TOVA INDUSTRIES, LLC TERMS AND CONDITIONS OF SALE
Tova Industries, LLC. ("Tova") expressly limits acceptance of this Contract to the terms and conditions set forth herein. In no event shall any term or condition set forth in any document furnished by purchaser or its agent become a part of the Contract. The Contract shall include these terms and conditions and shall constitute the complete and final agreement between Tova and purchaser ("Purchaser") with respect to all goods purchased and/or delivered pursuant to this Contract.
1. Payment Terms. Net payment in full is due within thirty (30) days after shipment unless otherwise stated. Interest will accrue at 1-1/2% per month on all overdue bills. If in Tova's opinion Purchaser's financial condition does not justify production or shipment on the terms of payment specified, Tova may require full or partial payment in advance.
2. Delivery, Assumption of Risk and Title. All prices are FOB Tova's plant, unless otherwise stated. Method and route of shipment are at Tova's discretion unless otherwise directed in writing. Tova shall not be liable for any loss or damage for delay or non-delivery or other default in the performance hereunder when such delay or default directly or indirectly results, wholly or in part, from circumstances beyond the control of Tova, including, but not limited to, acts of God, war or national emergency, fire, flood, riot, explosion, inability to obtain necessary materials, labor dispute or governmental regulations or restrictions. Loss or damage by fire or other causes shall not relieve Purchaser's obligation to pay the purchase price in full. Until the purchase price is paid in full, title to all shipments shall remain in Tova.
3. Acceptance. Purchaser shall inspect the goods within five (5) business days after arrival. Failure to notify Tova of nonconformities within such time shall constitute acceptance and acknowledgment that the goods conform to Purchaser's order.
4. Taxes. All prices exclude sales, use and other taxes or duties which shall be the sole liability of and shall be paid by Purchaser.
5. Limited Warranties and Limited Liability; Exclusive Remedy. TOVA MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. TOVA WARRANTS THE GOODS TO BE FREE FROM DEFECTS IN MATERIAL OR WORKMANSHIP FOR ONE (1) YEAR FROM THE DATE OF SHIPMENT. TOVA'S OBLIGATION AND PURCHASER'S EXCLUSIVE REMEDY SHALL BE LIMITED TO REPLACEMENT OR REPAIR, AT TOVA'S OPTION, OF ANY GOODS SUBJECT TO THIS WARRANTY, F.O.B. LOUISVILLE, KENTUCKY. TOVA'S LIABILITY WITH RESPECT TO THE GOODS SOLD HEREUNDER IS EXPRESSLY LIMITED TO THE REMEDIES SET FORTH HEREIN. TOVA SHALL UNDER NO CIRCUMSTANCES BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, CONTINGENT OR SPECIAL DAMAGES, OR FOR DISASSEMBLY, TRANSPORTATION, INSTALLATION, ADJUSTMENT, OR ANY OTHER EXPENSES WHICH MAY ARISE IN CONNECTION WITH THE GOODS.
6. Changes and Termination. No modification of this order shall be effective unless made in writing and signed by the parties.
7. Set-off. Purchaser shall not be entitled to set-off against any amount payable to Tova by reason of any claim which Purchaser may have or claim to have against Tova, whether arising from non-conforming goods or otherwise.
8. Termination. If Purchaser ceases to conduct its operations in the normal course of business (including inability to meet its obligations when due), or if any proceeding under the bankruptcy or insolvency laws is brought by or against Purchaser or a receiver for Purchaser is appointed or applied for, or Purchaser makes an assignment for the benefit of creditors, Tova may terminate the Contract without liability. Such termination shall not affect Purchaser's obligations to pay for goods previously shipped.
9. Force Majeure. Tova shall not be liable for any failure to perform its obligations hereunder if such failure results from storm, flood, fire, or other act of God, labor disturbance or other causes beyond its reasonable control.
10. Indemnification. Purchaser shall indemnify and hold Tova harmless from all claims, actions or liabilities, and the cost of settlement and defense thereof including reasonable attorney's fees, in any manner resulting from, arising out of or related to the acts, errors or omissions of Purchaser, his agents, employees and subcontractors, and their agents, employees and subcontractors.
11. Applicable Law and Jurisdiction. The validity, performance and construction of this contract shall be governed by the laws of the State of Kentucky without regard for its laws governing choice of law. Purchaser hereby irrevocably submits to the exclusive jurisdiction and venue of the Jefferson Circuit Court, Louisville, Kentucky or the United States District Court for the Western District of Kentucky sitting in Louisville, Kentucky. Purchaser hereby agrees that all service of process in any such suit, action or proceeding in these courts can be made upon Purchaser by certified or registered mail, return receipt requested, at its address set forth in the Contract, and service so made shall be deemed complete five (5) days after mailing.
12. No Waiver. The failure of Tova to insist in any one or more instances upon the performance of any of the terms, covenants, or conditions of the Contract or to exercise any right or remedy hereunder or at law or in equity, shall not be construed as a waiver or relinquishment of any such term, condition, right, or remedy or of any other terms, conditions, rights or remedies under this agreement or of any future performance of any term, covenant, or condition, or the future exercise of any such right or remedy. In the event of any default by Purchaser, Tova may decline to make further shipments under this Contract. If Tova elects to continue to make shipments, Tova's action shall not constitute a waiver of any default by Purchaser or, in any way, affect Tova's legal rights or remedies for any such default.
13. Entire Agreement. This contract constitutes the entire agreement between the parties relating to the sales of goods described in this Contract and supersedes all previous communications, representations, or agreements, either oral or written, with respect to the subject matter hereof. No representations or statements of any kind made by any representative of Tova which are not stated herein shall be binding on Tova. No addition to or modification of any provision to the contrary shall be binding upon Tova unless made in writing and signed by a duly authorized representative of Tova located at Tova's business office. No course of dealing, usage of trade or course of performance shall be relevant to explain, override or supplement any term expressed in this agreement.