1. Acceptance.
Customer's execution of this Agreement shall create a contract subject to and
expressly limited by these terms and conditions. ACCEPTANCE MAY ONLY BE MADE ON
THE EXACT TERMS AND CONDITIONS OF THIS AGREEMENT AND IF ANY ADDITIONAL OR
DIFFERENT TERMS ARE PROPOSED BY CUSTOMER, SUCH ADDITIONAL OR DIFFERENT TERMS
SHALL NOT BECOME A PART HEREOF.
2. Payment Terms.
All prices are firm unless otherwise agreed to in writing. Any tax,
duty, custom or other fee of any nature imposed upon this transaction by any
federal, state or local governmental authority shall be paid by Buyer in
addition to the price quoted or invoiced. In the event Coleman Instrument is
required to prepay any such tax, Customer will reimburse Coleman Instrument.
Payment terms shall be net 30 days after shipment or installation by Coleman
Instrument, if payment by check or ACH. Payments by credit card are limited to
the maximum of three thousand dollars ($3,000.00) per purchase order, and
payments must be submitted at the time of order placement. An interest charge
equal to 1 1/2% per month (18% per year) will be added to invoices outstanding
beyond 30 days after shipment. In addition Coleman Instrument reserves the
right to require C.O.D. payment terms from any Customer whose account is
overdue for a period of more than 60 days or who has an unsatisfactory credit
or payment record. Coleman Instrument may also refuse to sell to any person
until overdue accounts are paid in full.
3. Deliveries and Shipment.
Shipment of all Products shall be F.O.B. point of distribution by Coleman
Instrument; identification of the Products shall occur when they leave Coleman
Instruments point of distribution, at which time title and risk of loss shall
pass to Customer. All shipment costs shall be paid by Customer and if prepaid
by Coleman Instrument the amount thereof shall be reimbursed to Coleman
Instrument. Coleman Instrument will make every effort to ship the Products or
provide the services hereunder in accordance with the requested delivery date,
PROVIDED, THAT COLEMAN INSTRUMENT ACCEPTS NO LIABILITY FOR ANY LOSSES OR FOR
GENERAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF DELAYS IN DELIVERY.
Customer agrees that any delay in delivery shall not affect the validity of
this Agreement.
4. Inspection.
Customer shall be responsible for inspecting all Products shipped hereunder
prior to acceptance, provided, that if, Customer shall not have given Coleman
Instrument written notice of rejection within 30 days following receipt or
installation by Coleman Instrument, the Products shall be deemed to have been
irrevocably accepted by Customer.
5. Pricing Credits.
Coleman Instrument Co. will not issue credit on price discrepancies identified
after ninety 90) days of delivery to Customer.
6. Warranty.
Coleman Instrument warrants and represents that all Equipment will perform in
accordance with Coleman Instruments standard written warranty as stated in the
applicable Vendor Pricing Catalog for such Equipment. Coleman Instrument
further warrants that products it sells do not infringe the patent rights of
third parties. However, in the event that any court order of patent
infringement results in an interruption in the Customer's continued use of
Coleman Instrument products Coleman Instrument shall, at its sole option,
either (a) provide for the Customer at Coleman Instrument's expense the right
to continue using the affected products; or (b) modify or replace the affected
products so that the products become non-infringing, but only if the
modification or replacement does not negatively affect the performance of the
products or their use by the Customer. THE FOREGOING OBLIGATIONS ARE IN LIEU OF
ALL OTHER OBLIGATIONS AND LIABILITIES INCLUDING NEGLIGENCE AND ALL WARRANTIES
OF MERCHANTABILITY OR OTHERWISE, EXPRESSED OR IMPLIED IN FACT OR BY LAW, AND
STATE OUR ENTIRE AND EXCLUSIVE LIABILITY AND BUYER'S EXCLUSIVE REMEDY FOR ANY
CLAIM OR DAMAGES IN CONNECTION WITH THE SALE OR FURNISHING OF GOODS OR PARTS,
THEIR DESIGN, SUITABILITY FOR USE, INSTALLATION OR OPERATION. COLEMAN
INSTRUMENT WILL IN NO EVENT BE LIABLE FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES
WHATSOEVER, AND OUR LIABILITY UNDER NO CIRCUMSTANCES WILL EXCEED THE CONTRACT
PRICE FOR THE GOODS FOR WHICH LIABILITY IS CLAIMED.
7. Returned Goods.
After acceptance, no Products purchased hereunder may be returned
without the express prior authorization of Coleman Instrument in its sole
discretion, and in conformity with the Coleman Instrument Return Policy. All
returns of non-defective Products are subject to a restocking charge. No
returns will be authorized after 60 days following shipment to Customer.
Products specifically engineered, designed, and manufactured in compliance with
the purchase order, are non returnable.
8. Coleman Instrument's Right of Possession.
Customer hereby grants Coleman Instrument a purchase money security interest in
the Products purchased hereunder to secure the due and punctual payment of the
purchase price specified. In the event of default by Customer in any payment
due, Coleman Instrument shall have the right, in addition to any other remedies
it may have at law or in equity, to withhold shipment, to recall Products in
transit and retake the same, to repossess any Products or goods which may be
stored with Coleman Instrument for Customer's account without the necessity of
Coleman Instrument initiating any other proceedings. In addition Coleman
Instrument shall have all of the rights and remedies of a secured party under
Ohio's Uniform Commercial Code and may exercise all such rights and remedies in
accordance therewith. Customer shall execute such documents as Coleman
Instrument may request to effectuate the foregoing security interest.
9. Technical Advice.
Coleman Instrument may, at Customer's request, furnish technical assistance,
advice and information with respect to the Products if and to the extent that
such advice, assistance and information are conveniently available. Unless
otherwise agreed in writing, it is expressly agreed that Coleman Instrument is
under no obligation to provide technical assistance without charge, and subject
to the warranty disclaimers set forth in Paragraph 6 above, and that all such
assistance and information is provided at Customer's risk and Customer assumes
sole responsibility for results obtained by reliance thereon.
10. Agents.
No agent, employee or other representative of Coleman Instrument has the right
to modify or expand' Coleman Instrument's standard warranty applicable to the
Products or to make any representations as to the Products other than those set
forth in Coleman Instrument's product literature, and any such affirmation,
representation or warranty, if made, should not be relied upon by Customer and
shall not form a part of this Agreement.
11. Default.
Any of the following events or conditions constitute an Event of Default under
this Agreement: (a) the failure of Customer to make any payment when due of any
indebtedness of Customer to Coleman Instrument arising independently of this
Agreement; (b) if Customer fails to make any payment under this Agreement
within ten (10) days after the due date, without notice or demand of Coleman
Instrument; (c) the failure of Customer to fully comply with and perform any
and all terms and conditions of this Agreement and its Attachments, which
failure remains uncured for a period of thirty (30) days after written notice
thereof; (d) the making of assignment for the benefit of creditors by Customer;
(e) the institution of bankruptcy, reorganization, liquidation, or receivership
proceedings by or against Customer or ; Coleman Instrument and (f) insolvency
of Customer or Coleman Instrument or impairment of the credit of Customer.
12. Remedies.
Upon the occurrence of any of the Events of Default Coleman Instrument in its
sole discretion shall have the right to exercise any one or more of the
following remedies: (a) to terminate this Agreement; (b) to declare the then
remaining unpaid balance of the initial purchase and all other agreed charges,
taxes and assessments due and payable under this Agreement; (c) with or without
notice, demand or legal process, to retake possession of the Products (and
Customer authorizes and empowers Coleman Instrument to enter upon the premises
wherever the Products may be found) and (i) retain such Products and all
payments made under this Agreement, and (ii) to pursue any other remedy
provided by law. Customer also agrees to pay all costs of collection, including
without limitation, court costs, and reasonable attorneys' fees, fees for
repossession, repair, storage and sale of the products.
13. Intellectual Property and Warranty.
Coleman Instrument warrants that the sale of the Products delivered hereunder
will not infringe the intellectual property rights of any third parties based
upon issued patents in existence as of the date of this Agreement; except if
the claim of infringement is related to a modification to the Products, or the
Product is being used or sold in combination with other products not provided
by Coleman Instrument.
14. Limitation of Liability.
IN NO EVENT SHALL COLEMAN INSTRUMENT BE LIABLE TO FOR ANY LOST REVENUES, LOST
PROFITS, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES IN
ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT.
15. Automatic Renewal.
This Agreement shall automatically renew for additional one-year periods at the
volume, prices and frequency of shipment, unless either party gives the other
party written notice that it does not want to renew at least 60 days prior to
the end of any term. An acceptance letter will be sent to Customer to verify
the date of acceptance and said date of acceptance shall be incorporated
herein.
16. Notices.
All notices required or permitted under this Agreement shall be deemed
sufficient if delivered personally or mailed to such party at the address set
forth in this Agreement, or at such other address as such party may designate
in writing from time to time. Any such notice shall be effective upon delivery
or 48 hours after it has been deposited in the United States mail, duly
addressed and postage prepaid.
17. Assignment.
Customer may not assign or transfer this Agreement and/or any Equipment without
Coleman Instrument's prior written consent.
18. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws
of the State's of Ohio, Kentucky and Indiana, excluding choice of law
provisions.
19. Entire Agreement.
This Agreement constitutes the entire agreement of the parties and supercedes
any prior agreements or understandings, written or oral. No amendment of this
Agreement shall be effective unless in writing and signed by both parties.
20. Waiver.
No provision of this Agreement may be waived except in writing by both parties
hereto. No failure or delay by any party hereto in exercising any right or
remedy hereunder or under applicable law will operate as a waiver thereof, or a
waiver of a particular right or waiver of any right or remedy on any subsequent
occasion.
21. Force Majeure.
No liability shall result from delay in performance or nonperformance, directly
or indirectly caused by circumstances beyond the control of the party affected,
including, but not limited to: Act of God, fire, explosion, flood, war, act of
or authorized by any Government, accident, labor trouble or shortage, inability
to obtain material, equipment, or transportation. Quantities so affected may be
eliminated from the Agreement without liability, but the Agreement shall remain
otherwise unaffected. Coleman Instrument shall have no obligation to purchase
supplies of the products (or materials) specified herein to enable it to
perform this Agreement.
22. Facsimile signature.
The Customer and Coleman Instrument agree that a facsimile copy of this
agreement bearing authorized signatures may be treated as an original.
