AGREEMENT AND LIMITATIONS
The agreement (the “Sales Contract”) between eXcellon Technologies, Inc. (“Seller”) and Buyer/Distributor/OEM/end user with respect to the sale of goods shall consist of the terms appearing hereon with any additions or revisions of such terms mutually agreed to in writing by Seller and Buyer/Distributor/OEM/end user. Seller shall not be bound by any additional or different terms, whether printed or otherwise, in Buyer/Distributor/OEM/end user’s purchase order or in any other communication from Buyer/Distributor/OEM/end user to Seller unless specifically agreed to by Seller in writing. The Sales Contract shall be for the benefit of Seller and Buyer/Distributor/OEM/end user and not for the benefit of any other person. Prior courses of dealing or performance, trade usage, and verbal agreements not reduced to a writing signed by Seller, to the extent they modify, add to, or detract from the Sales Contract, shall not be binding on Seller.
TERMINATION OR MODIFICATION
The Sales Contract may be modified or terminated only upon the written consent of Seller, signed by Seller’s President or General Manager. If all or part of the Sales Contract is terminated, Buyer/Distributor/OEM/end user shall pay termination charges based upon expenses and costs incurred in the production of the goods to the date such termination is accepted by Seller. Notwithstanding any such termination, Buyer/Distributor/OEM/end user shall accept delivery of and pay in full for any goods completed on or prior to Seller’s acceptance of such termination plus Seller’s non-recoverable costs (including incidental and consequential damages) attributable to the terminated order.
PRICE AND PAYMENT
Seller accepts payment in the forms of cash, check, cashier’s check, ACH, and wire transfer. Returned checks may be collected electronically and a processing fee will be assessed, as permitted by law. The price of the goods sold pursuant to the Sales Contract shall be based upon Seller’s US dollar prices in effect at the time of shipment. Unless otherwise provided, such price is EXW Seller’s (“EXW” is a trade term where Seller delivers goods at his place of business) point of shipment and terms of payment shall be NET 30 DAYS from date of invoice. If the Sales Contract is for more than one unit of goods, the goods may be shipped in a single lot or in several lots at the discretion of Seller, and each such shipment shall be paid for separately. Seller may require full or partial payment or payment guarantee in advance of shipment. Any amounts charged to Buyer/Distributor/OEM/end user which are not paid when due will accrue interest at the rate of 1.5% per month (18% per annum). Seller reserves the right to set off any amounts it owes Buyer/Distributor/OEM/end user against any amounts Buyer/Distributor/OEM/end user owes Seller. If Seller retains legal counsel to assist in obtaining payment of any amounts due from Buyer/Distributor/OEM/end user, Buyer/Distributor/OEM/end user shall pay the reasonable fees and expenses of such counsel, including reasonable costs of investigation.
Quote requests can be faxed or emailed. Seller will return a written quote including quote number and expiration date. When ordering, a copy of the quote or quote number must be referenced for pricing to be honored. All verbal quotes (pricing and freight) are estimates only as pricing and freight charges are subject to change without notice.
Prices do not include taxes. All taxes and other governmental charges upon the production, sale or use of the goods, to the extent required or not forbidden by law to be collected by Seller from Buyer/Distributor/OEM/end user, shall be paid by Buyer/Distributor/OEM/end user to Seller unless Buyer/Distributor/OEM/end user furnishes Seller with exemption certificates acceptable to taxing authorities.
DELIVERY AND QUANTITIES
Buyer/Distributor/OEM/end user, at Buyer/Distributor/OEM/end user’s sole cost and expense (this includes determining and paying all custom fees associated with the delivery of their orders), shall pay all delivery charges unless the parties otherwise agree in writing. Promises of delivery from stock are subject to prior sale. Delivery dates are not guaranteed but are estimated on the basis of immediate receipt by Seller of all information to be furnished by Buyer/Distributor/OEM/end user and the absence of delays, direct or indirect, resulting from or contributed to by circumstances beyond Seller’s reasonable control. Seller shall in good faith endeavor to meet estimated delivery dates.
Seller’s service shop performs diagnostic evaluations and repair services for Seller’s goods. If Buyer/Distributor/OEM/end user believes goods are in need of repair, Buyer/Distributor/OEM/end user, at Buyer/Distributor/OEM/end user’s sole cost and expense, may ship the goods to 2701 South Coliseum Boulevard, Suite 1319 Fort Wayne, IN 46803. Once the goods are received, a diagnostic evaluation will be conducted and the results will be reported to Buyer/Distributor/OEM/end user. A routine fee will be charged for the diagnostic evaluation and report. However, if, based on the findings in the report, Buyer/Distributor/OEM/end user elects to purchase a replacement product (within 30 days of the date of the diagnostic report), the routine diagnostic report fee will be waived. If Buyer/Distributor/OEM/end user elects to have the goods repaired, Buyer/Distributor/OEM/end user will be billed for the report fee and the actual repair costs. Upon Buyer/Distributor/OEM/end user’s request, any damaged goods will be returned to Buyer/Distributor/OEM/end user with the cost of delivery being charged to Buyer/Distributor/OEM/end user. If Buyer/Distributor/OEM/end user does not request return of the damaged goods up to thirty (30) days after the diagnostic report is provided, Seller reserves the right to scrap the goods.
USE OF EXCELLON NAME
Buyer/Distributor/OEM/end user will not use, authorize or permit the use of, the name or any other trademark or trade name owned by eXcellon. Buyer/Distributor/OEM/end user is in no way authorized to alter the eXcellon name, trademark and logo. The nameplate information or designation thereof, shall remain: not be covered, or removed.
RISK OF LOSS
Buyer/Distributor/OEM/end user assumes all risk of loss of goods upon delivery by Seller to the carrier at Seller’s place of business.
NO NUCLEAR USE
Products and services sold by Seller are not intended to be, and shall not be, used in connection with any nuclear facility, application or activity without the written consent of seller.
Buyer/Distributor/OEM/end user grants Seller a security interest in the product to secure payment of the purchase price. Upon such payment, such security interest shall terminate. Until such payment, Buyer/Distributor/OEM/end user shall not lease or transfer the product or encumber the product with any other liens or security interests. Buyer/Distributor/OEM/end user agrees to execute any financing statement or other document that Seller reasonably believes is necessary to protect Seller’s security interest in the product. Upon default, Buyer/Distributor/OEM/end user shall be liable for all costs and expenses, including reasonable attorney’s fees, incurred by Seller in enforcing the sales contract.
For purposes of this Section, "Confidential Information” shall mean any information or material that is proprietary to eXcellon, whether or not such is owned or developed by eXcellon or specifically marked as “Confidential”, which is not generally known other than by eXcellon, and which Buyer/Distributor/OEM/end user may obtain through any direct or indirect contact with eXcellon. Confidential Information includes, but is not limited to, business records and plans; financial statements and goals; customer, Buyer/Distributor/OEM/end user, manufacturer, vendor, business partner lists and records; employee lists and records; company policies, procedures and forms; pricing structure; price lists; trade secrets; inventions, intellectual property and patent information; technical information; products and product ideas; blueprints, sketches and drawings; product design and testing information; discounts and other proprietary information; marketing concepts, strategies, programs, costs, vendors and merchandising sourcing concepts, displays, production and collateral product sourcing, vendors and representatives. Confidential Information does not include the following: (i) information that is publically available through no wrongful act of Buyer/Distributor/OEM/end user; (ii) information that is lawfully obtained from a third party without restriction on disclosure; (iii) information known to the Buyer/Distributor/OEM/end user prior to receipt from eXcellon without violating any restrictions on disclosure; (iv) or information independently developed by the Buyer/Distributor/OEM/end user without use of Confidential Information provided by eXcellon.
Buyer/Distributor/OEM/end user understands and acknowledges that the Confidential Information has been developed or obtained by eXcellon through the investment of significant time, effort, and expense; and that the Confidential Information is a valuable, special, and unique asset of eXcellon that provides eXcellon with a significant competitive advantage; and that the Confidential Information needs to be protected from improper disclosure. Buyer/Distributor/OEM/end user agrees to hold the Confidential Information in the strictest confidence, to avoid disclosing it to any third party without the prior written consent of eXcellon, to avoid using or disclosing it in any manner that is detrimental to eXcellon, and to refrain from using the Confidential Information except as required for Buyer/Distributor/OEM/end user to fulfill its obligations under this Agreement. In protecting the Confidential Information from disclosure, Buyer/Distributor/OEM/end user will apply the same level of care that it applies to protecting its own confidential information, but in any case Buyer/Distributor/OEM/end user will always apply at least reasonable care. These prohibitions shall extend not only to Buyer/Distributor/OEM/end user, but also to Buyer/Distributor/OEM/end user’s agents, employees, representatives, and assigns. The obligations under this Section shall survive termination of this Agreement.
Seller warrants to Buyer/Distributor/OEM/end user that the goods at the time of shipment will be free from material defects in material and workmanship and, with respect to Seller’s standard catalog items, that the goods will conform in all material respects to Seller’s specifications. This warranty shall be ineffective if more than one year has elapsed from the date of manufacture, and it shall not extend to goods subjected to misuse, neglect, accident or improper installation or maintenance or that have been altered or repaired by anyone other than the Seller or its authorized representative. Any model or sample provided to Buyer/Distributor/OEM/end user was used merely to illustrate the general type and quality of goods and not to warrant that goods shipped would be of that type or quality. No agent, employee or representative of Seller has authority to bind Seller to any affirmation, representation or warranty concerning the goods sold hereunder, and any such affirmation, representation or warranty has not formed a part of the basis of the bargain and shall be unenforceable. Seller’s sole obligation under the foregoing warranty is limited to, at Seller’s option, replacing or repairing defective goods or refunding the purchase price. Buyer/Distributor/OEM/end user’s exclusive remedy for breach of warranty will be enforcement of such obligation of Seller. The warranty contained herein is made only to and for the exclusive benefit of Buyer/Distributor/OEM/end user, and does not extend to any subsequent purchaser or user of the goods or of any product of which the goods may be a component part. THE ABOVE WARRANTY IS THE SELLER’S SOLE AND ENTIRE WARRANTY OBLIGATION AND LIABILITY. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY EXCLUDED.
BUYER/DISTRIBUTOR/OEM/END USER’S REMEDIES AND LIMITATION OF LIABILITY
If Buyer/Distributor/OEM/end user claims Seller has breached any of its obligations under the Sales Contract, whether of warranty or otherwise, Seller may request the return of the goods. In such event, Seller shall have no further obligation under the Sales Contract except to refund such purchase price upon redelivery of the goods. If Seller so requests the return of the goods, the goods will be redelivered to Seller in accordance with Seller's instructions and at Seller’s expense. The remedies contained in this and the preceding section shall constitute the sole recourse of Buyer/Distributor/OEM/end user against Seller for breach of any of Seller's obligations under the Sales Contract, whether of warranty or otherwise. In no event shall Seller be liable for any amounts representing loss of profits, loss of business, loss of business opportunities or for any consequential, incidental, punitive or special damages, nor shall Seller's liability on any claim for damages arising out of or connected with the sales contract or the manufacture, sale, delivery or use of the goods exceed the purchase price of the goods. Seller shall not be liable for failure to perform its obligations under the Sales Contract resulting directly or indirectly from or contributed to by acts of God, acts of Buyer/Distributor/OEM/end user, civil or military authority, fires, strikes or other open disputes, accidents, floods, epidemics, war, riot, delays in transportation, lack of or inability to obtain raw materials, components, labor, fuel or supplies, or other circumstances beyond Seller’s reasonable control, whether or not similar to the foregoing.
If Buyer/Distributor/OEM/end user breaches its obligations under the Sales Contract, Seller reserves the right to pursue any remedies which are available to Seller at law or in equity. In the event of a breach of the Confidentiality provisions of the Sales Contract, the parties agree that any damages to which Seller may be entitled will be difficult or incapable of precise calculation. Accordingly, Seller shall have the right to seek a preliminary and/or permanent injunction preventing further harm from Buyer/Distributor/OEM/end user’s actions in addition to any other remedies which are available to Seller.
COSTS - ATTORNEY’S FEES
In the event of a dispute regarding the interpretation or enforcement of the Sales Contract, the prevailing party shall be entitled to recover its reasonable costs and attorneys’ fees.
SELECTION AND INSTALLATION
Buyer/Distributor/OEM/end user represents that the goods sold hereunder will be used in accordance with the intended use of such goods and that Buyer/Distributor/OEM/end user placed no reliance on Seller’s skill or judgment in selecting suitable goods. Installation of the goods shall be Buyer/Distributor/OEM/end user’s responsibility. Buyer/Distributor/OEM/end user represents and warrants that the use and installation of the goods shall be made in compliance with all applicable government requirements.
GOVERNING LAW AND LIMITATION
The Sales Contract shall be governed by and construed in accordance with the laws of the State of Indiana. The parties agree that venue for any dispute regarding the interpretation or enforcement the Sales Contract shall be in any state or federal court located Allen County, Indiana which has subject matter jurisdiction over the claims at issue. The parties hereby consent to the jurisdiction of the courts in Allen County, Indiana.