ADQ, INC. TERMS AND CONDITIONS OF SALE
1. APPLICABILITY. Unless otherwise specifically stated in the offer to sell goods submitted herewith (“Price Quotation”), these Terms and Conditions of Sale (“Terms and Conditions”) establish the rights, obligations and remedies of ADQ, Inc. (“Seller”) and Buyer, which apply to this offer and any resulting order or contract. All sales by Seller are subject to these Terms and Conditions. Seller hereby rejects any and all Terms and Conditions on purchase orders or any other documents which purport to reject or modify these Terms and Conditions unless specifically agreed to in writing signed by an authorized officer of Seller. Any Seller Price Quotation is null and void if any purchase order or other document responding to or referencing a Seller Price Quotation is found to modify these Terms and Conditions. All Seller Price Quotations are based upon the quantities set forth in the Quotation.
2. ACCEPTANCE. The issuance of purchase order documents against this offer shall constitute an acceptance of the offer and not a counteroffer and shall create a contract of sale (hereinafter referred to as “Contract”), which shall incorporate each of these Terms and Conditions. Provisions contained in the purchase order documents issued against this offer which materially add to or subtract from the provisions are hereby rejected and of no force or effect unless specifically agreed to by Seller in a written acknowledgement signed by an authorized officer of Seller.
3. DELIVERY, TITLE AND RISK OF LOSS. Delivery shall be FOB origin, and all costs for transportation shall be borne by the Buyer, except where otherwise indicated in the Price Quotation or other agreement signed by an authorized officer of Seller. Except as otherwise expressly agreed in writing by Seller, title and risk of loss of or damage or delay to the goods supplied under this Contract shall pass to Buyer when Seller delivers the goods to the carrier designated by Buyer. Buyer shall contact Seller within seven days of receipt of all goods delivered hereunder to report any product defect or variation from specification. Buyer’s failure to inspect the product within seven days of receipt, or to contact Seller within seven days to report a defect or specification variation or Buyer’s use of the product or delivery to the Buyer’s customer, will serve to void all warranties, expressed or implied, and waive all of Seller’s liabilities for any and all injury or damage to Buyer, Buyer’s Customer or any third party, caused by product defects or failure to follow product specifications.
4. FORCE MAJEURE. Seller shall not be liable for any damage as a result of any delay or failure to deliver due to any cause beyond the Seller’s reasonable control, including, without limitation, any act of God, act of Buyer, embargo or other governmental act, regulation or request, flood, fire, accident, strike, slowdown, war, act of terrorism, riot, or delay in transportation. In the event of any such delay, the date of delivery shall be extended for a period equal to the time lost because of the delay.
5. WARRANTY AND LIMITATION OF LIABILITY. Seller warrants that all goods delivered hereunder shall at the time of delivery to the carrier conform to Seller's written specifications therefor. Seller makes NO OTHER EXPRESS OR IMPLIED WARRANTIES, AND HEREBY DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. If any such goods shall be proved to Seller's satisfaction to be nonconforming to the specifications at the time of delivery, then the affected part will be repaired or replaced free of charge, or Seller will refund the purchase price of the affected part. Such repair, replacement or refund (whichever Seller determines, in its discretion, to provide) shall be Seller's sole obligation and Buyer's exclusive remedy for any nonconformity or deficiency in goods furnished hereunder and shall be conditioned upon Buyer’s return of such goods to Seller.
6. LIMITATION ON BUYER’S REMEDIES; INDEMNITY. Except as otherwise agreed in writing, Seller's liability with respect to the goods and/or services sold hereunder shall be limited to the warranties provided in Section 5 this Terms and Conditions, and, with respect to any breaches of its contract with Buyer, shall be limited to the contract price of the goods subject of the claim. SELLER SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR CONTINGENT DAMAGES WHATSOEVER, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHER THEORIES OF LAW, WITH RESPECT TO GOODS AND/OR SERVICES SOLD BY SELLER, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO, AND SELLER HEREBY DISCLAIMS ALL SUCH DAMAGES. Without limiting the generality of the foregoing, Seller specifically disclaims any liability for property or personal injury damages, penalties, special or punitive damages, damages for lost profits or revenues, loss of use of goods or any associated equipment, cost of capital, cost of substitute goods, facilities or services, down-time, shut-down or slow-down costs, or for any other types of economic loss, or for claims of Buyer's customers or any third party for any such damages. Buyer shall indemnify Seller against any and all losses, liabilities, damages and expenses (including, without limitation, attorneys' fees and other costs of defense) which Seller may incur as a result of any claim by Buyer or others arising out of or in connection with the goods and/or services sold hereunder and based on product or service defects not proven to have been caused solely by Seller's negligence.
7. PAYMENT. All amounts payable to Seller under the Contract shall be paid in cash, via wire transfer or in negotiable paper collectible at its face value in United States funds at the location indicated on the Price Quotation. Buyer agrees to pay interest on all past due amounts at the rate of interest specified in Indiana Code § 24-4.6-1-102. Buyer agrees to pay all costs of collection, including reasonable attorneys’ fees, litigation costs, and expenses incurred by Seller in enforcing the Contract.
8. WAIVER OF TERMS AND CONDITIONS. Seller’s failure in any one or more instances to insist upon performance of any of the terms and conditions contained in the Contract, or to exercise any right or privilege under the Contract, shall not be construed as a waiver of any of Seller’s rights or privileges.
9. APPLICABLE LAW AND FORUM. The Contract shall be construed as a contract made in the State of Indiana and shall be governed by the laws of the State of Indiana, without regard to its choice of law provisions. Any action or suit initiated by Buyer relating in any way to the Contract must be brought in state court located in Boone County, Indiana. Buyer hereby consents to the jurisdiction and venue of the courts in the State of Indiana.