IBANKONIT, LLC AGREEMENT OF SALE AND INVOICE TERMS AND CONDITIONS
1. Agreement and Acceptance.
(a) This is a contract of sale between IBANKONIT, LLC, a Maryland limited liability company (“Seller”) and the Buyer (“Buyer”) identified on the first page of this Agreement of Sale and Invoice (this “Agreement”) for the goods (the “Goods”) described on the first page of this Agreement, for the price (the “Purchase Price”) indicated on the first page of this Agreement. Any acceptance of the delivery of the Goods, or any acceptance or confirmation of this Agreement, express or implied, including the payment by the Buyer of the Purchase Price, shall constitute acceptance of the Goods and acceptance of the terms and conditions of this Agreement.
(b) This Agreement constitutes the entire agreement between the parties with respect to the Goods, and supersedes all previous offers and agreements, whether oral or written, including any request for quotations, quotation, or purchase order. No addition to, or other modification of, this Agreement shall be binding on Seller unless it is in writing and executed by a duly authorized representative of Seller. In the event of a conflict between any of the terms contained on the first page of this Agreement and those contained in these Terms and Conditions, the terms on the first page shall control.
2. Payment Terms. Unless otherwise agreed to in writing, Seller’s strict payment terms are full payment in immediately available funds at the time Buyer takes physical possession (“Delivery”) of the Goods. Any amounts owed by Buyer to Seller and not paid when due shall bear interest at the rate of one and one half percent (1½%) per month from the original due date until paid. Buyer shall also be liable to Seller for Seller’s costs of collection incurred in collecting any amounts owed by Buyer under this Agreement, including reasonable attorneys’ fees. Unless otherwise specified on the first page of this Agreement, Buyer shall bear the cost of all applicable federal, state, and local taxes incurred in connection with the sale of the Goods.
3. Delivery, Inspection and Risk of Loss. All quoted delivery dates and/or periods are approximate. The delivery periods shall commence when Seller shall have acknowledged receipt of complete specifications and/or applicable documents required to effect shipment, such as a letter of credit, import license, exchange permit, shipping instructions, etc. Risk of loss or damage in transit shall pass to the Buyer at the point where Seller has fulfilled its obligations under the shipping terms specified herein, and Buyer agrees that if it accepts the Goods tendered under this Agreement, such acceptance shall be deemed acknowledgement by Buyer that the Goods satisfy all of Seller's obligations. Buyer may not revoke its acceptance for any reason whatsoever. All claims for damages, errors or shortage in the Goods shall be made by the Buyer within a period of five (5) days after the Goods have been received by the Buyer. Buyer's failure to make any such claim within said period shall constitute acceptance of the Goods as complying with all the terms, conditions and specifications of this Agreement.
Domestic orders are shipped F.O.B. Seller's location, and international orders are shipped EXW (Ex Works) (INCOTERMS 2010) Seller's location. Methods and route of shipment will be at the discretion of Seller unless Buyer shall specify otherwise, and any additional expense of the method or route of shipment shall be borne by the Buyer. Seller will quote prices for insurance and/or freight upon request. Notwithstanding the foregoing or the provisions of the UCC or INCOTERMS, title to the goods, and all accessions to or products of the goods, shall remain with Seller until payment in full of the purchase price and of other amounts owing by the Buyer. To the extent legal title to the goods shall be deemed by law to pass to the Buyer at the time of delivery and prior to performance of all of Buyer’s obligations hereunder, equitable title shall remain in Seller until payment in full of the purchase price. Seller may reclaim any goods delivered to the Buyer or in transit if the Buyer shall fail to make payments when due. Seller reserves the right to make delivery in installments; and all such installments, when separately invoiced, shall be paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of its obligations to accept remaining deliveries.
4. Security Interest. Until the Purchase Price and all other applicable costs and expenses are paid in full, Seller reserves a purchase money security interest in the Goods and the proceeds therefrom, and Seller thereby possesses the rights of a secured party under the Uniform Commercial Code, including the right to file one or more financing statements to perfect such security interest.
5. AS-IS Condition. Buyer acknowledges that the Goods consist of pre-owned used equipment which was neither designed nor manufactured by or on behalf of Seller. All specifications and descriptions of the Goods and the condition thereof are estimates only and Seller makes no representations of any kind as to their accuracy or completeness. Seller does not represent that any of the Goods comply with any EPA, OSHA or other governmental safety or environmental standards or regulations.
TO FULLEST EXTENT PERMITTED BY LAW, NO WARRANTIES, EXPRESS OR IMPLIED SHALL APPLY WITH RESPECT TO THE GOODS BEING BOUGHT AND SOLD PURSUANT TO THIS AGREEMENT. SELLER DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSES. THE GOODS ARE BEING SOLD “AS-IS, WHERE-IS, WITH ALL FAULTS.”
6. Indemnification. Buyer acknowledges and agrees that it shall be solely responsible for ensuring that the Goods, after Delivery, shall comply with any applicable safety or environmental standards, laws and /or regulations. Buyer shall indemnify and hold Seller harmless from and against any and all claims, liabilities, and losses of any kind, including Seller’s reasonable attorneys fees (including attorneys fees that it may incur as a result of a claim between the parties), resulting or arising, in whole or in part, out of the storage, use or ownership of the Goods after the time of Delivery, regardless of the location of the Goods, or any claims arising from any misuse, reconfiguration, or alteration of the Goods by Buyer or others.
7. Limitation of Damages.
(a) SELLER’S ABSOLUTE LIMIT OF LIABILITY TO BUYER FOR ANY CLAIM WHATSOEVER RELATED TO THE GOODS AND/OR THIS AGREEMENT WHICH ARE NOT LAWFULLY WAIVED BY THOSE PROVISIONS APPEARING ELSEWHERE IN THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF MONEY PAID BY BUYER TO SELLER FOR THE GOODS PURSUANT TO THIS AGREEMENT. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, OR INCIDENTAL DAMAGES, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
(b) In the event that Seller represents that the Goods will be available for receipt by Buyer on a particular date, Seller shall only be required to put forth commercially reasonable efforts to ensure that the Goods shall be available to Buyer on such date. Notwithstanding the preceding sentence, Seller shall not be responsible or liable for the failure of the Goods to be ready for Buyer’s receipt or shipment in any event unless such delay is due solely to the gross negligence of Seller. In the event that, for reasons other than Seller's gross negligence, the Goods are not available to be received by Buyer on the date indicated by Seller, then the date on which Buyer shall receive the Goods shall be reasonably extended.
8. Goods Solely for Commercial Purposes. Buyer represents and warrants that the Goods are being purchased, and will be used by it, solely for commercial or business purposes, and not for personal, family, or household purposes.
9. Force Majeure. Seller shall not be responsible for delays in producing, procuring, or delivering the Goods caused by: acts of God, fires, riot or insurrection, strikes or differences with or among workmen, government interference, inability to secure transportation, weather conditions, timing of deliveries from Seller’s vendors or suppliers, or other contingencies beyond Seller’s control. Should any of the foregoing conditions continue for a period of thirty (30) days after its first occurrence, Seller may cancel this Agreement without incurring any liability to Buyer.
10. Assignment. Buyer shall not assign any of its rights, or delegate any of its duties, under this Agreement without the prior written consent of Seller, and any attempt to do so shall be void.
11. Remedies and Waiver. All rights and remedies of Seller under this Agreement shall be cumulative and in addition to any other rights and remedies available to Seller under any other valid agreement with Buyer or any applicable law. No waiver of any breach of the provisions of this Agreement shall be deemed a waiver of any other or further breach. If any provision of this Agreement shall be found invalid, illegal, or unenforceable to any extent, the remainder of this Agreement and its application shall not be affected, and shall remain enforceable to the fullest extent permitted by law.
12. Disputes and Governing Law.
(a) This Agreement, including these terms and conditions, shall be interpreted and governed in accordance with laws of the state of Maryland without regard to its rules regarding the conflict of laws.
(b) In the event there arises between the parties hereto a dispute arising out of or relating to this Sales Order, or the breach thereof, or regarding the application of interpretation of any provision of this Agreement, including disputes regarded as such by only one of the parties, the aggrieved party shall promptly notify in writing the other party of the dispute within ten (10) calendar days after such dispute arises. If the parties shall have failed to resolve the dispute within fourteen (14) calendar days after delivery of such notice, each party shall, within five (5) days thereafter, nominate a senior officer of its management to meet at Seller's offices, or at any other mutually agreed location, to resolve the dispute. Should the parties be unable to resolve the dispute to their mutual satisfaction within sixty (60) calendar days from the date of the original notice, each party shall have the right to enforce any and all rights available to it (as limited by the other provisions of this Agreement), pursuant to this Section 12.
(c) Any controversy, dispute or claim arising out of or relating to this Agreement shall be finally settled by arbitration by a mutually agreed upon arbitrator in the City of Towson, Maryland in accordance with the then current Commercial Rules of the American Arbitration Association and judgment upon the award rendered by the Arbitrator(s) may be entered in any Court having jurisdiction thereof. Arbitrators shall be attorneys who have practiced law for at least fifteen years specializing in either general commercial litigation or general corporate or commercial matters. This provision shall not preclude the pleading-in or joining of one of the parties hereto by the other in an action brought by a third party and all matters with respect thereto shall be decided by the court or body deciding that action.