TERMS AND CONDITIONSAUTOMATION CONTROL PANEL SOLUTIONS, INC
10019 EXPRESS DRIVE, UNIT B, HIGHLAND, IN 46322
In consideration of the extension of credit by Sellers to Applicant, and by signing the Application hereinbefore and made a part hereof, Applicant agrees to the following terms and conditions, which terms and conditions are a part of this Application and any purchase made by Applicant from Sellers, as follows:
1. With respect to any products and/or services ( collectively, “Products”) purchased by Applicant from Sellers, the terms and conditions thereof shall consist of these terms together with any additions or revisions of such terms mutually agreed to in a writing signed by Sellers and Applicant (“the Parties”). Sellers object to and shall not be bound by any additional or different terms, whether printed or otherwise, in any purchase order or other communication from Applicant to Sellers unless specifically agreed to in a writing signed by Sellers. This Agreement constitutes the entire, integrated agreement between the Parties related to the subject matter of this Agreement and any subsequent purchases made by the Applicant from the Sellers, and any and all discussions, understandings, agreements, representations, courses of dealings, customs, and usages of trade heretofore made or engaged in by the Parties with respect to the subject matter hereof are merged into this Agreement which alone fully and completely expresses the Parties’ agreement. No amendments, modifications, waivers, or termination of this Agreement can be made through the Parties’ course of dealings and no such change can be made except in a single writing signed by both the Parties hereto. Failure by Sellers to exercise any right or remedy under the Agreement will not be deemed a waiver of such right or remedy unless in a writing signed by Sellers, nor shall any waiver be implied from the acceptance of any payment. No waiver by Sellers of any right shall extend to or affect any other right, nor shall a waiver by Sellers of any breach extend to any subsequent similar or dissimilar breach. The Agreement shall be for the benefit of Sellers and Applicant and not for the benefit of any other person. Applicant may not assign this Agreement without the express written approval of Sellers. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be limited or eliminated to the minimum extent required by that jurisdiction, and the remaining provisions of the Agreement will remain in full force and effect.
2. This Agreement may not be modified or rescinded except by a writing signed by Sellers and Applicant. If all or part of the contract is terminated by such modification or rescission, Applicant, in the absence of a contrary written agreement between Sellers and Applicant, shall pay termination charges equal to Sellers’ costs associated with the contract, as determined by generally accepted accounting principles, plus a reasonable profit on the entire contract. Cost shall include any amount Sellers must pay to its suppliers due to any termination by Sellers of a purchase order or contract for products or services intended for Applicant.
3. Upon approval of this Application, Sellers, in their sole discretion, and notwithstanding any request of Applicant, will assign Applicant a maximum credit line and shall have the right to increase, decrease, or terminate Applicant’s credit privileges under this Application at any time without prior notice to Applicant, except as otherwise provided by law.
4. Payment of the purchase price for goods and/or services sold by Sellers to Applicant shall be in the amounts set forth on each Invoice, and Applicant agrees to pay all charges in accordance with the amounts established in said Invoices. The entire outstanding balance due to Sellers on all Invoices shall become due in full immediately upon default in the payment of any Invoice. Applicant will pay a service charge of $50.00 or the maximum allowed by law for each check returned by Applicant’s bank.
5. Applicant shall pay the purchase price for products and services within thirty (30) days from the date of invoice. In the event Applicant fails to pay the total purchase price within the thirty (30) day period, the maximum allowable charge and/or interest of 19% shall be applied to all past due accounts commencing from the due date of the invoice until paid. Sellers shall also be entitled, in addition to all other remedies available at law or in equity, to recover reasonable attorneys’ fees and/or other expenses in collecting the purchase price or otherwise enforcing or defending itself in respect of this Agreement. Cash discounts do not apply to product or transportation charges. The purchase price for the products is F.O.B. first point of shipment, unless otherwise agreed to in writing. Sellers reserve the right to modify or withdraw credit terms at any time without notice and to require guarantees, security or payment in advance in the amount of sale. Sellers may set off any amount due from Applicant to Sellers, whether or not under this Agreement, from any amounts due to Applicant. Title to and risk of loss of the products pass to Applicant upon delivery to the carrier at the F.O.B. shipping point. Unless otherwise agreed to in writing, title to any software associated with a product shall not pass to Applicant and, strictly to the extent permissible under any license agreement related to such software, Applicant shall be granted a limited license to use the software in connection with the product, strictly in accordance with the license agreement, and Applicant agrees to be bound by any license terms pertaining to software associated with a product sold hereunder. Applicant agrees to defend and indemnify Sellers, including paying for all Sellers’ attorneys’ fees for counsel of Sellers’ choosing, from any claims or lawsuits in which it is alleged that such license agreement was breached or all violated by reason of the actions of Applicant and or any lawsuits, claims, actions, demands ETC from Applicant and/or any other party(ies).
6. If this Application is not approved in full or if any other adverse action is taken with respect to Applicant’s credit with Sellers, Applicant has the right to request within 60 days of Sellers’ notification of such adverse action, a statement of specific reasons for such action, which statement will be provided within 30 days of said request.
7. Applicant hereby agrees to immediately notify Sellers of any agreement to sell or otherwise transfer ownership or possession of more than 20% of the assets or business of Applicant, or to sell more than 20% of the ownership interest of Applicant.
8. Applicant agrees to neither order nor accept goods from Sellers while Applicant is insolvent within the meaning of Section 1-201(23) of the Uniform Commercial Code. Every order placed, or delivery accepted, while Applicant is insolvent shall constitute a written misrepresentation of solvency to Sellers within the meaning of Section 2-702(2) of the Uniform Commercial Code.
9. In the event Applicant orders any inventory from Sellers which Sellers produce or procures for Applicant and such inventory is not readily saleable to other customers of Sellers, Applicant agrees to be responsible for and pay for all such custom or specially procured inventory, notwithstanding any defenses Applicant may have as to its failure to pay for other inventory and notwithstanding Applicant’s failure to use or sell such inventory.
10. To enhance the full and timely payment by Applicant to Sellers of all now existing and hereafter arising amounts due Sellers, Applicant hereby agrees that all funds owed to Applicant from anyone or received by Applicant, to the extent those funds result from labor or materials supplied by Sellers, shall be held in trust for the benefit of Sellers. Applicant agrees it has no interest in Trust Funds held by anyone and to promptly account for and pay to Sellers all such Trust Funds. Applicant irrevocably assigns to Sellers any interest it may have in its Trust Fund account receivable. In the event trust funds are received and misapplied, Applicant and or guarantor shall be personally responsible for payment of those funds to Sellers.
11. Any tax or other governmental charge upon the provision of services, or the production, sale, shipment, transfer, consumption, or use of the products which Sellers are required to pay or collect from Applicant shall be paid by Applicant to Sellers at the time of payment for the product or service, unless Applicant furnishes Sellers with exemption certificates acceptable to taxing authorities. Such amount shall be due whether or not included on the invoice.
12. Shipping date or other applicable performance date is estimated on the basis of immediate receipt by Sellers of Applicant’s order and all information, drawings and approvals to be furnished by Applicant, and the absence of delays, direct or indirect, resulting from or contributed to by circumstances beyond Selllers’ reasonable control. Sellers will in good faith endeavor to ship products or perform services by the estimated date. Sellers shall have the right to make partial shipments. All changes in specifications or the shipping or performance date requested by Applicant will only be effective if set forth in a writing signed by Sellers and Applicant, and where such changes affect Sellers’ time or cost of performance, an equitable adjustment in estimated shipping/performance date or purchase price, or both, will be made. If no packaging, loading or bracing requirements are stated, Sellers will comply with minimum specifications for the method of transportation specified. If no method of transportation is specified, shipment will be by a reasonable method of transportation determined by Sellers in its sole discretion.
13. Applicant shall promptly submit all claims for shortages in writing to Sellers once Applicant receives the products; otherwise such claims shall be waived. Quantities are subject to normal manufacturer allowances. The purchase price for products will equal the unit price multiplied by the quantity shipped. Installation and final inspection of products prior to installation will be Applicant’s obligation.
14. Sellers hereby transfer and assign any and all transferable warranties made to Sellers by the manufacturer of the Products and any intellectual property indemnity from the manufacturer of such Products to Buyer, and Sellers make no warranty beyond that provided through such transfer and assignment. Buyer’s sole and exclusive remedy for any alleged defect, failure, inadequacy, or breach of any warranty related to Products shall be limited to those warranties and remedies provided by the manufacturers of those Products all of which are hereby assigned by the Sellers to Buyer.
15. DISCLAIMER OF WARRANTIES: THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF, AND SELLERS DISCLAIM AND APPLICANT WAIVES, ALL OTHER WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND OF ANY OTHER TYPE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW (STATUTORY OR OTHERWISE) AND WHETHER OR NOT OCCASIONED BY SELLERS’ NEGLIGENCE.
16. LIMITATION ON APPLICANT’S RECOVERY: IN NO EVENT, EITHER FOR PRODUCTS MANUFACTURED BY SELLERS OR THOSE THAT ARE NOT, SHALL APPLICANT BE ENTITLED TO RECOVER MORE THAN THE PRICE OF THE PRODUCTS PROVIDED HEREUNDER FROM SELLERS FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR THE MANUFACTURE, SALE, DELIVERY OR USE OF THE PRODUCTS DELIVERED PURSUANT TO THIS AGREEMENT BASED ON ANY THEORY OR CAUSE OF ACTION, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR FOR PUNITIVE DAMAGES.
17. LIMITATION OF APPLICANT’S DAMAGES: IN NO EVENT, EITHER FOR PRODUCTS MANUFACTURED BY SELLERS OR THOSE THAT ARE NOT, SHALL APPLICANT BE ENTITLED TO RECOVER ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES FROM SELLERS, FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR THE MANUFACTURE, SALE, DELIVERY OR USE OF THE PRODUCTS DELIVERED PURSUANT TO THIS AGREEMENT BASED ON ANY THEORY OR CAUSE OF ACTION, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR FOR PUNITIVE DAMAGES.
18. Sellers shall not be liable for any failure to perform their obligations under the Agreement resulting directly or indirectly from, or contributed to or by acts of God, acts of Applicant, civil or military authority, fires, strikes or other labor disputes, accidents, floods, war, riot, inability to secure material or transportation facilities, acts or omissions of carriers, or any other circumstances beyond Sellers’ reasonable control. Sellers shall have no liability under this Agreement other than as expressly provided in this Agreement.
19. If Applicant furnishes specifications to Sellers for use in the manufacture of the products, Applicant will indemnify and hold Sellers harmless against any claim of intellectual property infringement which arises out of compliance with the specifications by Sellers.
20. Applicant understands that products supplied by Sellers may be subject to the jurisdiction of U.S. export controls and trade sanctions, and Applicant represents and warrants that it will not violate U.S. export-related laws with respect to products supplied by Sellers, and Applicant will indemnify and hold Sellers harmless for any damages arising from such violations by Applicant.
21. Applicant will not disclose or make available to any third party Sellers’ data or other confidential, non-public or proprietary information regarding Sellers without Sellers’ prior written authorization.
22. This Agreement shall be governed, interpreted and construed according to the substantive laws of the State of Indiana, U.S.A. without regard to principles of conflicts of law thereof and shall not be governed by the Convention on the International Sale of Goods. If any dispute or controversy shall arise with respect to this Agreement, such dispute or controversy will be settled in the state or federal courts located in Lake County, Indiana in which case Seller and Applicant hereby consent to the exclusive jurisdiction and venue of such courts, and agree that they shall not contest or challenge the jurisdiction or venue of such courts. Any action for breach of the Agreement or any covenant or warranty must be commenced within 30 days after the cause of action accrues.
23. This Agreement shall be effective and applicable to any purchases made by Applicant from the Sellers pursuant to any credit established hereunder, regardless whether the amount or terms of credit provided by Sellers to Applicant is altered pursuant to the terms hereof.