Crary Industries, Inc.
ONLINE TERMS AND CONDITIONS OF SALE
- Incorporation and Definitions. These Online Terms and Conditions of Sale (“Terms and Conditions”) are incorporated into and made a part of the Application for New Account/Credit submitted by Applicant and approved by Company (the “Application”) and any purchase order submitted by Applicant to, and accepted by Company and all Order Acknowledgements and Invoices issued by Company to Applicant, as fully as if therein set forth at length. Capitalized terms used herein not otherwise defined shall have the meanings therefore set forth in the Application. Applicant as used herein shall mean the Applicant in the Application and the “Customer” in any Order Acknowledgement or Invoice issued by Company to Applicant. None of the Terms and Conditions may be altered by Applicant other than in a writing executed by an authorized representative of Company. Applicant is advised to carefully review and consider the provisions of these Terms and Conditions as all of the same are fully binding upon Applicant. Company reserves the right to, in the sole discretion of Company, from time to time make changes, deletions and/or additions to these Terms and Conditions. Effective upon notice to Applicant of any such changes, additions or deletions, the same shall become fully binding upon Applicant.
- Products. Products may be modified, replaced or removed from the definition of Products without prior notice to Applicant at any time.
- Warranties, Representations and Covenants of Applicant.
Applicant represents, warrants and covenants to Company as follows:
- None of Applicant, the owners, affiliates, officers or principals of Applicant or any persons with whom Applicant engages in transactions related to Products are persons with whom United States persons are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on the OFAC Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), list or other governmental action, or have been indicted for or convicted of any Patriot Act Offense (as herein defined).
- Programs. Applicant may offer customers such terms, discounts and financing programs to facilitate the rental and/or resale of Products, as Applicant in the sole discretion of Applicant, deems necessary and appropriate and nothing herein shall be interpreted to in any way limit or control rates, rents, prices, terms, discounts or financing programs offered by Applicant.
- Taxes. Applicant shall pay and indemnify Indemnitees from and against all taxes (except the income taxes of Company), fees, assessments, charges and liabilities of every kind whatsoever, that are based upon the purchase, resale, use, ownership and/or rental of Products. Applicant will provide to Company appropriate certificates or other evidence of non-taxability of sales of Products by Company to Applicant as may be applicable and required by Company. Company in the sole discretion of Company may charge and collect from Applicant, including in connection with the sale of Products by Company to Applicant as part of, in addition to or together with the price paid by Applicant to Company for Products, any of the forgoing taxes, fees, assessments, charges and liabilities, and pay or hold the same for payment to, the appropriate authorities.
- Applicant Not Franchisee. The relationship between Company and Applicant is that of vendor and vendee, and not of principal and agent, and Applicant is not a franchisee of Company. No community of interest between Applicant and Company is created by the Application or any Order Acknowledgement or Invoice or otherwise exists. Applicant has not paid and does not pay any fee or other consideration, directly or indirectly, monetary or otherwise, to Company for purchase of Products other than the price therefor. Applicant is solely and exclusively responsible for and shall freely determine and establish the means and methods for any authorized rental, use and/or resales of Products.
- Export Control. Products are sold to
Applicant for, if authorized by Company, resale and/or rental within the jurisdiction(s) in
which Applicant is organized/incorporated/established and/or qualified to transact business
as set forth in the Application (for purposes of this Section, the “Area”) only. Should
the Area include any area or place outside of the United States, then any export, transfer,
resale, rental or other disposition of the Products or any technology, hardware components,
firmware or software contained therein out of the United States (collectively, “Diversion”)
is subject to and must be made in accordance with all applicable law. Diversion
contrary to applicable law is strictly prohibited. In furtherance of the foregoing,
Applicant shall: comply with all applicable export/export control laws, rules and
regulations of the United States and all other foreign countries, governments, agencies or
authorities including without limitation, if applicable, the International Traffic-In-Arms
Regulations (collectively, “Export Laws”); and, not execute any Diversion in violation of
any Export Laws, or without all necessary exemptions/approvals/authorizations/licenses.
Applicant acknowledges that Diversion of Products may require export/export control
licenses/approvals/ authorizations/exemptions from the United States government or foreign
countries, governments, agencies or authorities. In cases where licenses, authorizations,
exemptions or approvals are required, Applicant shall be solely responsible for obtaining
the same. Applicant shall bear all expenses relating to obtaining any necessary
licenses, authorizations, exemptions or approvals required under all Export Laws with
respect to any Diversion. Anything contained herein, in the Application or in any
Order Acknowledgement or Invoice issued to Applicant by Company, to the contrary
notwithstanding there shall be no Diversion to:
- any country subject to United States trade sanctions applicable to Products;
- individuals or entities controlled by the aforedescribed countries;
- nationals or residents of the aforedescribed countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or
- to any named person on the OFAC Specially Designated Nationals and Blocked Persons List or on the United States Department of Commerce Bureau of Export Administration Denied Persons or Entities List, or to any other person subject to other government lists applicable to Products (or any other similar lists that may be promulgated or maintained by the United States government from time to time). Upon request by Company, Applicant shall provide Company with all Applicant customer information and documentation required to maintain strict compliance with all Export Laws. Applicant shall take all actions as may be reasonably necessary to assure that no customer of Applicant contravenes any Export Laws or the provisions of any related authorizations, approvals, licenses or exemptions.
- WARRANTY. COMPANY MAKES NO WARRANTIES,
GUARANTEES OR OTHER REPRESENTATIONS, EXPRESS OR IMPLIED, NOR ANY IMPLIED CONDITIONS, WITH
RESPECT TO PRODUCTS (INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE), EXCEPT AND ONLY TO THE EXTENT OF THE STANDARD LIMITED WARRANTY OF
COMPANY FROM TIME TO TIME IN EFFECT FOR AND APPLICABLE TO PRODUCTS, WHICH IS PROVIDED IN
WRITING BY COMPANY WITH SALES OF PRODUCTS TO APPLICANT OR AVAILABLE FROM COMPANY UPON
REQUEST OR POSTED ON THE OFFICAL WEBSITE OF COMPANY (THE “STANDARD LIMITED WARRANTY”). THE
STANDARD LIMITED WARRANTY MAY CONTAIN DIFFERENT PROVISIONS APPLICABLE TO DIFFERENT
COMPONENTS OF PRODUCTS GIVEN BY PERSONS OTHER THAN COMPANY. ENFORCEMENT OF ANY OF SUCH
PROVISIONS SHALL BE MADE AND ASSERTED DIRECTLY AGAINST ONLY SUCH PERSONS AND NOT COMPANY.
ALL PRODUCTS SOLD TO APPLICANT ARE SOLD ONLY WITH AND SUBJECT ONLY TO THE STANDARD LIMITED
WARRANTY. APPLICANT IS NOT AUTHORIZED TO MODIFY, ENLARGE, ALTER, REVISE, EXTEND OR
AMEND THE STANDARD LIMITED WARRANTY OR TO ASSUME ON BEHALF OF COMPANY ANY OTHER DUTY,
OBLIGATION OR LIABILITY IN CONNECTION WITH PRODUCTS. IN THE EVENT THAT ANY CHANGE OR
ALTERATION (INCLUDING THE REMOVAL OR OBLITERATION OF ANY LABEL, WARNING, INSTRUCTION OR
PLATE) IS MADE IN OR TO PRODUCTS, EXCEPT AS MAY BE REQUIRED BY LAWS, REGULATIONS OR
GOVERNMENTAL ORDERS AND WHICH COMPANY APPROVES IN ADVANCE AND EXCEPT SUCH OTHER CHANGE OR
ALTERATION AS IS APPROVED IN WRITING IN ADVANCE BY COMPANY, OR IF APPLICANT ALLOWS,
PROMOTES, AUTHORIZES OR ENCOURAGES APPLICATION, OPERATION, MAINTENANCE, STORAGE, CONNECTION,
INSTALLATION OR USE OF PRODUCTS INCONSISTENT WITH ANY LAW, REGULATION OR GOVERNMENTAL ORDER
OR ANY SPECIFICATION, LABEL, MANUAL, BULLETIN, FIELD CAMPAIGN, GUIDE, INSTRUCTION, WARNING
OR RECOMMENDATION OF COMPANY, THEN ALL DUTIES, LIABILITIES AND OBLIGATIONS OF COMPANY UNDER
THE STANDARD LIMITED WARRANTY AND OTHERWISE SHALL FORTHWITH TERMINATE AND APPLICANT SHALL
INDEMNIFY INDEMNITIES FOR, AND HOLD INDEMNITEES FOREVER HARMLESS AGAINST AND FROM ALL
LIABILITY TO ANY CUSTOMER OF APPLICANT OR USER OF PRODUCTS OR ANYONE CLAIMING THROUGH, UNDER
OR ON BEHALF OF APPLICANT OR SUCH CUSTOMER OR USER, INCLUDING LIABILITY FOR PERSONAL INJURY,
PROPERTY DAMAGE OR ECONOMIC OR MONETARY LOSS, AND INCLUDING ANY AND ALL COSTS INCURRED AS A
RESULT OF DEFENDING ANY SUIT OR ACTION ASSERTING OR ALLEGING ANY SUCH LIABILITY AS MAY BE
REASONABLY REQUIRED. COMPANY SHALL BE UNDER NO OBLIGATION TO PERFORM UNDER ANY CLAIM
UNDER THE STANDARD LIMITED WARRANTY UNTIL AND UNLESS COMPANY HAS RECEIVED PROMPT NOTICE FROM
APPLICANT OF AN ALLEGED DEFECT in products AND HAS DETERMINED THAT such DEFECT EXISTS.
Notwithstanding the foregoing provisions of this section, Company PARTIES (AS HEREIN
DEFINED) shall have and assume no duty, liability or responsibility for any Products which
fail to function by reason of any one or more of the following causes, TO WIT:
- Abuse or misuse or operation, use, application, STORAGE, maintenance, connection or installation of Products contrary to ANY LAW, REGULATION OR GOVERNMENTAL ORDER OR ANY SPECIFICATION, LABEL, GUIDE, WARNING, RECOMMENDATION OR instruction FROM COMPANY;
- Failure to perform maintenance of Products as directed, required, instructed or recommended by company;
- Alteration or modification of Products which is unauthorized or warned against by company or may result in damage to Products;
- Failure to use or operate Products in accordance with LAWS, REGULATIONS AND GOVERNMENTAL ORDERS AND the specifications, instructions, guides, warnings, labels AND recommendations of company;
- Repair, maintenance or servicing of Products performed by unauthorized persons;
- Force MAJEURE including natural disaster, fire, flood, accidents or the like; OR
- ANY CAUSE SPECIFIED IN THE STANDARD LIMITED WARRANTY.
- LIMITATION OF LIABILITY, REMEDIES AND DAMAGES. THE SOLE, duty, RESPONSIBILITY AND LIABILITY OF: COMPANY; the seller of Products to company; any shareholder of company; indemnitees; AND, THE MANUFACTURER(S) OF PRODUCTS OR COMPONENTS OF PRODUCTS (collectively, “company parties”), INCURRED BY OR ARISING OUT OF OR WITH RESPECT TO: THE APPLICATION, ANY ORDER ACKNOWLEDGEMENT OR INVOICE ISSUED BY COMPANY; THE SALE, rental, resale AND OPERATION OF PRODUCTS; THE RELATIONSHIP OF COMPANY WITH APPLICANT; OR THE SUPPLY OF products, other goods OR SERVICES BY COMPANY PARTIES, AND THE EXCLUSIVE REMEDY OF APPLICANT (OR ANYONE CLAIMING THROUGH, under OR ON BEHALF OF APPLICANT) AGAINST COMPANY parties UNDER THe APPLICATION, ANY ORDER ACKNOWLEDGEMENT OR INVOICE ISSUED BY COMPANY, THE STANDARD LIMITED WARRANTY, OR OTHERWISE SHALL BE LIMITED TO REPAIR OF PRODUCTS NOT CONFORMING TO THE STANDARD LIMiTED WARRANTY, OR, IF DEEMED NECESSARY IN THE sole AND ABSOLUTE JUDGMENT OF COMPANY AND AT THE sole AND ABSOLUTE DISCRETION OF COMPANY, THE REMOVAL OF such PRODUCTS (BUT ONLY IF FREE OF ALL LIENS AND ENCUMBRANCES AND WITH THE FULL COOPERATION OF Applicant AND WITH FULL ACCESS THERETO) AND THE RETURN TO APPLICANT OF MONIES ACTUALLY PAID TO COMPANY IN CONNECTION WITH THE PURCHASE OF Such PRODUCT(S), WITHOUT INTEREST, LESS AN AMOUNT EQUAL TO THE DEPRECIATION IN VALUE OF such PRODUCTS INCURRED DURING POSSESSION OR USE OF such PRODUCTS BY PERSONS OTHER THAN COMPANY. THE TOTAL warranty or any other LIABILITY OF COMPANY PARTIES SHALL IN NO EVENT EXCEED THE AMOUNT ACTUALLY PAID TO COMPANY BY APPLICANT WITH RESPECT TO such PRODUCTs, WHICH GiVE RISE TO any CLAIM, LOSS OR DAMAGE. IN NO EVENT SHALL COMPANY PARTIES BE LIABLE TO APPLICANT OR ANYONE CLAIMING ON BEHALF OF, under OR THROUGH Applicant, FOR ECONOMIC or monetary LOSS; or COMPENSATORY, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, ARISING IN CONTRACT, STRICT LIABILITY OR IN TORT (INCLUDING NEGLIGENCE), AT EQUITY OR AT LAW, INCLUDING ANY DAMAGE FOR LOST PROFITS OR FAILURE TO MEET ANY OBLIGATION. THIS LIMITATION OF REMEDIES: HAS BEEN NEGOTIATED BY COMPANY AND APPLICANT; IS REASONABLE; ENABLEs APPLICANT TO RECEIVE THE BENEFIT OF A LOWER PRICE for products THAN WOULD APPLY IN THE ABSENCE OF SUCH LIMITATION; IS DEEMED TO BE FAIR, REASONABLE AND ADEQUATE BY APPLICANT AND COMPANY; AND, IS INTENDED TO SURVIVE EVEN IF THE REMEDY IS CLAIMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE FULL AND COMPLETE PERFORMANCE OF ALL OBLIGATIONS OF appicant TO COMPANY IS A CONDITION PRECEDENT TO ALL OBLIGATIONS, dutIES or LIABILITIES OF COMPANY RECITED HEREIN and under the standard limited warranty. THE STANDARD LIMiTED WARRANTY IS INTENDED TO CREATE NO RIGHTS IN THIRD PERSONS OR ANY THIRD PARTY BENEFICIARIES.
- Interpretation of Warranty. In the event of any inconsistency or conflict between the Application, any of the Terms and Conditions and the Standard Limited Warranty, the Standard Limited Warranty shall govern, control and supersede. Specifically, additional limitations upon and exclusions from the Standard Limited Warranty may apply as set forth in the Standard Limited Warranty.
- Governing Law; Jurisdiction; Venue. The Application, any order Acknowledgement or invoice issued by company, these terms and conditions, the relationship between applicant and company and any transaction between company and applicant including the sale and purchase of products, SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF ILLINOIS, AND SHALL BE CONSTRUED ACCORDING TO THE LAWS OF THAT STATE, WITHOUT REGARD TO conflict OF LAW PRINCIPLES. applicant irrevocably consents and waives any objection to the jurisdiction and PROPRIETY and convenience of venue AND FORUM of any court of general jurisdiction located within the counties of Cook or Lake in the State of Illinois with respect to any legal proceeding arising out of or related to the Application, any order Acknowledgement or invoice issued by company, these terms and conditions, the relationship between applicant and company and any transaction between company and applicant, including the sale and purchase of Products. the mailing to any address of applicant set forth in the application by U.S. registered mail, return receipt requested, of any process shall constitute lawful and valid service of process in any such proceeding, suit or controversy. applicant shall bring any legal or administrative suit, litigation, controversy or proceeding arising out of or related to the Application, any order Acknowledgement or invoice issued by company, these terms and conditions, the relationship between applicant and company and any transaction between company and applicant, including the sale and purchase of Products, only in the federal or state courts located in the counties of Cook or Lake in the State of Illinois. In the event applicant institutes any legal or administrative suit, litigation, controversy or proceeding in any court other than those specified above, applicant shall assume all of the costs of company in connection therewith AND WITH THE REMOVAL OR TRANSFER THEREOF to a federal or state court located in the counties of lake or cook in the state of illinois, including all attorneys’ and paralegals’ fees.
- Waiver/Trial By Jury. To the fullest extent permitted by law, applicant hereby waives trial by jury in any legal or administrative suit, litigation, controversy or proceeding in any court with respect to, in connection with, arising out of or related to the Application, any order Acknowledgement or invoice issued by company, these terms and conditions, the relationship between applicant and company and any transaction between company and applicant, including the sale and purchase of Products.
- Interpretations. All words or phrases used herein shall have the meanings ascribed thereto hereby or by the Application, or if such is silent, then there shall be ascribed thereto the normal, everyday meanings thereof as used in business and commercial enterprise. Unless specifically designated otherwise, the use of the word(s): “parties” or “party” shall mean Applicant and/or Company; “person” or “persons” shall mean natural individuals or any recognized form of business organization, enterprise or entity; and “includes” or “including” or similar words shall be construed as if followed by the phrase “…without being limited to…”. As used herein references to “and” as well as to “or” shall be construed either conjunctively or disjunctively as necessary and wherever appropriate. As used herein “Patriot Act Offence” means any violation of any criminal law or any act that would be a violation of any criminal law if committed within the jurisdiction of the United States or any of the several states, relating to terrorism or the laundering of monetary instruments, including any offense under: criminal laws against terrorism; criminal laws against money laundering, the Bank Secrecy Act, as from time to time amended; the Money Laundering Control Act of 1986, as from time to time amended; the Patriot Act of 2001 as from time to time amended; or, the USA Freedom Act as from time to time amended, and also includes the crimes of conspiracy to commit, or aiding and abetting another to commit, a Patriot Act Offense. The singular form of any word used herein shall be interpreted to include the plural or vice versa. The masculine, feminine or neuter form of any word used herein shall be interpreted to be that necessary for factual or grammatical accuracy. All of the foregoing shall be construed to give proper meaning and grammatical form to the words, terms, phrases and sentences used herein or in the Application. Neither the Application or any of the Terms and Conditions shall be construed more strictly against Company than Applicant merely by virtue of the fact that the same has been prepared by legal counsel for Company. It is recognized and acknowledged by the parties that each and the respective legal counsel therefor have contributed substantially and materially to the preparation, form, substance and content of the Application and the Terms and Conditions. The various headings used herein are for convenience only and shall not be used in interpreting the text before which the same appear. The Application may be executed in multiple counterparts, each of which shall be deemed to be and shall constitute one and the same instrument. Electronic or digital execution of the Application or a facsimile, PDF of JPEG copy of an executed copy of the Application shall be as effective, binding and enforceable as a copy of the Application bearing an authentic, original signature. Notwithstanding that the Application or any of the Terms and Conditions may be translated into any other language or languages, the official language for application and interpretation of the Terms and Conditions and of the Application shall be English. The United Nations Convention on the International Sale of Goods shall not be applied to or used in connection with the interpretation or enforcement of the Terms and conditions or the Application or any transaction between the parties, including the sale and purchase of Products.
- Delivery of Products and Force Majeure. Company shall have no liability to Applicant or any customer of Applicant under any purchase order from Applicant, on account of delay in the manufacturing or delivery of, or inability to manufacture or deliver, any Products for any reason, including strikes, lock-outs, accidents, fires, delays in manufacture, transportation or delivery of materials, acts of God, embargoes, acts of war or terrorism or governmental action, or any other cause beyond the reasonable control of Company, regardless of whether the same or different from the matters and things hereinbefore specifically enumerated. Delivery terms are as specified in the Order Acknowledgement issued by Company unless otherwise agreed by Company. Notwithstanding the foregoing, when any other method of shipment is requested by Applicant, all additional or other costs and charges necessitated thereby shall be paid by Applicant. In the event Applicant does not notify Company within 10 days of receipt of Products that allegedly the Products and/or quantities of Products received were not as ordered by Applicant, Applicant will be deemed to have waived the right to reject or revoke the acceptance of such Products. Company may cancel a purchase order or portion thereof at any time, even though previously accepted by Company. No revocation of acceptance or rejection of Products made by Applicant shall be considered timely and properly made without the approval of Company. Upon any such approval by Company the subject Products may be shipped, at the expense of Applicant unless otherwise approved by Company prior to shipment, to the location designated by Company and upon proper and satisfactory receipt thereof, as determined by Company, a credit shall be issued to Applicant in the amount of the price actually paid to Company for such Products less the then in effect standard restocking charge of Company.
- Compliance with Laws. Applicant shall comply with all federal, state and local laws, regulations and ordinances in any way relating to the performance of Applicant. Company shall have no responsibility for or any duty of compliance with any applicable law, regulation or governmental order relative to the use, operation, connection or installation of Products. Applicant shall instruct all customers of Applicant that same are to comply with all laws, regulations and governmental orders and all instructions, warnings, recommendations, guides, labels and specifications of Company, relative to the use, operation, application, connection, maintenance and installation of Products.
- Confidentiality. Applicant shall hold in strictest confidence, treat as highly confidential and disclose to no person, other than employees of Applicant who agree in writing to be bound by the confidentiality obligations set forth herein, any Confidential Information (as herein defined). “Confidential Information” means all technical information, know-how, technology, formulae, designs, prototypes, ideas, inventions, improvements and data about, concerning or relating to Products provided to or obtained by Applicant; provided, however, that any of the foregoing shall not be considered Confidential Information if Applicant can demonstrate that such: has become publicly known through no wrongful act or breach of any obligation of confidentiality on the part of Applicant; was rightfully received by Applicant from a third person without a breach of any agreement by such third person; was approved for release by authorization from Company; or was developed by Applicant independently of and without reliance on any Confidential Information.
- Applicant not Agent. Applicant is an independent contractor in relation to Company, solely responsible for the acts of Applicant at all times. Applicant is not authorized to act as an agent for Company and has neither the right nor authority to: assume or create obligations of any kind on behalf of Company; accept service of legal process of any kind addressed to or intended for Company; or, bind Company in any respect whatsoever.
- Indemnification. Applicant shall indemnify and hold harmless Company Parties and all affiliates, successors and assigns thereof and the respective officers, directors, agents and employees thereof (collectively, “Indemnities”) against any and all claims, liabilities, damages, or expenses (including costs and attorneys' fees) of any kind or nature whatsoever by reason of, caused by or arising out of any act, duty, obligation, liability, violation, error or omission of Applicant, any agent of Applicant, or any personnel employed or otherwise engaged by Applicant. In addition, Applicant shall, at the request of Company and at the sole expense of Applicant, assume the defense of any demand, claim, action, or suit brought against Company by reason of any of the foregoing or where any of the foregoing are alleged, and pay any and all damages assessed against or that are payable by Indemnities as a result of the disposition of any such demand, claim, action, or suit. Notwithstanding the foregoing, Indemnities may be represented in any such action by counsel chosen by same and the cost of such representation shall be paid by Applicant.
- Product Changes by Applicant. Applicant shall not: alter, accessorize or change any Products, except as required by law and approved in advance by Company or as set forth in the Terms and Conditions; remove or obliterate any of the trademarks, patent numbers, name plates, labels or other markings on Products or add any of the foregoing to any Products; or, do anything that would in any way impeach or lessen the validity of the patents, trademarks or other intellectual property rights appurtenant to or under which Products are manufactured by or supplied to Company or sold to Applicant.
- Trademarks. Applicant shall not use any trademark, trade dress or tradename owned by any of Company Parties or which any of Company Parties has the right to use either alone or with any other word or words as part of the trade, assumed or corporate name of Applicant, or in any other fashion, without the prior permission of Company, and then only in strict accordance with such limitations thereupon as Company may establish.
- Default. Applicant shall be in default to Company in the event that: Applicant shall fail to pay any indebtedness or obligation to Company when due or payable or fail to perform any duty or obligation required to be performed by Applicant; there is non-payment of any bank draft or check delivered by Applicant to Company in payment for Products; the business of Applicant is in any way liquidated, or if Applicant makes any assignment of all or part of the assets of Applicant for the benefit of creditors; there are instituted proceedings by or against Applicant in bankruptcy or insolvency laws for reorganization, receivership, dissolution or liquidation which are not vacated within 30 days from the date of filing; Applicant or any officer, director, manager, partner or majority owner of Applicant is indicted for or convicted of any felony or converts or embezzles any property or funds of others; there is a misrepresentation made to Company by Applicant; Applicant shall fail to notify Company within 5 days after any change in the information stated in the Application, as well as the details of such change; Applicant fails to comply with, observe or perform any provision of the Terms and Conditions, and such failure is not cured by Applicant within 30 days after notice thereof; Company deems itself insecure; or, there is a sale, transfer or relinquishment of any substantial interest in the ownership, control or active management of Applicant. No default by Applicant shall be affected or obviated in any manner by reason of any defense of setoff, abatement or recoupment, or any claim or counterclaim asserted or assertable by Applicant, including any claim for breach of warranty or contract.
- Remedies Upon Default. In the event of a default to Company by Applicant, in addition to all other rights and remedies provided herein and/or by applicable law, Company shall, if Company so elects, have any one or more of the following rights and remedies, without prior notice (unless otherwise indicated or required by law) to Applicant, to wit: accelerate without notice or demand the unpaid balance of any and all indebtedness, obligations and liabilities owed to Company however evidenced and secured so that the same shall be and become immediately due and payable; be immediately relieved and released from all duties to Applicant, including any obligation to fulfill any open or pending purchase order or otherwise sell or ship to Applicant any Products; and be entitled to recover from Applicant all costs and expenses incurred, or to be incurred, by reason of such default, including, attorneys’ fees, paralegals’ and experts’ fees, court costs, witness fees and expenses of litigation.
- Notices. All notices, designations, consents, requests, permissions, approvals, advice, information, authorizations, waivers, agreements or communications permitted or required to be given to either party shall be in writing, shall be executed by an officer of Company or principal of Applicant as the case may be, and shall be effective: as of the date on which deposited with a commercial express courier service, properly addressed, to the other party; as of the date of transmission when sent by receipt confirmed facsimile or e-mail; or, as of the date actually received when personally delivered. All such notices shall be sent, or addressed to the respective party or received by the respective party at the address for each set forth in the Application or such other address as may be designated by either party from time to time.
- Entire Agreement. The provisions hereof and all other of the Terms and Conditions constitute the entire and integrated expression of agreement between the parties and supersede all previous agreements, memoranda, negotiations, or other understandings of the parties, whether written or verbal, relating to the subject matter hereof.
- Severability of Provisions. A judicial or administrative declaration in any jurisdiction of the invalidity of any one or more of the provisions hereof shall not invalidate the remaining provisions of the Terms and Conditions in any jurisdiction, nor shall such declaration have any effect on the validity or interpretation of the Terms and Conditions outside of that jurisdiction.
- Waiver of Compliance. Any failure by Company to enforce at any time any of the Terms and Conditions shall not be construed as a waiver of the right of Company thereafter to enforce each and every one of the Terms and Conditions.
- Binding Upon Successors. The Terms and Conditions shall be binding upon the successors, permitted assigns and legal representatives of Applicant.
- Calculation of Time. If the time period by which any right hereunder must be exercised or any duty hereunder must be performed expires on a Saturday, Sunday or legal holiday, then such time period shall be automatically extended to the close of business on the next regular business day.
- Future Assurances. From time to time Applicant shall execute and deliver to Company such further documents and take such other actions as Company may request in order to effectuate the Terms and Conditions.