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TERMS OF PURCHASE

These Terms of Purchase (the “Terms”) shall apply to all purchases made by Applied Ballistics, LLC, an Indiana limited liability company, Applied Ballistics Holdings, Inc., an Indiana corporation, Applied Ballistics Inc., an Indiana corporation, nVision Technology Inc., an Indiana corporation, Applied Ballistics Training Division Inc., an Indiana corporation, or nVisti, LLC, an Indiana limited liability company (hereinafter each individually shall be referred to as “Purchaser”).  Purchaser hereby gives notice of its objection to any different or additional terms on the Vendor’s invoice or any attachment thereto which the Vendor may issue, or any prior general agreement, which add to, vary from, or conflict with the Terms herein, including, but not limited to, the Purchaser’s liability to Vendor for consequential damages. Any such proposed terms shall be void and the Terms herein shall constitute the complete and exclusive statement of the terms and conditions of the contract between Purchaser and Vendor and may hereafter be modified only by written instrument duly signed by an authorized representative of Vendor and an authorized representative of the Purchaser.  “Vendor” shall mean that certain party selling or otherwise transferring goods to Purchaser as identified in a corresponding purchase order, whether oral and written, from Purchaser and related invoice from Vendor.  Any reference to “goods” herein shall mean all products, parts, items, inventory, or other property, including, but not limited to, books, apparel, merchandise, ammunition, training materials, and software, sold by Vendor to Purchaser.

In certain circumstances, Purchaser and Vendor may enter into separate written contracts, executed and signed by authorized representatives of both parties, that have terms that may or may not be different from the Terms herein. In such contracts, the contract terms that conflict with the terms herein will be controlling.  Otherwise, the Terms herein shall control.

  1. APPLICABILITY: Vendor’s acknowledgement and acceptance of Purchaser’s order is conditioned on Vendor’s acceptance of these Terms, which Terms shall be deemed to have been accepted by Vendor unless Vendor shall have given Purchaser written notice of rejection within ten (10) days after issuance of Purchaser’s purchase order, whether oral or written, to Vendor or the day before the delivery date specified in Purchaser’s purchase order, whichever shall first occur.  Subject to the preceding paragraph and a written contract executed and signed by authorized representatives of both Seller and Customer, these Terms, together with any document attached to or incorporated by reference herein by Purchaser, constitute the entire agreement between the parties and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Purchaser’s purchase order. In the event of any conflict between these Terms and the Purchaser’s purchase order or Vendor’s corresponding invoice, these Terms shall govern.  Subject to the preceding paragraph and a written contract executed and signed by authorized representatives of both Seller and Customer, these Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Vendor’s general terms and conditions.
  2. PAYMENT TERMS: Vendor shall issue invoices to Purchaser that correspond to Purchaser’s purchase orders, and Purchaser shall pay such invoiced amounts to Vendor within sixty  (60) days from the later of:  (i) the date of such invoice; or (ii) the date Purchaser receives the goods and/or services related to such invoice.  Purchaser hereby reserves and preserves any and all rights of setoff it may have against Vendor, whether related to the goods and/or services provided by Vendor or otherwise.  Unless otherwise specified, the prices quoted in any purchase order or invoice include taxes.  Vendor and Purchaser will jointly pursue cost reduction opportunities for the duration of their relationship and will reflect the achievement of such opportunities in price reductions to Purchaser.
  3. DELIVERY: Time is of the essence with respect to all purchase orders issued by Purchaser.  Scheduled shipping dates are exact.  Purchaser reserves the right at any time to make changes or modifications to specifications and purchase orders as to any goods ordered from Vendor. The parties will agree upon and equitably adjust any difference in price or time for performance resulting from such changes and modify the related purchase order and/or invoice in writing accordingly.  Shipments of goods from Vendor must equal the exact quantity ordered by Purchaser and must meet the requested delivery date, unless otherwise agreed to in writing. In the event of an over-shipment, Purchaser, at its sole option, may return the over-shipment to Vendor at Vendor’s expense, including Purchaser’s administration fee for handling the over-shipment.
  4. INSPECTION AND REJECTION OF NONCONFORMING GOODS: (a) Purchaser shall inspect the goods received from Vendor for all visible and inspectable defects (e.g., dents, scratches, paint issues, etc.). “Nonconforming Goods” includes the following: (i) good shipped is different than identified in Purchaser’s purchase order; (ii) good’s label or packaging incorrectly identifies its contents; and (iii) goods that are not timely received by Purchaser. (b)  If Purchaser timely notifies Vendor of any Nonconforming Goods, Vendor shall (i) promptly replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Purchaser in connection therewith. Vendor shall be liable to Purchaser for all damages, including, but not limited to, special and consequential damages, incurred by Purchaser and resulting from Vendor’s shipment of Nonconforming Goods.  If Vendor wants any Nonconforming Goods returned to it, Vendor shall pay Purchaser for all costs to ship such Nonconforming Goods, at its expense and risk of loss. (c)  Vendor agrees and acknowledges that any legal action against the Purchaser related to these Terms, any invoice from Vendor, or any shipment of goods to Purchaser shall be commenced within nine (9) months from the date such claim or issue arose.  Any claim not commenced in this time period will be deemed waived by Vendor.
  5. TITLE AND RISK OF LOSS:All prices are FOB Purchaser’s plant, unless otherwise specified on the face of this document. Title to, and risk of, loss of each good to be delivered by Vendor to Purchaser shall pass from Vendor to Purchaser upon receipt thereof by Purchaser, regardless of which party pays the freight.
  6. INTELLECTUAL PROPERTY: Vendor is responsible for ensuring that all goods it provides to Purchaser, or their use, does not infringe the intellectual property rights of any third party. Vendor agrees to defend, at its expense, any claim or suit against Purchaser or Purchaser’s customers, or any of their officers, directors, employees, agents, and affiliates based on an assertion or claim that the goods furnished by Vendor to Purchaser hereunder or the sale or the use by Purchaser or its customers infringes any patent or copyright or other intellectual property right or is a wrongful use of a third party trade secret or proprietary information, and further agrees to indemnify and hold Purchaser, or its officers, directors, employees, agents, and affiliates harmless from any losses, including attorneys’ fees, settlements associated with said claim, or any damages, including attorneys’ fees or costs, finally awarded in any such claim. If the use or sale of any goods furnished by Vendor to Purchaser is enjoined as a result of such suit, Vendor, at its option and at no expense to Purchaser, shall obtain for Purchaser and its customers the right to use and sell such goods or shall substitute an equivalent good acceptable to Purchaser and extend this indemnity thereto. Vendor shall, at Purchaser’s request, assist Purchaser in disputes in which Purchaser could become involved by reason of such infringement and, if required by Purchaser, assume the defense of any dispute..
  7. CONFIDENTIAL INFORMATION: (a) All non-public, confidential, or proprietary information of Purchaser, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to Vendors, pricing, and marketing (collectively, “Confidential Information”), disclosed by Purchaser to Vendor, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of any goods and/or services to Vendor is confidential, and shall not be disclosed or copied by Vendor without the prior written consent of Purchaser. Confidential Information does not include information that is: (i)   in the public domain; (ii)  known to Vendor at the time of disclosure without obligation of confidentiality to Purchaser; or (iii) rightfully obtained by Vendor on a non-confidential basis from a third party. (b)  Confidential Information furnished to Vendor by Purchaser pursuant to these Terms shall in no event become the property of Vendor.  Purchaser’s provision of Confidential Information shall not be construed as granting any rights whatsoever, express or implied, under any intellectual property of Purchaser.  (c)  Purchaser shall be entitled to injunctive relief for any violation of this Section.
  8. INDEMNIFICATION: Vendor shall indemnify, defend, and hold harmless Purchaser, its subsidiaries, affiliates, successors or assigns and their respective directors, officers, shareholders, and employees, and Purchaser’s vendors (collectively, the “Indemnitees”), against any and all liability, loss, injury, death, deficiency, claims, actions, suits, judgments, settlements, costs, penalties, fines, and expenses (including reasonable attorneys’ and professional fees and costs), the cost of enforcing any right to indemnification hereunder, and the cost of pursuing any insurance providers, arising out of or related to:  (i) Vendor’s negligence, willful misconduct, or breach of these Terms; and (ii) any actual or alleged death of, or injury to, any person and/or damage to any property, by whosoever suffered, resulting or claimed to result, in whole or in  part, from any actual or alleged defect in the supplied goods from Vendor, including actual or alleged improper design, manufacture, or assembly of such goods, or arising out of any actual or alleged violation by Vendor with regard to such goods, or their manufacture, possession, use or sale, of any law,  statute, or ordinance, or any governmental administrative order, rule, or regulation.
  9. TERMINATION: (a) Purchaser may terminate any purchase order or invoice with immediate effect upon written notice to Vendor, if Vendor:  (i) has not performed or complied with any of these Terms, in whole or in part; (ii) becomes insolvent, files a voluntary petition in bankruptcy, has an involuntary petition in bankruptcy filed against it, appoints or has appointed for it a receiver or trustee, or makes an assignment for the benefit of creditors, provided such petition, appointment or assignment is not vacated or nullified within fifteen (15) days of such event; (iii) ceases to conduct its operation in the ordinary course of business (including its inability to meet its obligations as they mature); or (iv) breaches any other contract between the parties or such contract is terminated.  (b) Vendor shall indemnify Purchaser from all liability, claims, demands, actions, losses, suits, damages, judgments, attorney fees, costs, charges, expenses, and consequences of any liability, of any nature incurred by Purchaser with the foregoing.  (c) In case of any dispute regarding these Terms or any related invoice or purchase order, including, but not limited to, a dispute over pricing or a pricing discrepancy, Vendor agrees to continue to ship goods to Purchaser for a reasonable length of time, but no less than 180 days, following written notice of a dispute, to give Vendor and Purchaser the opportunity to resolve the dispute.
  10. LIMITATION OF LIABILITY: (a)  IN NO EVENT SHALL PURCHASER BE LIABLE TO VENDOR OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT PURCHASER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. (b)  IN NO EVENT SHALL PURCHASER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS SET FORTH ON ANY RELATED PURCHASE ORDER(S) ISSUED BY PURCHASER TO VENDOR FOR CERTAIN GOODS. (c)  The limitation of liability set forth in Section 10(b) above shall not apply to liability resulting from Purchaser’s gross negligence or willful misconduct.
  11. ASSURANCE OF PERFORMANCE: If Purchaser reasonably deems itself insecure with respect to Vendor’s ongoing performance, whether due to Vendor’s financial capacity or otherwise, Purchaser may demand that Vendor provide assurance of future performance to Purchaser within five (5) days of the demand. This assurance may be in any security acceptable to Purchaser, including but not limited to, collateral consisting of cash, letter(s) of credit, surety bond, parent guaranty, or lender releases. This security shall be in an amount satisfactory to Purchaser and shall also be sufficient to offset costs and expenses incurred or reasonably expected to be incurred by Purchaser in securing for itself completion of the project or other performance due from Vendor. Purchaser reserves its right to any other remedies allowed in law or equity. Failure to provide the requested performance assurance within the stated period shall constitute a default of these Terms, and Purchaser shall be free to procure any goods from an alternate source and/or terminate its relationship with Vendor in its discretion immediately upon expiration of the time specified for delivery of the requested performance assurance.
  12. WAIVER: No waiver by Purchaser of any provision of these Terms shall be effective unless explicitly set forth in writing and signed by Purchaser.  A failure by Purchaser to exercise  any right under these Terms shall not affect any rights subsequently arising under the same or similar clauses hereof, nor shall it operate as a waiver of the clause or condition under which such rights arise.
  13. FORCE MAJEURE: Purchaser shall not be liable for a failure to perform hereunder arising from causes or events beyond the reasonable control and without Purchaser’s fault or negligence and which by their nature could not have been reasonably foreseen by Purchaser or, if they could have been foreseen, were unavoidable, including but not limited to, labor disputes of any kind, fires or accidents.
  14. NON-ASSIGNMENT: No assignment of these Terms, an invoice, or any interest therein or any payment due or to become due thereunder shall be made by Vendor without first obtaining the written consent of the Purchaser, which it may withhold in its sole discretion.  Any purported assignment or delegation in violation of this section shall be null and void.  No assignment or delegation shall relieve Vendor of any of its obligations hereunder.  Purchaser may, at any time, assign, transfer, or subcontract any or all of its rights or obligations under these Terms without Vendor’s prior written consent.
  15. COMPLIANCE WITH LAW: Vendor shall comply with all applicable laws, regulations and ordinances. Vendor shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms.  Vendor shall comply with all export and import laws of all countries involved in the sale of goods under these Terms or any resale of goods by Vendor. Vendor assumes all responsibility for shipments of goods requiring any government import clearance. Purchaser may terminate these Terms if any governmental authority imposes antidumping or countervailing duties or any other penalties on goods
  16. RELATIONSHIP OF THE PARTIES: The relationship between the parties is that of independent contractors.  Nothing herein shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.  No relationship of exclusivity shall be construed from these Terms or any related invoice or purchase order.
  17. NO THIRD-PARTY BENEFICIARIES: These Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
  18. CHOICE OF LAW: All matters arising out of or relating to these Terms, and any related invoice, shall be governed by and construed and enforced in accordance with, the laws of the State of Indiana, without giving effect to any conflict of laws rules, and each party irrevocably submits to the exclusive jurisdiction and venue of the federal and state courts located in Marion County in the State of Indiana for the purposes of any legal, equitable, or other action or proceeding arising out of or relating to these Terms.  Each party hereby waives any objection based on forum non conveniens and waives any objection to venue of any action instituted hereunder.  If Purchaser brings any legal action or other proceeding in connection with these Terms or any related invoice, Purchaser shall be entitled to recover its reasonable attorneys’ fees, accounting fees, and other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled.  FOR PURPOSES OF ANY SUCH COURT PROCEEDINGS, EACH PARTY AGREES, AFTER CONSULTATION WITH ITS COUNSEL, THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE, AND NOT A JURY, AND EACH PARTY HEREBY WAIVES ANY RIGHT TO A TRIAL BEFORE A JURY.
  19. CUMULATIVE REMEDIES: Except as otherwise stated, the remedies herein reserved shall be cumulative and additional to any other or further remedies provided in law or equity.
  20. NOTICES: All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the related invoices or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this section.
  21. SEVERABILITY: If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
  22. SURVIVAL: Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms or any related invoice(s).
  23. AMENDMENT AND MODIFICATION: These Terms may only be amended or modified in a writing that specifically states that it amends these Terms and is signed by an authorized representative of each party.