1. Seller’s Terms and Conditions Control the Agreement. These terms and conditions are incorporated into and made a part of the agreement or proposal (the “Agreement”) by Seller to sell to the named Buyer of the products and services referenced on the face of this document or otherwise referenced in a purchase order, whether in written or electronic form (the “Product”). This Agreement constitutes the entire understanding and agreement of the parties and supersedes all prior negotiations, representations, understandings or agreements, with respect to the subject matter of the Agreement. No dealings between the parties shall be permitted to contradict the provisions or modify the terms hereof.
  2. Prices. Seller’s prices for the Product will be the prices stated on the face of this document, provided that Seller may change the price for the Product in accordance with any change to its standard pricing for such Product prior to the date of shipment.
  3. Payment. Payments for Product will be made by such means as Seller may specify. Payment in full is due within thirty (30) days of the date of invoice issued by Seller. In the event payment is not made within that time Buyer agrees that a late charge of one and one-half percent (1-1/2%) per month shall be added to the unpaid balance. Seller shall have and retain a purchase money security interest in all Products now or hereafter sold to Buyer by Seller or any of its affiliated companies and in all accounts, contract rights, and all other proceeds from the sale or other disposition thereof, to secure payment of the purchase price for all such goods and products. In the event of nonpayment by Buyer of any debt, obligation or liability now or hereafter incurred or owing by Buyer to Seller, Seller shall have and may exercise all rights and remedies of a secured party under Article 9 of the Uniform Commercial Code (UCC) as adopted by the state of Illinois. Buyer will be liable for all collection costs incurred by Seller including, but not limited to, attorneys’ and collection agency fees, and all related disbursements.
  4. Shipment of Product. Shipment of all Product shall be made F.O.B. point of shipment. Unless otherwise agreed in writing by Seller, Buyer shall bear the risk of loss and the responsibility for insurance coverage for Product after delivery to the F.O.B. point of shipment. Any shipping dates given in advance of actual shipment are Seller’s best estimates for informational purposes only, and deliveries will be made subject to prior orders on file with Seller. Seller may, in its sole discretion, use any commercial carriers for shipment of the Product. If Buyer is unable to receive the Product when they are tendered, Buyer will be liable to Seller for any losses, damages, or additional expenses incurred or suffered by Seller as a result of Buyer’s inability to receive the Product. Buyer will be deemed to accept the Product upon receipt. Any claims for shortages or discrepancies will be waived by Buyer unless made in writing to Seller within ten (10) days of receipt of the Product. Seller may cancel in whole or in part any order for Product under the Agreement at any time.
  6. Exclusive Remedy. Buyer’s EXCLUSIVE remedy against Seller arising out of any defect in a Product tendered to Buyer is the repair or replacement of the Product, or alternatively, at Seller’s sole election, a refund of the purchase price of the Product. These remedies only will be available to Buyer for one year after the Product is tendered to Buyer, and Seller’s obligations under this Section 6 will be void unless Buyer provides Seller with notice of the defect in the Product within thirty (30) days of discovery of the defect. Any Product returned to Seller for repair, replacement or refund under this Section 6 will be returned by Buyer in accordance with Seller’s returned material authorization procedures then in effect. Seller’s total liability to Buyer with respect to any Product will not exceed the purchase price of the Product. IN NO EVENT WILL SELLER BE LIABLE TO BUYER FOR ANY CIRCUMSTANTIAL, CONSEQUENTIAL, CONTINGENT, EXEMPLARY, INCIDENTAL, INDIRECT, LIQUIDATED, MATERIAL, PUNITIVE, SPECIAL, SPECULATIVE OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, SALES OR REVENUES, COST OF REPLACEMENT PRODUCT, LOST BUSINESS OR BUSINESS INTERRUPTIONS, ARISING IN ANY MANNER IN CONNECTION WITH THE AGREEMENT AND THE SALE, DELIVERY AND USE OF THE PRODUCT.
  7. Indemnification. Buyer will indemnify, defend and hold harmless Seller its officers, directors, employees, agents and representatives from and against all losses damages, liabilities, including, but not limited to, property damage, loss of profits or revenue, loss of use of any property, cost of capital, cost of purchased or replacement power or temporary equipment, personal or bodily injury, or death (“Losses”), that may arise pursuant to or in connection with the Agreement or the Product, regardless of whether such Losses are suffered by Buyer or arise pursuant to or in connection with a third-party suit, claim, counterclaim, demand, judgment or other action (each a “Claim”), provided that Buyer need not indemnify Seller for Seller’s obligation, if any, to Buyer under Section 6 above. For the avoidance of doubt and without limitation, this indemnification obligation requires Buyer to pay any judgments against Seller resulting from any Claim, any court costs of Seller in connection with any Claim, and any reasonable attorneys’ fees and disbursements incurred by Seller in Seller’s defense of any Claim. Seller will have the sole and exclusive right to conduct the defense of any Claim at Buyer’s sole expense. Buyer’s indemnification obligation does not depend on the truth of any allegations made against Seller, Buyer, or any third party.
  8. Use of Seller’s Proprietary Information. All ideas, designs, drawings and plans provided to Buyer in connection with the Agreement are owned by and shall remain the property of Seller. None of the ideas, designs, drawings and plans shall be used by Buyer for any other purpose without the written consent of Seller. Seller shall retain all common law, statutory and other reserved rights, including the copyright, thereto. Buyer shall be responsible for preventing these documents from being copied and/or being given for inspection to third parties without the prior written consent of Seller.
  9. Cancellation. Buyer may cancel the Agreement only by giving written notice to Seller. In the event of such cancellation, Buyer shall pay for all goods and services delivered and completed and any reasonable charges for expenses already incurred and commitments made by Seller.
  10. Force Majeure. Seller shall not be liable for its failure to perform under the Agreement due to circumstances beyond its control, including, without limitation, fire, flood, earthquake, pestilence or similar catastrophe; war, act of terrorism, or strike; lack or failure of transportation facilities, shortage of suitable parts, materials or labor; any existing or future law, rule, regulation, decree, treaty, proclamation, or order of any governmental agency; inability to secure fuel, materials, supplies, equipment or power at reasonable prices or in sufficient amounts; act of God or the public enemy (each, a “Force Majeure Event”). If any Force Majeure Event prevents Seller’s performance of any of its obligations under the Agreement, Seller will have the right to (a) terminate or cancel the Agreement upon written notice to Buyer, or (b) omit during the period of the Force Majeure Event all or any portion of the quantity of the Product deliverable during that period, whereupon the total quantity deliverable under the Agreement will be reduced by the quantity omitted. If Seller is unable to supply the total demands for any Product to be delivered under the Agreement due to a Force Majeure Event, Seller will have the right to allocate its available supply among its customers in a manner Seller, in its sole discretion, deems to be fair and equitable. In no event will Seller be obligated to purchase materials from other than its regular sources of supply in order to enable it to supply Product to Buyer under the Agreement. No change, cancellation or proration by Seller will be deemed to be a breach of any clause, provision, term, condition, or covenant of the Agreement.
  11. Governing Law and Forum. The Agreement shall be governed by and construed in accordance with the laws of the State of Illinois without regard to the conflict of law principles or rules of any jurisdiction Buyer expressly submits to the exclusive jurisdiction of those courts located in Cook County, Illinois. Nothing contained in the Agreement will be construed to limit or waive any rights of Seller under applicable United States federal, state, or local laws.
  12. Amendment. The Agreement may only be amended by written instrument signed by Buyer and Seller.
  13. Assignment. This Agreement or any portion of this Agreement shall not be assigned by Buyer without the prior written consent of Seller. This Agreement shall inure to the benefit of, and shall be binding upon, the respective successors and assigns of each of the parties.
  14. Waivers. Failure of Buyer or Seller to insist on performance of any of the terms and conditions or requirements of the Agreement shall not be construed as a waiver of such terms, conditions or requirements and shall not affect the right of either party thereafter to enforce each and every term, condition or requirement hereof.
  15. Survival. In the event the Agreement is terminated, notwithstanding such termination, the parties’ covenants in Section 7 shall survive such termination.