I. TERMS OF PAYMENT
Net 15 days on all invoices. In addition, Buyer shall pay all sales taxes, if applicable, or other taxes presently or hereafter payable in regards to this transaction, and Buyer shall reimburse Seller for any such taxes or charges paid by The Power to Save a Life, d/b/a Advocates For Health (hereafter "Seller.")
II. PAYMENT, PRICE, TRANSPORTATION
Seller shall have the continuing right to approve Buyer’s credit. Seller may at any time demand advance payment, additional security or guarantee of prompt payment. If Buyer refuses to give the payment, security or guarantee demanded, Seller may terminate the Agreement, refuse to deliver any undelivered goods and Buyer shall immediately become liable to Seller for the unpaid price of all goods delivered & for damages as provided in Paragraph V below. Buyer agrees to pay Seller cost of collection of overdue invoices, including reasonable attorney’s fees incurred by Seller in collecting said sums and the normal cost of shipping to the Buyer’s destination, F.O.B. shipping point.
III. DELIVERY, TOLERANCES, WEIGHT
Upon due tender of goods for delivery at the F.O.B. shipping point all risk of loss or damage and other incident of ownership pass to Buyer, but Seller retains a security interest in the goods until purchase price is paid. All deliveries are subject to weight at shipping point which shall govern.
Seller warrants that goods sold hereunder are merchantable UNLESS manufactured in conformance with Buyer’s particular specification, and that Seller conveys good title thereto. IN NO EVENT WILL SELLER BE LIABLE FOR CONSEQUENTIAL DAMAGES EVEN IF CUSTOMER HAS NOT BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE EXPRESS WARRANTY STATED IN THIS PARAGRAPH IV, SELLER GRANTS NO WARRANTIES, EITHER EXPRESS OR IMPLIED HEREIN, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THIS STATED EXPRESS WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF SELLER FOR DAMAGES INCLUDING BUT NOT LIMITED TO, CONSEQUENTIAL DAMAGES OCCURRING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF ANY GOODS SOLD HEREUNDER. Seller specifically does not warrant the accuracy of sufficiency of any advice or recommendations given to Buyer in connection with the sale of goods hereunder.
Buyer shall be liable for Seller’s damages including loss of reasonable profits, caused by Buyer’s default hereunder. If Seller, upon Buyer’s default, repossesses or retains any goods sold hereunder, Seller’s damages shall be the contract price of the goods plus freight, storage, handling & all other disposal costs incurred, less the then-current reasonable scrap value of the goods.
If goods supplied are not merchantable, Seller at its option may replace them or refund the purchase price upon their return. Buyer shall not return goods until Seller has had reasonable opportunity to investigate goods, and then only after receiving Seller’s written shipping instructions. THIS SHALL BE BUYER’S EXCLUSIVE REMEDY. Buyer waives all claims arising from breach by Seller unless Seller receives written notice of breach from Buyer within 90 days after Buyer receives goods. In no event shall Seller be liable for any special consequential, or contingent damages resulting from Seller’s Breach of Warranty, delay or performance or any other default hereunder. Buyer further agrees that Seller will not be liable for any lost profits nor or any claim for demand against Buyer by any other party.
VII. FORCE MAJEURE
Seller shall not be liable for any damages resulting from: any delay or failure of performance arising from any cause not reasonably within Seller’s control; accidents to, breakdowns or mechanical failure of machinery or equipment, however caused; strikes or other labor troubles, shortage of labor, transportation, raw materials, energy sources, or failure of unusual means of supply; fire; flood; war, declared or undeclared; insurrection; riots; acts of God or the public enemy, pandemics; or priorities, allocations or limitations or other acts required or requested by Federal, State or local governments or any of their sub-divisions, bureaus or agencies. Seller may, at its option, cancel this Agreement or delay performance hereunder for any period reasonably necessary due to any of the foregoing, during which time this Agreement shall remain in full force and effect. Seller shall have the further right to then allocate its available goods between its own uses and its customers in such manner as Seller may consider equitable.
VIII. WAIVER, MISTAKE
Seller’s waiver of any provision herein or any breach thereof, shall not constitute a waiver of any subsequent breach thereof, nor of any other provision herein. Seller may correct any errors herein, on any invoice issued to Buyer, or on its published price sheets, and such correction shall operate to amend this Agreement.
IX. CHOICE OF LAW
This contract is deemed to be made in Minnesota. Buyer and Seller expressly agree this Agreement is to be governed by the Uniform Commercial Code as enacted and construed in Minnesota and grant venue to Minnesota for any legal action initiated hereunder.
X. CONFLICTING PROVISIONS
Buyer expressly WAIVES all provisions contained in any of Buyer’s correspondence or forms involved in this sale which negate, limit, extend or conflict with provisions herein and agrees that this Agreement constitutes the entire contract between Buyer and Seller except as expressly negated, limited or extended by Seller IN WRITING and signed by an officer of Seller.
XI. SERVICE CHARGE
A service charge of one per month (12 % per year) will be made on past due accounts.
XII. SERVICE INTERRUPTIONS
The Buyer understands and acknowledges that AIVIAnet's monitoring system is reliant upon Internet and telephone networks. The Buyer agrees to inform Seller of any lags, interruptions, breaks, and more generally of any malfunctions of the networks servicing it. The Buyer acknowledges that in such cases Seller is not liable for the transmission of information or lack thereof, be it from the AIVIA 300 & 320 Smart Monitoring units or toward the Buyer. Such malfunctions constitute a case of force majeure, described in Section VII of this agreement.