1. Governing law, Consent to Jurisdiction and Service of Process. This invoice and any agreement shall be deemed to be made in New York and shall be interpreted under the laws thereof applicable to contracts to be performed wholly therein. The party and/or entity buying and/or receiving goods and/or services hereunder (“Buyer”) and the party and/or entity selling and/or transferring goods and/or services hereunder (“Seller”) consent and submit to the exclusive jurisdiction or any court in the State of New York, County of Nassau, and of the United States District Courts for the Eastern District of New York.
2. Titles, Payment, Default and Security. If the reverse side of this document indicates that any goods received in connection herewith are on “memo” or “memorandum”, then title in and to the goods reflected on the reverse side shall remain with the Seller and titles shall not pass until Buyer has paid for such goods in full, and Buyer shall have no right to make any transfer of such goods to any third party until having paid for them in full. Title shall only pass when full payment is made to Seller for the sums indicated on the reverse side hereof. All risk of loss or damage, for any reason, theft, fire, or otherwise, shall be that of the Buyer until the goods have been returned to the Seller. Buyer shall return any such “memo” or “memorandum” promptly upon demand. If the reverse side does not indicate that any goods received herewith are on “memo” or “memorandum” then, payment is to be made within thirty (30) days of the date hereof. Time shall be of the essence with regard to payment. If payment is not received when due, the maximum legal rate of interest shall be due from Buyer on any unpaid amount. In any event of default hereunder by Buyer, (1) the Seller may retake possession of goods without legal process, (2) all amounts then owing from Buyer to Seller, whether or not then due, shall be immediately due and payable, and (3) Seller may recover the costs and expenses of collecting amounts due hereunder, including reasonable attorneys’ fees. (4) Failure of timely and accurate sales and inventory reporting as required by sellers financial institutions may result in late charges.
Buyer hereby grants the Seller a security interest in Seller’s goods, which shall be as consignor/consignee in the case of “memo” or “memorandum” goods, and in the nature of a purchase money security interest in all Seller’s goods to which title passes to Buyer hereunder, and any proceeds therefrom, including, but not limited to, accounts receivables, until all charges including shipping charges, late payment charges, and attorney’s fees, if any, are paid in full. Buyer hereby appoints Seller as its attorney-in-fact for the purposes set forth herein and agrees that Seller may execute and file documents, in its name and in Buyers name, including UCC financing statements, as Seller deems necessary to protect, maintain, or protect Seller’s security interest.
3. Limitation of Damages. The liability of Seller, for any claims, losses, damages or expenses from any cause whatsoever (including claims of infringement and acts or omissions of third-parties) regardless of the form of action, whether in contract, tort or otherwise, shall not exceed the lesser of (1) the replacement cost or (2) the purchase price of the products that directly gave rise to the claim, provided that before the Seller is liable for any damages, that any goods are supplied by Seller: (1) are proven to be defective and that Seller is the sole cause of such defect; (2) are proven to have been handled properly after leaving the possession of Seller; (3) that Buyer has given Seller a reasonable opportunity to inspect such goods after notifying Seller in accordance herewith of any alleged defects. In no event shall Seller or its affiliates be liable to Buyer for any incidental, reliance, consequential, or any other direct or indirect loss or damage, including, but are not limited to, lost profits or revenue, arising out of the transactions contemplated hereunder. Should Buyer have any claims hereunder, Buyer shall notify Seller in writing within thirty (30) days of the date that such claim and/or cause of action accrues and the failure to do so shall be deemed a waiver of same. No action or proceeding against the Seller may be commenced more than twelve (12) months after the date on the reverse side hereof. Buyer shall defend, indemnify and hold Seller harmless for all expenses, damages, penalties, fees and the like, including reasonable attorney’s fees, incurred by or asserted against Seller, with attorneys acceptable to Seller for any claim or suit by a third-party based, in while or in part, on the acts or omissions of Buyer.
4. Delivery, Buyer’s Inspection and Acceptance of Goods. Despite anything set forth herein, time for delivery by the Seller shall not be deemed to be of the essence unless made so in writing by mutual agreement. To be effective, Buyer’s rejection or revocation of acceptance of defective or nonconforming goods must be made by written notice to Seller within five (5) days after delivery thereof. Failure to notify Seller in accordance herewith shall be deemed an acceptance of such goods. Goods rejected or not accepted by Buyer must be returned within ten (10) days in accordance with Seller’s instructions. A restocking charge in the amount of 20% of the purchase prices will apply to returns accepted by Seller.
5. Seller’s Disclaimer of Warranties. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE FACE HEREOF, EXPRESS OR IMPLIED, AND NO WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PUPOSE.
6. Acceptance and Modification of Terms. Buyer shall be deemed to have accepted the terms and conditions hereof (a) by signing and returning a copy hereof; or (b) when Buyer receives and retains this invoice without written objection for ten (10) days; or (c) when Buyer accepts delivery of all or part of the goods covered hereby; or (d) when Buyer has otherwise assented to the terms and conditions hereof. The terms and conditions contained in this agreement supersede all prior oral and/or written understandings between the parties and constitute the entire agreement between them concerning the subject matter hereof. No course of dealing, course of performance, or the failure of either party to strictly enforce any term, right or condition hereof shall be construed as a waiver of any term, right, or condition. This agreement shall not be modified or amended except by a writing signed by an authorized representative of the party to be charged and any writing purporting to respond to, amend, replace, and/or modify this invoice not signed by the party to be charged shall be null and void and of no effect.
7. Severability. The Buyer and Seller recognize that the terms and conditions set forth herein are necessary and that in the event that any such term or condition is deemed to be unreasonable by a court of competent jurisdiction, then the Buyer and the Seller agree to submit to such a limitation thereof as said court may deem reasonable. Further, in any of the provisions hereof or the application of same shall be determined said court to be invalid and/or unenforceable to any extent, the remainder hereof and/or the application of same, other than those as to which it is so determined to be invalid and/or unenforceable, shall not be affected thereby.
8. Force Majeure. Seller will not be liable for any delay in performance of orders or contracts, or in the delivery or shipments of goods, or from any damages suffered by Buyer by reason of such delay, when such delay is directly or indirectly caused by, or in any manner arises from fires, floods, accidents, riots, acts of God, war, governmental interference, or embargoes, strikes, labor difficulties, equipment breakdowns, shortage of labor, fuel, power, materials and supplies, transportation delays, or any other cause or causes (whether similar in nature to any of these herein specified) beyond Seller’s control.