1. Exclusive Terms.

This agreement constitutes the complete and exclusive terms of agreement between «company» (herein called “Buyer”) and Fulterer USA, Inc. (herein called “Seller”) and supersedes all prior oral and written statements or agreements of any kind whatsoever made by the parties and their representatives. These terms and conditions may not be modified or rescinded except by a writing signed by Seller and all terms and conditions heretofore or hereafter contained in Buyer’s purchase orders or elsewhere which are different from, in addition to, in conflict with or which vary the terms hereof are hereby objected to and shall not be binding on Seller unless expressly agreed to in writing, by a duly authorized officer of Seller in a document making specific reference to this Agreement and specifically stating that it “amends” this Agreement.

2. Acceptance.

Buyer’s orders shall not constitute contracts of sale unless accepted in writing by an authorized agent of Seller at it’s home office in High Point, North Carolina. Seller’s acceptance of any order is expressly conditioned upon Buyer’s assent to the terms and conditions of sale set forth herein. Unless Buyer shall notify Seller in writing to the contrary within five business days of the date of this order confirmation, Buyer’s acceptance of these Terms and Conditions is conclusively presumed. In the event the terms of Buyer’s purchase order require or provide for Seller to commence performance in any way prior to receipt by Buyer of Seller’s written acknowledgement, Buyer’s consent to, and acceptance of, these terms and conditions of sale shall be deemed to have occurred on the date performance commences.

3. Prices.

Prices and specifications are subject to change without notice, unless otherwise expressly indicated thereon. Buyer agrees to pay for all samples priced in excess of $10 on the date of shipment.

4. Taxes.

Any applicable federal, state, local or other government tax or charge on the sale or shipment of the goods covered by this Agreement shall be added to the price and paid by Buyer. Buyer agrees to hold harmless Seller from all such taxes, including interest and penalties thereon, and any cost and expenses in connection therewith.

5. Shipment, Freight and Delivery.

Except otherwise provided, all prices are F.O.B. Seller’s shipping point within the continental USA.

6. Terms.

Except as otherwise agreed in writing, the terms of sale are net thirty (30) days from the date of Seller’s invoice. In case of orders for items referred to in Seller’s catalog cancellations of such order are subject to a service charge to cover the costs of initial processing or production of the order. Orders for items which are not referred to in Seller’s catalog are not subject to cancellation. For invoice amounts of less than $100.00, a service charge of $10.00 is imposed. Statements are issued monthly and a finance charge of one and a half percent (1 ½%) per month (18% APR) will be added to past due balances. Buyer shall have no right of set off. Buyer agrees to pay all costs of collection, including Seller’s reasonable attorneys’ fees.

7. Financial Responsibility.

Shipments and deliveries hereunder shall at all times be subject to approval of Seller’s Credit Department, and Seller at any time may require payment in advance or other security or guarantee of payment satisfactory to Seller and may suspend its performance until provided by Buyer. Until credit approval has been obtained, orders will be shipped only on the basis of payment in advance. To expedite credit approval, five (5) credit references, including one bank reference, should be submitted with the initial credit order. If Buyer fails to comply with any terms of payment, Seller in addition to its rights and remedies, but not in limitation thereof, reserves the right to withhold further deliveries or terminate any order with Buyer, and any unpaid amounts shall become immediately due and payable.

8. Buyer’s Agreement to Defend.

If Buyer furnishes specifications, requirements, or instructions to Seller, Buyer agrees to indemnify, defend, and save Seller harmless against all claims, demands, damages, costs, or suits at law or in equity, including Seller’s reasonable attorneys’ fees, arising from Seller’s compliance with Buyer’s specifications, requirements or instructions.

9. Notice of Accident or Malfunction.

Buyer shall notify Seller promptly and event within thirty (30) days of any accident or malfunction involving goods manufactured or sold by Seller which results in personal injury or damage to property and shall cooperate fully with Seller in investigating and determining the cause of such accident or malfunction. In the event that Buyer fails to give such notice to seller and to so cooperate, Buyer agrees to protect, defend and save Seller harmless as provided in paragraph 8.

10. Limited Lifetime Warranty.

Seller warrants its products against defects in workmanship or materials for as long as Buyer or the end user owns them. This warranty is void if any damage to the product is due to misuse, abuse, neglect, accident, improper application or installation, modification, improper service, or any uses contrary to the instructions accompanying the product.

This limited lifetime warranty covers the cost of the defective part and not the cost of removal, installation, or other incidental costs or charges. Seller will, at its sole option, credit, repair, or replace any warranted products which are defective in workmanship or materials. The foregoing limited warranty is exclusive and is in lieu of all other warranties, express or implied, including, but not limited to, any implied warranty of merchantability or fitness for any particular purpose. This limited warranty gives Buyer specific legal rights, and it may also have other rights which vary from state to state.

In case of (a) materials not manufactured by Seller the use of which is suggested by Seller’s General Recommendations, application or installation procedures, or otherwise: (b) goods sold by Seller to Buyer for other than resale (c) all display items sold by Seller to Buyer, Seller makes no warranty, express or implied (whether written or oral) with respect to such materials, goods or items, including but not limited to, any implied warranty of merchantability or fitness for any particular purpose.

Any claim for shortage must be made with ten (10) days of receipt of shipment. Any claim not made within this period shall conclusively be deemed waived by Buyer.

The Seller’s responsibility for warranted goods is expressly conditioned upon examination of the goods by Seller, and, if requested by Seller, return of the goods to the Seller at Buyer's expense. Goods are not to be returned to Seller and will not be accepted without its written consent. Return of goods other than defective goods will be subject to a handling charge equal to fifteen percent (15%) of the price of such goods. Claims with respect to goods damaged during shipment shall be made with the responsible carrier and shall not be returned to Seller, which is not responsible for goods damaged during transit.

The foregoing warranty allocates the risks of product failure between Seller and Buyer, as authorized by the Uniform Commercial Code and other applicable law, and Buyer acknowledges this allocation to be reasonable.

11. Limitation of Liability.

Seller shall not be liable for consequential, special or contingent damages arising from any actual or alleged breach of warranty, breach of contract, negligence or any other legal theory. Such damages include, but are not limited to, loss of profits or revenue, loss of the goods or any associated goods or equipment, cost of capital, cost of any substitute goods, facilities or services, downtime costs, or claims of Buyer’s customers for such damages. The discharge of Seller’s warranty obligation hereunder shall constitute fulfillment of all liabilities of Seller to Buyer, whether based on contract, negligence or otherwise with respect to the goods sold or provided hereunder. THE REMEDY SET FORTH HEREIN CONSTITUES THE EXCLUSIVE REMEDY AVAILABLE TO BUYER AND IS IN LIEU OF ALL OTHER REMEDIES, AND THE LIABILITY OF THE SELLER, WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY OR OTHERWISE, SHALL NOT EXCEED THE PRICE OF THE GOODS SOLD, SUPPLIED OR FURNISHED BY SELLER HEREUNDER ON WHICH LIABILITY IS BASED. Seller neither assumes nor authorizes any representative or other person to assume for it any obligation or liability other than as expressly set forth herein.

Any suit or action arising out of or relating to this Agreement or the breach thereof must be commenced within one (1) year after the cause of action has occurred. The foregoing shall not limit the time within which any suit or action may be brought to collect an amount agreed to be paid by Buyer or to enforce a judgement or to collect any amount awarded thereunder.

The sole purpose of the stipulated exclusive remedy shall be to provide Buyer with a credit or replacement for, or the repair of, defective parts in the manner provided herein. This exclusive remedy shall not be deemed to have failed of its essential purpose so long as Seller is willing to credit Buyer’s account, or repair or replace the defective part(s) in the manner prescribed herein.

12. Default or Delays.

Seller shall not be liable for any default or delay in the production or delivery of all or any goods resulting either directly or indirectly from: (a) accidents to, or breakdowns or mechanical failure of, Sellers plant machinery or equipment; strikes or other labor troubles, labor shortages, fire; flood; wars; act of the public enemy; acts of God; delays of suppliers; delays in transportation or lack of transportation facilities; embargoes, shortages of, or reductions in, energy sources, priorities, allocations, limitations, restrictions, or other acts required or requested by Federal, state or local governments, or any subdivision, bureau or agency thereof; or (b) any cause beyond the control of Seller. In no event shall Seller be liable for any consequential, special or contingent damages arising out of Seller’s default or delay in filling any order including but not limited to loss of profits or revenue, loss of the use of goods, cost of any substitute goods, down time costs, or claims of Buyer’s customers for such damages. Buyer's sole remedy for any default or delay in filling any order is cancellation of its Order.

13. Governing Law.

This agreement is made and entered into under the laws of the State of North Carolina and will be construed, enforced, and performed under the laws of the State of North Carolina. The sole proper venue of any civil action will be Guilford County, North Carolina. Buyer expressly consents to jurisdiction in North Carolina.

14. Binding Effect.

The provisions of this agreement shall bind and inure to the benefit of Seller and Buyer and their respective successors and assigns; provided, however, that Buyer may not assign this Agreement or any order without the prior written consent of Seller.

BY SIGNING AND RETURNING TO SELLER A COPY OF THESE TERMS AND CONDITIONS OF SALE, BUYER AGREES THAT THESE TERMS AND CONDITIONS APPLY TO AND GOVERN ALL ORDERS SUBMITTED BY BUYER TO SELLER.