1. CONTRACT AND ACCEPTANCE. Buyer has read and understands these Terms and Conditions (the “Terms and Conditions” and together with the applicable purchase order and/or quotation, the “Contract”) and Buyer acknowledges and agrees that (a) any goods or services sold by Seller and purchased by Buyer are subject to these Terms and Conditions in all respects and (b) Buyer’s order placement for the goods, system, software, or services (collectively “goods”) shall constitute Buyer’s acceptance of these Terms and Conditions in all respects.
2. SHIPPING. Seller will select a carrier to ship Buyer’s order to Buyer’s specified destination, unless Buyer indicates a specific carrier. Seller’s obligation is to deliver goods FOB ship point. All shipping dates quoted by Seller are ARO (After Receipt of Order) by Seller, and reflect shipping date, not delivery date to Buyer’s facility. Shipping dates are approximate and are based upon prompt receipt by Seller of all necessary information and, if applicable, payment. Delays due to missing information such as product specification sheets, or credit examination will be in addition to Seller’s quoted shipping times and may impact the originally scheduled shipping date.
3. BILLING. The prices in Seller’s quotation shall be void the lesser of thirty (30) days from the date hereof, or the date of Seller’s prior notification of a price change to Buyer, or the expiration date listed in Seller’s quotation.
The prices quoted herein do not include any federal, state, county, local or other taxes levied on the goods, its use or sale, or on this agreement by any jurisdiction either inside or outside the United States. Such taxes, where Seller is required by law to collect them, whether designated as sales tax, gross receipts tax, occupation tax, etc., will be billed to Buyer based on the law in effect at the time of delivery unless Buyer furnishes Seller with a proper tax exemption certificate. Buyer shall reimburse Seller for any state, county, or local property taxes respecting the goods, imposed, assessed, billed or becoming due and payable by Seller on or after the date the goods are located on Buyer’s premises or the premises of any of Buyer’s subcontractors and/or agents.
4. CHANGES; COST CREEP. Seller reserves the right at any time to change the scope of the work covered by the Contract to the extent caused by Buyer’s requirements. Any difference in price or time for performance resulting from such changes shall be borne by Buyer.
5. NON-CONFORMING GOODS. Buyer shall perform incoming inspections of the goods upon receipt, and failure to timely (within ten (10) days of receipt by Buyer) notify Seller of any patent non-conformity of a good that was received shall result in the waiver of any right of Buyer to assert a claim of any such non-conformity against Seller. Non-conforming goods will be held by Seller at Seller’s risk and storage cost.
6. FORCE MAJEURE. Any delay or failure of either party to perform its obligations hereunder shall be excused if Seller is unable to produce, sell or deliver, or Buyer is unable to accept delivery, buy or use, the goods covered by the Contract, as a result of an event or occurrence beyond the reasonable control of the party and without its fault or negligence, including, but not limited to, acts of God, actions by any governmental authority (whether valid or invalid), illegality or regulatory restriction, fires, floods, windstorms, explosions, riots, natural disasters, wars or other casualty, sabotage, labor problems (including lockouts, strikes and slowdowns), inability to obtain power, material, labor, goods and/or services, energy, utilities or transportation, or court injunction or order; provided that written notice of such delay (including the anticipated duration of the delay) shall be given by the affected party to the other party as soon as possible after the event or occurrence (but in no event more than ten (10) days thereafter).
7. WARRANTY, DISCLAIMER OF WARRANTIES, AND LIMITATION OF LIABILITY. Seller makes no warranty for the goods sold to Buyer that were manufactured by a third party. Buyer agrees and acknowledges that any warranty for goods sold by Seller to Buyer shall be limited to the extent of the warranty offered by the third-party manufacturer of the goods and/or the software developer, and that Buyer’s sole and exclusive remedy for any warranty claims for goods purchased by Buyer shall be a claim against the third-party manufacturer of the goods and/or the software developer, and not against Seller. To the extent Buyer is purchasing a system developed by Seller, Buyer agrees and acknowledges that any warranty for goods that are part of that system shall be limited to the extent of the warranty offered by the third-party manufacturer of the goods and/or the software developer, and that Buyer’s sole and exclusive remedy for any warranty claims for a defect in those goods shall be a claim against the third-party manufacturer of the goods and/or the software developer, and not against Seller. Seller’s sole warranty with respect to a system developed by Seller for Buyer is that the system shall perform within a reasonable range of the specifications (as set forth in the quotation) for 90 days after acceptance of the system by Buyer, provided that the application to which the system is associated is maintained and calibrated by Buyer as specified. In the event of a claim for breach of this warranty, Buyer shall first have to provide Seller with a reasonable opportunity to inspect and remedy the claimed defect, and to inspect Buyer’s equipment to determine compliance with all maintenance and calibration obligations of Buyer. In the event that Buyer’s equipment is not properly maintained and/or calibrated, Seller’s warranty is null and void. If after such time the defect cannot be remedied such that the goods are performing at a level comparable to the level it was performing at the time the system was accepted by Buyer, then Buyer’s sole remedy is a refund of the purchase price less wear and tear to the goods, less Seller’s cost to tear down/dismantle the system, and less shipping and transportation costs incurred by Seller. EXCEPT AS EXPRESSLY PROVIDED IN THIS PARAGRAPH 7, SELLER MAKES NO WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, AND SELLER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTIBILITY OR FITNESS FOR PARTICULAR PURPOSE; THE REMEDIES PROVIDED FOR HEREIN ARE THE SOLE AND EXCLUSIVE REMEDIES OF BUYER; IT IS UNDERSTOOD AND AGREED THAT SELLER’S LIABILITY WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY,
IN NEGLIGENCE OR OTHERWISE SHALL NOT EXCEED THE RETURN OF THE AMOUNT OF THE PURCHASE PRICE PAID BY BUYER (LESS ANY EXCLUSION LISTED IN THIS PARAGRAPH 7) AND UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES; THE PRICE STATED FOR THE GOODS IS BASED IN PART ON THIS LIMITATION RESPECTING THE SELLER’S LIABILITY.
8. SITE PREPARATION AND ACCEPTANCE. It is the obligation of Buyer to insure that all of its equipment to which any goods are applied to and/or incorporated in, are properly calibrated and maintained. Buyer acknowledges that the success of a good sold to Buyer by Seller is based upon Seller’s assumption that Buyer’s equipment is properly calibrated and maintained, and/or calibrated and maintained in the manner represented by Buyer to Seller. When Buyer makes any final payments for goods sold to it by Seller, Buyer is deemed to have accepted the goods and said goods shall be considered to be performing at a level that is acceptable to Buyer and within the terms, specifications, and provisions of the Contract. As applicable, Seller agrees to supply instructions and drawings for Buyer to install and operate the goods furnished hereunder, where site preparation is required. Buyer agrees at Buyer’s sole expense to: (a) prepare the site in accordance with Seller’s written site specifications; (b) provide labor and unpacking and locating the equipment; (c) assume responsibility for compliance with local laws, electrical codes, etc.; and (d) obtain any permit required for installation and use.
9. SOFTWARE. Seller owns and holds the exclusive copyright to any and all computer custom software to be transmitted as part of the goods. Seller, upon delivering the software to Buyer, grants Buyer a limited, non-exclusive license to use the software and related documentation only in Buyer’s facilities. Buyer shall obtain no title, ownership nor any other rights in and to the software and related documentation nor in or to the algorithms, concepts, designs and ideas requested by or incorporated in the software and related documentation. Buyer agrees that it shall not, except for a back-up file copy, copy or reproduce, or permit to be copied or reproduced, the software or related documentation for any purpose. Buyer shall not modify, or attempt to modify, the software. Buyer shall not permit or allow the software to be used on any equipment except that supplied by Seller as part of this order, or for the goods for which this software is purchased. Buyer agrees that Buyer will not transfer the software to any other person, except as agreed to, in writing, by Seller. Buyer may not remove any copyright, trademark or other notice or product identification from the software and must reproduce and include any such notice or product identification on any back-up copy made of the software.
10. PAYMENT TERMS. Unless otherwise agreed to by Seller, payment for each item specified in this acknowledgment shall be due at Seller’s main office in Brownsburg, Indiana, no later than 30 days after shipment of the goods/services/system to Buyer. Buyer agrees that Seller specifically retains a security interest under the Uniform Commercial Code in all the goods/services/systems and all proceeds thereof to secure payment of all amounts due from Buyer to Seller. Any payment not made when due shall accrue interest at the rate of eighteen percent (18%) per annum (or if lower, the highest lawful rate) and if collected by or through an attorney at law, Buyer shall also pay Seller’s reasonable attorney’s fees and related litigation costs and expenses, and shall also pay other costs of collection. Unless stated elsewhere, payment terms are as set forth in the quotation.
11. INDEMNIFICATION. Buyer shall indemnify and hold Seller harmless from and against any liability, claims, demands or expenses (including attorney’s and other professional fees) for damages to the property of or injuries (including death) to Seller, its employees or any other person arising from or in connection with Buyer’s conduct, premises, property and/or facilities.
12. NO IMPLIED WAIVER. The failure of either party at any time to require performance by the other party of any provision of the Contract shall in no way affect the right to require such performance at any time thereafter, nor shall the waiver of either party of a breach of any provision of the Contract constitute a waiver of any succeeding breach of the same or any other provision.
13. GOVERNING LAW; JURISDICTION. This Contract is to be construed according to the laws of the State of Indiana. Any action or proceedings by Buyer against Seller shall be brought exclusively in the state or federal courts in Marion County, Indiana.
14. SEVERABILITY. If any provision of the Contract is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such provision shall be deemed reformed or deleted, as the case may be, but only to the extent necessary to comply with such statute, regulation, ordinance, order or rule, and the remaining provisions of the Contract shall remain in full force and effect.
15. ENTIRE AGREEMENT; MODIFICATION. The Contract, together with any attachments, exhibits, supplements, schedules, purchase orders, Statement of Requirements, RFQs, Engineering Specs and Drawings, other design drawings, other terms of Seller specifically referenced in these Terms and Conditions or requirements for the goods or services previously agreed to in writing, constitute the entire agreement between Seller and Buyer with respect to the matters contained in the Contract and supersedes all prior oral or written agreements. To the extent such other documents (as identified in the prior sentence) exists, these Terms and Conditions are intended to be cumulative and consistent with the provisions of those other documents. However, to the extent there is any conflict among such terms and conditions, the following order of precedence applies: (1) the Contract; (2) RFQ; (3) Applicable Engineering Specs and Drawings; (4) Statement of Requirement with Appendices and Attachments; and (5) other provisions; specifications or documents (if any). No amendment to the Contract or these Terms and Conditions shall be binding on either party unless such amendment is in writing and signed by authorized representatives of Buyer.