A. "Buyer" shall mean the person or entity described on the face hereof as the BUYER.
B. "Goods" shall mean the products described on the face hereof as being sold to BUYER.
2. ACCEPTANCE: Notwithstanding anything in BUYER's form of Purchase Order or other order form to the contrary, BUYER's acceptance of the Goods shall constitute an affirmation by BUYER that the terms and conditions set forth herein govern the purchase and sale of the Goods and that the terms in BUYER's order forms that are in addition to, in conflict with, or are different from the terms and conditions herein shall have no effect on this transaction. The contract formed in accordance with the foregoing shall be referred to as the "Order".
3. PURCHASE PRICE: The BUYER agrees to pay the total purchase price as specified on the front of this document. In addition, the BUYER agrees to pay any sales or other taxes levied on or measured by such purchase price, or arising from the use of the Goods and any parts or maintenance supplied, including without any limitations, any additional sales, use, gross receipts, privilege, excise, customs duties and personal property taxes unless specified in writing on this document.
4. PAYMENT TERMS: The total amount of this invoice shall be payable in full by Buyer upon receipt unless otherwise specified in writing in this document. We currently offer NET terms to businesses only.
5. DELIVERY: Delivery shall take place at either FLM, one of its subsidiary locations, or the location of the Buyer (or Buyer's customer in the event that FLM ships Goods directly to such customer at the request of the Buyer).
6. INSPECTION: The BUYER shall inspect the Goods at delivery and shall notify FLM of any defects or discrepancies within five (5) days of receipt of Goods.
7. ALTERATION, MODIFICATIONS AND ATTACHMENTS: Any alterations, modifications, additions, improvements, installation, or attachments on the Goods not authorized in writing by FLM shall solely be at the BUYER's own expense and risk. If operation of the Goods is affected in any way by such unauthorized alterations, modifications, additions, improvements, attachments or installation, the applicable warranty provided by FLM shall be deemed waived by the BUYER, and FLM shall have no further obligations to the BUYER.
8. FORCE MAJEURE: FLM shall not be held responsible for any failure of performance to make timely delivery of all or any part of the Goods in the event such failure was due, in whole or in part, to federal, state or municipal action, statute, ordinance or regulation, strike or other labor trouble, fire or other damage to or destruction of, in whole or in part, the Goods or the manufacturing facility of the Goods, the lack of or inability to obtain raw materials, labor, fuel, electrical power, water or supplies, or any other cause, act of God, contingency or circumstances within or outside the United States not subject to the control of FLM, which causes or hinders the manufacture or delivery of Goods.
9. CANCELLATION: An order may not be canceled, in whole or in part, by BUYER without FLM's prior written consent and only upon terms and conditions that will indemnify, hold harmless and compensate FLM against loss including, but not limited to, the loss of profits as a result of such cancellation.
10. SECURITY AGREEMENT: FLM shall retain a purchase money security interest (including but not limited to the filing of a Form UCC1 Financial Statement) in the Goods to secure the performance by BUYER of all obligations. Buyer grants FLM the option at any time to ask its attorney-in-fact to prepare, sign and file (or record) in BUYER's name any financing statement or other document necessary to protect FLM's security interest in goods subject to this agreement.
11. ATTORNEY'S FEES: If any suit or action to enforce or to interpret any of the terms, conditions, or covenants herein, or to recover damages as a result of a breach of any provision of this Order, the prevailing party shall be entitled to recover from the party not prevailing the costs and expenses, including reasonable attorney's fees incurred by the prevailing party in prosecuting or defending such action and any appeals taken there from.
12. ASSIGNMENT: No right, duty or interest in this ORDER may be assigned or delegated by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld.
13. GOVERNING LAW / VENUE / ARBITRATION: Any dispute, claim or controversy arising out of, or relating to this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by binding arbitration in Rochester, NY before one arbitrator. The arbitration shall be administered by the arbitration service selected by FLM at the time of filing. Judgement on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
The parties will share the costs of the arbitration equally subject to final apportionment by the arbitrator(s). The arbitrator(s) will apply the law of the State of New York in any such arbitration proceeding. The decision of the arbitrator(s) will be final. Both parties to this contract, by entering into it, are giving up their constitutional right to have any such dispute decided in a court of law before a jury, and instead are accepting the use of arbitration.
14. WAIVER OF JURY TRIAL: Each of the parties hereto irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or relating to this agreement or the transactions contemplated hereby.
15. SEVERABILITY: If at any time any one or more of the provisions of this invoice becomes, or is held by a court to be invalid, illegal or unenforceable in any respect, the validity and enforceability of the remaining provisions of this invoice shall not in any way be affected or impaired thereby.
16. ENTIRE AGREEMENT: This invoice sets forth the entire agreement between BUYER and FLM, or its subsidiaries, and exclusively determines the rights and obligations of BUYER and FLM, notwithstanding any prior course of dealing, custom or usage of trade or course of performance or any additional or different terms proposed by BUYER at any time.
TERMS AND CONDITIONS ARE SUBJECT TO CHANGE WITHOUT NOTICE