ALL SALES ARE SUBJECT TO THE TERMS AND CONDITIONS OF SALE
THE TERM “SELLER” as used herein shall mean Infinity Remarketing Services, LLC, and may be variously referred to as “us” or “our.” The “Purchaser” as used herein shall mean the buyer and may be variously referred to as “you” or “your.” Our acceptance of your order is contingent upon these Terms and Conditions of Sale, and, even if you do not sign and return this document, your acceptance of delivery of goods we ship hereunder shall serve as your Purchase Order and Terms and Conditions of Sale that this document constitutes the final, definite, complete and exclusive Purchase Order and Terms and Conditions of Sale between us with respect to the goods. There are no oral or written, express or implied representations, affirmations, promises, commitments, contracts, understandings or Purchase Order and Terms and Conditions of Sales other than those set forth in these Terms and Conditions of Sale. All proposals, negotiations, representations, affirmations, promises, commitments, contracts, understandings or Purchase Order and Terms and Conditions of Sales, if any, made at any time are superseded by these Terms and Conditions of Sale and merged herein. Seller expressly objects to any additional or conflicting terms in your Purchase Order or your other documentation and those additional or conflicting terms, if any, shall not be deemed accepted by Seller unless Seller’s acceptance is in writing and specifically refers to each such additional or conflicting term.
2. ACCEPTANCE BY Infinity Remarketing Services, LLC
Acceptance of an order by Seller occurs when both the order has been received by the home office of Infinity Remarketing Services, LLC in Youngstown, Ohio, U.S.A., and when it has been approved. Approval is accomplished when, and only when, an officer has signed the Purchase Order. All orders for goods from Infinity Remarketing Services, LLC shall be accepted by Infinity Remarketing Services, LLC exclusively in Youngtown, Ohio, U.S.A.
Payment terms are stated on the face of the Purchase Order as well as hereunder.
a) All payments for goods furnished hereunder shall be made upon the basis of goods delivered as shown in our delivery records, whether signed by you or not.
b) You will receive invoices from us showing amounts due. If you do not notify us of any discrepancy regarding the amounts stated thereon by the due date of each invoice, your actions shall constitute an irrevocable acceptance of the goods and an admission that the amounts stated are due and that the goods fully comply with all terms, conditions, specifications or other requirements of your Purchase Order.
c) If Purchaser fails to make any payments due hereunder or under any other Purchase Order and Terms and Conditions of Sale with us or, if at any time, we have any doubt about your intention or ability to pay, Seller may, without prejudice to other remedies, defer further shipments, cancel the unfilled portion of the order, and apply any payments from you in such proportion as we deem proper to your various accounts, all until you cure this default.
d) The prices for the products which are the subject of the Purchase Order and these Terms and Conditions of Sale are based on current costs effective as of the date of acceptance by Seller and are guaranteed for ninety (90) days only unless otherwise specified in writing by Seller. Purchaser understands that an executed copy of these Terms and Conditions of Sale must be received by Seller and released for immediate shipment within ninety (90) days from acceptance by Seller or additional charges may apply.
e) Unless different terms are expressly set forth on the face of the Purchase Order and these Terms and Conditions, all payments are due net 0 days and interest of 4% per month will be charged to all past due accounts. Purchaser agrees that all such charges are applicable and due as payment for any past due account.
f) Purchasers who have used credit, debit or charge cards for any deposit or payment hereby authorize Seller to charge that credit card for any outstanding balance that remains unpaid after 3 days from the date payment becomes due under the Purchase Order or these Terms and Conditions of Sale. This authorization is continuing until final payment is received by Seller.
4. SHIPMENT; TITLE; RISK OF LOSS; ALL SALES ARE FINAL
a) After acceptance by Seller, no order may be canceled or modified. Title to, and risk of loss in, the products shall pass to Purchaser at Seller’s facilities upon loading of the products onto the carrier. Orders accepted by Seller are not subject to cancellation for any reason whatsoever after work has been started on such orders.
b) Deliveries shall be made in accordance with a delivery schedule, which may be revised by mutual Purchase Order and Terms and Conditions of Sale. WE CANNOT GUARANTEE PRECISE DELIVERY DATES AND WE SHALL NOT BE RESPONSIBLE FOR DELAYS IN DELIVERIES NOR LIABLE FOR ANY LOSSES, EXPENSES OR DAMAGES, INCLUDING LIQUIDATED DAMAGES OR PENALTIES OF ANY KIND WHICH YOU MAY INCUR.
c) Purchaser agrees that partial shipments shall be permitted and that Seller may invoice each shipment separately.
d) ALL SALES ARE FINAL. PURCHASER UNDERSTANDS THERE WILL NOT BE ANY EXCHANGES, CANCELLATIONS, RETURNS, OR REFUNDS.
5. ALL GOODS SOLD AS-IS, NO WARRANTIES OR REPRESENTATIONS
a) ALL GOODS ARE SOLD “AS-IS.” SELLER DISCLAIMS ANY WARRANTY OR REPRESENTATION OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE GOODS ARE WITH PURCHASER. IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW WILL THE SELLER BE LIABLE TO PURCHASER FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE GOODS EVEN IF THE SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b) SELLER SHALL NOT BE LIABLE TO BUYER OR ANY OTHER PERSON OR ENTITY FOR, AND BUYER RELEASES SELLER FROM, ANY AND ALL LIABILITY FOR NEGLIGENCE BY SELLER WITH RESPECT TO ANY ACTIVITY ENGAGED IN BY SELLER WITH REGARD TO THE GOODS OR SERVICES HEREUNDER AND FROM ANY AND ALL LIABILITY IMPOSED UPON MANUFACTURERS OR SELLERS OF GOODS OR SERVICES UNDER ANY PRODUCT LIABILITY THEORY OR UNDER SIMILAR LEGAL THEORY. SELLER SHALL NOT, UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, DELAY IN DELIVERY, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY, OR USE OF MATERIALS SOLD OR PROCESSED BY SELLER, BE LIABLE TO BUYER OR ANY OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, LIQUIDATED DAMAGES, PENALTIES OR FOR LOSSES OF ANY KIND WHATSOEVER. IN NO EVENT SHALL SELLER’S LIABILITY FOR DEFECTIVE MATERIAL SOLD TO BUYER EXCEED THE PURCHASE PRICE THEREOF.
c) Any action arising from the Purchase Order and/or these Terms and Conditions of Sale, regardless of the theory of recovery, shall be commenced by you, if at all, within one (1) year after the cause of action has arisen.
Purchaser expressly agrees to indemnify, defend and hold harmless Seller against all loss, expense, including attorney’s fees, and damages arising from patent, trademark or trade name infringement in any way arising out of the goods or services provided hereunder in accordance with Purchaser’s order, specifications or instructions, and against all loss, expense, including attorney’s fees, and damages arising from bodily injury to any person including death resulting therefrom and damage to property caused by any products described herein following delivery or caused by the negligence or willful acts of Purchaser, its agents or employees regardless of whether or not the loss, expense, attorney’s fees and damages are caused in part by Seller.
7. FORCE MAJEURE
Purchaser agrees that any delay or failure on the part of Seller to provide or install the product equipment when due, if caused by act of God, fire, labor shortage, riot, civil disturbance, war, explosion, accident, flood, storm, the elements or other catastrophe, strike, labor dispute, civil or military authority, material shortage, priority, requisition, allocation or any other governmental restriction or limitation; or by failure of delay of transportation, shortage of or inability to obtain supplies, equipment, fuel, or labor; or by compliance with any order or request of the United States or any department, board or agency thereof; or in the event of any legislative, executive, or judicial act of any political or governmental authority that substantially affects Seller’s operations, or in the event Seller suspends or discontinues business for any reason or any other causes beyond the control of Seller, whether of a similar or dissimilar nature, shall not subject Seller to any liability to the Purchaser. The time for completion of this contract shall be extended for such time as may be necessary to cover any non-scheduled work stoppage or delay.
8. GOVERNING LAW/FORUM SELECTION
The contract formed pursuant to the terms, conditions and specifications of this Purchase Order and Terms and Conditions of Sale and the obligations thereby imposed on Seller and Purchaser shall be governed and construed according to the laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the State of Ohio. Purchaser hereby expressly and irrevocably agrees that any disputes or controversies arising out of, relating to or concerning this Purchase Order and Terms and Conditions of Sale and the rights and obligations hereunder shall be commenced in either the Court of Common Pleas, Mahoning County, Ohio, or the United States District Court, Northern District, Eastern Division of Ohio, and further irrevocably consents to jurisdiction of those courts and service of process in accordance with the provisions of the laws of the State of Ohio.
a) Seller’s failure to insist upon strict performance of any provision of this Purchase Order and Terms and Conditions of Sale shall not constitute a waiver of that or any other provision of any of the Seller’s rights under this Purchase Order and Terms and Conditions of Sale, nor shall it constitute a waiver by Seller of any subsequent default by you in the performance of this Purchase Order and Terms and Conditions of Sale.
b) You agree to pay any and all costs, expenses and attorney’s fees which we may incur or become liable for by reason of our enforcing or attempting to enforce the terms of this Purchase Order and Terms and Conditions of Sale, including, but not limited to, lien claims and foreclosure of lien claims and post-judgment collection efforts.
c) Should any part or provision of this Purchase Order and Terms and Conditions of Sale be declared invalid, unenforceable, illegal or in conflict with any law, the validity and enforceability of the remaining portions or provisions shall not be effected.
d) This Purchase Order and Terms and Conditions of Sale shall be binding upon and inure to the benefit of the respective heirs, executors, administrators, receivers, legal representatives, successors and assigns of the parties. This Purchase Order and Terms and Conditions of Sale, however, shall not be construed, nor is it intended, to confer third-party beneficiary rights upon any person, nor create a relationship between any other persons except between Seller and Purchaser.
e) Any checks received from Purchaser may be accepted on account and with full reservation of rights to collect any balance, notwithstanding any contrary legend or statement contained on or accompanying the check.
f) Seller is not responsible for errors made in any of its publications whether stenographic, clerical, or printer’s error.
10. ENTIRE AGREEMENT. There are no understandings between the parties hereto as to the subject matter of the Terms and Conditions of Sale other than as set forth herein. All previous communications between the parties hereto concerning the subject matter of the contract, whether verbal or written are hereby abrogated and withdrawn, and these Terms of Sale constitute the whole of the agreement between the parties hereto. Any acknowledgement of a Purchase Order is for record and billing purposes only and the acceptance or acknowledgment thereof is made expressly conditional on the terms of the contract