1. PAYMENT: The amount due under an invoice shall be deemed paid when the payment is received by Seller. Interest in the amount of 1.5% per month shall be assessed against Buyer on any amount past due.
2. PRICES AND TITLE: All prices are F.O.B. Seller’s plant of manufacture. Title to and risk of loss of the merchandise pass to the Buyer upon pick up by the carrier at Seller’s plant of manufacture.
3. TAXES: Any tax or other government charge upon the production, sale, shipment or use of the merchandise which Seller is required to pay on behalf of or collect from Buyer shall be paid by Buyer to Seller unless Buyer furnishes Seller with the exemption certificates acceptable to taxing authorities.
4. WARRANTIES & REMEDIES: (a) Seller warrants that the contents of each package (i.e., the product manufactured by Seller) conform to that ordered by Buyer and are free from defects. In the event that Buyer claims that Seller has breached any obligation under the sales contract or the law, whether of warranty or not, or any duty or obligation arising out of or connected to the sale of merchandise hereunder Buyer shall have, as its SOLE remedy, replacement or refund (at Seller’s option) of the allegedly nonconforming or defective merchandise (b) Nothwithstanding the foregoing, Buyer waives its sole remedy of replacement or refund if Buyer fails to (i) in the case of shipments which allegedly fail to conform to Buyer’s order, notify Seller of nonconforming goods in a shipment by a writing received by Seller within thirty (30) days after receipt of goods shipped hereunder; and/or (ii) in the case of defects, notify Seller of the alleged defect, (whether such claim be based on contract, negligence, strict liability, contribution, indemnity or other tort or otherwise) by a writing received by Seller within thirty (30) days after Buyer learns or should have learned of the facts giving arise to the alleged claim, but in no event later than sixty (60 days) after Buyer’s receipt of the goods, such 60 days representing a longer period than the maximum period in which Buyer reasonably should have completed the stream of commerce. Buyer represents that Buyer shall carefully inspect the merchandise upon receipt, to determine that the merchandise conforms with Buyer’s order and that the merchandise is not defective. Failure to so inspect and notify Seller of any claim within the time limits set forth herein constitute Buyer’s waiver of such claims or agreement that the merchandise satisfies Buyer’s order. (c) THE FORGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER TYPE, WHETHER EXPRESS OR IMPLIED
5. OWNERSHIP AND MISAPPROPRIATION: Buyer acknowledges that Seller (including Seller’s agents) is the developer, author and owner of the formulas, designs, graphics and packaging for product being sold and Buyer agrees it will not reproduce or copy any part thereof without prior written consent of Seller; except that Buyer may create any product it may choose through independent research or engineering, without reference to Seller’s products.
6. NO CONSEQUENTIAL DAMAGES: THE PARTIES DO NOT CONTEMPLATE, AND IN NO EVENT SHALL SELLER BE LIABLE FOR, CONSEQUENTIAL DAMAGES ARISING OUT OF OR CONNECTED WITH THE SALES CONTRACT OR THE MANUFACTURE OR SALE OF THE MERCHANDISE, WHETHER PURSANT TO THIS SALES CONTRACT OR DUTIES IMPOSED BY LAW.
7. LIMITATION OF LIABILITY: Notwithstanding any of the foregoing, Seller shall not be liable for any failure to perform its obligations under the sales contract or law resulting directly or indirectly from or contributed to by acts of God or nature; acts of Buyer; acts of civil or military or other governmental authority; priorities; fires; strikes; or other labor disputes; accidents; floods; epidemics; wars; riots; delays in transportation; lack of or inability to obtain raw materials, components, labor, fuel, or supplies; or other circumstances beyond Seller’s reasonable control, whether similar or dissimilar to the foregoing.
8. INDEMNITY :(a) Buyer represents that it shall not alter Seller’s product in any way. Buyer agrees that in the event it violates this condition Buyer will indemnify and hold harmless Seller for any expenses, including but not limited to attorney’s fees, incurred by Seller as a result of Buyer’s failure to comply with this condition.
9. THIRD PARY CLAIMS: Seller shall not be liable to Buyer, and Buyer shall not make claim, for any liability incurred by the Buyer to any other party whether arising in contract or tort or otherwise.
10. ADEQUATE ASSURANCES: If any sales hereunder are made pursuant to an extension of credit by agreement or otherwise, and if during the term of this extension of credit Seller has any reasonable grounds for concern as to Buyer’s ability or willingness to timely pay its obligations to Seller or third parties. Seller’s obligation to continue performance shall cease until Buyer provides within fifteen days following Seller’s request, written adequate assurance of the ability and willingness of Buyer to timely pay its obligations including, but not limited to updated credit information.
11. APPLICABLE LAW: This sales contract shall be governed by the laws of the State of Illinois, including the Uniform Commercial Code as adopted in Illinois, as effective and in force on the date of this contract. Buyer and Seller further agree that if either party files a claim arising out of or in any way connected with the sales of the merchandise hereunder, such claim shall be filed and litigated in either the Circuit Court of Cook or DuPage Counties in Illinois or the Federal District Court for the Northern District of Illinois, unless the Seller waives this provision by filing the claim in a jurisdiction more convenient to Buyer.
12. OFFER AND MODIFICATION: The terms hereunder constitute the entire and exclusive agreement between the parties. This invoice is not an acceptance of any offer, but constitutes an offer itself from which acceptance cannot vary except by a specific writing signed by Seller. No modification of the terms and warranties hereunder is binding upon Seller unless contained in a writing signed by Seller and specifically referencing modification of these terms.