These Terms and Conditions (these “Terms”) set forth the general terms by which a buyer (“Buyer”) may from time to time purchase certain goods, supplies, and/or other products (“Products”) from Coding Solutions, Inc. (“Seller”), and by which Seller may from time to time sell such Products to Buyer. These Terms shall apply to any proposal, quote or order acknowledgment from Seller and such proposal, quote or order acknowledgement is subject to and expressly conditioned upon Buyer’s assent to these Terms, whether assent is in writing or by conduct. Any contrary provision, term or condition, other than those stated in the quote or proposal and these Terms, including, but not limited to, in any purchase order, acknowledgement or other document submitted by Buyer to Seller, whether before or after the date of the quote, or any course of dealing or course of performance between the Parties, are hereby rejected by Seller, and are of no force and effect. Except as otherwise provided herein, in the event of any inconsistency between the terms and provisions of these Terms and the terms and provisions of any quote, order, purchase order, or other document, the terms and provisions of these Terms shall control. Further, for purposes of these Terms, Buyer and Seller collectively may be referred to individually as a “Party” and collectively, as the “Parties.”
Order Documents. Pursuant to these Terms, Buyer may execute one or more purchase orders with Seller for Products. Each purchase order shall reference Seller’s proposal and/or Seller’s quote pertaining to that purchase order, as applicable, and shall be subject to these Terms (each accepted order, an “Order”).
Price and Payment Terms. Unless otherwise expressly stated in the Order, all prices exclude shipping and taxes, and such shipping and taxes shall be Buyer’s responsibility. Payment terms are Net 30 from the date of Seller’s invoice. Buyer shall pay interest on any late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer may not deduct, or setoff, any amounts from any payment due to Seller without Seller’s prior written consent.
Delivery and Shipping. Delivery dates are best estimates only. Unless otherwise expressly stated in the Order, Products will be shipped to Buyer, F.O.B. Seller’s location, loaded onto the delivery truck, and at that time Seller shall be deemed to have delivered the Products to Buyer. After delivery: (a) Buyer shall have all risk of loss and damage to the Products; and (b) Seller shall be deemed to have completed the Order and Seller shall not have any further liability if any Product is lost or damaged before arrival at Buyer’s facility, unless such loss or damage is caused by the gross negligence or intentional misconduct of Seller. Title to Products shall pass to Buyer only upon payment in full by Buyer. Products may not be returned without Seller’s prior written consent.
Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED HEREIN, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PRODUCT OR SERVICE PURCHASED BY BUYER HEREUNDER, AND SELLER HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. TO THE EXTENT ANY THIRD-PARTY PRODUCTS ARE SOLD, OBTAINED OR OTHERWISE FURNISHED BY SELLER, BUYER ACKNOWLEDGES AND AGREES THAT (I) SELLER IS ACTING AS A RESELLER OR DISTRIBUTOR OF SUCH PRODUCTS AND IS NOT A MANUFACTURER OF SUCH PRODUCTS, (II) ANY WARRANTIES ON SUCH PRODUCTS ARE THE MANUFACTURERS’ WARRANTIES, AND (III) ALL THIRD PARTY PRODUCTS SOLD, OBTAINED OR FURNISHED BY SELLER SHALL CARRY WHATEVER WARRANTY, IF ANY, SUCH MANUFACTURERS HAVE CONVEYED TO SELLER AND WHICH CAN BE PASSED ON TO BUYER. ALL THIRD-PARTY PRODUCTS ARE SOLD BY SELLER “AS IS” AND SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Remedies. BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY DEFECTIVE PRODUCT IF PROPERLY RETURNED TO SELLER, OR FOR A FAILURE BY SELLER TO PROVIDE ANY PRODUCT OR SERVICE, SHALL BE THAT SELLER SHALL, AT ITS OPTION, EITHER REPAIR OR REPLACE THE DEFECTIVE PRODUCT, RE-PERFORM THE SERVICE, OR REFUND THE PURCHASE PRICE PAID FOR SUCH PRODUCT OR SERVICE.
Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES BASED UPON LOSS OF USE, LOST PROFIT OR REVENUE, LOST GOODWILL, WORK STOPPAGE, BUSINESS INTERRUPTION, OR IMPAIRMENT OF OTHER PRODUCTS, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY FOR SUCH DAMAGES. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO ANY ORDER, THESE TERMS OR THE SALE OF PRODUCTS OR THE PERFORMANCE OF SERVICES THEREUNDER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT OR OTHERWISE, EXCEED THE AMOUNT PAID BY BUYER TO SELLER FOR THE PARTICULAR PRODUCT SOLD OR SERVICE PROVIDED UNDER SUCH ORDER AT ISSUE. BUYER SHALL HAVE NO RIGHT TO MAKE ANY CLAIM AGAINST SELLER IN CONNECTION WITH THE PERFORMANCE OF ANY THIRD-PARTY PRODUCT, IT BEING ACKNOWLEDGED BY BUYER THAT BUYER’S SOLE RECOURSE FOR SUCH WILL BE AGAINST THE MANUFACTURER OF SUCH THIRD-PARTY PRODUCT.
Force Majeure. Seller will not be liable for any delay in delivery or shipment of Products and/or other performance of its obligations under the Order or these Terms, or for any damages suffered by Buyer by reason of such delay, when such delay is directly or indirectly caused by or in any manner arises from fires, floods, accidents, riots, acts of God, war, governmental interference, epidemic, pandemic or disease, embargoes, strikes, labor difficulties, shortage of labor, fuel, power, materials, or supplies, transportation delays, or any other cause or causes (whether or not similar in nature to any of those hereinbefore specified) beyond Seller’s control (“Force Majeure”). All Orders which are accepted by Seller are accepted with the understanding that they are subject to Seller’s ability to obtain the Products listed on the Order as well as the ability of Seller to obtain the necessary materials and/or services to produce said Products.
Miscellaneous.
Notices. Any notice sent pursuant to the Order or these Terms shall be in writing and sent by certified mail, proper postage prepaid, return receipt requested, or by properly paid overnight mail, to the addresses on the Order, or to such address as either Party may in the future designate in writing. Notices sent by certified mail shall be effective two (2) business days after being placed in the United States mail, and if sent by recognized overnight carrier, upon delivery.
Severability. If and to the extent any provision of an Order or these Terms is held invalid or unenforceable at law, such provision will be deemed stricken from the Order or these Terms and the remainder of the Order or these Terms will continue in effect and be valid and enforceable to the fullest extent permitted by law.
Attorneys’ Fees. Seller shall be entitled to recover from Buyer all of Seller’s reasonable costs incurred, including costs of litigation and attorneys’ fees, for any suit, action or proceeding arising out of or related to Buyer’s purchase of Products, the collection of any sums past due from Buyer to Seller, the Order or these Terms.
Non-Waiver. No failure or delay to enforce any right or term hereof by Seller shall be considered a waiver of any of Seller’s other rights or the terms hereof, and a written waiver of any specific default shall not be considered a waiver of any other default or defaults.
Binding Effect. The Order and these Terms shall be binding upon and inure to the benefit of the Parties, and their respective successors and permitted assigns.
Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
Compliance with Laws. Buyer shall comply with all applicable laws, regulations, and ordinances, and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that Buyer needs to carry out its obligations under the Order or these Terms and as otherwise required to allow Seller to perform any on-site services, as applicable.
Governing Law and Venue. The Order and these Terms shall be governed by the laws of the State of Illinois, without reference to conflicts of law principles. Any lawsuit, action or proceeding arising out of or relating to the Order or these Terms shall be exclusively brought in either the Circuit Court for the Sixteenth Judicial Circuit, Kane County, Illinois, or the United States District Court for the Northern District of Illinois, Eastern Division. Each Party hereby waives all claims that such jurisdiction and venue is improper or inconvenient, and each Party waives the right to bring an action or suit against the other Party in any other jurisdiction or venue.
No Assignment. Buyer may not assign its rights, interests or obligations under the Order or these Terms without the express prior written consent of Seller. Seller may assign the Order and these Terms or subcontract for the provision of any services to be provided by Seller under the Order or these Terms without Buyer’s prior written consent.
Merger and Entire Agreement. The Order and these Terms set forth the entire agreement and understanding between the Parties as to the subject matter hereof, and merges and supersedes all prior agreements or understandings of the Parties, as it pertains to this Order, whether written or oral.
Amendments. The Order or these Terms may not be amended, supplemented, changed, or modified, except by in writing signed by the Parties.
Interpretation. Interpretation of these Terms and each Order shall be derived only from the provisions thereof, without resort to course of dealing, usage of trade, course of performance, or any other extrinsic evidence, and shall not be construed in favor of or against either Party. Whenever appropriate under the circumstances, within these Terms and each Order, including the definition of any term in these Terms and each Order: (a) the plural of any word shall mean the singular; (b) the singular of any word shall mean the plural; (c) “and” shall mean “or”; (d) “or” shall mean “and”; (e) “an”, “any”, or “each” shall mean one, more than one, or all; (f) “all” shall mean any, one, or more than one; (g) words referring to persons or entities shall include associations, cooperatives, corporations, firms, general and limited partnerships, limited liability companies, natural persons, public agencies, sole proprietors, trusts, and all other entities and enterprises; (h) the words “include,” “including,” and similar words shall be construed as if followed by the phrase “without limitation” or a similar phrase; and (i) use of the masculine, feminine, or neuter gender shall include each of the other genders.
Counterparts; Signatures. Facsimile signatures shall be deemed and accepted as originals. In the event of execution in one or more counterparts, each shall be deemed an original, and all of them together will constitute one and the same instrument.