1. ACCEPTANCE-ENTIRE AGREEMENT
All sales are expressly made conditional upon Buyer's acceptance of the terms and conditions contained herein. Buyer's objection to any terms and conditions contained herein shall be deemed to have been waived if written notice of such objection is not received, acknowledged, and subsequently agreed upon in writing by an officer of The Lighthouse for the Blind d/b/a Quake Kare, d/b/a LHB Industries ("Seller") within three (3) days of the date of the Purchase Order Acknowledgement, or upon receipt by Seller of the signed acceptance of these terms and conditions from Buyer. The terms and conditions contained herein supersede all prior written or oral statements or understandings between Buyer and Seller including potentially conflicting terms on any purchase orders and constitute the entire and only agreement between them relating to the subject matter hereof, and any representation, affirmation of fact, prior course of dealing, promise or condition in connection therewith or usage of the trade not incorporated herein shall not be binding on either party.
2. CANCELLATION AND MODIFICATION
Any agreement arising herefrom may be cancelled or modified only with the written consent of Seller. Cancelled orders are subject to restocking and cancellation charges, which may or may not be prorated by Seller based upon, but not limited to the proportion of work completed at the time of cancellation. Upon cancellation at Buyer's request or Buyer's failure to accept delivery within sixty (60) days of the scheduled delivery date, Buyer shall additionally reimburse Seller for all other out-of-pocket costs incurred by Seller up to that time, including but not limited to all costs of returning the products to their original locations, which costs shall also be immediately due and payable as a partial cancellation charge. Upon modification of the terms and conditions hereof at Buyer's request and agreed to in advance in writing by Seller, Buyer agrees to bear any additional costs as determined by Seller.
3. DELIVERY AND TRANSPORTATION
Seller shall not be liable for delays in delivery or failure to manufacture or deliver or for damages suffered by Buyer as a result of such delay due to causes beyond its reasonable control, including, but not limited to, acts of God, acts of Buyer, acts of civil or military authority, fires, strikes, floods and other catastrophes; due to inability to obtain necessary labor, materials, components or manufacturing facilities; or due to any other commercial impracticality. In the event of any such delay, the date of delivery shall be deferred for a period equal to the time lost by reason of the delay.
Unless otherwise agreed to in writing by Seller, delivery of all products hereunder shall be made f.o.b. point of shipment, with transportation expenses paid by Buyer, and risk of loss or damage to the products shall pass to Buyer upon delivery to the carrier. It shall be the responsibility of Buyer to file any claims with the carrier. Where Buyer furnishes special transportation instructions, Buyer agrees to bear all related expenses, including any special packaging or special handling charges.
Unless otherwise agreed to in writing by Seller, all payments must be in good funds net thirty (30) days from the date of invoice. Payments not made when due are subject to a late payment service charge at a rate of 18% per annum or the maximum rate permitted by law, whichever is lower.
If the financial condition of Buyer at any time is such as to give Seller, in its judgment, reasonable grounds for insecurity concerning Buyer's ability to perform its obligations hereunder, Seller may require full or partial payment in advance or may suspend any further deliveries or continuance of the work to be performed by Seller until such payment has been received. Failure to furnish such payment within ten (10) days of demand by Seller shall constitute a repudiation of the contract, and in such event Seller shall be entitled to cancellation charges. In the event of bankruptcy or insolvency of Buyer or in the event any proceeding is brought by or against Buyer under the bankruptcy or insolvency laws, Seller shall be entitled to cancel any order outstanding at any time during the period allowed for filing claims against the estate and shall receive cancellation charges.
Title and right of possession to the products sold or licensed hereunder shall remain with Seller until all payments required under this instrument have been made in full in cash, and Buyer agrees to do all acts necessary to maintain such title in Seller.
5. LIMITED WARRANTY
Seller warrants to Buyer and to no other persons that, subject to the exclusions as defined below, the products sold or licensed hereunder, under normal use and maintenance and in accordance with Seller’s instructions, will conform to Seller's specifications. This warranty does not extend to claims that result, in Seller's judgment, from misuse, negligence, neglect, improper installation or maintenance, alterations or repairs performed by personnel not employed, trained or certified by Seller, or operation using supplies or other parts which do not conform to, or are used in a manner inconsistent with, the product design. EXCEPT FOR THE ABOVE WARRANTY, SELLER MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY EXPRESS OR IMPLIED WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
In addition, Seller shall not be liable on any claim under this warranty unless Seller shall have received notice of such claim from Buyer within thirty (30) days of Buyer discovering the facts giving rise to such claim.
6. EXCLUSIVE REMEDY
Seller's sole obligation for breach of, or under the foregoing warranty will be limited to either repairing or replacing products (at Seller's sole option) that are proven to be defective. The foregoing shall be the Buyer’s exclusive remedy for breach of such warranty or for any implied warranty or other obligation arising by operation of law with respect to the products.
7. LIMITATION OF LIABILITY
Except as provided in the paragraphs above, Seller's liability for any claim of any kind, including negligence or breach of warranty, for any loss or damage resulting from, arising out of or connected with any contract arising hereunder, or from the performance or breach thereof, or from the manufacture, sale, delivery, resale, repair or use of any products covered by or furnished hereunder, shall in no case exceed the purchase price theretofore paid by Buyer to Seller with respect to the products that give rise to the claim. The remedies provided herein shall not be deemed to have failed its essential purpose so long as Seller is willing and able to repair defective products or, also at Seller’s option, to refund the purchase price of the defective products to Buyer, within a reasonable time after Buyer demonstrates that a defect exists.
Seller shall not be subject to claims: (1) for any other obligations or liabilities arising out of breach of contract of warranty, (2) any obligations whatsoever arising from any claims (including negligence and strict liability) or arising under other theories of law with respect to products sold or licensed or services rendered by Seller or any undertakings, acts or omissions relating thereto. In any event, liability for special, incidental or consequential damages is expressly excluded. Seller makes no warranty or representation regarding any copyright, patent, license, or other intellectual property rights of any third party to which the products may be subject and shall not be liable for any compensation, fees, or damages to any third party by reason thereof.
TERMS AND CONDITIONS OF SALE OF PRODUCTS
Without limiting the generality of the foregoing, Seller specifically disclaims any liability for penalties (including administrative penalties), special or punitive damages, damages for lost profits or revenues, loss of use of products or any associated equipment, cost of capital, facilities or services, downtime, shut-down or slow-down costs, spoilage of material, or any other type of economic loss.
8. THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS/INDEMNIFICATION
If Seller’s products or services result from compliance with Buyer specifications, designs or instructions (herein “Buyer Directed Projects/Services”), Buyer warrants that said Buyer Directed Projects/Services do not infringe any third party’s patent, copyright, trademark, trade secret, or any other intellectual property rights (collectively, “IP Rights”). Buyer further represents and warrants that neither Buyer nor any third party will use Buyer Directed Project/Services in any manner which infringes on any third-party IP Rights. If a third party asserts that said Buyer Directed Projects/Services or Buyer or any other third party’s use of said Buyer Directed Projects/Services infringes upon its IP Rights, Buyer will indemnify and hold harmless Seller from any and all claims, losses, liabilities, judgments, and expenses, including payment of attorneys’ fees and court costs, resulting from said assertion. If accused of infringing IP Rights by a third party, Seller, at all times and at its discretion, retains the right to be represented by its own counsel, the fees of which Buyer will reimburse, or be represented by counsel for Buyer.
9. PROPRIETARY RIGHTS
Seller shall retain all rights to any invention, technical data and information, whether or not patentable, arising out of or resulting from services rendered and products furnished by Seller for Buyer's use.
Prices do not include sales, use, property, stamp, recording or other special taxes, levies or duties imposed by a governmental authority either directly or indirectly on the sale, transfer installation or servicing of the products sold or licensed hereunder. Any such taxes or assessments of whatever nature will be promptly paid by Buyer or, if imposed on Seller, shall be invoiced to Buyer for prompt payment.
This Confirmation, transaction, any agreement arising herefrom, and the rights of the parties hereunder shall be construed, interpreted and governed in all respects by the laws of the State of Missouri and shall be construed to be between merchants. Supplier hereby consents to the jurisdiction of any local, state, or federal court located within the State of Missouri and waives any objection which Supplier may have based on improper venue or forum non conveniens to the conduct of any proceeding in any such court. Seller will comply with all applicable Federal, State and local laws necessary to be complied within connection herewith and specifically represents that any products to be delivered hereunder will be produced in compliance with the requirements of the Fair Labor Standards Act of 1938, as amended. Any assignment hereof by Buyer without the written consent of Seller shall be void.
Notices to either party from the other must be in writing and shall be sent to: Buyer: As designated on applicable purchase order, Seller: LHB Industries, 10440 Trenton Avenue, St. Louis, MO 63132, Attn: Director of Sales & Marketing. All notices hereunder shall be deemed given if delivered in writing personally or by courier or sent by U.S. Mail, electronic transmission, facsimile, telex or telegram to Buyer or to Seller at the address set forth herein. Any notice given by U.S. Mail shall be deemed given at the time such notice is deposited in the U.S. Mail.
12. DISPUTE RESOLUTION
Any controversy or claim arising out of or relating to this Agreement, the relationship resulting in or from this Agreement or breach of any duties hereunder will be settled by binding Arbitration in accordance with the Commercial Arbitration Rules of the U. S. Arbitration & Mediation, Midwest (“USA&M”) or the American Arbitration Association (“AAA”). All hearings will be held in St. Louis, Missouri before an Arbitrator who is a licensed attorney with at least 15 years of experience in commercial law. A judgment upon the award rendered by the Arbitrator shall be entered in a Court with competent jurisdiction. The Federal Arbitration Act (Title 9 U.S. Code Section 1 et. seq.) shall govern all arbitration and confirmation proceedings. As a mandatory condition precedent to the filing of an arbitration claim, the parties agree to first mediate any claims between them at USA&M or AAA. Any party refusing to mediate shall not prevent the other party or parties from pursuing their claims in arbitration. The parties will share the cost of mediation equally. Nothing herein will be construed to prevent any party’s use of injunction, and/or any other prejudgment or provisional action or remedy. Any such action or remedy will not waive the moving party’s right to compel arbitration of any dispute. The parties agree to also meet and negotiate in good faith in order to resolve any disputes which may arise between them.
Any waiver by the parties of strict conformance with any of these terms and conditions shall not be a waiver of any subsequent failure to comply with such terms and conditions. Neither party shall be bound by any past course of conduct unless agreed to in writing signed by both parties.
Any action for breach of these terms and conditions must be commenced within one (1) year after the cause of action has accrued.
All orders or contracts are accepted with the understanding that they are subject to Seller’s ability to obtain the necessary raw materials, and all orders or contract, as well as shipments applicable thereto are subject to Seller’s current manufacturing schedules, and government regulations, orders, directives, and restrictions that may be in effect from time to time. If Seller is unable for any reason to supply the total requirements for goods specified in Buyer's order, Seller may allocate its available supply among Buyer and other customers of Seller as Seller may deem fair and practical without any liability for any failure of performance which may result therefrom.
All materials made by Seller are to be inspected by Buyer upon receipt, and should any of such materials prove defective due to faults in manufacture, or fail to meet the written specifications accepted by Seller, Buyer shall not return goods, but shall notify Seller within ten (10) days after delivery, stating full particulars in support of its claim, and Seller will either replace goods upon return of the defective or unsatisfactory material or adjust the matter fairly and promptly, but under no circumstances shall Seller be liable for consequential or other damages, losses, or expenses in connection with or by reason of the use of or inability to use materials purchased for any purpose.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES