1. Scope; Changes
The terms and conditions stated herein (this “Agreement”)
govern all sales of products or services (“products”) by Infinite Electronics, Inc.
(collectively, “we,” “us,” “our,” or “seller”) to you or the entity you
represent (“you” or “buyer”). You represent to us that you are lawfully able to
enter into contracts (e.g., you are not a minor) and that if you are entering
into this Agreement for an entity, such as the company you work for, you
represent to us that you have the legal authority to bind that entity. Unless
otherwise agreed to in writing by seller's authorized agent, any terms and
conditions contained in buyer’s purchase order or any other document that are
different from or in addition to these terms and conditions are objected to,
are rejected, and will not be binding on us. By placing an order for products
from us, or by accepting delivery of the products described on the applicable
packing slip, bill of lading and/or invoice received with the products, you
agree to be bound by and accept these terms and conditions of sale.
We may change the terms and conditions of this Agreement in
our sole discretion by posting an updated version of these terms and conditions
at this location; provided, however, that the terms and condition
of this Agreement in effect as of the date of an applicable order shall
continue to govern such order and the products purchased thereunder.
2. Order Acceptance
a) Your receipt of an email or other form of order
confirmation does not constitute our acceptance of your order or a confirmation
of an offer to sell.
b) We reserve the right, without prior notification, to
limit the order quantity on any item and/or refuse service to anyone.
c) All orders are subject to review and acceptance by us. You
agree to provide complete and accurate contact information in connection with
any order submitted to us. Verification of information may be required prior to
the acceptance of any order.
d) In the case of pre-stocked finished goods, order
acceptance is designated by fulfilling the order. In the case of products
requiring post-order processing (including but not limited to design, material
purchase, manufacturing or test), order acceptance is designated by performing
activities unique to the order.
3. Order Cancellation
a) Orders fully or partially processed by seller may not be
cancelled by buyer.
b) Products not previously stocked as finished goods are
both Non-Cancelable and Non-Refundable (“NC/NR”). NC/NR products include cable
assemblies, special orders, custom orders, orders for non-standard products,
products not customarily in stock, scheduled orders requiring special
procurements, or orders for products requiring assembly or manufacturing
activities prior to shipping (not stored in completed state) as well as
purchased services such as special testing or product modifications.
c) In the event of cancellation or other withdrawal of an
order for any reason and without limiting any other remedy as a result of such
cancellation or other withdrawal, reasonable cancellation or restocking
charges, which shall include all expenses then incurred and commitments made by
seller, shall be paid by buyer. Buyer's requests to reschedule are subject to
acceptance by seller in its sole discretion. Orders may not be rescheduled
after the order has been submitted by seller to the shipment carrier.
4. Prices
a) Orders are billed at the prices (in US dollars) in effect
at the time of shipment.
b) Prices will be as specified within seller's website or as
stated in seller's quote / proposal. If no period is specified, quoted prices
will be applicable for thirty (30) days.
c) For catalog products, the website contains the most
current catalog pricing and is the price reference for such orders. Pricing
included in the catalog is for reference only and final pricing is determined
by the published website price.
d) For non-catalog products and services, prices cited are
based on current costs and are subject to reasonable adjustment on or after the
date of acceptance of any purchase order to meet a rise or fall in such costs,
as computed on the date of delivery.
e) Prices are subject to change without notice.
f) Prices are exclusive of taxes, impositions and other
charges, including: sales, use, excise, value added and similar taxes or
charges imposed by any government authority, international shipping charges,
forwarding agent's and broker's fees, bank fees, consular fees, document fees
and import duties.
5. Terms of Payment
a) All payments must be in US Dollars, or will be converted
to US Dollars using seller’s standard exchange rate at the time of purchase.
b) MasterCard, VISA, Discover, and American Express credit
cards, purchase cards and major bank debit cards are accepted. Payment via net
thirty (30) days is available to businesses, schools and agencies or as
otherwise specified by seller subject to credit approval.
c) For International Orders, MasterCard, VISA, and American
Express credit cards are accepted. Payment via open credit account with Net
thirty (30) days may be established for companies having three U.S. references
accepted to seller. Prepaid Wire Transfer: You can wire the funds to our bank.
We will contact you with the total amount, which will include shipping charges
and a $40 wire transfer fee. Orders will not be accepted until funds have been
received in full and the Purchase Order (PO) has been received. Notwithstanding
anything to the contrary in this Agreement, seller may add or remove payment
options in seller’s sole discretion.
d) Buyer acknowledges that seller has the right to reassess
buyer's creditworthiness from time to time. To the extent such is in accordance
with law, in the event there is a decline in buyer's creditworthiness, seller
may, upon thirty (30) days written notice, revise the payment terms between the
parties. Upon request, buyer shall provide financial data evidencing the
buyer's worth in order for seller to determine the creditworthiness of buyer.
Such information shall include, but not be limited to, annual reports, balance
sheets, and bank records.
e) If buyer is delinquent in its payment obligations,
without prejudice to any other remedies available to it by law or in equity,
seller may demand immediate payment and at seller's option (i) suspend all
further deliveries to be made under the purchase order or any further
performance under any other contract with buyer or buyer's affiliates, in which
event buyer shall not be released in any respect from its obligations to seller
under the purchase order; (ii) recover all costs of collection including but
not limited to reasonable attorneys’ fees; (iii) repossess the product for
which payment has not been made; (vi) charge interest at 1.5% per month on the
past due amount, not to exceed the interest percentage allowed by law; and
(vii) reassess the credit worthiness of buyer and change any current payment
terms. Any discount from seller's rates, if any, shall cease to apply to the
delinquent invoice, buyer shall be invoiced for such differences in cost, and
shall immediately pay the resulting invoice.
6. Taxes and Duties
a) Any taxes related to the products purchased are the
responsibility of buyer (excluding taxes based on seller’s net income), unless
buyer presents an exemption certificate acceptable to seller and the applicable
taxing authorities. If any exemption certificate presented by buyer is held to
be invalid, then buyer will pay seller the amount of the tax and any penalties
and interest related thereto.
b) If possible, seller will bill taxes as a separate item on
the invoice presented to buyer.
c) Sales tax will be charged on product cost and shipping
& handling where applicable and required by law. Any sales tax due that is
not collected by the seller is the responsibility of the buyer.
d) International orders may be subject to various taxes and
duties in the country of destination, all of which are the responsibility of
the buyer. This includes sales, use, excise, value added and similar taxes or
charges imposed by any government authority, international shipping charges,
forwarding agent's and broker's fees, bank fees, consular fees, document fees
and import duties.
7. Shipping Costs
Shipping or freight charges and insurance will be paid by
the buyer and added to the invoice or billed collect unless specifically stated
in the quote or order confirmation based on seller practices or promotions.
8. Delivery and Title
a) Unless otherwise agreed to in writing, all products are
shipped Incoterms 2010 - FCA Shipping Point. Subject to seller's right of stoppage
in transit, delivery of the products to the carrier will constitute delivery to
buyer and title and risk of loss will pass to buyer.
b) Seller will make reasonable efforts to initiate shipment
and schedule delivery as close as possible to buyer's requested delivery
date(s). Buyer acknowledges that delivery dates provided by seller are
estimates only and that seller will not be liable for failure to deliver on
such dates.
c) Selection of the carrier and delivery route will be made
by seller unless specifically designated by buyer.
d) Seller reserves the right to make deliveries in
installments. Delay in delivery of one installment will not entitle buyer to
cancel any other installment(s). Delivery of any installment of products within
thirty (30) days after the date requested will constitute a timely delivery.
Delivery of a quantity that varies from the quantity specified shall not
relieve buyer of the obligation to accept delivery and pay for the products
delivered.
e) Deliveries shall be made during normal business hours
Monday through Friday. One attempt to deliver will be made. Should delivery
need to be rescheduled, any additional costs incurred for redelivery and/or
storage fees will be charged to the buyer. Seller shall use reasonable efforts to
make timely delivery but shall be excused from any delays arising out of causes
beyond its reasonable control. Any specific delivery dates that may be stated
are approximate.
f) If completion of delivery is prevented through no fault
of seller, seller may specify a reasonable alternative place of delivery. Buyer
agrees that all costs of storage and transport incurred following an initial
attempt at delivery are hereby allocated to and imposed upon buyer, and shall
be added by seller to the sale price. Delivery may at any time be withheld by
seller pending payment of any sum due from the buyer to seller. Seller will
return Product via the incoming method unless an alternative method has been
indicated on the purchase order or a change authorized by the buyer
representative.
g) Deliveries made outside the 48 contiguous States may be
subject to modified terms and conditions as stated within the order quote.
9. Limited Warranty
a) Products manufactured and/or branded by seller are
warranted for a period of one year from time of delivery against defects in
workmanship or materials or failure to operate as described in product data
sheets under normal use. In some cases, the warranty period may exceed one year
where a written warranty description specific to a certain product is stated in
a contract or posted on a company website, product catalog or user’s manual.
Accessories and consumable goods such as batteries, chargers and accessory
cables are warranted for four months.
b) Products manufactured by seller in accordance with
buyer’s instructions or specifications provided by seller are warranted for a
period of one year from time of delivery against defects in workmanship or
materials only under normal use. In some cases, the warranty period may exceed
one year where a written warranty description specific to a certain product is
stated in a contract or posted on a company website, product catalog or user’s
manual.
c) Calibration services are warranted for a period of one
year from time of completion against defects in workmanship or materials or
failure to operate as described in product data sheets under normal use.
d) The warranties set forth in this Section 9 shall not
apply to any defect, failure, or damage arising from or in connection with: (i)
improper use, or improper or inadequate maintenance and care; (ii)
modifications to or repairs of the products performed by any party other than
seller; (iii) combination of the products with any other technology, equipment,
hardware, software, or other materials; (iv) use of the products in an
environment not meeting the operating specifications for the products; (v)
failure to properly transport, prepare, and store the products; (vi) acts of
God; or (vii) any normal wear and tear or normal environmental degradation.
e) Products solely distributed by seller without alteration
carry the warranty of the respective manufacturer only.
f) Seller will at seller’s option and in seller’s sole
discretion, repair, replace or refund any products that are returned under
warranty, and Seller’s repair, replacement, or refunding of the price paid for
a product under warranty shall be seller’s sole liability, and buyer’s sole
remedy, for any breach of the warranties in this Section 9.
g) This warranty applies to the original purchaser only and
is not transferable.
h) This warranty does not cover damage incurred during
shipment which is the responsibility of the freight shipping company.
i) Buyer will bear the costs of access, de-installation,
re-installation and transportation of the products to seller and back to buyer
in connection with any warranty claims. Seller will reimburse the costs of
transportation to seller and bear the costs of returning the repaired product
or sending replacement product to buyer if the product is found to be covered
under warranty.
j) Any repair or replacement pursuant to this limited
warranty for products manufactured and/or branded by seller shall be warranted
against the same defects re-occurring in a period of 12 months from time of
delivery of the repaired or replaced product, or until the expiration of the
original product warranty, which ever shall be the latter.
k) This limited warranty and remedies are expressly
conditioned upon: (i) buyer’s payment of the purchase price in full, (ii) buyer
giving written notice of the defect, reasonably described, to seller within ten
(10) days of the time when buyer discovers or ought to have discovered the
defect, (iii) the storage, installation, operation, use, and maintenance of the
products in compliance with product instructions, (iv) the existence of proper
records of buyer’s operation and maintenance of the products during the
warranty period, (v) buyer providing seller with a reasonable opportunity to
examine the products and the aforementioned records, and (vi) the absence of
any unauthorized modification or repair of the products, including without
limitation the removal or alternation of any serial numbers or product
identifications.
l) THIS WARRANTY IS IN LIEU OF ANY AND ALL OTHER WARRANTIES,
WHETHER ORAL, WRITTEN, EXPRESSED, IMPLIED OR STATUTORY. ANY IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE
HEREBY DISCLAIMED.
10. Returns
a) Buyers wishing to return products must first obtain a
Return Material Authorization (RMA) number from a Customer Service
representative. Unauthorized returns will not be accepted at point of receipt.
The RMA number must be printed on the outside of the package in order for it to
be received and processed. Merchandise must be shipped prepaid.
b) Seller will determine in seller’s sole discretion the appropriate
remedies for returned items based on the product's limited warranty and
circumstances of the return including a possible refund of purchase price,
credit for future purchase, replacement, repair, return to buyer as-is, scrap
with consent, and refund of shipping expenses.
c) Items stocked as finished goods and ordered in error must
have a Return Material Authorization (RMA) number issued within 30 days of the
original order. These parts are eligible for full credit only if the returned
products and packaging are in mint and salable condition. A
repackaging/restocking charge not to exceed 25% of the sale price may be
charged on any products not returned unopened. Under no circumstances will
credit be issued after 30 days from date of invoice or for orders exceeding
$500.00 in total value. All freight charges are the responsibility of buyer.
d) Products not previously stocked as finished goods are not
returnable unless found to be defective. These include cable assemblies,
special orders, custom orders, orders for non-standard products, products
requiring assembly or manufacturing activities prior to shipping (not stored in
completed state).
e) Defective items must have a Return Material Authorization
(RMA) number marked on the package prior to shipping.
f) After 30 days from invoice all merchandise returns for
distributed products not manufactured by seller must be handled directly with
that manufacturer in accordance with their warranty.
11. Order Discrepancies
Claims for shortages, incorrect materials or invoicing
errors must be made by buyer in writing within ten (10) business days after
receipt of shipment. Claims for nonreceipt of shipment must be made in writing
within ten (10) business days after receipt of invoice. No products shall be
returned without seller's express instructions. Buyer must provide in writing
the order number and describe all defects associated with the order.
12. Limitation of Liabilities; Indemnity
a) IN NO EVENT WILL SELLER BE LIABLE TO BUYER OR TO ANY
THIRD PARTY FOR ANY DELAY, FAILURE TO GIVE NOTICE OF DELAY, LOSS OF USE,
SECURITY OR DATA BREACH, LOSS OF REVENUE OR PROFIT OR LOSS OF DATA, RECALL
COSTS, SERVICE INTERRUPTIONS, DOWNTIME, TESTING, INSTALLATION, REPLACEMENT, OR
REMOVAL COSTS, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY,
SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS
FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. SELLER’S AGGREGATE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE PURCHASE PRICE PAID BY
BUYER FOR THE PRODUCTS WHICH ARE THE SUBJECT OF THE CLAIM. THE DISCLAIMERS AND
LIMITATIONS IN THIS SECTION 12 WILL APPLY NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE MAXIMUM EXTENT PERMITTED
UNDER APPLICABLE LAW.
b) Buyer shall defend seller from and against any claims,
actions, proceedings, or suits brought by any third party (i) alleging
infringement of intellectual property rights arising out of or in connection
with seller’s compliance with buyer’s drawings, specifications, requirements or
instructions or (ii) arising out of or in connection with the products supplied
by seller and incorporated into the buyer's products (each a “Claim”) and shall
indemnify and hold harmless seller from any costs, liabilities, damages, fines,
judgments, or expenses (including reasonable attorneys’ fees) arising out of or
in connection with any Claim.
13. Export Compliance
a) Items are controlled by the U.S. Government and
authorized for export only to the country of ultimate destination for use by
the ultimate consignee or end-user(s) identified in the invoice. They may not
be resold, transferred, or otherwise disposed of, to any other country or to
any person other than the authorized ultimate consignee or end-user(s), either
in their original form or after being incorporated into other items, without
first obtaining approval from the U.S. Government or as otherwise authorized by
U.S. law and regulations. Buyer agrees to comply with all applicable export
control laws, restrictions and regulations of the United States and those of
the buyer's country, and shall not export, or transfer for the purpose of
re-export, any product to any embargoed country or region, including but not
limited to Cuba, the Crimean Region of Ukraine, Iran, North Korea, Sudan, and
Syria, or to any denied, blocked, or designated person or entity as mentioned
in any such United States or EU law or regulation. Buyer represents and
warrants that it is not on the Denied Persons, Specially Designated Nationals
or Debarred Persons List, as identified by the U.S. Treasury Office of Foreign
Asset Control (OFAC) and by the U.S. Department of Commerce, Bureau of Industry
and Security (BIS), or any other United States list of prohibited persons; is
not owned or controlled by any person that is on one of those lists, or is
otherwise prohibited by United States or other law from purchasing the products
or services hereunder, and shall notify the seller immediately if buyer's
status related to the above changes. Buyer shall be solely responsible to
obtain any license to export, re-export or import as may be required. Buyer
also agrees that it will not use these products in connection with the
proliferation of weapons of mass destruction, including missiles, nuclear,
chemical or biological weapons.
b) Seller shall not be liable for delays or refusals by
governmental authorities or other authorities to grant licenses or approvals,
nor for suspension or revocation thereof, nor for changes in export
classification. Buyer must deliver requested information, including requested
end-user information, necessary for export licenses to be granted, and or
necessary for seller to determine if a license or other type of authorization
is required.
c) For all custom orders, buyer shall provide seller with
export classification information for all buyer property and information
(including buyer drawings) delivered to seller in relation to this order.
Export classification information includes the applicable export control
classification, the country of origin and, for hardware only, the Harmonized
Tariff Code. For such custom orders, seller will supply buyer with similar
export classification information for products and/or information for which
seller has design authority. Buyer and seller will promptly notify the other
upon a change in classification information if any occurs prior to delivery.
14. Governing Law; Venue
a) All matters arising out of or relating to this agreement,
or a breach thereof, are governed by and construed in accordance with the
internal laws of the State of California without giving effect to any choice or
conflict of law provision or rule (whether of the State of California or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than those of the State of California.
b) Any legal suit, action or proceeding arising out of or
relating to this agreement, or a breach thereof, will be instituted in the
federal or State courts located in the city of Irvine, California or its
closest California venue. Each party irrevocably submits to the exclusive
jurisdiction of the courts in any legal suit, action or proceeding.
15. Legal Notices
Any legal notice sent to seller from buyer, required or
permitted hereunder, will be deemed to have been effectively delivered if in
writing and served by personal delivery or sent by registered or certified mail
with return receipt requested, postage prepaid, to seller at the primary
address specified as seller’s place of business.
16. Intellectual Property
a) Notwithstanding delivery of and the passing of title in
any product, nothing in these terms and conditions shall have the effect of
granting or transferring to, or vesting in, buyer any intellectual property
rights in or to any products.
b) The drawings, text, product depictions, logos, content,
product descriptions, and organization and taxonomy of seller’s website,
catalogue, product guides or other documents and media owned by the seller and
of the described content there within are proprietary to the seller and
protected by intellectual property laws, including but not limited to United
States Copyright law and United States Trademark law. Whether seller owns
copyrights in these works or not, their content and the selection, arrangement,
coordination and structure of the arranged content there within are the sole
property of the seller. Use of the above stated materials does not give anyone
the right to modify, reproduce, transmit, publish, publicly display, adapt, or
create derivative works or in any way exploit any of the materials without
express written permission of the seller.
c) All trademarks referenced in seller's catalog or website
or depicted within any seller's documents or digital media, whether registered
in United States or other countries, may not be used without permission of the
respective trademark owner. This applies to seller owned trademarks as well as
those of seller's suppliers.
d) SELLER MAKES NO REPRESENTATION OR WARRANTY THAT THE PRODUCTS (OR
BUYER’S USE OR EXPLOITATION THEREOF) WILL NOT INFRINGE ANY INTELLECTUAL
PROPERTY RIGHTS.
17. Software
a) To the extent that the product or services contain or are
software, seller hereby grants to buyer a non-exclusive, non-transferable,
personal license to use the software and related documentation. Buyer’s use
conclusively evidences its acceptance of this license. Title to the software
shall at all times remain with seller. Buyer agrees that the software, all
enhancements, related documentation, and derivative works are, and will remain
the sole property of seller and includes valuable trade secrets. Buyer agrees
to treat the software and related documentation as confidential and to not
copy, reproduce, sub-license, or otherwise disclose the software and related
documentation to third parties. Buyer agrees to not disassemble, decompile,
reverse engineer, create derivative works from or otherwise translate,
customize, localize, modify, add to, or in any way alter, rent, or loan the
software or related documentation unless the operation is specifically
authorized by law.
b) Third party product software Licenses are separate end
user license agreements (“EULA”) and not issued pursuant to the above stated personal
license.
c) Buyer agrees to defend, indemnify and hold harmless
seller from all damages and third party claims arising from unauthorized use or
transfer of the software or firmware.
d) If the software is licensed for use in the performance of
a U.S. Government prime contract or subcontract, buyer agrees that consistent
with FAR 12.211 and 12.212, commercial computer software, computer software
documentation and technical data for commercial items are licensed under
seller's standard commercial license.
18. Confidential Information
Buyer agrees that all confidential information furnished by
or obtained from seller in connection with the sale of items hereunder (including
product data and manufacturing process data) shall be adequately safeguarded to
prevent unauthorized disclosure. Buyer agrees not to (i) disclose any such
information to any other person or entity, or (ii) use such information for any
purpose, other than performing authorized activities directly related to the
governing contract.
19. Tolerances
Unless otherwise agreed to in writing by seller, standard
tolerances as described on seller’s drawings, websites and/or posted catalog
datasheets shall apply.
20. Product Line Changes
Product specifications and availability are subject to
change without notice. Seller reserves the right to change specifications or
discontinue items at seller's sole discretion for any reason whatsoever
including, but not limited to changing market conditions, product
discontinuation, component unavailability, manufacturing cost changes and
errors in advertisements.
21. FCC Part 15 and Part 97 Notice
For systems operating within the jurisdiction of the United
States Federal Communications Commission (FCC), buyer acknowledges that any
amplification device it purchases is intended for use only in a transmission
system certified under Part 15, Part 97 or other applicable section of the
rules and regulations of the FCC, or that a legal exception to this requirement
applies.
22. Assignment
Buyer shall not assign this Agreement or any order hereunder
without the prior written consent of the seller. Any assignment in violation of
the foregoing will be void and of no force or effect. Seller may assign this
Agreement or any order hereunder in seller’s sole discretion and without restriction.
This Agreement will be binding upon and inure to the benefit of the parties,
their successors, and permitted assigns.
23. Relationship
Nothing in in this Agreement or any product or service
orders shall be construed to place the buyer or seller in the relationship of
partners or joint ventures, and the buyer and seller shall have no power to
obligate or bind the other in any manner whatsoever.
24. Waiver
No waiver by seller of any breach of this Agreement by the
buyer shall be considered as a waiver of the subsequent breach of the same or
any other provision.
25. Severability
If any provision or portion of this Agreement shall be
adjudged invalid or unenforceable by a court of competent jurisdiction or by
operation of any applicable law, that provision or portion of this Agreement
shall be deemed omitted and the remaining provisions and portions shall remain
in full force and effect.
26. Liens and Title
a) Buyer hereby grants to seller a security interest in any
property owned by the buyer (including buyer’s beneficial rights to property
leased by seller) in the possession of seller or any of sellers’ affiliates, at
any time, to secure all amounts owed by buyer to seller under this Agreement.
b) In the case of repairs or overhauls performed pursuant to
this Agreement, buyer grants seller a perfected security interest in all products
retained in possession of seller upon which any repair or overhaul services
have been performed by seller. Buyer further acknowledges and agrees that, in
addition to the security interest and lien expressly granted by buyer to
seller, seller shall have a lien on the product retained in possession of
seller to the extent otherwise provided by law. Buyer acknowledges that the
lien (whether granted by buyer or through the operation of law) for repairs or
overhaul shall be for the full value of such work, and shall be superior to any
lien or interest in favor of buyer, its parents, affiliates, or subsidiaries,
or any other person who has knowledge of this Agreement. To the extent that seller
maintains possession of product under repair, buyer agrees that seller is a
secured creditor of buyer and has all the rights of a secured creditor.
c) With respect to products sold pursuant to this Agreement,
buyer agrees and acknowledges that seller shall retain a security interest in
such product, unless and until all payment for such products has been made and
all other covenants and agreements of this Agreement have been performed in
full. Accordingly, buyer agrees that it will not suffer or permit any lien or
encumbrance to be established that effects the title to the product sold by
seller pursuant hereto until seller has been paid in full. Buyer agrees that,
in the event of buyer’s insolvency, or in the event that any petition is filed
by or against buyer under Chapter 7 or Chapter 11 of the Bankruptcy Code,
seller may, at its discretion, recover all products sold pursuant to this Agreement
and/or seek damages or costs under applicable laws.
27. Storage Fees
A storage fee will be applied monthly up to the maximum
allowed by law on all repaired and overhauled units if delivery is not taken
within five (5) days of notification.
28. Force Majeure
Notwithstanding anything else in this Agreement, no default,
delay, or failure to perform on the part of seller will be considered a breach
of this Agreement if such default, delay, or failure to perform is shown to be
due to causes beyond reasonable control of seller, including, but not limited
to, causes such as strikes, lockouts or other labor disputes, riots, civil
disturbances, actions or inactions of governmental authorities or suppliers,
epidemics, war, embargoes, severe weather, fire, earthquakes, acts of God or
the public enemy, nuclear disasters, or default of a common carrier.
29. Entire Agreement; Construction; Survival
This Agreement sets forth the entire agreement and
understanding of the Parties relating to the subject matter herein and
supersedes all prior and contemporaneous communications, representations,
discussions, and agreements between the Parties with respect to such subject
matter. The titles and section headings used in this Agreement are for ease of
reference only and shall not be used in the interpretation or construction of
this Agreement. No rule of construction resolving any ambiguity in favor of the
non-drafting party shall be applied hereto. The word “including”, when used
herein, is illustrative rather than exclusive and means “including, without
limitation.” In the event of any
termination or expiration of this Agreement, buyer’s obligations to pay amounts
due hereunder and arising prior to the date of termination or expiration, as
well as Sections 9, 12–18, and 21–29 shall survive such termination or
expiration.