GENERAL SALES CONDITIONS
1. GENERAL.
This SALES CONTRACT sets forth the terms and conditions pursuant to which the purchaser identified on the front page hereof (“Purchaser”) will purchase and ARMOR USA, INC. (“Seller”) will sell goods and/or services (hereinafter called “Products”), including those described on the front page of this SALES CONTRACT. These Terms and Conditions shall govern and apply to the sale of the Products to Purchaser, regardless of any terms and conditions appearing on any purchase order or other forms submitted by Purchaser to Seller, or the inconsistency of any terms therein and herein.
2. CANCELLATION.
Purchaser shall not countermand or cancel this SALES CONTRACT or cause the work or shipment to be delayed, except with the written consent of, and upon terms agreed to by, Seller and with full compensation to Seller for any loss sustained by reason of any cancellation or delay.
3. PRICE.
All prices set forth on this SALES CONTRACT are F.O.B. Seller’s Plant. All prices are exclusive of any and all taxes, including, but not limited to, excise, sales, use, property, transportation and/or occupational taxes and such other taxes related to the sale or use of the Products, now or hereafter imposed, together with all penalties and expenses. Purchaser shall be responsible for collecting and/or paying any and all such taxes, whether or not they are stated in any invoice for the Products. Purchaser shall indemnify and hold Seller free and harmless from and against the imposition and payment of such taxes. Seller, at its option, may at any time separately bill Purchaser for any taxes not included in Seller’s invoice and Purchaser shall pay said taxes, or in lieu thereof, shall provide Seller with a tax exemption certificate acceptable to all taxing authorities. Unless otherwise specified herein, all prices are exclusive of: (a) inland freight, insurance and other costs and expenses relating to the shipment of the Products from the F.O.B. point, Seller’s Plant, to Purchaser’s facility; and (b) any special packaging for the Products required by Purchaser. In the event Seller shall make arrangements for inland transportation, all costs andexpenses relating to such inland transportation shall be for the account of Purchaser and shall be paid by Purchaser to Seller upon presentation of Seller’s invoice therefor. In the event Purchaser shall require any special packaging for shipment of the Products, the cost for such special packaging shall be invoiced separately to and paid by Purchaser. In the event delivery of the Products, or any part thereof, is delayed due to the fault of Purchaser, any and all additional costs and expenses incurred by Seller resulting from such delay in delivery, including those relating to storage, shall be chargeable to and paid by Purchaser. Prices are subject to adjustment if Buyer requests changes in specifications, quantities or delivery requirements, provided that changes in the goods to be purchased, or any other terms of this order, may be made only upon Buyer’s written order and the agreement, in writing, of Seller. All of the terms and conditions of this invoice shall apply to goods to which such changes are made, and no modification in the terms and conditions hereof shall be binding on Seller unless contained in writing signed by an officer of Seller and expressly stating both that such terms are being modified and the nature of such modification.
4. MINIMUM ORDER.
In the event Purchaser’s order is below a minimum quantity established by Seller, Seller reserves the right to either: (a) charge Purchaser an additional amount to be determined by Seller for such order; or (b) decline such order.
5. PAYMENT, DELINQUENCY CHARGE.
Payment shall be made in accordance with the terms of this SALES CONTRACT. Unless otherwise agreed to in writing by Seller, full payment shall be due net thirty (30) days from the date of Seller’s invoice. Seller reserves the right to charge interest at the rate of 1.5% per month (but not more than the maximum percentage permitted by law) on all balances not paid by Purchaser within the designated net terms. Seller reserves the right at any time to revoke any credit extended to Purchaser because of Purchaser’s failure to pay for any goods when due or for any other reason deemed to be good and sufficient by Seller. Seller shall make no sale or shipment of any Products to Purchaser on open account, or in any manner, if at any time the financial condition of Purchaser becomes impaired or unsatisfactory to Seller, or if at the time of such sale or shipment, Purchaser is delinquent in the payment of any account to Seller. In any case, Seller may require that Purchaser provide full security to Seller before any sale or shipment. In the event Purchaser shall be in default of any terms and conditions hereof, or becomes insolvent or proceedings are instituted to declare Purchaser bankrupt, or a receiver is appointed for Purchaser in any court, Seller may at its option terminate this SALES CONTRACT and upon such termination by Seller, any and all claims or demands against Purchaser held by Seller shall immediately become due and payable.
6. DELIVERY.
Seller shall exert reasonable efforts to cause the Products to be shipped in accordance with the terms of this SALES CONTRACT. It isagreed that any delivery dates specified or agreed to shall be deemed estimates only. Title to the Products shall pass at the F.O.B. point, Seller’s Plant. Purchaser acknowledges that the Products may be flammable and, therefore, Seller reserves the right to designate the method of shipment of the Products, with which reasonable designation Purchaser shall comply. In the event Products are shipped by air freight, Seller reserves the right to limit the quantity shipped. If Products are shipped by sea freight, such Products must be classified as “deck goods”, and Purchaser shall pay the cost of any special packaging needed for such Products. The cost of any special packaging shall be invoiced separately to the Purchaser, and such cost shall be separate from, and in addition to, the purchase price. All risk of damage or loss to the Products from the F.O.B. point, Seller’s Plant, is assumed by Purchaser and such damage or loss shall not operate in any way to release Purchaser from any of its obligations hereunder or otherwise. Notwithstanding the provisions contained in this SALES CONTRACT to the contrary, Seller shall not be responsible or liable for any loss or damage whatsoever, including loss of income and/or profits, incidental, special or consequential damages resulting from Seller’s delayed performance in shipment and delivery of the Products for whatever reason, including force majeure. Any claims for shortages or claims that the Products delivered are other than that which was ordered, or claims for damages occurring in transit, must be made in writing to Seller within ten (10) calendar days after the arrival of the Products at Purchaser’s facility or shall be deemed waived.
7. WARRANTY.
(a) Seller warrants that the Products sold hereunder will be free from defects in material and workmanship for a period of one (1) year from the date the Products are delivered at the F.O.B. point, Seller’s Plant. Purchaser acknowledges and agrees that Seller’s Products may be stored for no more than twelve (12) months from the date of delivery to the Purchaser at the F.O.B. point, Seller’s Plant, and must be kept in an environment between 40°F and 95°F (or 5°C and 35°C) with a relative humidity between 20% and 80%. Purchaser further agrees that, in the event Purchaser or any end-user(s) stores the Products for more than twelve (12) months and/or fails to maintain the above storage temperature and humidity, Seller’s warranty shall be void and Seller shall thereafter have no further obligations or liabilities with regard thereto.
ELLER’S WARRANTY HEREIN IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES OF SELLER, THE MANUFACTURER OF THE PRODUCTS, AND ANY OTHER ENTITY INVOLVED IN THE SALE OF THE PRODUCTS, AND THEIR RESPECTIVE SUBSI DIARIES, RELATED AND AFFILIATED COMPANIES (HEREINAFTER COLLECTIVELY REFERRED TO AS THE “MANUFACTURING AND SELLING PARTIES”), WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE CREATED UNDER APPLICABLE LAW, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE OR USE, AND/OR NON-INFRINGEMENT. IN NO EVENT SHALL SELLER OR THE MANUFACTURING AND SELLING PARTIES BE LIABLE FOR SPECIAL, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS. IN ADDITION, THIS WARRANTY SHALL NOT APPLY TO ANY PRODUCTS OR PORTIONS THEREOF WHICH HAVE BEEN SUBJECTED TO ABUSE, MISUSE, OR IMPROPER OR ABNORMAL CONDI TIONS; AND/ OR TO PRODUCTS WHICH HAVE BEEN TAMPERED WITH, ALTERED, MODIFIED, OR REPAIRED BY ANYONE NOT APPROVED BY SELLER. PURCHASER’S SOLE AND EXCLUSIVE REMEDIES UNDER THIS WARRANTY SHALL BE LIMITED, AT SELLER’S EXCLUSIVE DISCRETION, TO: (1) REPLACEMENT OF ANY DEFECTIVE PRODUCTS OR PORTIONS THEREOF; OR (2) REPAIR OF ANY DEFECTIVE PRODUCTS OR PORTIONS THEREOF; OR (3) RETURN OF THE PURCHASE PRICE. THIS LIMITATION IS INTENDED BY THE PARTIES TO SURVIVE, AND SHALL SURVIVE, EVEN IF THE REMEDY IS CLAIMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
No agent, employee or representative of Seller has the authority to bind Seller to any affirmation, representation or warranty concerning the Products sold hereunder, and unless such affirmation, representation or warranty made by an agent, employee or representative is specifically included in this SALES CONTRACT, it will not form a part of the basis of this SALES CONTRACT and shall in no way be binding upon the Seller or enforceable by Purchaser. In the event Purchaser is not the ultimate end-user of the Products, Purchaser agrees to pass on Seller’s warranty herein to any and all end-users of the Products. Purchaser shall include the foregoing Seller’s warranty along with the Products when sold to such end-user(s) and shall specifically indicate in writing to such end-user(s) that Seller’s warranty shall apply. In the event Purchaser fails, at or prior to the time of resale, to (i) include Seller’s warranty with the Products and (ii) indicate in writing to any end-user that such warranty of Seller applies, Seller’s warranty shall be void, and Seller shall thereafter have no further obligations or liabilities with regard thereto and Purchaser shall indemnify and hold Seller and the Manufacturing and Selling Parties harmless from and against any and all claims, losses and/or damages of such end-user(s).
(b) Purchaser acknowledges and agrees that there exist numerous variables in the manufacturing process that are outside of Seller’s control. As such, any studies or other calculations, projections, estimates or figures are not guaranteed and do not constitute a basis for this SALES CONTRACT or any warranty unless specifically agreed to in writing.
8. SECURITY INTEREST.
Purchaser hereby grants to Seller and Seller hereby retains a continuing purchase money security interest in all of the Products sold and delivered by Seller to Purchaser, whether heretofore or hereafter acquired by Purchaser, including all components, additions, improvements or replacements therefor or thereto, together with any and all proceeds (as presently or hereafter defined by the Uniform Commercial Code) of sale or other disposition of the Products, including, but not limited to, cash, accounts, general intangibles, contract rights, instruments and chattel paper. Purchaser hereby authorizes (and grants to Seller power of attorney) to fi le on behalf of Purchaser any financing statements to evidence Seller’s security interest in the Products. Purchaser shall keep the Products free from any adverse lien, security interest or encumbrance and will not store or use the Products in violation of any statute or ordinance. In the event Purchaser shall be in default under this SALES CONTRACT, Seller shall have the remedies of a secured party under the Uniform Commercial Code. Seller may enter the Purchaser’s premises and remove the Products. Purchaser agrees to pay Seller reasonable attorneys’ fees and court costs for the collection of any amounts owing to Seller hereunder or incurred in the repossession of the Products. In the event that Seller fi les an action to repossess or replevy the Products, Seller shall not be required to post any bond in connection with such action, and Purchaser hereby waives any and all rights which Purchaser may have by statute or otherwise to require Seller to post such a bond.
9. PATENT INFRINGEMENT.
Seller warrants that the Products sold hereunder will not in and of themselves infringe any existing patent of the United States of America. Seller’s liability under this warranty (and the liability of the Manufacturing and Selling Parties) is limited to Seller’s defense of any suit or proceeding brought against Purchaser based on a claim that the Products sold hereunder when employed in the manner intended by Seller constitutes an infringement of any current patent of the United States. Seller’s liability hereunder is conditioned upon Purchaser’s giving immediate written notice of any such claim made against Purchaser and giving all such information available to Purchaser and such assistance as required by Seller with respect to such claim, and Purchaser’s granting to Seller exclusive control of the settlement and litigation of any such suit, proceeding or claim. If Purchaser’s use of the Products in the manner intended by Seller is finally enjoined, Seller shall, at its option, procure for Purchaser the right to continue using the Products, replace the same with non-infringing products, modify the Products so they become non-infringing, but equivalent to the Products sold hereunder, or remove the Products and refund the purchase price (less allowance for use, damage and obsolescence). In no event will Seller and the Manufacturing and Selling Parties be liable for any patent infringement based upon the use of the Products for a purpose other than for which they are sold by Seller. Seller makes no warranty against patent infringement resulting from portions of the Products made to Purchaser’s specifications or the use of the Products in combination with any other products or in the practice of any process and if a claim, suit or action is based thereon, Purchaser shall defend, indemnify and hold Seller and the Manufacturing and Selling Parties harmless from and against any and all claims, losses or damages arising therefrom.
10. CONFIDENTIALITY.
All drawings, designs, specifications, manuals, programs, and related materials or information furnished to Purchaser by Seller and the Manufacturing and Selling Parties shall remain the confidential and proprietary property of such party furnishing the property. All such information, except as may be found in the public domain, shall be held in strict confidence by Purchaser and shall not be disclosed by Purchaser to any third parties. Copyright in all materials made available by any party shall remain owned by the furnishing party at all times.
11. SAFETY PRECAUTIONS.
Purchaser shall require employees to use all safety devices, guards and proper safe operating procedures as set forth in manuals and instruction sheets furnished by Seller. Purchaser shall not remove or modify any such device, guard or sign. It is Purchaser’s responsibility to provide all the means that may be necessary to effectively protect all employees from serious bodily injury which
otherwise may result from the method of particular use, operation, or setup of the Products. If Purchaser fails to comply with the provisions of this paragraph or the applicable standards or regulations aforementioned, Purchaser shall indemnify and save Seller and the Manufacturing and Selling Parties harmless fromand against any and all claims, losses or damages arising therefrom.
12.COMPLIANCE WITH LAWS.
Purchaser shall comply with all federal, state and local laws, regulations and ordinances which are or may hereafter be in effect with respect to Purchaser’s use of the Products.
13. DISPUTE RESOLUTION.
(a) Purchaser agrees that it shall submit all claims, controversies and/or disputes (including warranty claims) arising out of this Agreement, the sale or use of Products and/or the relationship of the parties to arbitration before the American Arbitration Association (“AAA”) at Cincinnati, Ohio, before a panel of three (3) arbitrators, conducted under the then-in-effect Commercial Arbitration Rules of the AAA. Any judgment upon any award rendered by the arbitrators shall be final and binding and may be entered in any court having appropriate jurisdiction. If any suit or proceeding is fi led by Purchaser in any court or other forum, on application of Seller, such suit or proceeding shall be dismissed or stayed until arbitration has been had in accordance with these Terms and Conditions. In no event shall the arbitrators have the authority to award punitive, exemplary or treble damages.
(b) Purchaser hereby submits to the jurisdiction of the federal and state courts for Hamilton County, Ohio and Kenton County, Kentucky, and Purchaser further consents to the venue of such courts. Notice of process in connection with any proceedings may be served upon Purchaser by registered or certified mail with the same effect as if personally served. Seller reserves the right to assert any claims against Purchaser in such courts, or in other courts, or to submit such claims to arbitration consistent with subsection (a) above. Purchaser shall reimburse Seller for all expenses and costs, including reasonable attorneys’ fees, incurred by Seller in enforcing its right under these Terms and Conditions regardless of whether litigation becomes necessary.
(c) TO THE FULLEST EXTENT PERMITTED BY LAW, PURCHASER HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LITIGATION RELATING TO OR ARISING FROM THIS AGREEMENT, THE SALE OR USE OF THE PRODUCTS AND/OR THE RELATIONSHIP OF THE PARTIES.
(d) Any claim of Purchaser arising out of or related to this SALES CONTRACT shall be deemed waived if not brought within one (1) year after accrual.
14. FORCE MAJEURE.
Seller’s obligations hereunder are subject to delays incident to labor difficulties, fi res, casualties, accidents, acts of the elements, acts of God, acts of war or terror, transportation difficulties, delays by common carrier, inability to obtain equipment, materials or components or qualified labor sufficient to timely perform part or all of this SALES CONTRACT, governmental regulations or other causes beyond the control of Seller. In the event of any such delays, Seller’s performance shall be correspondingly extended, and Seller shall keep Purchaser fully informed of the effects of such events.
15. EXPORT OF PRODUCTS FROM THE UNITED STATES.
Purchaser understands that export of the Products or components of the Products from the United States may require export licenses and that it is Purchaser’s responsibility to obtain any such required licenses if Purchaser contemplates export of the Products or components of the Products from the United States. Purchaser shall indemnify and hold Seller free and harmless from and against any and all claims based upon Purchaser’s failure to procure an export license or Purchaser’s improper export of the Products from the United States.
16. MISCELLANEOUS PROVISIONS.
(a) This SALES CONTRACT constitutes the entire agreement between Seller and Purchaser as it relates to this transaction and their respective liabilities and the liability of the Manufacturing and Selling Parties and supersedes any and all prior agreements, correspondence, quotations, negotiations and/or understandings heretofore in force between the parties relating to the subject matter hereof. There are no agreements between Seller and Purchaser with respect to the Products herein except those expressly set forth in this SALES CONTRACT. Any additional terms, conditions and/or prices are rejected by Seller.
(b) The parties hereto acknowledge that Products, or portions thereof, sold to Purchaser hereunder may be purchased for such purpose by Sellerfrom the Manufacturing and Selling Parties and as such, Purchaser and Seller intend and agree that such parties, while not parties to this SALES CONTRACT, shall nevertheless be extended the benefits and protection hereof.
(c) If any term or condition or part of this SALES CONTRACT is held invalid, the remaining terms and conditions of this SALES CONTRACT shall not be affected thereby.
(d) This SALES CONTRACT may be modified, canceled or rescinded only by a written agreement of both parties executed by their duly authorized agents.
(e) No claim arising out of any breach of this SALES CONT RACT may be discharged in whole or in part by waiver or renunciation of such claim unless such waiver or renunciation is in writing and signed by the parties hereto.
(f) This SALES CONTRACT may not be assigned without the express written consent of the parties hereto. Any attempted assignment of rights or delegations of duties shall be void.
(g) All rights available to Seller under the Uniform Commercial Code (as now or hereafter in effect) except as specifically limited or excluded herein (even though not specifically enumerated), are reserved to Seller as remedies available in the event of default of Purchaser.
(h) Seller and Purchaser agree that the terms and conditions of sale contained in this SALES CONTRACT shall automatically apply to any future transactions for the sale of Products between the parties, including EDI transactions, unless specifically excluded in writing by Seller.
(i) This SALES CONTRACT and all related transactions shall be governed by and construed in accordance with the internal substantive laws of the State of Kentucky, without regard to choice of law principles. The parties hereto expressly opt out of and waive any application of the United Nations Convention on Contracts for the International Sale of Goods as it may apply to this SALES CONTRACT.
