EXCLUSIVE TERMS AND CONDITIONS: Unless specifically modified by the terms on the face of this Proposal, the following are the sole terms and conditions governing the sale of products by Hamilton Exhibits, LLC or its subsidiaries or divisions (collectively “Hamilton”). If there is any conflict between these terms and the express terms on the face hereof, the terms on the face of the Proposal shall
prevail. Acceptance of this Proposal by Buyer is EXPRESSLY LIMITED TO THE TERMS CONTAINED HEREIN, and Hamilton rejects any proposed different or additional terms. This Proposal, when accepted, will supersede all prior agreements, whether written or oral, relating to the subject matter of this Proposal. No modification, amendment, extension, renewal, rescission, discharge, abandonment, waiver or other change shall be binding on Hamilton unless agreed to by it in writing.
QUOTATION AND PRICES: Written quotations are good only if accepted within 30 days. Prices are subject to change without notice. Prices are FOB Hamilton’s facility unless otherwise specified, and quoted prices do not include sales, use, excise or any other applicable taxes.
CREDIT AND PAYMENT TERMS: Upon approval of Buyer’s credit, terms of payment shall be net 10 days after date of invoice. An advance payment may be required as a downpayment when the Proposal is accepted. All delinquent invoices shall accrue interest at the rate of 1 1/2% per month, 18% per annum. Buyer specifically agrees to pay any and all costs associated with the collection of any invoices or accounts due and owing from Buyer to Hamilton, including, but not limited to, court costs and reasonable attorney’s fees.
PACKING AND SHIPPING: Packing and shipping of products shall be at Hamilton’s sole discretion. Title to and risk of loss for the product shall pass to Buyer upon delivery to carrier at Hamilton’s facility, except where F.O.B. destination is specified in the Proposal in which case title and risk of loss shall pass to Buyer upon delivery to Buyer’s receiving dock. Hamilton’s responsibility ceases when delivered.
INSPECTION AND ACCEPTANCE OF MERCHANDISE: The products shall be deemed accepted when Buyer inspects them in their assembled form prior to delivery if such inspection is required pursuant to the terms hereof, and any rejections must be made at the time of inspection. Otherwise, the products shall be deemed accepted when received by Buyer, and any rejection must be made in writing within 10 days after such receipt, specifying the reason for the rejection. In no event shall Buyer have the right to reject any products subsequent to their use.
PRODUCTION/DELIVERY: The production time and delivery schedule as set forth herein are Hamilton’s best estimates at the time of the Proposal, and Hamilton shall not be liable for any damages of any kind or nature resulting either directly or indirectly from its failure to meet such estimates. Reschedules will be considered by Hamilton if requested prior to its beginning production of the products involved. In all cases, reschedules must have the prior written approval of Hamilton. If a failure or delay is due to the acts or omissions of Buyer, an act of God, war, labor difficulties, accident, inability to obtain materials, or any other causes of any kind or nature whatsoever beyond the control of Hamilton, the delivery date shall automatically be extended by the length of time corresponding to the failure or delay as specified herein.
CANCELLATIONS: Buyer’s acceptance of a Proposal is final and binding and not subject to cancellation, except upon the terms and conditions as specified by Hamilton’s sole discretion.
DESIGNS: Original designs, drawings, models, prototypes, data or specifications or any other similar information provided by Hamilton pertaining to any aspect of this Proposal are the sole and exclusive property of Hamilton and are given in strict confidence for the sole purpose of Buyer evaluating this Proposal. Any use or reproduction of such materials in whole or in part, including showing the materials to a competitor of Hamilton without written permission, is strictly prohibited.
LIMITED WARRANTY: Products manufactured and distributed by Hamilton will meet Buyer’s specifications and designs within standard commercial specifications and tolerances. Any defect in materials is not covered by this limited warranty, and is covered only by the manufacturer’s warranty, if any. Hamilton warrants the products it manufactures against defect in workmanship for a period of 90 days under normal use following the date of acceptance when proof of such defect is provided to Hamilton, subject to the following:
1. This warranty only extends to and is enforceable only by the original Buyer and is specifically conditioned upon the condition precedent that the original purchase price has been paid in full to Hamilton.
2. In the event of a failure of a product manufactured by Hamilton to conform to this warranty, Buyer shall first return the product to Hamilton, freight prepaid. After inspection by Hamilton, if it is determined by Hamilton that the failure is due to a defect in workmanship, Hamilton shall, at its option, repair or replace the defective part at no cost to Buyer for the new or repaired part. Any and all costs associated with shipping, disassembly, handling or otherwise, shall be the responsibility of Buyer.
3. HAMILTON NEITHER ASSUMES, NOR AUTHORIZES ANY PERSON TO ASSUME FOR HAMILTON, ANY OTHER OBLIGATION OR LIABILITY IN CONNECTION WITH THE SALE OF PRODUCTS OF HAMILTON, THE WARRANTY OF HAMILTON SHALL NOT APPLY TO ANY PRODUCT WHICH HAS BEEN SUBJECT TO ACCIDENT, NEGLIGENCE, ALTERATION, ABUSE, MISUSE OR IMPROPER INSTALLATION. THE REMEDIES SET FORTH IN THIS WARRANTY SHALL BE THE EXCLUSIVE REMEDY AVAILABLE TO BUYER, AND HAMILTON SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE. ANY LIABILITY OF HAMILTON SHALL NOT EXCEED THE PRICE PAID FOR THE PRODUCT
CLAIMED TO BE DEFECTIVE.
4. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND THIS WARRANTY SPECIFICALLY EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO OTHER WARRANTIES OF ANY KIND OR NATURE WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.
GENERAL: The failure of Hamilton to insist upon a strict performance of any of the terms and conditions herein shall not be deemed to be a waiver of such terms or conditions or of any rights or remedies which it might have in demanding strict performance of all the terms and conditions herein contained.
GOVERNING LAW: This agreement shall be construed and enforced in accordance with the internal laws of the State of Indiana, and
Hamilton shall have all the rights and remedies provided to a seller by law, including Article 2 of the Indiana Uniform Commercial Code.
CHOICE OF JURISDICTION AND VENUE: Buyer hereby consents and submits to personal jurisdiction in the Indiana state courts in Marion County, Indiana, and the United States District Court for the Southern District of Indiana. Jurisdiction and venue of any action brought to enforce any provision of this agreement, any invoice issued by Hamilton to Buyer, or any other aspect of the relationship between Buyer and Hamilton shall, at the election of Hamilton, be in (and if any action is originally brought in another venue, the action shall at the election of Hamilton be transferred or removed to) the Indiana state courts in Marion County, Indiana, or the United States District Court for the Southern District of Indiana. Buyer hereby waives any and all personal rights under the laws of any state other than Indiana to object to jurisdiction within the Indiana state courts in Marion County, Indiana, and the United States District Court for the Southern District of Indiana for purposes of any action. Buyer hereby waives and agrees not to assert, as a defense to or a motion to transfer venue of any action between Buyer and Hamilton: (i) any claim that such action may not be brought against Buyer in the Indiana state courts in Marion County, Indiana, and the United States District Court for the Southern District of Indiana; (ii) that such action is brought in an inconvenient forum; or (iii) that venue in the Indiana state courts in Marion County, Indiana, and the United States District Court for the Southern District of Indiana is in any way improper.
SEVERABILITY OF CLAUSES: The invalidity or unenforceability of any of the terms herein shall not affect the validity or enforceability of any other terms hereof.