricanes, blizzards, earthquake or storm, strikes, lockouts or other industrial disturbances; wars, acts of terrorism or sabotage; accident or breakage of equipment or machinery; or any law, rules, order or action of any court or instrumentality of the federal or any state government (the “Force Majeure Event”). Any suspension of performance pursuant to this section shall commence upon notice of any such Force Majeure Event and shall continue until the affected party is able to again perform its obligations hereunder. Neither you nor Supplier shall be required to make up performance omitted on account of a Force Majeure Event and no Force Majeure Event shall operate to extend the term of this Agreement.
9. Transfer or Assignment. You agree that this Agreement shall not be transferable or assignable.
10. Governing Law. This Agreement shall be governed by the laws of the State of Georgia, and the Superior Court of Hall County, Georgia shall have exclusive jurisdiction over any civil action arising out of this Agreement.
11. Termination. A. For Cause: This Agreement may be terminated for cause at any time by any party hereto upon providing written notice to the other party with a ten (10) day right to cure default, which cause shall include but not be limited to any breach or default by the other party of any of the terms or conditions hereof. Notwithstanding the foregoing, your failure to make any and all payments in a timely manner shall authorize Supplier to immediately suspend DEF deliveries and/or services until such time as you pay all outstanding invoices. Termination of this Agreement shall not affect your pre-termination obligations hereunder and shall be without prejudice to enforcement of any undischarged obligations existing at the time of termination. In addition to any other rights the parties may have in this Agreement, in the event of default of either party which results in termination, the non-defaulting party shall be entitled to recover any and all damages allowable by law.
B. Change in Law Event: The parties acknowledge that they are entering into this Agreement in reliance on the then effective federal, state, and local laws, ordinances, regulations, rules and orders to include environmental laws and regulations relating to any DEF Product sold hereunder (collectively, “Laws”) as of the effective date set forth herein. Insofar as such Laws, through their implementation, change, interpretation or effect, regardless of the date of any such change, results in the imposition of materially detrimental conditions, requirements, or costs with respect to the transactions entered into hereunder as reasonably determined by Supplier in good faith, then Supplier may submit to you notice detailing any such change. Thereafter, you or Supplier may terminate this Agreement without liability.
C. Termination of Supplier Agreement: If, at any time, Supplier and CrownSource terminate the Group Purchasing Network Supplier Agreement (the “Network Supplier Agreement”), to which this Agreement is subject, then this Agreement shall be terminated in accordance therewith upon notice to you.
12. Severability of Provisions. Each provision of this Agreement is severable from all other provisions in the Agreement. If one or more of the provisions contained herein shall for any reason be held to be invalid, illegal or unenforceable, in any respect, such invalidity, illegality or unenforceability shall not affect the validity of any other provision of this Agreement.
