PURCHASE ORDERS: Any purchase order, confirmation form or other document submitted by Purchaser and all sales to Purchaser shall be subject to and governed solely by the standard sale terms and conditions set out herein and are subject to acceptance by Wells Gardner Technologies, Inc (“Seller”) at its office in Burr Ridge, Illinois. All provisions, conditions and terms contained in such purchase order, confirmation form or other document which are in addition to or not consistent with these standard sale terms and conditions are null and void and not binding on Seller. No modification or supplement to these standard sale terms and conditions shall be binding on Seller. Seller’s shipment of goods shall not be deemed acceptance of Purchaser’s terms and conditions. Any such modification or supplement shall not operate as a rejection of the standard sale terms and conditions but shall be deemed a material alteration, and these standard sale terms and conditions shall be deemed accepted by Purchaser without said modification or supplement. If these standard sale terms and conditions have been issued by Seller in response to a prior offer by Purchaser and any of the terms in the standard sale terms and conditions add to, vary from or conflict with any term of Purchaser’s offer, then the issuance of these standard sale terms and conditions shall constitute an acceptance of Purchaser’s offer subject to the express condition that Purchaser assents to all of the additional, different and conflicting terms contained herein and acknowledges that these standard sale terms and conditions constitute the entire agreement between Seller and Purchaser with respect to all goods sold by Seller. Purchase orders and change purchase orders shall contain the following information: (i) identity of product by model number; (ii) quantity ordered; (iii) specific shipment dates which must be within the terms of these standard sale terms and conditions; and (iv) shipping instructions. Seller will not be bound by purchase orders issued to its sales representative(s) as the vendor. Purchaser agrees to be bound pursuant to any electronically submitted purchase order or other request for products submitted to Seller which shows that it has originated at Purchaser’s business facility or by any of Purchaser’s employees or other authorized agents. Seller may allocate on an equitable basis quantities of the products to be supplied to Purchaser if, in the opinion of Seller, its supplies will not be sufficient to meet the requirements of all its customers. Seller shall have no liability to Purchaser if Seller, for any reason, does not accept and fill any order submitted by Purchaser to Seller.
TERMS OF SALE: All shipments are made F.O.B. Seller’s manufacturing location, freight collect, unless otherwise specified.
TERMS OF PAYMENT: Except as otherwise set forth on a Seller invoice, terms of payment are net thirty (30) days from the date of shipment or date of invoice, whichever is later. Seller reserves the right to charge interest at one and one-half percent (1 1/2%) per month from invoice date after thirty (30) days. Also, Seller reserves the right to demand payment C.O.D. or prior to shipment if Purchaser fails to pay for any goods previously delivered when due or if, in Seller’s judgment, Purchaser’s financial condition warrants payment C.O.D. or prior to shipment. Purchaser shall have no right of offset and is prohibited from taking the benefit of any discounts or rebates by deduction from invoice. Claims against Seller for a particular invoice must be brought forth within six (6) months of invoice date, otherwise they are void and the invoice is due in full.
TAXES: The prices for products do not include any amount for federal, state, or local excise, sales, use, service, occupation, gross income, property, or similar taxes. If any such taxes are determined to be applicable to this transaction or Seller is required to pay or bear the burden thereof, Purchaser shall pay to Seller the full amount of any such taxes and any interest or penalty thereon no later than thirty (30) days after the receipt of an invoice therefor. In order for any shipment to be exempted from an applicable tax, a properly executed tax exemption certificate must be on file with Seller.
CHANGE ORDERS: Any modification to any existing order that changes a product’s configuration, quantity, shipment location, or shipment date will be considered a “change order.” Change orders are accepted up to ten (10) business days before a scheduled shipment date unless otherwise specified. Purchaser will be responsible for costs incurred by Seller when a change order is requested. Change orders involving part number or quantity changes will be assigned new shipment dates consistent with Seller’s current projected delivery schedule and product availability. Requests for expedited shipment dates may incur additional charges, for which Purchaser shall be solely responsible.
SCHEDULING: In the event that Purchaser, for any reason other than a default on the part of Seller, has not instructed Seller to ship all of the products specified in the purchase order within one (1) year from the date of issuance of such purchase order, Seller will calculate the difference between the price payable by Purchaser for the quantity of equipment actually shipped within (1) year from the date of issuance of such purchase order and the price provisionally invoiced based on the amount of the products which Purchaser originally estimated purchasing (as evidenced by the quantity of the products specified in the purchase order), and Seller will charge and invoice Purchaser accordingly for the products already shipped. Payment of invoices for such charges shall be made in accordance with paragraph 3 above.
RESCHEDULES: Products scheduled for shipment within thirty (30) days of the current date are not subject to rescheduling. Seller reserves the right to charge an inventory carrying cost fee of two percent (2%) per month on the invoice price for any order which is delayed more than sixty (60) days from the scheduled ship date.
PATENTS: Seller shall defend any suit or proceeding brought against Purchaser insofar as such a suit is based on a claim that any of Seller’s products furnished under these standard sale terms and conditions constitutes an infringement of any patent of the United States, if Purchaser promptly notifies Seller in writing of the charge of infringement or threat of suit, if there be such and if Purchaser gives Seller authority, information and assistance for the defense. Seller shall have no liability in connection with any charge of infringement unless: (a) the product was used in the same form, state, condition, manner and purpose for which it was sold to Purchaser by Seller; and (b) such alleged infringement does not arise in whole or in part from any modification of the product or from any other use or omission.
TRADEMARKS: Seller authorizes and grants to Purchaser the non-exclusive, revocable right to use the brand names, trademarks and other indicia of manufacturing origin and quality of the products to advertise and promote the sale of the products so long as Purchaser is entitled to sell the products. Purchaser acknowledges and agrees that it shall have no right, title or interest in or to any of the trademarks, other than as a purchaser and reseller of the products, and that all use of the trademarks inures to the benefit of Seller. Purchaser shall make no contrary representations and shall not in any way contest Seller’s rights to the trademarks. Notwithstanding the foregoing, Purchaser shall have no right to use or incorporate any of the trademarks in any domain names, and shall convey to Seller any domain names which it owns or controls and which incorporates any of the trademarks.
GOVERNING LAW: These standard sale terms and conditions shall be in all respect, governed by and construed and enforced in accordance with the laws of the State of Illinois (excluding the International Convention for the Sale of Goods), including all matters of construction, validity and performance and no modifications hereof shall be effective unless they are agreed upon in writing by Seller. Any action to enforce or interpret the terms of these standard sale terms and conditions shall be instituted and maintained in either the Circuit Court of Cook County, Illinois, or in the United States District Court for the Northern District of Illinois. Purchaser hereby consents to the jurisdiction of such court and waives any objections to such jurisdiction. In any action or proceeding arising out of these standard sale terms and conditions, the party prevailing in such action shall be entitled to recover its reasonable attorneys’ fees and costs.
RELEASES: Production releases can be initiated within ninety to one hundred twenty (90-120) days after receipt of order, or sooner depending on availability of materials and other production scheduling.
FORCE MAJEURE: Seller shall not be liable for delays in shipment or default in delivery for any cause beyond Seller’s reasonable control, including, but not limited to, the following: (a) fires, floods or other casualties; (b) wars, riots, terrorist attacks, civil commotion, embargo’s governmental regulations or martial law; (c) Seller’ inability to obtain necessary materials from its usual sources of supply; (d) existing or future strikes or other labor troubles affecting production or shipment, whether involving employees of Seller or employees of others, regardless of responsibility or fault on the part of the employer; or (e) other contingencies of manufacture or shipment. In the event of any delay in Seller’s performance due in whole or in part to any cause beyond Seller’s reasonable control, Seller shall have such additional time for performance as may be reasonably necessary under the circumstance. Acceptance by Purchaser of any goods shall constitute a waiver by Purchaser of any claim for damages on account of any delay in delivery of such goods.
DELIVERY: Delivery of goods by Seller to the carrier shall be deemed delivery to Purchaser and thereupon title to such goods and risk of loss or damage and all liability shall be Purchaser’s. Seller assumes no responsibility for delays, breakage or damage after having made delivery in good order to the carrier. Any claim by Purchaser against Seller for shortage or damage occurring prior to such delivery must be made in writing within five (5) days after receipt of shipment and accompanied by original transportation bill signed by the carrier noting that carrier received goods from Seller in the condition claimed.
RETURNS: No shipments shall be accepted for return unless prior written authorization has been granted by Seller. Authorization for return does not constitute acceptance by Seller of any responsibility for material returned beyond review thereof. Material accepted back by Seller for re-inspection, rework, or other processing, is with Seller only on consignment, and such acceptance back shall not be construed as a return for credit. If Seller accepts a product for return credit, Seller reserves the right to charge a restocking fee equal to fifteen percent (15%) of the invoiced amount. Sales of custom products are final.
ERRORS: Stenographic and clerical errors made by Seller in bids, estimates and quotations are subject to correction.
MODEL CHANGES: Seller reserves the right to discontinue products from time to time. The acceptance of Purchaser’s purchase order in no way obligates Seller to continue to furnish any particular model after completion of the accepted purchase orders.
TERMINATION AND CANCELLATIONS: Purchaser may terminate any purchase order in whole or in part upon thirty (30) days notice in writing to Seller. Seller shall thereupon, as directed, cease work and transfer to Purchaser title to all completed and partially completed products and to any raw materials or supplies acquired by Seller especially for the purpose of performing such purchase order, and Purchaser shall pay Seller promptly as follows: (1) the contract price for all products which have been completed prior to termination; (2) the cost to Seller of the material or work in process as shown on the books of Seller in accordance with the accounting practice consistently maintained by Seller; (3) the cost F.O.B. Seller’s plant of materials and supplies acquired especially for the purpose of performing such purchase order; (4) reasonable cancellation charges, if any, on account of Seller commitments made under such purchase order; and (5) a cancellation charge of thirty percent (30%) of the total amount due from Purchaser to Seller under any outstanding purchase order.
LIMITATION OF LIABILITY: In no event shall Seller be liable for any indirect, incidental, special, punitive consequential damages, including, but not limited to, lost profits or diminution of goodwill, to Purchaser or any third party caused by use or sale any items of equipment, defective or otherwise, and whether defect is warranted against or not and whether based on contract, tort, strict liability or otherwise, and whether or not Seller was advised of the possibility of such damages. In no event shall Seller’s liability exceed the price paid for the goods giving rise to such liability. In no event may actions for breach against Seller be commenced more than one (1) year after cause of action occurs.
INDEMNITY: Purchaser shall defend, indemnify and hold harmless Seller, its successors, assigns, affiliates, agents and contractors, and the officers, directors and employees of each of them, from and against any damage, loss, claim, judgment or other liability or expense (including but not limited to reasonable attorneys’ fees) which may in any way arise out of any act or omission in connection with these standard sale terms and conditions and, except the extent caused by Seller, the purchase, resale or use of the products by Purchaser or its successors, assigns, affiliates, agents and contractors, or the officers, directors or employees of any of them. Seller reserves the right, without being required to do so, and without waiver of any indemnity hereunder, to defend any claim, action or lawsuit coming within the scope of this indemnity provision.
WAIVER: Waiver by Seller of any breach of these standard sale terms and conditions shall be construed as a waiver of any other breach, and failure to exercise any right arising from any default hereunder shall not be deemed a waiver of such right which may be exercised at any subsequent time.