OHIO LASER LLC TERMS OF SALE
This invoice and any Agreement, Order or Sale upon which this invoice is based is expressly limited to and made conditional upon the terms and conditions herein, and any of the Buyer’s terms, in addition to or different from those contained herein, whether added to this form or contained in any purchase order, acknowledgment or confirmation prepared by Buyer and sent to Ohio Laser, LLC (“Ohio Laser”), are hereby objected to and shall be of no effect. Buyer’s ordering or accepting any goods or services referenced on the reverse side hereof or making payment under this Invoice shall be deemed acceptance of the Terms of Sale.
1. Payment. All payments shall be in legal tender of the United States of America. In the event Buyer fails to make payment in full within the time period set forth on this Invoice, or within the time period expressly agreed upon in writing by the parties, such failure to pay on time constitutes a material breach of contract by Buyer and permits Ohio Laser to suspend further delivery under any contract between Buyer and Ohio Laser. If Ohio Laser has to take legal action or file an arbitration to collect any amounts due based hereunder, Buyer shall pay all court costs including reasonable attorney’s fees incurred by Ohio Laser in bringing and prosecuting such action.
2. Disputes. ALL COMMUNICATIONS CONCERNING DISPUTED DEBTS, INCLUDING AN INSTRUMENT TENDERED AS FULL SATISFACTION OF A DEBT, ARE TO BE SENT TO OHIO LASER, LLC ATTENTION: CORPORATE CREDIT MANAGER AT 8260 ESTATES PARKWAY, PLAIN CITY, OHIO 43064.
3. Prices. The prices set forth on this Invoice are not discountable unless expressly stated on the reverse side hereof.
4. Taxes. All prices are quoted exclusive of taxes. All taxes applicable to any order placed hereunder, including, but not limited to, Ohio or other applicable sales or use taxes, are additional and to the extent legally permissible shall be paid by Buyer.
5. Shipping. All prices are f.o.b. Ohio Laser’s facility referenced on the reverse side hereof. All freight and shipping costs shall be the responsibility of Buyer.
6. Finance Charge. A finance charge of the lesser of 1 ½% per month, 18% ANNUAL PERCENTAGE RATE, or the highest rate permitted by law, shall be charged on all amounts unpaid 30 days after the date of this invoice.
7. Force Majeure. Ohio Laser shall not be deemed to be in default of any of its obligations hereunder due to any delays caused by acts of God, fires, floods, strikes, work stoppages, equipment failure, accidents, allocations, or other controls or regulations, of federal, state or local government, shortages of cars, fuels, materials, or labor, permanent or temporary mill closing, or any other cause beyond its reasonable control.
8. Inspection and Claims. It is Buyer’s obligation to inspect all goods upon receipt. All claims of any nature shall be barred unless notice thereof is given to Ohio Laser at its address set forth on the reverse side hereof, in writing by certified or registered mail, postmarked within ten (10) days after receipt of the goods, and the goods relating to such claims are held intact and properly protected, unless instructed otherwise by Ohio Laser, pending inspection by Ohio Laser’s authorized Inspector. FAILURE TO NOTIFY OHIO LASER OF ANY NON-CONFORMANCE WITHIN 10 DAYS OF RECEIPT OF ANY GOODS SHALL CONSTITUTE ACCEPTANCE OF SUCH GOODS AND WAIVER OF ALL CLAIMS WITH RESPECT TO ANY NON-CONFORMANCE.
9. Transportation and Rise of Loss. Upon delivery to a common carrier or to Buyer or Buyer’s agents or representatives of any material or goods sold hereunder, rise of loss or damage to such material or goods shall pass to Buyer, and Ohio Laser shall have no further liability therefor.
10. Buyer’s Insolvency. Ohio Laser shall have the unrestricted right to cancel, withhold or delay its performance or delivery hereunder in the event of the happening of any of the following or any other comparable events, in which event Ohio Laser shall have no liability for any losses or damages claimed by Buyer: (i) Buyer’s insolvency or commission of an act of bankruptcy; (ii) commencement of proceedings by, for or against Buyer under any law relating to bankruptcy or the relief of debtors; (iii) the appointment of a receiver or trustee for Buyer; (iv) the execution by Buyer of an assignment for the benefit of the creditors; and (v) the determination by Ohio Laser, in its sole judgment, that Buyer’s financial condition is such as to endanger its performance hereunder.
11. Limited Warranty. Ohio Laser warrants that any goods delivered pursuant hereto comply with the written specifications set forth or referenced on the face hereof. All goods, including those produced to meet an exact specification, dimension, weight, or straightness are subject to the producer’s tolerances and variations in surface and internal conditions in respect to dimension, weight, straightness, section composition and mechanical or physical properties, and to normal variations in surface and internal conditions and in quality; to deviations from tolerance and variations consistent with practical testing and inspection methods; and to regular industry practice on over and under shipment. THE AFORESAID IS THE ONLY WARRANTY GIVEN BY OHIO LASER. THERE ARE NO OTHER REPRESENTATIONS OR WARRANTIES GIVEN BY OHIO LASER, EXPRESS, IMPLIED OR STATUTORY. THERE ARE NO WARRANTIES OF MECHANTABILITY OR FITNESS FOR USE THAT APPLY TO ANY GOODS SOLD HEREUNDER, WHICH WARRANTIES ARE HEREBY SPECIFICALLY EXCLUDED.
12. Limitation of Remedy. BUYER’S EXCLUSIVE REMEDIES WITH RESPECT TO ANY GOODS FURNISHED BY VENDOR HEREUNDER THAT ARE FOUND TO BE DEFECTIVE OR OTHERWISE NOT IN CONFORMITY WITH ANY WARRANTY OR THIS CONTRACT SHALL BE LIMITED TO, AT OHIO LASER’S SOLE OPTION (A) REPLACEMENT OF ANY DEFECTIVE OR NON-CONFORMING GOODS, (B) A CREDIT TO BUYER’S ACCOUNT FOR SO MUCH OF THE PURCHASE PRICE AS RELATES TO ANY DEFECTIVE OR NON-CONFORMING GOODS OR (C) A REFUND TO BUYER OF THE PURHCASE PRICE FOR ANY DEFECTIVE OR NON-CONFORMING GOODS.
13. Limitation of Liability. OHIO LASER’S RESPECT TO ANY BREACH HEREUNDER OR RELATING TO ANY GOODS SOLD PURSUANT HERETO, SHALL BE LIMITED TO THE AMOUNT PAID BY THE BUYER FOR ANY DEFECTIVE OR NON-CONFORMING GOODS. OHIO LASER’S LIABILITY FOR ANY OTHER BREACH OF THIS CONTRACT SHALL BE LIMITED TO THE DIFFERENCE BETWEEN THE CONRACT PRICE OF THE GOODS PURCHASED HEREUNDER AND THE LOWER OF THE MARKET PRICES OF SUCH GOODS AT OHIO LASER’S FACILITY OR AT BUYER’S DESTINATION AT THE TIME OF THE BREACH. UNDER NO CIRCUMSTANCES SHALL OHIO LASER BE LIABLE FOR ANY SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR ANY CLAIMS FOR LOST PROFITS.
14. Complete Agreement. This instrument constitutes the entire and only agreement between the parties hereto and any negotiations, representations, affirmation of fact, and courses of prior dealings, promises or conditions in connection therewith if not expressly incorporated herein shall not be binding upon Ohio Laser. No waiver, alteration or modification of any of the provisions hereof shall be binding unless in writing and signed by a specifically authorized representative of Ohio Laser.
15. Arbitration. Any dispute arising between the parties hereto shall be resolved by arbitration in Columbus, Ohio, in accordance with the Rules of the American Arbitration Association, and the award of the arbitrators(s) shall be final and binding upon the parties. In the event the demand for arbitration is filed pursuant hereto, the parties shall have the same rights to discovery under the Ohio Rules of Civil Procedure as if the dispute had been filed as an original action in an Ohio Court of original jurisdiction and shall be authorized to enforce said rights as if the entire dispute were pending before said Court. Notwithstanding the foregoing, Ohio Laser may institute an action for collection of any amount due from Buyer hereunder in any court of competent jurisdiction. Buyer hereby consents to the personal jurisdiction and venue of the federal and state courts located in Union County, Ohio.
16. Limitation of Action. In no event may any claim by Buyer arising from or relating to any agreement, order or sale of any goods or services referenced herein be brought more than one year after the date of delivery or the date such claim arose, whichever shall be earlier.
17. Nonwaiver. No waiver of failure to enforce compliance with the terms hereof by Ohio Laser shall constitute a waiver of Ohio Laser’s rights to insist upon strict compliance with the terms of this order thereafter.
18. Controlling Law. This invoice shall be deemed made in the State of Ohio. This Invoice and any dispute arising from the goods or services referenced herein shall be governed by the laws of the State of Ohio.
19. Headings. The headings used in this Agreement are solely for the convenience of the parties and shall have no force or effect upon the interpretation of any provision hereof.