365 Equipment & Supply, LLC Terms and Conditions of Sales
1. Agreement and Acceptance. These terms and conditions of sale (“Terms”) govern the sale of the products specified on the attached sales order, in any quote or invoice, on any purchase order, or on any order form (collectively “Products”) by 365 Equipment & Supply, LLC (“Seller”) to the buyer named thereon (“Buyer”). Buyer and Seller may be referred to individually as a “Party” and collectively as the “Parties.” SELLER’S DELIVERY OF PRODUCTS TO BUYER AND BUYER’S ACCEPTANCE OF THE DELIVERY OF PRODUCTS SHALL CONSTITUTE ACCEPTANCE OF THESE TERMS BY THE PARTIES. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE SALE OF PRODUCTS BY SELLER TO BUYER SHALL NOT BE GOVERNED BY ANY TERMS OR CONDITIONS SET FORTH ON BUYER’S ORDER OR ANY OTHER AGREEMENT. THESE TERMS CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES REGARDING THE SUBJECT MATTER CONTAINED HEREIN, AND SUPERSEDE ANY AND ALL PRIOR OR CONTEMPORANEOUS WRITTEN OR ORAL COMMUNICATIONS, UNDERSTANDINGS, AND AGREEMENTS OF THE PARTIES. NO ADDITIONS OR MODIFICATIONS OF THESE TERMS SHALL BE EFFECTIVE UNLESS MADE IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF BOTH PARTIES.
2. Orders; Changes to Orders. Buyer may, from time to time, submit to Seller an order for Products (each, an “Order”). Each Order shall, at a minimum, specify the quantity of each type of Products, the proposed delivery date(s), the proposed delivery site(s), and shipping instructions. Seller may, within seven (7) business days after receiving an Order, accept or reject the Order by providing proper notice to Buyer. If an Order has not been accepted by Seller after seven (7) business days, the Order shall be deemed rejected. Buyer acknowledges and agrees that upon acceptance of an Order, Buyer shall be bound to purchase the quantity of Products specified in the Order and shall be required to take delivery of all such Products within the time period specified in the Order. SELLER’S ACCEPTANCE OF AN ORDER IS EXPRESSLY CONDITIONED ON THE BUYER’S ACCEPTANCE OF THESE TERMS. At any time, Seller may make changes to the design or composition of Products that, in its judgment, do not materially change the form, fit, function or quality of the Products. Changes in design or composition made at the request of Buyer shall be at Buyer’s risk and responsibility, at the expense of Buyer, and shall be paid for upon receipt of Seller’s invoice. Seller will not incur any liability for reasonable delay in shipment of Products attributable to Buyer’s change to the design or composition of Products.
3. Shipping; Title; Risk of Loss. Seller shall use commercially reasonable efforts to deliver all Products within the time period specified in the Order. Products shall be delivered F.O.B. Seller’s facility unless otherwise agreed to by Seller. Seller will select the shipping carrier unless otherwise agreed to by Seller. Title to Products and risk of loss shall transfer to Buyer immediately upon delivery to the shipping carrier. All shipping costs shall be borne by Buyer unless specified otherwise. Seller shall not be liable for shipment delays, or any loss or damage to Products while in transit, and all claims therefore shall be made immediately by Buyer to the shipping carrier.
4. Acceptance. Products shall be deemed accepted by Buyer unless Buyer provides Seller with proper notice of its rejection of Products within seven (7) business days after delivery to Buyer. All returns are subject to Seller’s return policy.
5. Prices and Taxes. The price of Products shall be Seller’s price in effect for Products at the time the Order is accepted. Seller specifically rejects any price of Products specified by Buyer on any Order or on any other order form submitted by Buyer to Seller. Buyer shall pay all federal, state, and local taxes or other charges imposed by law in connection with the sale and/or shipment of Products.
6. Payment Terms; Retained Security Interest. Seller shall provide an invoice to Buyer on or before shipment of Products. All invoices are due and payable within the agreed upon terms of the invoice. Any amounts owed by Buyer and not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month from the original due date until paid in full or, if lesser, the highest rate permitted under applicable law. Buyer shall be liable for and shall reimburse Seller for Seller’s actual costs and expenses incurred in connection with the collection of any amounts owed to Seller or enforcement of Seller’s rights, including, without limitation, attorney’s fees, court costs, and disbursements. Buyer hereby grants Seller a security interest in the Products to secure the payment of same until the entire purchase price has been paid in full. Without restricting the generality of the foregoing, Buyer also hereby grants to Seller a purchase money security interest in the Products (including, but not limited to, a purchase money security interest in inventory) together with all replacements thereof, and all accessories and parts related thereto (collectively the “Inventory”). A security interest and a purchase money security interest are likewise granted in the proceeds of sale of the Inventory. Buyer hereby authorizes Seller to do whatever Seller may deem necessary to preserve, to perfect or continue its aforesaid security interests including, without limitation, filing financing and related statements under the Uniform Commercial Code.
7. Default. If Buyer shall fail to pay all or any part of the sums due or to become due to Seller, fail to comply with these Terms, fail to keep or perform any of Buyer’s obligations, become insolvent or become a party to any insolvency proceeding or receivership, or become a judgment debtor, at Seller’s option, any sum due or to become due to Seller may become immediately due and payable in full. Concurrently, or in the alternative, Seller may, at its option, in addition and without prejudice to its other lawful rights and remedies and without any liability to the Buyer, (i) defer further shipments of Products until each default has been corrected to Seller’s satisfaction, or (ii) elect not to make any further shipments of Products, and/or (iii) exercise any other remedies available under applicable law. Waiver of any default shall not be a waiver of any other subsequent default. No course of conduct, nor any delay of Seller in exercising any rights, nor Seller’s acceptance of a payment from Buyer with knowledge of an existing default or breach, shall waive any rights of Seller or be deemed a modification of any Order.
8. Indemnification. Buyer shall indemnify, defend, and hold harmless Seller and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, suits, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorney’s fees, expenses and the costs of enforcing any right to indemnification under these Terms, and the cost of pursuing any insurance providers, incurred by Indemnified Party/awarded against Indemnified Party in a final non-appealable judgment, relating to/arising out of or resulting from any claim of a third party or Seller arising out of or occurring in connection with the Products purchased from Seller or Buyer’s negligence, misuse or use of the Products for a purpose not intended by the manufacturer, willful misconduct, or breach of this Agreement.
9. Warranties. The Products may be covered by a separate written warranty provided by the manufacturer of the Products, a copy of which, if applicable, will be provided by Seller to Buyer. BUYER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN SUCH A SEPARATE WRITTEN WARRANTY, ALL PRODUCTS ARE PURCHASED AND SOLD “AS IS” AND “WITH ALL FAULTS,” AND SELLER MAKES NO REPRESENTATIONS OR WARRANTIES RELATED TO PRODUCTS INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND THAT THE WARRANTIES IN THIS SECTION 8 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT TO PRODUCTS, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
10. Limitation of Liability. NOTWITHSTANDING ANYTHING IN THESE TERMS TO THE CONTRARY, SELLER’S SOLE LIABILITY ON ANY CLAIM, WHETHER IN TORT, CONTRACT, WARRANTY, OR OTHER LEGAL OR EQUITABLE THEORY, ARISING OUT OF OR RELATED TO SELLER’S BREACH OF THESE TERMS OR THE SALE OR USE OF PRODUCTS, SHALL BE LIMITED TO REIMBURSEMENT OF BUYER’S ACTUAL COST OF PRODUCTS GIVING RISE TO THE CLAIM. FURTHER, IN NO EVENT SHALL SELLER BE LIABLE FOR INDEMNIFICATION OF THE BUYER OR ANY THIRD PARTY OR FOR ANY OTHER DAMAGES WHATSOEVER, WHETHER DIRECT OR INDIRECT, ARISING OUT OF OR RELATED TO SELLER’S BREACH OF THESE TERMS OR THE SALE OR USE OF PRODUCTS. NOTWITHSTANDING ANYTHING IN THESE TERMS TO THE CONTRARY, IN NO EVENT SHALL SELLER BE LIABLE TO THE BUYER OR ANY OTHER PERSON FOR ANY EXEMPLAR Y , PUNITIVE, SPECIAL, INCIDENT AL, INDIRECT, OR CONSEQUENTIAL DAMAGES OR LOSSES, OR THE LIKE (INCLUDING, WITHOUT LIMITATION, LOSS OF USE OF PRODUCTS, LOSS OF PROFITS, OR LOSS OF GOODWILL), EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER SELLER HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Compliance with Laws; Recalls. Buyer shall comply with all laws, rules and regulations, and government orders and ordinances that are in any way related to Products. If Buyer is directed by Seller or any governmental authority to assist in any suspension of supply or recall of Products for any reason, Buyer must cooperate and comply with all such reasonable directions to ensure the most effective response to the suspension or recall.
12. Force Majeure. Failure by Seller to perform any of its obligations under these Terms as a result of a cause beyond Seller’s reasonable control (each, a “Force Majeure Event”) shall not be deemed a breach of these Terms. Seller shall not be subject to any damages for failing to perform as a result of a Force Majeure Event.
13. Confidentiality. All manufacturing processes, designs, formulas, data, or other technical information of Seller, the manufacturer, or any of their affiliates relating to Products or services related to Products shall remain Seller’s, manufacturer’s, or their affiliates’ confidential information and property, and Buyer shall not have any rights thereto, nor any rights to disclose such items or information to any third party. Nothing in these Terms or an Order shall be construed (by implication, estoppel or otherwise) as granting, or as an undertaking by Seller to subsequently grant, to Buyer any license, right, title or interest in or to any present or future patent, patent application, know-how, copyright, trademark, trade secret or other proprietary right.
14. Miscellaneous. Seller and Buyer are acting hereunder as independent contractors. These Terms and Orders are not assignable by Buyer. Any assignment made in contravention of this Section 13 shall be void in all respects. The waiver by either Party of any of its rights or remedies or of any breaches by the other Party under these Terms in a particular instance shall not be considered as a waiver of the same or different rights, remedies, or breaches in subsequent instances. No amendment or waiver of any provision of these Terms shall be effective unless made in writing and signed by both Parties. These Terms shall be interpreted and enforced exclusively under the laws of the State of Illinois, exclusive of any conflict of laws principles, and the Parties shall exercise any right or remedy thereunder exclusively in, and hereby consent to the exclusive jurisdiction of, the courts in Cook County, Illinois. If any provision in these Terms is found to be invalid, illegal, or unenforceable, then the remainder of these Terms shall not be affected, and shall remain in full force and effect.