Credit Line; Credit Approval: Upon approval of this application, ACTIFY, in its sole discretion, will assign APPLICANT a maximum credit line and shall have the right to increase, decrease, or terminate APPLICANT's credit privileges under this Application at any time without prior notice to APPLICANT, except as otherwise provided by law. All orders are subject to acceptance and approval of credit by ACTIFY. ACTIFY may, from time to time and in its sole discretion, disclose credit information relative to the APPLICANT to third parties for informational purposes only.
Payment: APPLICANT agrees to pay all charges according to the payment terms established in each invoice for products and/or services it acquires from ACTIFY. APPLICANT waives any right it may have at law, in equity, under contract or otherwise to set-off or exercise any similar remedy against ACTIFY, in whole or in part, any sum that may from time to time be owing by the ACTIFY to APPLICANT. The entire outstanding balance due on all invoices shall become due to ACTIFY in full immediately upon default in the payment of any invoice. APPLICANT agrees to pay interest in the amount of 1.5% per month, or the highest rate permitted by law, whichever is less, on any payment past due, pursuant to the terms set forth on each invoice until collected. In order to secure APPLICANT's obligations under this Agreement, including its obligation to pay any amounts it owes to ACTIFY when due, APPLICANT grants to ACTIFY a security interest in all products sold by ACTIFY to APPLICANT. APPLICANT agrees to execute, deliver to ACTIFY, and permit ACTIFY to file any financing statements necessary in ACTIFY's sole determination to perfect ACTIFY's security interest in such products. APPLICANT appoints ACTIFY as APPLICANT's agent for the purpose of executing, delivering and filing any such financing statements.
Purchase Orders: A written purchase order is required for all first time sales and thereafter for any order for goods in excess of $5,000. This Agreement and the terms and conditions of each invoice shall control and prevail over any contrary terms in APPLICANT's purchase order.
Accurate Information: APPLICANT hereby certifies that the information furnished under this application and on any financial statements furnished in connection herewith is true and correct and that this information is being furnished to ACTIFY for the purpose of inducing ACTIFY to extend credit to APPLICANT, and understands that ACTIFY intends to rely upon such information as correct.
Force Majeure: ACTIFY shall not be responsible for delays in deliveries due to events of force majeure, including, but not limited to, fire, flood, tornado, earthquake, war, riot, insurrection, strike, lockout, slowdown, epidemic, quarantine restriction, delay in transportation, labor shortage or strikes, materials or manufacturing facility shortage, accidents, boycott, embargo or any act or regulation of government or governmental authority and other contingencies beyond ACTIFY's control resulting in impossibility or delay of performance of ACTIFY.
Shipping; Risk of Loss: All deliveries will be made FOB ACTIFY's designated shipping point. Freight will be on a prepay and add basis, unless otherwise agreed in writing by an authorized signatory of ACTIFY. ACTIFY shall not be responsible for spotting, switching, demurrage or other transportation charges unless agreed in writing. Risk of loss, damage to and title to products shall pass upon delivery thereof to APPLICANT's carrier, FOB shipping point. Upon receipt of shipment, it shall be the responsibility of APPLICANT or the consignee receiving shipment to inspect the products and secure written acknowledgement from delivering carrier for any shortages, loss, damage or nonconformance. APPLICANT shall notify ACTIFY in writing within five days of receipt of any shipment of any shortages, defects or non-conforming products. In the event APPLICANT fails to notify ACTIFY with such five day period of any shortages, defects or nonconforming products, the products shall be deemed accepted.
Prices: APPLICANT shall purchase products in accordance with prices, as determined by ACTIFY, that are prevailing at the time of shipment. WARRANTY; DISCLAIMER OF WARRANTIES: ACTIFY shall, to the extent permitted, pass through to APPLICANT such warranties as are provided to ACTIFY for such product for each product purchased by APPLICANT pursuant to this Agreement. THE MANUFACTURER'S WARRANTY PASSED THROUGH BY ACTIFY TO APPLICANT HEREUNDER, IF ANY, SHALL BE IN LIEU OF ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
LIMITATION OF LIABILITY: ACTIFY SHALL HAVE NO LIABILITY FOR (I) FAILURE TO DELIVER PRODUCTS OR SERVICES WITHIN A SPECIFIED TIME PERIOD, (II) AVAILABILITY AND/OR DELAYS IN DELIVERY OF PRODUCTS OR SERVICES, (III) DISCONTINUATION OF PRODUCTS, PRODUCT LINES, OR ANY PART THEREOF; OR (IV) CANCELLATION OF ANY ORDERS. ACTIFY SHALL HAVE NO DUTY TO DEFEND, INDEMNIFY OR HOLD HARMLESS APPLICANT, ITS AFFILIATES OR THEIR RESPECTIVE CUSTOMERS FROM AND AGAINST ANY CLAIM, DEMAND OR CAUSE OF ACTION, INCLUDING ANY DAMAGES, COSTS OR EXPENSES INCURRED BY APPLICANT, ITS AFFILIATES OR THEIR RESPECTIVE CUSTOMERS IN CONNECTION WITH, ARISING FROM OR RELATING TO THE ACTUAL OR ALLEGED PRODUCT LIABILITY OR VIOLATION OR INFRINGEMENT OF ANY PATENT, TRADEMARK, COPYRIGHT OR OTHER INTELLECTUAL PROPERTY BELONGING TO A THIRD-PARTY BY THE PRODUCTS. APPLICANT'S, ITS AFFILIATES' AND THEIR RESPECTIVE CUSTOMERS' SOLE AND EXCLUSIVE REMEDY RELATING TO THIS AGREEMENT AND/OR PRODUCTS AND SERVICES SHALL BE THE REMEDY, IF ANY, AFFORDED BY THE MANUFACTURER OF SUCH PRODUCTS TO SUCH PARTIES. TO THE FULLEST EXTENT PERMITTED BY LAW, APPLICANT WAIVES ANY CLAIMS, DEMANDS, CAUSES OF ACTION OR RECOVERIES FOR PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING UNDER THIS AGREEMENT OR OTHERWISE WITH RESPECT TO THE SALE OF THE PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INJURY TO PERSONS OR PROPERTY, BUSINESS INTERRUPTION OR DAMAGE TO BUSINESS REPUTATION, REGARDLESS OF THE THEORY UPON WHICH ANY CLAIM MAY BE BASED, AN EVEN IF ACTIFY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING ANY TORT OR STATUTORY CAUSES OF ACTION. THE ONLY LIABILITY ACTIFY WILL HAVE WITH RESPECT TO ANY DAMAGED PRODUCTS, DEFECTIVE PRODUCTS, AND/OR PRODUCTS ERRONEOUSLY SHIPPED WILL BE THE RETURN RIGHTS DESCRIBED HEREIN. EVEN IF THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL ACTIFY'S ENTIRE LIABILITY (IN TORT, CONTRACT, WARRANTY, INFRINGEMENT OR OTHERWISE) TO APPLICANT EXCEED THE PURCHASE PRICE ACTUALLY PAID BY APPLICANT FOR THE PRODUCTS OR SERVICES THAT GIVE RISE TO THE DISPUTE, OR ANY DEFECTIVE PORTION THEREOF, WHICHEVER IS THE LESSER AMOUNT. THIS PROVISION SHALL SURVIVE THIS AGREEMENT.
Indemnity: APPLICANT shall defend, indemnify, and hold harmless ACTIFY, its affiliates and subsidiaries and each of their respective officers, directors, employees and agents from and against any and all claims, demands, proceedings, actions, liabilities, losses, damages, costs or expenses of any kind (including reasonable attorneys' fees and disbursements) incurred or sustained as a result of, or arising out of, or relating to any actions taken by ACTIFY regarding the products at the request of, and consistent with, instructions provided by purchaser, any breach of this Agreement or acts or omissions of APPLICANT or its employees, affiliates or agents, the manner in which APPLICANT markets and sells the products, supply by APPLICANT of any products or services for use in conjunction with or in relation to the products, or any breach or alleged breach of any applicable laws or regulations relating to the storage, marketing or sale by APPLICANT of the products.
Governing Law and Forum: This Agreement shall be governed by and interpreted in accordance with the laws of the State of Indiana, United States of America; provided, however, that any and all disputes hereunder shall be decided exclusively by litigation in state or federal courts located within Marion County or the Southern District of Indiana, Indianapolis Division, United States of America.
No Returns; No Refunds: Products are returnable only as provided herein. Products otherwise shall be non-returnable and the prices shall be non-refundable. APPLICANT may only return erroneously shipped products or products that were damaged prior to shipment by ACTIFY. Products damaged after shipment by ACTIFY may not be returned. In order to be eligible to receive credit for returned products APPLICANT must adhere to ACTIFY's then current returns processing guidelines. ACTIFY reserves the right to charge a restocking fee for handling product that is erroneously returned. ACTIFY's sole liability for any returned products will be acceptance of their return and issuance of credits pursuant to ACTIFY's then current returns processing guidelines. If APPLICANT desires to return any products, APPLICANT must initiate a new order for the replacement products. All Products erroneously shipped by ACTIFY must be returned with the original packaging intact (including manufacturer's shrink wrap) and otherwise in unused, resalable condition.
Product Restrictions and Obligations: APPLICANT agrees to at all time adhere to ACTIFY current Product Restrictions and Obligations Policy. General: No modification hereof shall be binding upon either party unless the modification is in writing and signed by a duly authorized representative of both parties. The failure of ACTIFY to insist, in any one or more instances, upon performance hereunder, or to exercise any right hereunder, is not a waiver of the future performance of any term, covenant or condition or the future exercise of such right. APPLICANT shall pay to ACTIFY all costs and expenses, including, without limitation, reasonable attorney's fees and the fees of any collection agency and court costs, incurred by ACTIFY in exercising any of its rights or remedies hereunder or enforcing any of the terms, conditions or provisions hereunder. If any provision of this Agreement is unenforceable, such unenforceability shall not affect the remainder of this Agreement unless a failure of consideration would thereby result. This Agreement shall be binding upon and, except as otherwise provided herein, shall inure to the benefit of the parties hereto and their respective successors and assigns. APPLICANT may not assign or transfer this Agreement or any of its rights or obligations. The rights and remedies granted herein are non-exclusive to those otherwise available in equity. The terms and conditions of this contract and of any sales and payments made pursuant thereto are performable in Marion County, Indiana.
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