Mark Line Terms & Conditions

Quotation Terms + Conditions
QUOTATION TERMS AND CONDITIONS OF SALE INCLUDING LIMITATIONS OF WARRANTY Effective July 27, 2009 NOTICE TO BUYER – TERMS AND CONDITIONS OF SALE. The Quotation is subject to all of the Terms and Conditions of Sale Including Limitations of Warranty stated below. For purposes of these Terms and Conditions, “Products” shall mean all products manufactured and/or sold by Mark Line Industries, Inc., Mark Line Industries of Pennsylvania, Inc., or Mark Line Industries of North Carolina, LLC, as applicable (“Mark Line”) and any ancillary services provided by Mark Line. 1. ORDER PLACEMENT. Placement of orders by Buyer shall be in accordance with Mark Line’s then current procedures. All products and services furnished by Mark Line are governed by these Terms and Conditions of Sale Including Limitations of Warranty (hereinafter “Terms and Conditions”). Acceptance by Mark Line of Buyer’s order is expressly conditioned upon these Terms and Conditions and those indicated in the Quotation or the Acknowledgment of Order, if any. Any provisions of Buyer’s order or other communication in conflict with these Terms and Conditions are expressly rejected. Stenographic and clerical errors are subject to correction. No additions or modifications shall be valid unless confirmed in writing by Mark Line. MARK LINE IS NOT BOUND TO FURNISH ITS PRODUCTS OR SERVICES EXCEPT IN ACCORDANCE WITH THE TERMS OF THE QUOTATION, INCLUDING THESE TERMS AND CONDITIONS. 2. CANCELLATION. Buyer may cancel the order, in whole or in part, by written notice at any time, provided the Buyer pays Mark Line, within ten (10) days: (a) the cost, including installation and removal costs, of any equipment, supplies or products purchased by Mark Line prior to cancellation for the purpose of filling Buyer’s order and not usable by Mark Line for making other products it then manufactures and/or sells; (b) the quoted price for all products finished and ready to ship; and (c) other reasonable costs, overhead and expenses (including but not limited to the cost of labor and the cost of raw materials and products still in the process of manufacture but unfinished at the time of cancellation) that Mark Line may have incurred in the performance of the order. Notice of cancellation is not effective until received by Mark Line at the following address: Mark Line Industries, Inc., 51687 CR 133, Bristol, Indiana 46507. If Buyer elects to cancel the order in part, Mark Line may, at its option, within a reasonable time thereafter, cancel the entire order by written notice. Mark Line’s election, at its option, to cancel Buyer’s order under such circumstances is in addition to, and not in lieu of, any other rights or remedies that Mark Line may have at either law or equity. 3. PRICE; DELIVERY; DELAY. Unless otherwise provided by the Quotation or agreed by Mark Line in writing, price and delivery terms shall be F.O.B. shipping point. Prices for products shall be those indicated on the Quotation, as modified by the Acknowledgment of Order, if applicable, and are only good for the quantities indicated, unless otherwise agreed to in writing by Mark Line. Prices do not include any Federal, State, or local taxes, nor do they include any duty. Unless otherwise agreed in writing, Buyer shall be responsible for arranging for pick-up and delivery of all products from Mark Line’s manufacturing facility. Mark Line shall issue a Certificate of Origin for the products to Buyer on payment in full of the price for the products. Title and all risk of loss or damage shall pass to Buyer upon issuance of the Certificate of Origin by Mark Line or, if earlier, upon shipment of the products. Buyer shall then be responsible for obtaining and paying for insurance to cover any loss to Buyer and shall reimburse the Seller for the contract price in the event of loss of the products. Mark Line reserves the right to provide the products in installments when necessary, to invoice each installment separately and to expect payment for each installment within Mark Line’s selling terms. Any shipment or delivery date stated by Mark Line is an estimated date, which is contingent upon receipt of necessary documentation from Buyer and is subject to reasonable production scheduling changes made after the date of the Quotation. If Buyer fails to pick-up the products according to the agreed upon delivery schedule, Mark Line may cancel the then remaining balance of the order. Such cancellation, if elected by Mark Line, shall be in addition to, and not in lieu of, any other rights or remedies that Mark Line may have at law or equity. If shipment or any other act or condition affecting payment for the products or any part of them shall be delayed on account of Buyer, payment shall be due as if shipment had been made. All products must be picked-up by Buyer within sixty (60) days after Mark Line issues a Certificate of Origin with respect to the products. Mark Line may charge a reasonable storage fee for products not picked-up by Buyer within such 60-day period, and such storage shall be at the sole risk of Buyer. Mark Line shall not be liable for any direct, indirect, consequential, special, or incidental losses or damages to Buyer or to any third parties resulting from a delay in pick-up or shipment. 4. CHANGES IN SPECIFICATIONS OR DESIGN. If Buyer requests any change in quantity, specification or design relating to any products, or changes of delivery date and/or schedules, such proposed change shall be subject to the terms and conditions of the Quotation and if applicable, the Acknowledgment of Order, and must be approved in writing to be binding upon Mark Line. Product information and specifications set forth in the Quotation are current as of the date of the Quotation. Mark Line reserves the right to change product specifications, designs and standard equipment without notice and without incurring any obligation or liability to Buyer. 5. SPECIFICATIONS. All drawings, specifications, designs, data and any other engineering and/or manufacturing information and other descriptive matter, of any nature, furnished, directly or indirectly, by Mark Line to Buyer with respect to the products and services shall remain the property of Mark Line. No part of the specifications shall be reproduced, except as may be reasonably required by Buyer in the normal course of installation or maintenance of the products or except as may be further authorized in writing by Mark Line. Mark Line may require the return of all specifications, and any reproductions thereof, and, if so, Buyer shall return same promptly upon request from Mark Line. 6. PAYMENT; CREDIT; SECURITY. Payment shall be due prior to pick-up of the products by Buyer or as otherwise provided by Mark Line in the Quotation, or, if applicable, the Acknowledgment of Order. All orders received are subject to credit approval. Buyer agrees to submit from time to time to Mark Line those items reasonably requested in order to establish or update Buyer’s credit. Mark Line shall be entitled to charge interest for payments not made in accordance with the stated or agreed upon terms of payment at the lesser of 18% per year or the highest rate permitted by law on the date(s) such payment(s) were due. Whenever Mark Line in good faith deems itself insecure, it may, without prejudice or waiving any other rights or remedies it may have at law or equity, cancel any outstanding orders with Buyer and/or hold production/shipment of any unfilled orders; modify or revoke its extension of credit to Buyer; and take any other steps permitted by law and necessary or desirable to secure Mark Line with respect to Buyer’s payment for products and services furnished or to be furnished, including, but not limited to, using products sold to Buyer but not yet delivered as collateral for payment. Buyer will pay Mark Line’s actual costs of collection, including but not limited to court costs, additional litigation expenses, and reasonable attorneys’ fees, incurred for collection of any delinquency. Buyer shall have no right of offset against amounts owed to Mark Line. 7. ACCEPTANCE. Products furnished or services performed by Mark Line in all events will be deemed to have been accepted within: fifteen (15) days after receipt by Buyer or, if earlier, seventy-five (75) days after the issuance of the Certificate of Origin, unless rightfully rejected within such period by written notice to Mark Line, by Certified Mail, Return Receipt requested, setting forth all of the defects upon which the rejection is claimed. Claims for factory damage or shortages shall not be considered unless made in writing within: fifteen (15) days after receipt of the products or services by Buyer or, if earlier, seventy-five (75) days after the issuance of the Certificate of Origin, and accompanied by reference to Mark Line’s invoice numbers. Buyer’s claims for damage or shortage in transit must be filed by Buyer against carrier. Defective products shall be held for Mark Line’s inspection or disposition. 8. LIMITED WARRANTY; REMEDY. Mark Line warrants that all products sold by Mark Line will be of the kind and quantity specified in the Quotation as modified by the Acknowledgment of Order and shall be free from defects in workmanship or material as of the date of completion by Mark Line. This warranty is extended to the original purchaser of the products for a period of thirteen (13) months (unless limited further below) from Mark Line’s invoice date. If, within the applicable warranty period any good or part within the scope of this warranty proves to be defective in workmanship, Mark Line shall, at its option, repair, authorize repair or replace the defective part. In order to obtain performance of the obligations under this warranty, Buyer must promptly (in no event later than thirty (30) days after discovery of the defect) give written notice of the defect to Mark Line at the appropriate manufacturing facility indicated on the Acknowledgment of Order, together with a description and, if applicable, the serial number of the allegedly defective product or part, and, at Mark Line’s discretion, return the defective product or part to Mark Line. Mark Line does not assume any expense or responsibility for the costs of repairs if Mark Line is not notified in advance of the need for such repairs or if Mark Line is not given the opportunity to perform such repairs. Should such repairs become necessary, Buyer shall ensure, at Buyer’s cost, that Mark Line has access to the location where such repairs need to be made. This warranty does not extend to: (a) material provided by, or defects in any design specified by, the Buyer; or (b) any defect or problem caused by the negligence, misuse, unauthorized repairs, lack of maintenance, improper set-up, excessive loading, failure to properly install, operate or maintain the products in accordance with the installation, operating and/or maintenance instructions furnished with such products, unreasonable use, accidents, alterations, ordinary wear and tear and/or or acts of Buyer or others. Mark Line WILL NOT, IN ANY EVENT, BE LIABLE OR OTHERWISE RESPONSIBLE FOR INDIRECT, SPECIAL, CONSEQUENTIAL OR LIQUIDATED DAMAGES OR PENALTIES OF ANY KIND, however arising, including but not limited to use of any products, loss of time, inconvenience, lost profits or other damages with respect to persons, business or property, whether as a result of breach of warranty, negligence or otherwise. Notwithstanding anything to the contrary contained herein, BUYER’S SOLE REMEDY AGAINST MARK LINE FOR PRODUCTS SUPPLIED OR FOR NON-DELIVERY OR FAILURE TO FURNISH PRODUCTS, WHETHER OR NOT BASED ON NEGLIGENCE, STRICT LIABILITY OR BREACH OF EXPRESS OR IMPLIED WARRANTY, IS LIMITED SOLELY, AT MARK LINE’S OPTION, TO REPLACEMENT OR CURE OF SUCH NONCONFORMING OR NON-DELIVERED PRODUCTS OR RETURN OF THE PURCHASE PRICE FOR SUCH PRODUCTS AND IN NO EVENT SHALL EXCEED THE PRICE OR CHARGE FOR SUCH PRODUCTS. MARK LINE EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCTS SOLD. Appliances, equipment and other components included in the products are covered by individual warranties issued by the respective manufacturers of such appliance and components and are not warranted by Mark Line. Axles, tires, frames, windows, heating and cooling units, water heaters, plumbing fixtures, furniture and furnishings are covered by the components manufacturer’s warranty and are not warranted by Mark Line. Mark Line will supply Buyer with copies of available warranties from the component manufacturer upon request. This warranty may be altered only in a writing signed by an officer of Mark Line. It may not be altered or extended orally or in writing by any other person. 9. SITE PREPARATION AND INSTALLATION. Buyer is responsible for all site preparation, installation and maintenance of the buildings, including, but not limited to, removal of protective material and packaging, general clean-up of the exterior and interior, adjustment to doors, windows, cabinets, moldings, etc., which may have worked loose or become out of square due to in-transit racking, re-caulking of windows, hook-up, test and start of electrical, oil, gas or plumbing, appliance services, antifreeze of plumbing while in storage, application of aluminized roof coating on seams on steel roofs, installation of items stowed in the building to prevent transit damage and servicing appliances and components in accordance with the applicable manufacturer’s instructions. Mark Line shall not be responsible or liable in any manner for any damages or loss caused by or relating to site preparation, installation or maintenance of the buildings. 10. INDEMNIFICATION. Buyer shall defend, indemnify and hold Mark Line harmless from and against any and all claims, liabilities, loss, costs, damages or expenses (including reasonable attorneys’ fees and costs) of any kind or nature whatsoever relating to the products and services provided by Mark Line under the terms of the Quotation as modified by any applicable Acknowledgment of Order, including without limitation, claims made for property damage or personal injury (including death), whether such claims are premised on contract or on tort (including, without limitation, strict liability) and shall include, but not be limited to, any such claims arising from Buyer’s dismantling of safety devices, if any, attached to the products, failure to follow instruction manuals and product warnings, as well as other improper use of the products. This indemnity provision shall not apply where such damage or injury is attributable solely to the negligence of Mark Line, its employees or agents. 11. PATENT LIABILITY. If Mark Line supplies products to Buyer’s specifications and/or manufactured or fabricated from Buyer’s blue print, sketch or specifications, Buyer, at its own expense, shall defend any suit or proceeding of any kind whatsoever brought against Mark Line in any capacity if such suit or proceeding involves a claim that any such products or any part thereof constitutes an infringement of any patent, copyright or trademark or other intellectual property right of another party, and Buyer shall pay or indemnify any and all judgments, expenses and costs which may be awarded against or incurred by Mark Line related to such legal action or claim, as well as reasonable attorneys’ fees and costs incurred by Mark Line. 12. FORCE MAJEURE. Mark Line will not be liable for any delay in the performance of its obligations or for any damages suffered by the Buyer by reason of such delay, when such delay is directly or indirectly caused by or in any manner arises from: fires; floods; accidents; riots; acts of God; governmental interference; embargoes; strikes; labor difficulties; shortages of labor, fuel, power, materials or supplies; transportation delays; any existing or future laws or acts of the Federal or any State government (including specifically, but not exclusively, any orders, rules or regulations issued by any official or agency of any such government) affecting the conduct of Mark Line’s business; or any other cause or causes (whether or not similar in nature to any of those specified above) beyond Mark Line’s reasonable control. Mark Line shall not pay and shall not be liable for express mailing, telephone, telecopy, telegraph, traveling expenses or similar charges occasioned by non-delivery of products covered by this provision. 13. NO WAIVER. The failure of Mark Line, upon knowledge of any default or violation by Buyer of any of these Terms and Conditions, or any agreement entered into hereafter, to enforce its rights or remedies shall not be construed as a waiver of such default or violation, or of any provision hereof, or of any of its rights or remedies. 14. CANCELLATION FOR INSOLVENCY OR INSTITUTION OF PROCEEDINGS. In the event of any suspension of payment or the institution of any proceedings by Buyer against Mark Line, or the initiation of voluntary or involuntary proceedings in bankruptcy or insolvency proceedings naming Buyer as a debtor, or proceedings under any provisions of the United States Bankruptcy Code in which Buyer is a debtor, or for the appointment of a receiver or a trustee or an assignee for the benefit of creditors, Mark Line shall be entitled to cancel the order or any subsequently entered into agreement forthwith, without liability to Buyer for loss of anticipated profits or otherwise. 15. LIMITATION OF LITIGATION; ATTORNEY FEES. Any controversy or claim of Buyer arising out of or related to the Quotation must have accrued within the applicable warranty period and then be commenced within twelve (12) months after the cause of action has accrued. Mark Line shall be entitled to reimbursement of all costs and expenses, including reasonable attorneys’ fees and other litigation expenses, from the Buyer relating to any lawsuit arising from the Quotation or any subsequently entered into agreement in which Mark Line prevails. 16. ENTIRE AGREEMENT; GOVERNING LAW AND FORUM; SEVERABILITY. Except as otherwise agreed in writing, the Acknowledgment of Order and the Quotation (to the extent not inconsistent with the Acknowledgment of Order) constitute the entire agreement between Mark Line and Buyer, superseding all prior proposals and understandings, oral or written. All such previous communications are hereby abrogated and withdrawn, and no stipulations, representations or agreements by Mark Line, or its officers, agents, or employees shall be binding upon Mark Line unless reduced to writing and attached to and incorporated by reference herein, and no local, general, or trade custom shall alter or vary the terms hereof. Any questions, disputes, controversies, or litigation arising either directly or indirectly from the Quotation, including but not limited to disputes concerning the validity, interpretation or effect of the Quotation and the agreement between Mark Line and Buyer, or interpretations and enforcement of the rights and obligations of the parties hereunder, shall be governed by the laws of the State of Indiana, without regard to conflicts of law principles. Buyer consents to the exclusive personal jurisdiction of the federal courts located in the Northern District of Indiana or the state courts located in Elkhart County, Indiana over any action arising out of or relating to the Quotation and waives any objection it may now or hereafter have to venue or to convenience of forum. If any provision of the Quotation is determined invalid under applicable law, such invalidity shall be limited to such provision without invalidating any other terms and conditions or any other provision hereof; and if any provision of the Quotation is found to be ambiguous or in conflict with any other provision of the Quotation, such ambiguity or conflict shall be resolved in the manner which provides the greatest protection and limitation of liability to Mark Line. 17. ASSIGNMENT. The rights and obligations under the Quotation may not be assigned by either party without prior written consent of the other party; provided, that Mark Line shall have the right to assign its rights without the consent of Buyer to any person or entity which purchases all or substantially all of the assets of Mark Line.
Purchase Terms + Conditions
TERMS AND CONDITIONS OF PURCHASE Effective July 27, 2009 1. ACCEPTANCE. The Purchase Order (“Purchase Order” or “Order”) constitutes an offer by Mark Line Industries, Inc., Mark Line Industries of Pennsylvania, Inc. or Mark Line Industries of North Carolina, LLC, as applicable (“Buyer”) to Seller and becomes a binding contract on the terms set forth therein when it is accepted by Seller, either by acknowledgment or by the commencement of performance hereof. Any acceptance of the Purchase Order is limited to acceptance of its express terms and conditions. No revisions of the Order shall be valid unless in writing and signed by an authorized representative of Buyer; and no conditions stated by Seller in accepting or acknowledging the Order shall be binding upon Buyer if in conflict with, inconsistent with, or in addition to the terms and conditions contained herein, unless expressly accepted in writing by Buyer. In the event of a conflict between the terms of the Purchase Order and Sellers acceptance or acknowledgment, the terms of the Order shall govern. Any proposal for additional or different terms or any attempt by Seller to vary in any degree the terms of the Order in Seller’s acceptance or acknowledgment, is hereby objected to and rejected. 2. DISCOUNT TERMS. If a discount is allowed for payment within a specified time, the time for making payment so as to obtain such discount will not begin to run until the date the invoice or goods are received by Buyer, whichever is later. However, if an invoice or goods are returned for correction, the discount period will not begin to run until Buyer receives the corrected invoice or the goods, whichever is later. The postmark date of any payments shall be the date used to determine whether payment was made within the specified time period to obtain the discount. 3. QUANTITIES. Quantities must equal the exact quantity ordered unless otherwise agreed in writing. At Buyer’s discretion, overshipments will be returned at Seller’s expense. 4. INSPECTION/TESTING. All materials, goods, or articles ordered will be subject to final inspection, testing, and approval at destination by Buyer. Payment for the goods delivered shall not constitute acceptance thereof. Buyer shall have the right to hold, inspect, test, and reject any or all goods that are in Buyer’s judgment defective or non¬conforming, and reserves the right to hold, inspect, test, and reject such goods within a commercially reasonable time, as determined by Buyer’s own inventory, manufacturing, and sales requirements. 5. REJECTS. Buyer reserves the right to reject and hold, at Seller’s risk and expense subject to Seller’s prompt advice as to disposal, all materials, goods, or articles not conforming to drawings, specifications and/or samples under the terms of the Purchase Order, or at Buyer’s discretion, to return any such materials, goods, or articles freight collect. Buyer may charge Seller all storage and handling expenses, including but not limited to, those of unpacking, examining, repacking, storing and shipping such goods. No goods returned as defective or non-conforming shall be replaced without an order. If any merchandise fabricated by Seller is rejected by Buyer due to Seller’s fault or failure to meet the requirements of the drawings, specifications, and/or samples required under the terms of the Purchase Order, Seller shall at Buyer’s option, either replace such merchandise at Seller’s own expense or pay Buyer the replacement cost of the material used therein. Seller’s obligations and Buyer’s rights under this paragraph shall be in addition to any other obligations of Seller, and rights or remedies which Buyer may have in law or equity. 6. MODIFICATIONS. Consistent with the paragraph entitled “ACCEPTANCE” above, no modifications of or additions to the provisions or conditions of the Purchase Order, whether included by the Seller upon the copy hereof or otherwise proposed to the Buyer, will become a part of the Purchase Order unless accepted in writing by Buyer. If the Seller ships or tenders delivery of any goods covered by the Order before otherwise accepting it, such shipment, tender, or delivery shall constitute an acceptance of the Order in conformity with the terms hereof. Buyer’s acceptance of any non-conforming lot shall not waive Buyer’s rights to damages arising from such non-conformity, nor serve to modify Seller’s obligations hereunder, nor waive Buyer’s right to require conformity as to the remainder. 7. PACKAGING AND CRATING. All items shall be packaged by Seller in suitable containers for protection in shipment and storage, and such items and/or packages will be properly and adequately marked and labeled. 8. SHIPPING/SHIPMENT. All shipments made by Seller to Buyer shall be F.O.B. Seller’s facility or other place of destination as may be set forth by Buyer, upon Buyer’s Purchase Order. If in order to comply with Buyer’s required delivery date it becomes necessary for Seller to ship by a more expensive way than specified in the Purchase Order, any increased transportation costs resulting therefrom shall be paid by the Seller unless the necessity for such rerouting or expedited handling has been caused by Buyer. 9. PRICE CHANGES. Prices specified on any Order accepted by Seller shall not be subject to change without Buyer’s consent. Seller will give the Buyer the benefit of any price decline to the specified shipping date or to the actual date of shipment, whichever is later. If price is omitted from the Purchase Order, Seller shall advise Buyer of the price to be billed as soon as possible and prior to Seller’s manufacture, procurement, and shipment. 10. ADVANCE MANUFACTURE AND SHIPMENT. Seller shall not manufacture in advance of Sellers normal flow time or deliver any material or item in advance of the schedule set forth in the Order without Buyer’s written permission. Buyer reserves the right to return, shipping charges collect, all material received at Buyer’s place of business, or other specified destination, in advance of the schedule shown on the Order. Seller may request, at the time Seller returns its acknowledgment of the Order, Buyer’s written consent to advance manufacture and/or deliver. However, shipments will be made in accordance with the Buyer’s shipping schedule unless such written consent is given by Buyer. 11. WARRANTY. Seller expressly warrants that all goods, materials or services furnished by Seller pursuant to the Purchase Order shall: (a) conform to all specifications, drawings, samples, and descriptions given, (b) be new and free from defects in design, material, workmanship, warning and instruction, (c) conform to any statements made on the containers or labels or advertisements for such goods or services, and that all such goods will be adequately contained, packaged, marked, and labeled, and (d) satisfy all relevant governmental and industry standards. Seller further warrants that all goods and services furnished hereunder will be merchantable, and will be safe and appropriate for the purpose for which goods or services of that kind are normally used. If Seller knows or has reason to know the particular purpose for which Buyer intends to use the goods or services, then Seller also warrants that such goods or services will be fit for such particular purpose. Inspection, tests, and acceptance or use of the goods or services furnished hereunder shall not affect the Seller’s obligations under this warranty, and such warranty shall survive inspection, tests, acceptance, and use. Seller’s warranty shall run to Buyer, and Buyers successors, assigns, customers, and to all users of the products sold by Buyer. Seller further warrants that all goods and materials furnished under the Order are free and clear of all liens, security interests, and encumbrances whatsoever, and that at the time of sale, Seller had good and marketable title to the same. 12. REMEDIES. In addition to Buyer’s other remedies under these Terms and Conditions of Purchase, Seller agrees to promptly correct or replace defective and/or non-conforming goods or services not conforming to the foregoing warranty, without expense to Buyer, when notified of such non-conformity by Buyer, provided Buyer elects to provide Seller with the opportunity to do so. Such election, however, shall not in any manner waive, limit, or modify any other rights or remedies which Buyer or Buyer’s successors, assigns, customers, and/or product users may have against Seller at law or equity. If Seller fails to correct or replace the defective non-conforming goods or services promptly, Buyer, after reasonable notice to Seller, may make such corrections or replace such goods and services and charge Seller for the costs incurred by Buyer in doing so, as well as for all other consequential, incidental, or special damages incurred. Seller understands and agrees that Buyer’s production requirements may require immediate repairs or reworking of defective goods, or the purchase of substitute goods, without notice to Seller. In such event, Seller shall reimburse Buyer for the costs, delays, and other damages that Buyer has incurred. 13. INDEMNIFICATION. Seller shall defend (at Seller’s expense), indemnify and hold harmless Buyer against all damages, claims, liabilities, and expenses (including but not limited to reasonable attorneys’ fees) arising out of or resulting in any way, directly or indirectly, from any defect or non-conformity in the goods or services purchased hereunder, including but not limited to defects in design, material, workmanship, or from failure of Seller to comply with safety inspection, labeling, instructional, or warning requirements imposed by law, governmental agencies, or industry standards, or from any act or omission of Seller, its agents, employees, or subcontractors. This defense, indemnification, and hold harmless obligation shall be in addition to the warranty obligations of Seller. 14. PATENT AND LIEN PROTECTION. To the extent that the goods or materials delivered hereunder are not manufactured pursuant to the designs originated solely by Buyer, Seller guarantees that the sale and/or use of any or all goods or articles delivered hereunder will not infringe any United States or foreign patents, trademarks, copyrights or other intellectual property rights of any person or entity. Seller further agrees to indemnify, hold harmless, and defend at Seller’s own expense, Buyer against any and all claims of patent, trademark or copyright infringement or of unfair competition arising out of the sale, marketing, packaging, or advertising of goods sold by Seller, as well as to defend, at Seller’s own expense, indemnify, and hold harmless Buyer against all liens, security interests, and/or encumbrances whatsoever asserted against such goods, including claims to such goods, asserted by others. 15. INSURANCE. All materials, tooling, models, patterns, drawings and other personal property belonging to Buyer and furnished by Buyer to Seller or otherwise in Seller’s custody or possession, shall be at Seller’s risk from loss or damage from all hazards. In the event that Seller is required to enter premises owned, leased, occupied by or under the control of Buyer or a customer of Buyer during the performance of services ordered hereunder or during delivery or installation of materials or articles herein contemplated or during the performance of services otherwise required to be furnished by Seller, Seller agrees that Seller will defend (at Seller’s expense), indemnify and hold harmless Buyer, its officers and employees from any loss, cost, damage, expense or liability by reason of property damage or personal injury of whatsoever nature or kind arising out of or as a result of the performance of such services and/or delivery and/or installation, whether arising out of the actions of Seller or of its employees, subcontractors or sub subcontractors; and, Seller agrees that it and its subcontractors or sub-subcontractors will maintain insurance, including but not limited to public liability and property damage insurance, in reasonable amounts covering the obligations set forth in this paragraph, and will maintain proper workmen’s compensation insurance covering all employees engaged in the performance of such services and/or delivery and/or installation. 16. ASSIGNMENT/SUBCONTRACTING. Seller may not assign the Order, or sublet any part of the Order, without the prior written consent of Buyer. Claims for monies due or to become due under the Order may be assigned by Seller, provided that Seller shall supply Buyer promptly with two copies of any such assignment, and provided further that payment to an assignee of any claim under the Order shall be subject to setoff or recoupment for any present or future claim or claims which Buyer may have against Seller. No part of the Order may be subcontracted without the prior written approval of Buyer. 17. TERMINATION FOR CONVENIENCE OF BUYER. Buyer reserves the right to terminate the Order or any part hereof for its sole convenience. In the event of such termination, Seller shall immediately stop all work hereunder, and shall immediately cause any of its suppliers or subcontractors to cease work. Subject to any terms on the face of the Purchase Order, Seller shall be paid a reasonable termination charge consisting of a percentage of the Order price reflecting the percentage of the work performed prior to the notice of termination, plus actual direct costs resulting from termination. Seller shall not be paid for any work done after receipt of the notice of termination, or for any costs incurred by Seller’s suppliers or subcontractors which Seller could reasonably have avoided. Seller shall not unreasonably anticipate the requirements of the Order. Buyer’s right to terminate shall be in addition to any other rights or remedies which Buyer may have in law or equity. 18. TERMINATION FOR CAUSE. Buyer may also terminate the Order or any part thereof for cause in the event of any default by the Seller, or if the Seller fails to comply with any of the terms and conditions of the Purchase Order. Late deliveries, deliveries of products that are defective or which do not conform to the Order, and failure to provide Buyer, upon request, with adequate assurances of future performance shall also be among the causes which allow Buyer to terminate the Order for cause. In the event of termination for cause, Buyer shall not be liable to Seller for any amount, and Seller shall be liable to Buyer for any and all damages sustained by reason of the default that gave rise to the termination. If it should be determined that Buyer has improperly terminated this contract for cause, such termination shall be deemed a termination for convenience. Buyer’s right to terminate shall be in addition to any other rights or remedies which Buyer may have in law or equity. 19. CANCELLATION FOR INSOLVENCY OR INSTITUTION OF PROCEEDINGS. In the event of the institution of any proceedings by Seller against Buyer, or in the event of the institution of any proceedings against Seller, voluntary or involuntary, in bankruptcy or insolvency, or under any provisions of the United States Bankruptcy Code, or for the appointment of a receiver or trustee or an assignee for the benefit of creditors of Seller, Buyer shall be entitled to cancel this contract forthwith, without liability for loss of anticipated profits or otherwise. 20. CONFIDENTIALITY. The Purchase Order, together with all drawings, specifications and samples included therewith or referenced thereby, shall be maintained in confidence by Seller. No information concerning the Purchase Order shall be disclosed by Seller to, or used for the benefit of, any other party. No product first manufactured by Seller for Buyer pursuant to the Purchase Order shall be sold by Seller to any other party without written permission in advance from Buyer. 21. TOOLS AND MATERIALS. Title to and the right of immediate possession of all tooling, designs, patterns, drawings, and materials furnished by Buyer to Seller for use in accordance with the Purchase Order shall be and remain in Buyer, in all stages of construction. When the cost of dies and tools or negatives and plates involved in the manufacture or production of parts or products covered by the Purchase Order are included in the price per unit, then such dies and tools or negatives and plates become the property of the Buyer upon completion of Orders. Any dies and tools or negatives and plates otherwise paid for by the Buyer shall forthwith become Buyer’s property. 22. PAYMENT/SETOFF. Payment for the materials, goods, articles, or services ordered in accordance with the Purchase Order (collectively “items”) shall not constitute an acceptance thereof, but all items shall be received subject to Buyer’s inspection and rejection. Payment shall be made as stated in the Purchase Order, less customary cash discount, unless otherwise specifically arranged for and stated on the Purchase Order; or in the event that any item has not been received, the Buyer reserves the right to withhold payment until such item has been received and checked and does not waive the right to deduct the cash discount. Buyer’s count will be accepted as final on all shipments not accompanied by packing lists. Payment of the Purchase Order will be subject to deduction of any valid claim against Seller arising from this or any other transaction. All claims for money due or to become due from Buyer shall be subject to deduction or setoff by the Buyer by reason of any counterclaim arising out of this or any other transaction with Seller. Such setoff shall be in addition to any other rights or remedies available to Buyer at law or equity. 23. FORCE MAJEURE. Buyer may delay delivery or acceptance occasioned by causes beyond its control. Seller shall hold such goods at the direction of the Buyer and shall deliver them when the cause affecting the delay has been removed. Buyer shall be responsible only for Seller’s direct additional costs in holding the goods or delaying performance of this Agreement at Buyer’s request. Seller shall also be excused if delivery is delayed by the occurrence of unforeseen and unforeseeable events that are beyond Seller’s control, provided Seller notifies Buyer of such events as soon as they occur and gives Buyer its best estimate of revised delivery dates. However, Buyer reserves the right to reject Seller’s revised delivery dates and to cancel the Order without any liability. If Seller’s production is only partially restricted or delayed, it shall use its best efforts to accommodate the requirements of Buyer, including giving the Order preference and priority over those of other customers that were placed after the Order. 24. CHANGES. Buyer shall have the right at any time to make changes in drawings, designs, specifications, materials, packaging, time and place of delivery, and method of transportation. If any such changes cause an increase or decrease in the cost, or the time required for performance, an equitable adjustment shall be made and the Purchase Order shall be modified in writing accordingly. Seller agrees to accept such changes subject to this paragraph. 25. WAIVER. Buyer’s failure to insist on performance of any of the terms or conditions herein or to exercise any right or privilege or Buyer’s waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type. 26. DELIVERY. Time is of the essence of this contract, and if delivery of items or rendering of services is not completed by the time promised, Buyer reserves the right without liability, and in addition to its other rights and remedies, to terminate this contract by notice effective when received by Seller as to items not yet shipped or services not yet rendered and to purchase substitute items or services elsewhere and charge Seller with any loss incurred. Buyer further reserves its right, at its sole discretion and in addition to its other rights and remedies, to require the specific performance of Seller’s obligations pursuant to the Purchase Order. 27. ENTIRE AGREEMENT/SEVERABILITY. In accepting the Purchase Order or making any deliveries hereunder, Seller agrees to all of the terms and conditions stated on the Purchase Order. The Purchase Order and any written documents that may be attached thereto and/or incorporated by specific reference constitute the entire agreement between the parties and supersede all previous communicates between them, either oral or written. All such previous communications are hereby abrogated and withdrawn. No stipulations, representations or agreements by Buyer or any of its officers, agents, or employees shall be binding upon the Buyer unless reduced to writing, and attached to and incorporated in the Purchase Order by reference as above provided, and no local, general or trade custom shall alter or vary the terms hereof. Whenever possible, all terms and conditions of the Purchase Order shall be interpreted so as to be valid under applicable law. If any provision hereof is determined invalid under applicable law, such invalidity shall be limited to such provision without invalidating the remainder of the Purchase Order or any other terms or conditions hereof; and, if any provision of the Purchase Order is found to be ambiguous or in conflict with any other provision hereof, such ambiguity or conflict shall be resolved in the manner that provides the greatest protection, benefit and limitations of liability to Buyer. 28. LIMITATION ON BUYER’S LIABILITY. In no event shall Buyer be liable for anticipated profits or for incidental or consequential damages. Buyer’s liability on any claim of any kind for any loss or damage arising out of or in connection with or resulting from the Purchase Order or from the performance or breach thereof shall in no case exceed the price allocable to the goods or services or unit thereof that gives rise to the claim, less material, labor, and production cost savings of Seller. Buyer shall not be liable for penalties of any description. 29. CHOICE OF LAW AND FORUM. Any questions, disputes, controversies, or litigation arising either directly or indirectly from the Purchase Order, including but not limited to disputes concerning the validity, interpretation, enforcement or effect of the Purchase Order or interpretation concerning the rights and obligations of the parties hereunder, shall be governed (whether in law or in equity) by the laws of the State of Indiana, without regard to principles of conflicts of laws. Seller consents to the exclusive personal jurisdiction of the federal courts located in the Northern District of Indiana or the state courts located in Elkhart County, Indiana over any action arising out of or relating to the Purchase Order and waives any objection it may now or hereafter have to venue or to convenience of forum.
AofO Terms + Conditions
ACKNOWLEDGMENT OF ORDER TERMS AND CONDITIONS OF SALE INCLUDING LIMITATIONS OF WARRANTY Effective July 27, 2009 NOTICE TO BUYER – TERMS AND CONDITIONS OF SALE. Mark Line Industries, Inc., Mark Line Industries of Pennsylvania, Inc. or Mark Line Industries of North Carolina, LLC, as applicable (hereinafter “Mark Line” or “Seller”) has entered your order for the products described on the Acknowledgment of Order, subject to the Terms and Conditions of Sale Including Limitations of Warranty stated below. Mark Line’s acceptance is expressly conditioned upon such Terms and Conditions of Sale Including Limitations of Warranty. 1. ORDER PLACEMENT. All products and services furnished by Mark Line are governed by these Terms and Conditions of Sale Including Limitations of Warranty (hereinafter “Terms and Conditions”). Acceptance by Mark Line of Buyer’s order is expressly conditioned upon these Terms and Conditions, including any terms set forth on the face of the Acknowledgment of Order, and any provisions of Buyer’s order or other communication in conflict with these Terms and Conditions are expressly rejected. Stenographic and clerical errors are subject to correction. No additions or modifications shall be valid unless confirmed in writing by Mark Line. MARK LINE IS NOT BOUND TO FURNISH ITS PRODUCTS OR SERVICES EXCEPT IN ACCORDANCE WITH THE TERMS OF THE ACKNOWLEDGMENT OF ORDER, INCLUDING THESE TERMS AND CONDITIONS. 2. CANCELLATION. Buyer may cancel the order, in whole or in part, by written notice at any time, provided the Buyer pays Mark Line, within ten (10) days: (a) the cost, including installation and removal costs, of any equipment, supplies or products purchased by Mark Line prior to cancellation for the purpose of filling Buyer’s order and not usable by Mark Line for making other products it then manufactures and/or sells; (b) the quoted price for all products finished and ready to ship; and (c) other reasonable costs, overhead and expenses (including but not limited to the cost of labor and the cost of raw materials and products still in the process of manufacture but unfinished at the time of cancellation) that Mark Line may have incurred in the performance of the order. Notice of cancellation is not effective until received by Mark Line at the following address: Mark Line Industries, Inc., 51687 CR 133, Bristol, Indiana 46507. If Buyer elects to cancel the order in part, Mark Line may, at its option, within a reasonable time thereafter, cancel the entire order by written notice. Mark Line’s election, at its option, to cancel Buyer’s order under such circumstances is in addition to, and not in lieu of, any other rights or remedies that Mark Line may have at either law or equity. 3. PRICE; DELIVERY; DELAY. Unless otherwise provided by Mark Line’s written quotation or agreed by Mark Line in writing, price and delivery terms shall be F.O.B. shipping point. Prices for products shall be those indicated on the Acknowledgment of Order and are only good for the quantities indicated, unless otherwise agreed to in writing by Mark Line. Prices do not include any Federal, State, or local taxes, nor do they include any duty. Unless otherwise agreed in writing, Buyer shall be responsible for arranging for pick-up and delivery of all products from Mark Line’s manufacturing facility. Mark Line shall issue a Certificate of Origin for the products to Buyer on payment in full of the price for the products. Title and all risk of loss or damage shall pass to Buyer upon issuance of the Certificate of Origin by Mark Line or, if earlier, upon shipment of the products. Buyer shall then be responsible for obtaining and paying for insurance to cover any loss to Buyer and shall reimburse the Seller for the contract price in the event of loss of the products. Mark Line reserves the right to provide the products in installments when necessary, to invoice each installment separately and to expect payment for each installment within Mark Line’s selling terms. Any shipment or delivery date stated by Mark Line is an estimated date, which is contingent upon receipt of necessary documentation from Buyer and is subject to reasonable production scheduling changes made after the date of the Acknowledgment of Order. If Buyer fails to pick-up the products according to the agreed upon delivery schedule, Mark Line may cancel the then remaining balance of the order. Such cancellation, if elected by Mark Line, shall be in addition to, and not in lieu of, any other rights or remedies that Mark Line may have at law or equity. If shipment or any other act or condition affecting payment for the products or any part of them shall be delayed on account of Buyer, payment shall be due as if shipment had been made. All products must be picked-up by Buyer within sixty (60) days after Mark Line issues a Certificate of Origin with respect to the products. Mark Line may charge a reasonable storage fee for products not picked-up by Buyer within such 60-day period, and such storage shall be at the sole risk of Buyer. Mark Line shall not be liable for any direct, indirect, consequential, special, or incidental losses or damages to Buyer or to any third parties resulting from a delay in pick-up or shipment. 4. CHANGES IN SPECIFICATIONS OR DESIGN. If Buyer requests any change in quantity, specification or design relating to any products, or changes of delivery date and/or schedules, such proposed change shall be subject to the terms and conditions of the Acknowledgment of Order and must be approved in writing to be binding upon Mark Line. Product information and specifications set forth in the Acknowledgment of Order are current as of the date of the Acknowledgment of Order. Mark Line reserves the right to change product specifications, designs and standard equipment without notice and without incurring any obligation or liability to Buyer. 5. SPECIFICATIONS. All drawings, specifications, designs, data and any other engineering and/or manufacturing information and other descriptive matter, of any nature, furnished, directly or indirectly, by Mark Line to Buyer with respect to the products and services shall remain the property of Mark Line. No part of the specifications shall be reproduced, except as may be reasonably required by Buyer in the normal course of installation or maintenance of the products or except as may be further authorized in writing by Mark Line. Mark Line may require the return of all specifications, and any reproductions thereof, and, if so, Buyer shall return same promptly upon request from Mark Line. 6. PAYMENT; CREDIT; SECURITY. Payment shall be due prior to pick-up of the products by Buyer or as otherwise provided by Mark Line in the Acknowledgment of Order. All orders received are subject to credit approval. Buyer agrees to submit from time to time to Mark Line those items reasonably requested in order to establish or update Buyer’s credit. Mark Line shall be entitled to charge interest for payments not made in accordance with the stated or agreed upon terms of payment at the lesser of 18% per year or the highest rate permitted by law on the date(s) such payment(s) were due. Whenever Mark Line in good faith deems itself insecure, it may, without prejudice or waiving any other rights or remedies it may have at law or equity, cancel any outstanding orders with Buyer and/or hold production/shipment of any unfilled orders; modify or revoke its extension of credit to Buyer; and take any other steps permitted by law and necessary or desirable to secure Mark Line with respect to Buyer’s payment for products and services furnished or to be furnished, including, but not limited to, using products sold to Buyer but not yet delivered as collateral for payment. Buyer will pay Mark Line’s actual costs of collection, including but not limited to court costs, additional litigation expenses, and reasonable attorneys’ fees, incurred for collection of any delinquency. Buyer shall have no right of offset against amounts owed to Mark Line. 7. ACCEPTANCE. Products furnished or services performed by Mark Line in all events will be deemed to have been accepted within fifteen (15) days after receipt by Buyer or, if earlier, seventy-five (75) days after the issuance of the Certificate of Origin, unless rightfully rejected within such period by written notice to Mark Line, by Certified Mail, Return Receipt requested, setting forth all of the defects upon which the rejection is claimed. Claims for shortages shall not be considered unless made in writing within fifteen (15) days after receipt of the products by Buyer or, if earlier, seventy-five (75) days after the issuance of the Certificate of Origin, and accompanied by reference to Mark Line’s invoice numbers. Buyer’s claims for damage or shortage in transit must be filed by Buyer against carrier. Defective products shall be held for Mark Line’s inspection or disposition. 8. LIMITED WARRANTY; REMEDY. Mark Line warrants that all products sold by Mark Line will be of the kind and quantity specified in the Acknowledgment of Order and shall be free from defects in workmanship or material as of the date of completion by Mark Line. This warranty is extended to the original purchaser of the products for a period of thirteen (13) months (unless limited further below) from Mark Line’s invoice date. If, within the applicable warranty period any good or part within the scope of this warranty proves to be defective in workmanship, Mark Line shall, at its option, repair, authorize repair or replace the defective part. In order to obtain performance of the obligations under this warranty, Buyer must promptly (in no event later than thirty (30) days after discovery of the defect) give written notice of the defect to Mark Line at the appropriate manufacturing facility indicated on the Acknowledgment of Order, together with a description and, if applicable, the serial number of the allegedly defective product or part, and, at Mark Line’s discretion, return the defective product or part to Mark Line. Mark Line does not assume any expense or responsibility for the costs of repairs if Mark Line is not notified in advance of the need for such repairs or if Mark Line is not given the opportunity to perform such repairs. Should such repairs become necessary, Buyer shall ensure, at Buyer’s cost, that Mark Line has access to the location where such repairs need to be made. This warranty does not extend to: (a) material provided by, or defects in any design specified by, the Buyer; or (b) any defect or problem caused by the negligence, misuse, unauthorized repairs, lack of maintenance, improper set-up, excessive loading, failure to properly install, operate or maintain the products in accordance with the installation, operating and/or maintenance instructions furnished with such products, unreasonable use, accidents, alterations, ordinary wear and tear and/or or acts of Buyer or others. Mark Line WILL NOT, IN ANY EVENT, BE LIABLE OR OTHERWISE RESPONSIBLE FOR INDIRECT, SPECIAL, CONSEQUENTIAL OR LIQUIDATED DAMAGES OR PENALTIES OF ANY KIND, however arising, including but not limited to use of any products, loss of time, inconvenience, lost profits or other damages with respect to persons, business or property, whether as a result of breach of warranty, negligence or otherwise. Notwithstanding anything to the contrary contained herein, BUYER’S SOLE REMEDY AGAINST MARK LINE FOR PRODUCTS SUPPLIED OR FOR NON-DELIVERY OR FAILURE TO FURNISH PRODUCTS, WHETHER OR NOT BASED ON NEGLIGENCE, STRICT LIABILITY OR BREACH OF EXPRESS OR IMPLIED WARRANTY, IS LIMITED SOLELY, AT MARK LINE’S OPTION, TO REPLACEMENT OR CURE OF SUCH NONCONFORMING OR NON-DELIVERED PRODUCTS OR RETURN OF THE PURCHASE PRICE FOR SUCH PRODUCTS AND IN NO EVENT SHALL EXCEED THE PRICE OR CHARGE FOR SUCH PRODUCTS. MARK LINE EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCTS SOLD. Appliances, equipment and other components included in the products are covered by individual warranties issued by the respective manufacturers of such appliance and components and are not warranted by Mark Line. Axles, tires, frames, windows, heating and cooling units, water heaters, plumbing fixtures, furniture and furnishings are covered by the components manufacturer’s warranty and are not warranted by Mark Line. Mark Line will supply Buyer with copies of available warranties from the component manufacturer upon request. This warranty may be altered only in a writing signed by an officer of Mark Line. It may not be altered or extended orally or in writing by any other person. 9. SITE PREPARATION AND INSTALLATION. Buyer is responsible for all site preparation, installation and maintenance of the buildings, including, but not limited to, removal of protective material and packaging, general clean-up of the exterior and interior, adjustment to doors, windows, cabinets, moldings, etc., which may have worked loose or become out of square due to in-transit racking, re-caulking of windows, hook-up, test and start of electrical, oil, gas or plumbing, appliance services, antifreeze of plumbing while in storage, application of aluminized roof coating on seams on steel roofs, installation of items stowed in the building to prevent transit damage and servicing appliances and components in accordance with the applicable manufacturer’s instructions. Mark Line shall not be responsible or liable in any manner for any damages or loss caused by or relating to site preparation, installation or maintenance of the buildings. 10. INDEMNIFICATION. Buyer shall defend, indemnify and hold Mark Line harmless from and against any and all claims, liabilities, loss, costs, damage or expense (including reasonable attorneys’ fees and costs) of any kind or nature whatsoever relating to the products and services provided by Mark Line under the terms of the Acknowledgment of Order, including without limitation, claims made for property damage or personal injury (including death), whether such claims are premised on contract or on tort (including, without limitation, strict liability) and shall include, but not be limited to, any such claims arising from Buyer’s dismantling of safety devices, if any, attached to the products, failure to follow instruction manuals and product warnings, as well as other improper use of the products. This indemnity provision shall not apply where such damage or injury is attributable solely to the negligence of Mark Line, its employees or agents. 11. PATENT LIABILITY. If Mark Line supplies products to Buyer’s specifications and/or manufactured or fabricated from Buyer’s blue print, sketch or specifications, Buyer, at its own expense, shall defend any suit or proceeding of any kind whatsoever brought against Mark Line in any capacity if such suit or proceeding involves a claim that any such products or any part thereof constitutes an infringement of any patent, copyright or trademark or other intellectual property right of another party, and Buyer shall pay or indemnify any and all judgments, expenses and costs which may be awarded against or incurred by Mark Line related to such legal action or claim, as well as reasonable attorneys’ fees and costs incurred by Mark Line. 12. FORCE MAJEURE. Mark Line will not be liable for any delay in the performance of its obligations or for any damages suffered by the Buyer by reason of such delay, when such delay is directly or indirectly caused by or in any manner arises from: fires; floods; accidents; riots; acts of God; governmental interference; embargoes; strikes; labor difficulties; shortages of labor, fuel, power, materials or supplies; transportation delays; any existing or future laws or acts of the Federal or any State government (including specifically, but not exclusively, any orders, rules or regulations issued by any official or agency of any such government) affecting the conduct of Mark Line’s business; or any other cause or causes (whether or not similar in nature to any of those specified above) beyond Mark Line’s reasonable control. Mark Line shall not pay and shall not be liable for express mailing, telephone, telecopy, telegraph, traveling expenses or similar charges occasioned by non-delivery of products covered by this provision. 13. NO WAIVER. The failure of Mark Line, upon knowledge of any default or violation by Buyer of any terms of the Acknowledgment of Order (including these Terms and Conditions), or any agreement entered into hereafter, to enforce its rights or remedies shall not be construed as a waiver of such default or violation, or of any provision hereof, or of any of its rights or remedies. 14. CANCELLATION FOR INSOLVENCY OR INSTITUTION OF PROCEEDINGS. In the event of any suspension of payment or the institution of any proceedings by Buyer against Mark Line, or the initiation of voluntary or involuntary proceedings in bankruptcy or insolvency proceedings naming Buyer as a debtor, or proceedings under any provisions of the United States Bankruptcy Code in which Buyer is a debtor, or for the appointment of a receiver or a trustee or an assignee for the benefit of creditors, Mark Line shall be entitled to cancel the order or any subsequently entered into agreement forthwith, without liability to Buyer for loss of anticipated profits or otherwise. 15. LIMITATION OF LITIGATION; ATTORNEY FEES. Any controversy or claim of Buyer arising out of or related to the Acknowledgment of Order must have accrued within the applicable warranty period and then be commenced within twelve (12) months after the cause of action has accrued. Mark Line shall be entitled to reimbursement of all costs and expenses, including reasonable attorneys’ fees and other litigation expenses, from the Buyer relating to any lawsuit arising from the Acknowledgment of Order or any subsequently entered into agreement in which Mark Line prevails. 16. ENTIRE AGREEMENT; GOVERNING LAW AND FORUM; SEVERABILITY. Except as otherwise agreed in writing, the Acknowledgment of Order and any quotations issued by Mark Line (to the extent not inconsistent with the Acknowledgment of Order) constitute the entire agreement between Mark Line and Buyer, superseding all prior proposals and understandings, oral or written. All such previous communications are hereby abrogated and withdrawn, and no stipulations, representations or agreements by Mark Line, or its officers, agents, or employees shall be binding upon Mark Line unless reduced to writing and attached to and incorporated by reference herein, and no local, general, or trade custom shall alter or vary the terms hereof. Any questions, disputes, controversies, or litigation arising either directly or indirectly from the Acknowledgment of Order, including but not limited to disputes concerning the validity, interpretation or effect of the Acknowledgment of Order and the agreement between Mark Line and Buyer, or interpretations and enforcement of the rights and obligations of the parties hereunder, shall be governed by the laws of the State of Indiana, without regard to conflicts of law principles. Buyer consents to the exclusive personal jurisdiction of the federal courts located in the Northern District of Indiana or the state courts located in Elkhart County, Indiana over any action arising out of or relating to the Acknowledgment of Order and waives any objection it may now or hereafter have to venue or to convenience of forum. If any provision of the Acknowledgment of Order is determined invalid under applicable law, such invalidity shall be limited to such provision without invalidating any other terms and conditions; and if any provision of the Acknowledgment of Order is found to be ambiguous or in conflict with any other provision of the Acknowledgment of Order, such ambiguity or conflict shall be resolved in the manner which provides the greatest protection and limitation of liability to Mark Line. 17. ASSIGNMENT. The rights and obligations under the Acknowledgment of Order may not be assigned by either party without prior written consent of the other party; provided, that Mark Line shall have the right to assign its rights without the consent of Buyer to any person or entity which purchases all or substantially all of the assets of Mark Line.