1. With respect to any products and/or services (collectively, “Products”) purchased by Buyer from Optimas OE Solutions, LLC (“Seller”) (Buyer and Seller collectively, “the Parties”), the terms and conditions thereof shall consist of these terms together with any additions or revisions of such terms mutually agreed to in a writing signed by Seller and Buyer (the “Agreement”). Seller objects to and shall not be bound by any additional or different terms, whether printed or otherwise, in any purchase order or other communication from Buyer to Seller, unless specifically agreed to in a writing signed by the Parties and only with respect to those Products intended to be covered by that executed document. This Agreement constitutes the entire, integrated agreement between the Parties related to the subject matter of this Agreement and any subsequent purchases made by the Buyer from the Seller, and any and all discussions, understandings, agreements, representations, courses of dealings, customs, and usages of trade heretofore made or engaged in by the Parties with respect to the subject matter hereof are merged into this Agreement which alone fully and completely expresses the Parties’ agreement. No amendments, modifications, waivers, or termination of this Agreement can be made through the Parties’ course of dealings and no such change can be made except in a single writing signed by the Parties hereto. Failure by Seller to exercise any right or remedy under this Agreement will not be deemed a waiver of such right or remedy unless in a writing signed by Seller, nor shall any waiver be implied from the acceptance of any payment. No waiver by Seller of any right shall extend to or affect any other right, nor shall a waiver by Seller of any breach extend to any subsequent similar or dissimilar breach. The Agreement shall be for the benefit of the Parties and not for the benefit of any other person. Buyer may not assign this Agreement without the express written approval of Seller. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be limited or eliminated to the minimum extent required by that jurisdiction, and the remaining provisions of the Agreement will remain in full force and effect.
2. This Agreement may not be modified or rescinded except by a writing signed by the Parties. If all or part of the contract is terminated, Buyer, in the absence of a contrary written agreement between Seller and Buyer, shall pay termination charges equal to Seller’s costs associated with the contract, as determined by generally accepted accounting principles, plus a reasonable profit on the entire contract. Cost shall include any amount Seller must pay to its suppliers due to any termination by Seller of a purchase order or contract for Products intended for Buyer.
3. Unless otherwise agreed to between the Parties in writing, quoted prices are firm for a period of thirty (30) days from the date of such quote. Prices on orders placed after such period are not guaranteed to be the same as quoted and are subject to price adjustments. Payment of the purchase price for Products sold by Seller to Buyer shall be in the amounts set forth on each invoice, and Buyer agrees to pay all charges in accordance with the amounts established in said invoices. The entire outstanding balance due to Seller on all invoices shall become due in full immediately upon default in the payment of any invoice. Buyer will pay a service charge of $50.00 or the maximum allowed by law for each check returned by Buyer’s bank.
4. Buyer shall pay the purchase price for Products within thirty (30) days from the date of invoice. In the event Buyer fails to pay the total purchase price within the thirty (30) day period, the maximum allowable charge and/or interest allowed by applicable laws shall be applied to all past due accounts commencing from the due date of the invoice until paid. Seller shall also be entitled, in addition to all other remedies available at law or in equity, to recover reasonable attorneys’ fees and/or other expenses in collecting the purchase price or otherwise enforcing or successfully defending itself in respect of this Agreement. Cash discounts do not apply to cases or transportation charges. The purchase price for the Products is F.O.B. first point of shipment, unless otherwise agreed to in writing. Seller reserves the right to modify or withdraw credit terms at any time without notice and to require guarantees, security or payment in advance in the amount of sale. Seller may set off any amount due from Buyer to Seller, whether or not under this Agreement, from any amounts due to Buyer. Title to and risk of loss of the Products pass to Buyer upon delivery to the carrier at the F.O.B. shipping point.
5. Buyer agrees to be responsible and pay for all inventory Buyer orders from Seller, notwithstanding any defenses Buyer may have as to its failure to pay for other inventory and notwithstanding Buyer’s failure to use or sell such inventory. Seller will not accept returns of Products or the taking of financial credits by Buyer unless previously authorized by Seller via a written Return Material Authorization (“RMA”), or returned to Seller pursuant to the warranty remedies set forth in Section 9 of this Agreement. Seller will issue RMAs within thirty (30) days of delivery of the Products if the Products to be returned are (a) commonly stocked by Seller (“Standard Stock Product”), (b) resalable, and (c) in their original packaging, unopened and uncut, and accompanied by paperwork provided by Seller at the time of shipment, including but not limited to, shippers, invoices and certifications. Seller will not issue RMAs for Products that are specially procured for Buyer (“Special Stock Product”). All authorized returns will be subject to a restocking/recertification charge to be paid by Buyer. Seller will not accept returns unless the Products are new, of current issue, unopened, and in the original packaging. Partial returns of items as they relate to less than the standard unit of measure for sales will not be accepted by Seller. Buyer shall pay the freight and handling on all returns allowed by Seller pursuant to this section.
6. Any tax or other governmental charge upon the provision of services, or the production, sale, shipment, transfer, consumption, or use of the Products which Seller is required to pay or collect from Buyer shall be paid by Buyer to Seller at the time of payment for the Product, unless Buyer furnishes Seller with exemption certificates acceptable to taxing authorities. Such amount shall be
due whether or not included on the invoice.
7. Shipping date or other applicable performance date is estimated on the basis of immediate receipt by Seller of Buyer’s order and all information, drawings and approvals to be furnished by Buyer, and the absence of delays, direct or indirect, resulting from or contributed to by circumstances beyond Seller’s reasonable control. Seller will in good faith endeavor to ship Products or perform services by the estimated date. Seller shall have the right to make partial shipments. All changes in specifications or the shipping or performance date requested by Buyer will only be effective if set forth in a writing signed by the Parties, and where such changes affect Seller’s time or cost of performance, an equitable adjustment in estimated shipping/performance date or purchase price, or both, will be made. If no packaging, loading or bracing requirements are stated, Seller will comply with minimum specifications for the method of transportation specified. If no method of transportation is specified, shipment will be by a reasonable method of transportation determined by Seller in its sole discretion.
8. Buyer shall promptly submit all claims for shortages in writing to Seller once Buyer receives the Products; otherwise such claims shall be waived. Quantities are subject to normal manufacturer allowances. The purchase price for Products will equal the unit price multiplied by the quantity shipped. Buyer will inspect the Products upon delivery and will promptly notify Seller in writing of any defect in the Products so that Seller may place the Product manufacturers on notice of the same, otherwise such Products will be considered accepted.
9. Seller transfers and assigns to Buyer any and all transferable warranties and any intellectual property indemnity made to Seller by the manufacturer of the Products for the warranty period specified by the manufacturer. Such transfer and assignment shall include any remedies provided by the manufacturer of the Products. Seller makes no warranty beyond that provided through
such transfer and assignment, unless the manufacturer does not offer any warranty, in which case, Seller only warrants that the Products shall conform to the specifications or prints provided by Buyer that Seller agrees to in writing and for a period of one (1) year from the date of shipment. If a remedy is not specified by the manufacturer, Buyer’s sole and exclusive remedy for any alleged
breach of any warranty related to Products will be limited to, at Seller's option and expense, refund of the purchase price of, or the repair or replacement of the Products or parts thereof that Seller reasonably determines do not conform with the warranties.
10. DISCLAIMER OF WARRANTIES: THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF, AND SELLER DISCLAIMS AND BUYER WAIVES, ALL OTHER WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND OF ANY OTHER TYPE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW (STATUTORY OR OTHERWISE) AND WHETHER OR NOT OCCASIONED BY SELLER’S NEGLIGENCE.
11. LIMITATION ON BUYER’S RECOVERY: IN NO EVENT, EITHER FOR PRODUCTS MANUFACTURED BY SELLER OR THOSE THAT ARE NOT, SHALL BUYER BE ENTITLED TO RECOVER MORE THAN THE PRICE OF THE PRODUCTS PROVIDED HEREUNDER FROM SELLER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR THE MANUFACTURE, SALE, DELIVERY OR USE OF THE PRODUCTS DELIVERED PURSUANT TO THIS AGREEMENT BASED ON ANY THEORY OR CAUSE OF ACTION, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR FOR PUNITIVE DAMAGES.
12. LIMITATION OF BUYER’S DAMAGES: IN NO EVENT, EITHER FOR PRODUCTS MANUFACTURED BY SELLER OR THOSE THAT ARE NOT, SHALL BUYER BE ENTITLED TO RECOVER ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES FROM SELLER, FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR THE MANUFACTURE, SALE, DELIVERY OR USE OF THE PRODUCTS DELIVERED PURSUANT TO THIS AGREEMENT BASED ON ANY THEORY OR CAUSE OF ACTION, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR FOR PUNITIVE DAMAGES.
13. Seller shall not be liable for any failure to perform their obligations under the Agreement resulting directly or indirectly from, or contributed to or by acts of God, acts of Buyer, acts of terrorism, civil or military authority, fires, strikes or other labor disputes, accidents, floods, war, riot, inability to secure material or transportation facilities, acts or omissions of carriers, or any other circumstances beyond Seller’s reasonable control. Seller shall have no liability under this Agreement other than as expressly provided in this Agreement.
14. If Buyer furnishes specifications to Seller for use in the manufacture of the Products, Buyer will indemnify and hold Seller harmless against any claim of intellectual property infringement which arises out of Seller’s compliance with the specifications.
15. Buyer understands that Products supplied by Seller may be subject to the jurisdiction of U.S. export controls and trade sanctions, and Buyer represents and warrants that it will not violate U.S. export-related laws with respect to Products supplied by Seller, and Buyer will indemnify and hold Seller harmless for any damages arising from such violations by Buyer.
16. Buyer will not disclose or make available to any third party Seller’s data or other confidential, non-public or proprietary information regarding Seller without Seller’s prior written authorization
17. This Agreement shall be governed, interpreted and construed according to the substantive laws of the State of Illinois, U.S.A. without regard to principles of conflicts of law thereof and shall not be governed by the U.N. Convention on the International Sale of Goods. If any dispute or controversy shall arise with respect to this Agreement, such dispute or controversy will be settled in
the state or federal courts located in Chicago, Illinois, in which case the Parties hereby consent to the exclusive jurisdiction and venue of such courts, and agree that they shall not contest or challenge the jurisdiction or venue of such courts.