1. Terms. All purchases of Buyer from Seller or Sellers, whether on credit or otherwise, shall be subject to and governed by this Agreement, Seller's purchase order form ("Purchase Order") and any other written agreement executed by Buyer and Seller of goods (“Goods”) and/or services (“Services”) (collectively, the "Sale Documents"). NO TERM OF ANY PURCHASE ORDER OR OTHER DOCUMENT ISSUED BY BUYER AND NOT EXECUTED BY AN AUTHORIZED REPRESENTATIVE OF SELLER ("BUYER'S DOCUMENTS") SHALL BE EFFECTIVE OR BIND SELLER, AND SELLER OBJECTS TO ALL DIFFERENT OR ADDITIONAL TERMS OF BUYER'S DOCUMENTS AND EXPRESSLY CONDITIONS ITS OFFER TO SELL TO BUYER AND ITS ACCEPTANCE OF BUYER'S OFFER TO PURCHASE ON BUYER'S ACCEPTANCE OF THE TERMS OF THE SALE DOCUMENTS.
2. Delivery. All prices are net of any delivery charges. Unless Buyer and Seller agree otherwise, Buyer shall arrange and pay for the delivery of the Goods from Seller's place of business to Buyer. If Seller agrees to arrange for delivery of the Goods, Buyer shall pay for all costs associated therewith. Delivery shall occur and all risk of loss shall pass to Buyer upon the earliest to occur of the following: (a) Buyer takes possession of the Goods; (b) the Goods leave Seller's premises to be delivered to Buyer; or (c) the Goods are placed in the possession of a common, contract or other carrier to be delivered to Buyer. Seller may deliver any Goods sold on one or more installments. No delivery of Goods by Seller shall waive any rights or remedies that Seller may have with respect to any prior deliveries. All delivery schedules and dates given by Seller are estimates only. Seller shall not be liable for any delay in the performance of any order or contract or in the delivery or shipment of any Goods, or for any damages suffered by Buyer by reason ofany such delay. Seller's obligation to deliver the Goods is subject to Buyer's Compliance with the terms and conditions of the Sale Documents and Buyer's maintaining credit satisfactory to Seller. Seller may suspend or delay performance or delivery at any time pending receipt of assurances of Buyer's ability to pay (including full or partial prepayment) adequate to Seller in its discretion. Buyer's failure to provide such assurances shall entitle Seller to cancel any Purchase Order or other contract without notice to Buyer and without further liability or obligation to Buyer.
3. Notice of Nonconformity. Buyer must give Seller written notice of any claim that it has regarding the condition, quantity or quality of the Goods or the nonconformity of the Goods with the Sale Documents within ten (10) days after delivery of the Goods occurs as specified in paragraph 2. The notice must specify the basis of Buyer's claim in detail. Buyer's failure to comply with this paragraph 6 shall constitute Buyer's irrevocable acceptance of the Goods and shall bind it to pay Seller the full price of the Goods.
4. Security Agreement. Buyer hereby grants to Seller a purchase money security interest in all of the Goods. This security interest shall terminate with respect to particular goods when the full amount of the invoice reflecting those Goods, including any delinquency charges, attorneys’ fees and costs imposed by the Sale Documents, is paid. Buyer shall execute and deliver to Seller all assignments, financing statements and other agreements and documents that the Seller may request and shall take any and all steps requested by the Seller, in order to perfect and maintain Seller’s security interest in the Goods.
5. Payment and Delinquency Charges. If Seller extends any credit to Buyer on this account, unless otherwise specified in the Sale Documents, the full purchase price shall be due thirty (30) days after billing. If Buyer does not pay the full price on or before the thirtieth (30th) day of the month in which the payment is due, delinquency charges on the amount of one and one-half percent (1 1/2%) per month on any overdue unpaid balance shall accrue and be added to the unpaid balance. All payments to Seller on Buyer's account shall be applied first to all accrued delinquency charges, second to all past due amounts in order of their maturity, and finally to all other amounts due to Seller. Seller may employ one or more attorneys to enforce its rights and remedies under this Agreement, and Buyer hereby agrees to pay Seller its reasonable attorneys' fees plus all other costs, expenses and collection fees incurred by Seller in exercising its rights and remedies under this Agreement.
6. DISCLAIMER OF WARRANTIES. SELLER MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED: (A) AS "TO THE DESIGN, QUALITY OR CONDITION OF THE GOODS; (B) AS TO THE MATERIAL, EQUIPMENT OR WORKMANSHIP IN THE GOODS; OR (C) AS "TO MERCHANTABILITY OR FITNESS OF THE GOODS FOR ANY PARTICULAR PURPOSE. SELLER MAKES NO WARRANTY WITH RESPECT TO ANY PATENT, COPYRIGHT, TRADEMARK, TRADE NAME, SERVICE MARK OR PROPRIETARY LAWS OR RIGHTS.
7. Limitation of Liability. Seller’s sole obligation to Buyer for any nonconforming Goods shall be, at Seller’s option, to repair or replace such Goods. Seller shall not beliable to buyer for, and Buyer hereby waives, any special, indirect, incidental or consequential damages and any claims, demands or liabilities for property damage or personal injury, including without limitation claims, demands or liabilities arising out of or relating to Seller’s negligence. Any action by Buyer arising out of or relating to the Sale Documents or any Goods must be commenced within one (1) year after the claim or cause of action has accrued. If for any reason Seller at any time is unable to provide the Goods to Buyer, Seller, at its option may terminate the particular Purchase Order entirely or as to the Goods Seller is unable to provide, and Seller shall have no further obligation to Buyer with respect thereto.
8. Indemnification. Buyer shall indemnify and hold Seller harmless from and against all claims, demands, costs, attorneys’ fees, liabilities and obligations arising out of or relating to Buyer’s use, possession or control of the Goods, including without limitation all claims of infringement of any patent, copyright, trademark, trade name, service markor proprietary rights and all personal injury and property damage claims of any employee or agent of Buyer or any other person, firm, corporation or entity.
9. Default by Buyer. The occurrence of any of the following shall constitute an event of default by Buyer under this Agreement and all other agreements between Buyer and Seller: (a) Buyer's failure to pay any sum of money as and when due under this Agreement or any other agreement with Seller which is not cured within five (5) days after it is due; or (b) Buyer's default under any other term of this Agreement or any other agreement with Seller which is not cured within ten (10) days after Seller gives Buyer written notice of that default. Upon the occurrence of an event of default by Buyer under this Agreement or any other agreement between Buyer and Seller, and in addition to any other rights and remedies that Seller may have, Seller shall have the right, at its option, to take one or more of the following actions: (a) declare all or part of Buyer's obligations to Seller under this Agreement or any other agreement immediately due and payable; (b) require Buyer to assemble the Goods subject to a security interest in favor of Seller and deliver them to Seller's premises at Buyer's sole expense; (c) retake possession of any Goods subject to any unpaid invoice without notice to or demand on Buyer wherever the Goods shall be located without any court order or other process of law (Buyer hereby waives all claims, demands and liabilities that may arise from any such repossession); and (d) pursue any other right or remedy at law or in equity.
10. Notices. Any notice permitted or required under this Agreement shall be deemed given if in writing and deposited in the United States mail, certified mail return receipt requested, first class postage prepaid, to Weisiger Group – Credit Dept PO Box 1095 Charlotte, NC 28201.
11. Remedies cumulative nonwaiver. No delay or omission of Seller to exercise any right or power arising from any default on the part of Buyer shall impair any such right or power or shall be construed to be a waiver of any such default.
12. Severability. The provisions of this Agreement are severable, and the invalidity or unenforceability of any one or more of the provisions of this agreement, or any partthereof, shall not affect the validity or enforceability of any other provision.
13. Applicable Law. This Agreement and any controversy relating hereto shall be governed by and construed in accordance with the laws of the State of North Carolina. For any and all actions or proceedings related to this agreement, Buyer consents to the jurisdiction and venue of the state and Federal Courts of Mecklenburg County, North Carolina and Buyer consents to the transfer to said courts of any action filed by buyer in any other court or venue. However, in its sole discretion, Seller may bring any such action in the county or district where the equipment was used.