In these Terms and Conditions, the "Seller" means Digital Acoustics LLC, or any of its subsidiaries or divisions by which the goods are sold. These Terms and Conditions shall govern the relationship between the parties for any and all orders placed by Buyer. Any additional or different terms in your order are expressly rejected. Your acceptance of the goods shall operate as your assent to these terms and conditions of sale. It is a basic assumption of the contract that the goods involved be duly delivered to Seller under its existing contracts with its suppliers.

1. Entire Agreement. (a). This contract is intended by the Seller and Buyer to be a final expression and a full and complete statement of their agreement. No representation or statement made by Seller or any other person whether authorized or not may be relied upon or form a part of the contract for the sale of the goods by Buyer unless said representation or statement is included herein and made a part hereof. (b). No subsequent modification of these terms and conditions shall be effective unless confirmed in writing by an authorized officer of the Seller.

 

2. Information From Buyer. All specifications and other necessary information required to be supplied by the Buyer shall be subject to the approval in writing of the Seller and must be received by the time stipulated by the Seller, and, if not so received, the Seller shall be entitled either to extend the time of delivery of the goods for a reasonable period or to terminate any deliveries not made by giving notice to the Buyer.

 

3. Price. The price is payable in U.S. currency unless otherwise stated. The price to be paid shall not be subject to any discount or reduction, except as agreed in writing by an authorized officer of the Seller. In the event that credit is extended to the Buyer, payment shall be made within thirty (30) days of the date of Seller’s invoice, unless otherwise agreed in writing. If timely payment is not made, the Seller, in addition to its other legal rights, shall be entitled to charge interest on all overdue payments at the rate of 1.5% per month. The interest charge, however, shall not exceed any applicable ceiling on interest which may be legally charged. In the event said interest rate does exceed the maximum rate chargeable by law, then the rate shall be deemed to be the maximum rate legally chargeable.

 

4. Taxes. The Buyer shall bear the burden of any new, additional or increased tax, public charge, freight, tariff or duty which may after the date of the quotation or contract be levied on or imposed upon this transaction, on the goods to be sold, or upon any sale, delivery, or other action taken hereunder, or upon the export or import of such goods or materials required to produce the goods.

 

5. Delivery. The Seller will use its best endeavors to deliver all goods at the date and within the time specified in the contract. Unless otherwise specified, the Seller shall have the right to make partial deliveries. Each partial delivery or installment of the goods shall be deemed to be sold under a separate contract containing all of the terms and conditions set forth herein and payment shall be due therefore as delivered in accordance with the terms of payment herein.

 

6. Limited Warranty. See attached Limited Warranty for terms and limitations of the Limited Warranty provided by Seller.

 

7. Buyer's Indemnification. Buyer agrees to indemnify and hold Seller harmless from any and all claims, demands, proceedings, and actions which may be made or brought against Seller by any person including any purchase of the goods or any product made therefrom, arising from the use of such goods or any products in which such goods are used, including, but not limited to, infringement of any patent, trademark or trade name, copyright and the like, or from any latent or hidden defects in the quality of said goods or resulting products, or from the dangerous condition thereof, and Buyer shall pay any and all costs, fees (including reasonable attorneys' fees) and expenses, judgments, awards and fines for and in behalf of Seller as incurred or as they become due.

 

8. Limitations on Buyer's Remedies. Inasmuch as the value of the goods sold hereunder may be substantially disproportionate to the value of products to be used in conjunction herewith, and, for the express purpose of limiting the liability of Seller and the remedies available to Buyer to an extent which is reasonably proportionate to the commercial value of this transaction, Buyer and Seller agree:

 

1. In keeping with the course of performance and dealing, usage of the trade, and the accepted practice of Seller, Seller's liability to Buyer or to any party claiming through or on behalf of Buyer, with respect to any claim or loss arising out of this transaction or alleged to have resulted from an act or omission of Seller's negligence or otherwise, including failure to deliver, delay in delivery, or breach of warranty, shall be limited to an amount equal to the purchase price of the goods paid by the Buyer to the Seller less the fair market value of the goods in Buyer's possession with respect to which such liability is claimed or, where appropriate and at the option of Seller, to replacement of the goods or replacement and pickup of the goods. IN NO EVENT SHALL SELLER BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, LOSSES, OR EXPENSES ARISING OUT OF THIS TRANSACTION. NO ACTION REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER THIS AGREEMENT MAY BE BROUGHT BY BUYER MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.

 

2. The Buyer shall not be entitled to withhold payment of any amount payable under the contract to the Seller because of any disputed claim of the Buyer nor shall the Buyer be entitled to set off against any amount payable under the contract to the Seller any monies which are not presently payable by the Seller or for which the Seller disputes liability.

 

9. Seller's Remedies. In the event that the Buyer fails to perform any of its obligations, the Seller shall be entitled to all legal and equitable remedies including those specified herein and under the Uniform Commercial Code.

 

1. Until such time as Buyer has paid the agreed purchase price, Seller hereby retains and Buyer hereby grants a purchase money security interest in the goods described on the face hereof. In connection therewith, Buyer agrees to execute all instruments (including title documents and/or financing statements) deemed necessary by Seller under the applicable law to establish, maintain and continue perfected Seller’s purchase money security interest in the goods or otherwise to protect its rights in and to said goods. Buyer hereby authorizes Seller as its attorney-in-fact to execute and file, on Buyer’s behalf, any such instruments or documents.

 

2. In the event the Seller should elect to pursue its remedies under Section 2-708 of the Uniform Commercial Code, damages shall be, at the Seller's option, either equal to the difference between the market price at the time and place for tender and the unpaid contract price or equal to the profit that the Seller would have realized under this contract. In addition, the Seller may recover incidental damages which shall include but not be limited to cancellation fees or penalties imposed by its suppliers or manufacturers. Seller shall be entitled to recover all of its costs, fees (including reasonable attorneys' fees) and expenses in pursuing any and all of its remedies against the Buyer.

 

10. Force Majeure. The Seller shall not be liable for any delay in manufacture or delivery due to fires, strikes, disputes with workmen, war, civil commotion, epidemics, floods, accidents, delays in transportation, shortage of vehicles, shortage of fuel or other material, shortage of labor, acts, demands or requirements of the Government of the United States, or of any other State or Government, or to any other causes beyond the reasonable control of the Seller, or of the Seller's supplier, notwithstanding that such causes of delay are operative at the time of making the contract, and the existence of such causes of delay shall justify the suspension of manufacture and shall extend the time of performance on the part of the Seller to such extent as may be necessary to enable it to make delivery in the exercise of reasonable diligence after the causes of delay have been removed. If the manufacture or delivery of the goods is still prevented or hindered at the end of a reasonable period, the Seller may terminate any deliveries not made by giving notice to the Buyer and the Seller shall have no liability whatsoever to the Buyer in connection with any such deliveries not made.

 

11. Termination. Seller may terminate this contract at any time: (a) without notice to Buyer, in the event Buyer shall breach any of the terms and conditions of this contract; (b) without notice to Buyer, if Buyer makes any assignment of assets, or if a trustee or receiver is appointed to administer or conduct Buyer's business or affairs, or if a petition is filed regarding Buyer for the approval of a plan of reorganization or voluntary or involuntary bankruptcy, or if Buyer is unable to pay its debts as they become due. Such termination shall be without prejudice to any right vested in Seller at the date of such termination, and Seller's existing rights and obligations under the provisions of this contract shall not be affected by such termination; or (c) at its convenience, either in whole or in part, by written, telegraphic or facsimile notice at any time. If this contract is terminated for convenience, any claim of Buyer shall be settled on the basis of reasonable costs it has incurred in the performance of this contract.

 

12. Waiver. No delay or failure by either party to exercise any right under this contract, and no partial or single exercise of that right, shall constitute a waiver of that or any other right, unless said waiver is supported by additional consideration and authorized in writing by the party so waiving.

 

13. Assignment - Delegation. No assignment or delegation of any obligation owed or of the performance of any obligation hereunder by the Seller shall be made without the written permission of the Buyer.

 

14. Partial Invalidity. The invalidity or unenforceability of any particular provision of this contract shall not affect the other provisions hereof, and this contract shall be construed in all respects as if such invalid or unenforceable provision were omitted.

 

15. Choice of Law; Jurisdiction. This contract shall be governed by and interpreted in accordance with the laws of the State of Illinois which are in force on the date of this contract. Whenever a term defined by the Uniform Commercial Code as adopted in the State of Illinois is used in this contract, the definition in said Uniform Commercial Code shall control. All actions or proceedings arising directly or indirectly or otherwise in connection with, out of, related to or from this contract shall be brought only in the Circuit Court of Lake County in the State of Illinois or in the U.S. District Court for the Northern District of Illinois, Eastern Division and Seller and Buyer hereby consent and submit to the jurisdiction of such courts for the purpose of such actions or proceedings.