Doors On-Line, Inc. Purchase Agreement
1. Confirmation of Contract: By submitting an order and consummating the order, Buyer acknowledges that this is an agreement for the sale and purchase of overhead doors and overhead door accessories as submitted in which Buyer agrees to buy and Seller agrees to sell Buyer such overhead doors and overhead door accessories, subject to the terms set forth below.Furthermore, by consummating the order, Buyer acknowledges having understood and accepted the terms contained herein.
3. Specifications Compliance: The specifications provided in this Agreement shall govern.It is the sole responsibility of the Buyer to verify the specifications herein conform to the Buyer's local building and insurance codes.
4. Commercial Code Applicability: Unless specifically defined herein, the terms used in this Contract shall be defined by the Commercial Code provisions set forth in the Chapter 13 of the State of Ohio Revised Code.
5. Goods Conformance: The goods shall conform to the specifications set forth in this Contract except where agreed upon in writing by Buyer and Seller.
6. Changes in Contract Terms: All changes must be confirmed by both parties in an executed change order in order to be binding upon the parties.Price shall be modified to reflect such change.
7. Damages for Delay and Cancellation of Order:Seller shall not be liable for any damages which Buyer may suffer by reason of Seller\'s delay if Buyer, its agents or employees, notifies Seller to cancel or "hold" order until further notice or if Buyer delays delivery of order for any reason after production has begun.If Buyer places order on hold prior to the start of production, Buyer remains liable for cost or damages Seller incurred by reason of the delay, including incidental and consequential costs.If Buyer notifies Seller to cancel or hold an order and production has begun, Buyer shall remain liable for the full contract price and payment is due upon receipt of invoicing.
8. Risk of Loss: Buyer understands and agrees that the Seller may contract the delivery of merchandise with an independent carrier and that the carrier shall accept risk of loss while the goods are in transit.Upon arrival of the goods by the carrier and prior to unloading same, Buyer shall bear risk of loss as to any parts of the shipment, personal injury (i.e. for unloading) and any other liability which may occur.Buyer shall hold Seller harmless from any loss, costs, claims, suits, damages, and attorney\'s fees arising from any injury to any person or property which arises out of work performed or materials supplied pursuant to this Agreement.
9. Authority: No agreement, statement or warranty made by a real or alleged agent, employee, or representative of Seller regarding the goods sold hereunder shall bind Seller.
10. Delivery and Payment: All shipments shall be F.O.B. factory. Contract price shall be paid with check or charge card prior to production of order but does not guarantee date of delivery, and Seller shall not be responsible for delay damages. Seller will exercise good faith to meet delivery dates, but Buyer is responsible for demurrage charges from truck line if Buyer requests a delay in delivery.At time of delivery, Buyer shall make a full and close inspection of merchandise.Buyer must make note on the bill of lading of any freight damage or missing packages.Seller shall have the option to deliver goods in two or more installments as Seller shall elect.
11. Assignment: If Buyer defaults on any of its obligations hereunder, Seller shall have the right, but not the obligation to sell the products ordered to a third party at the same price as under this contract and Buyer shall remain liable for any consequential damages deriving from such default.
12. Limited Warranty: The product furnished under this Agreement is warranted to be free from defects in materials and workmanship for a warranty period of one year from the date of shipment from Sellerâs facilities, and such warranty shall be limited to repairing or replacing, at Sellerâs sole discretion, products evidenced to be defective within such one year period.There are no other warranties, express or implied.By installing the product, Buyer has constituted acceptance of materials.
13. Rejection of Nonconforming Goods: Except where this Contract may expressly provide otherwise, the Commercial Code as codified under the laws of the State of Ohio shall govern. Claims for shortages or any rejection of goods for nonconformity with the requirements of the contract must be reported within twenty-four (24) hours to Seller and must be made to Seller in writing within five (5) days after delivery of shipment (which the Parties agree is a reasonable time) or claim shall be conclusively waived.The notification shall state the basis of the alleged nonconformity and a description of the portion of the shipment being rejected.Within five (5) days following the notification, the Seller may have an agent inspect the goods for nonconformity.
14. Incidental, Special and/or Consequential Damages: It is agreed by Buyer that Seller shall not be liable for any incidental, special, liquidated, compensatory, expectation, exemplary or consequential damages, whether attributable to Seller or a third party.
15. Termination on Contingency: This contract will be terminated automatically with respect to the delivery of, or payment for, any goods not yet delivered when any of following contingencies occur: Shutdown of Buyerâs or Sellerâs business; and any formal, informal, voluntary, or involuntary action, whether conducted privately or in court, by either party resulting in the surrender of any substantial degree of business management for the benefit of creditors.
16. Force Majeure: The parties understand that performance by Seller or Sellerâs carrier may be interrupted or delayed by an occurrence outside of its control, including but not limited to the following: an act of God, war, riot, sovereign conduct, or conduct of third parties. If that should occur, Seller shall be excused from performance for as long as it is reasonably necessary to complete performance, and shall not be liable to Buyer for loss of use or any other damages resulting there from.
17. Indemnification:Buyer shall indemnify and hold Seller free and harmless from any and all demands, loss, or liability resulting from the injury to or death of any person or persons because of the negligence of Buyer or the condition of said property at any time or times after the date possession of said property is delivered to Buyer.
18. Costs of Action: In the event Buyer in any manner defaults or breaches the terms and conditions of this Contract, or threatens to do same, or in the event it becomes necessary for Seller to employ an attorney to enforce any provision of this Contract, obtain injunctive relief, collect damages on account of a breach or threatened breach of this Contract, or if Seller prevails in a tort action commenced by Buyer, Buyer shall pay to Seller, Seller\'s attorney fees and costs.
19. Waiver of Trial by Jury: BUYER AND SELLER, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVES, RELINQUISHES AND FOREVER FORGOES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THIS AGREEMENT OR ANY CONDUCT, ACT OR OMISSION OF BUYER OR SELLER, OR ANY OF THEIR DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH BUYER OR SELLER, IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
20. SEVERABILITY.If any part, term or provision of this Agreement shall be determined by any court to be invalid or unenforceable, all of the remaining provisions nevertheless shall remain valid and effective as it is the intention of the parties that each provision hereof is being agreed upon separately.
21. GOVERNING LAW.This Agreement shall be construed and enforced in all respects in accordance with the laws of the State of Ohio.
22. VENUE.Any controversy or claim arising out of or relating to this Agreement, in anyway, or the breach thereof, shall be litigated only in the Common Pleas Court of Shelby County, Ohio, and all parties to this Agreement agree that said court shall have exclusive jurisdiction to hear and determine any claims or disputes pertaining directly or indirectly to this Agreement, or any matter arising there from.Each party hereto expressly submits and consents in advance to such jurisdiction in any action or proceeding in such court.
23. WAIVER.The failure of either party to insist in any one or more instances upon performance of any of the provisions of this agreement or to take advantage of any of its rights hereunder shall not be construed as a waiver of any such provisions or the relinquishment of any such rights, and the same shall constitute and remain in full force and effect.No single or partial exercise by either party of any right or remedy shall preclude other or further exercise thereof, or the exercise of any other right or remedy.Waiver shall not constitute or be construed as a continuing waiver or a waiver of any other breach of any other provision of this Agreement.
24. BINDING EFFECT. The provisions of this Agreement shall be binding upon and shall inure to the benefit of both parties and their respective successors and assigns.
25. ASSIGNMENT.This Agreement cannot and shall not be assigned or transferred, by operation of law or otherwise, without the express prior written consent of the other parties hereto.
26. PARTIES IN INTEREST.Nothing express or implied herein is intended, or shall be construed to confer upon any person or entity other than the parties hereto any rights or remedies hereunder.
27. HEADINGS.Headings in this Agreement are for convenience only and should not be used to interpret or construe the provisions there under.
28. SINGULAR AND PLURAL.Unless the context requires otherwise, wherever used herein, the singular shall include the plural and vise versa and the user of one gender shall denote the others where appropriate.
29. ENTIRE AGREEMENT.This Agreement, including the certificates, exhibits, schedules and other documents referred to herein and executed by the parties hereto simultaneously herewith, constitutes the entire agreement of the parties pertaining to the subject matter contained herein and supersedes all prior and contemporaneous agreements, including, without limitation, any representations and understandings of the parties, both written and oral, other than as expressly referenced herein, and where appropriate, delivered at closing.No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and which specifically refers to this Agreement and states that an amendment or modification is being made in the respects as set forth in such instrument and is made by the parties hereto.