TERMS AND CONDITIONS
By signing below BUYER agrees that the following terms and conditions shall apply to all contracts for the sales of goods entered into between the BUYER and HYDROLIGHT, INC., and/or one or more of its subsidiaries and affiliates (individually or collectively herein known as the “Hydrolight”) and that these terms and conditions shall apply and control regardless of any writing contained in Buyer’s purchase order or other forms exchanged by the parties prior to or subsequent to the execution of this Agreement. These terms shall apply to all deliveries made on or after this date by Hydrolight to Buyer. The parties specifically rejected all previous or subsequent terms that conflict with those contained below and agree that these terms shall control. As a material inducement and as consideration for Hydrolight’s extension of credit to Buyer, the parties agree to the following:
Buyer’s Representations. Buyer represents that it is solvent as of the date of this Agreement. Buyer acknowledges that any credit offered to Buyer is contingent on Buyer’s account remaining in current status through the date of delivery of any orders from Hydrolight. Should Buyer’s account fail to remain in a current status, or Hydrolight receive information indicating Buyer is delinquent with other vendors or that there has been a deterioration in Buyer’s financial condition, the terms of sales shall revert to cash upon delivery at Hydrolight’s sole option. Signer of this Agreement represents that he is authorized to negotiated terms and conditions regarding the purchase of goods by his employer.
Imposition of Interest, Collection of Fees and Acceleration Payment in Case of Past Due Balances. Buyer agrees that interest at the rate of 10% per month or the highest allowed by law (whichever is lower) will be imposed on all account balances that are past due. Buyer also agrees if an invoice is not paid within 30 days of its due date, Buyer will be liable to and shall reimburse the Hydrolight for reasonable attorney’s fees, expenses and/or collection charges in addition to the aforementioned interest charges incurred in the collection of these delinquent amounts. Furthermore, if any invoice due by Buyer to Hydrolight exceeds 40 days past due, all monies owed Hydrolight by Buyer shall immediately become due and payable in full regardless of the original due date. To the extent that the provisions of the previous sentence becomes applicable, if at that time Hydrolight owes Buyer any monies, those amounts shall be set-off against amounts Buyer owes Hydrolight.
Consent to Jurisdiction and Forum Selection. The parties hereto agree that all actions or proceedings arising in connection with this Agreement and its related sales transactions shall be tried and litigated exclusively in the State and Federal courts located in the County of Oakland, State of Michigan. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between the parties with respect to or arising out of this Agreement in any jurisdiction other than that specified in this paragraph. Each party hereby waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this paragraph, and stipulates that the State and Federal courts located in the County of Oakland, State of Michigan shall have in personam jurisdiction and venue over each of them for the purpose of litigating any dispute, controversy, or proceeding arising out of or related to this Agreement. The parties agree to waive any right to trial by jury. Each party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action again it as contemplated by this paragraph by registered or certified mail, return receipt requested, postage prepaid, to its registered agent in any jurisdiction in which it is incorporated or does business in. Any final judgment rendered against a party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law.
Disclaimer of Certain Warranties. Hydrolight disclaims all warranties (expressed or implied) related to the product, its merchantability or fitness for a particular use other than product(s) meet the written specification provided by Hydrolight. Buyer acknowledges that the only representations related to this product that have been sold by Hydrolight are contained in writings provided to the Buyer by the Hydrolight.
Waiver of non-conformity and/or defect unless timely notice is provided. Buyer shall inspect all goods within a reasonable period (not to exceed 30 days) from date of delivery. Any claims for nonconformance with Hydrolight’s written specifications or shortage not made in writing and received by Hydrolight by the end of the 30th calendar day after delivery shall be considered irrevocably waived. Additionally the Buyer agrees that no further action founded upon this contract (other than an action by the Hydrolight to collect an amount due arising out of this contract) or in tort shall be brought unless it is commenced within 366 days of the action nor omission complained of.
Limitations of Damages. In no event shall Hydrolight or any of its subsidiaries be liable to any buyer for any direct, indirect, special, consequential or other damages (including, without limitation, any lost profits, business interruption, loss of information or other data, storage costs, or transportation costs) that are related to the transaction underlining this Agreement.
Security. The Buyer shall, at the sole election of Hydrolight, execute and deliver to, or shall cause to be delivered to, Hydrolight in form and substance satisfactory to Hydrolight, all documents to secure all debts, liabilities and obligations of the Buyer including, without limitation: (i) a security agreement issued by the Buyer creating a security interest in all present and after-acquired accounts receivable of the Buyer; (ii) a security agreement issued by the Buyer in all present and after-acquired goods of the Buyer; and (iii) all such other security agreements with respect to the aforementioned collateral which Hydrolight may reasonable require.
Modification. Hydrolight reserves the right, at its sole discretion, to change, modify, add or remove any portion of this Agreement, in whole or in part, at any time. Changes in this Agreement will be effective when notice of such change is made. Hydrolight may terminate, change, suspend or discontinue any aspect of this Agreement, in whole or in part, at any time. Hydrolight may also impose limits on certain features and services or restrict credit access.
Trademark and Copyright Information. Hydrolight is a registered trademark, unless otherwise noted, and is owned and licensed by its respective holders. No duplication, distribution, or modification may be made to the Hydrolight Trademark or Copyright without Hydrolight’s expressed written consent.
Binding Effect. This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective and permitted successors and assigns, and nothing herein or in any other agreement executed or delivered in connection herewith is intended or shall be construed to give any other party any right, remedy or claim under, to or in respect of this Agreement.
No Actions. Buyer acknowledges and confirms that no existing actions, suites, proceedings, inquiries or investigations existing, or to the knowledge of the Buyer, pending, threatened or affecting the Buyer in any court or before or by any federal, state or municipal or other governmental department, commission, board, tribunal, bureau or agency, which are reasonably likely to affect adversely the financial condition, property, assets, operations or business of the Buyer, the ability of the Buyer to perform its obligations under this Agreement.
Guarantee. The Buyer personally guarantees all of the obligations set forth in this Agreement by executing the Personal Guaranty in “Exhibit A” attached herein.