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TERMS OF SALE

These Terms of Sale (the “Terms”) shall apply to all sales or transfers of property from 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 “Seller”).  Seller hereby gives notice of its objection to any different or additional terms on the Customer’s purchase order or any attachment thereto which the Customer may issue, or any prior general agreement, which add to, vary from, or conflict with the Terms herein, including, but not limited to, the Seller’s liability to Customer 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 Seller and Customer and may hereafter be modified only by written instrument duly signed by an authorized representative of Customer and an officer of the Seller.  “Customer” shall mean that certain party ordering goods from Seller as identified in a corresponding purchase order, whether oral and written, and related invoice from Seller.  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 Seller to Customer

In certain circumstances, Seller and its customer(s) 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.  To the extent that the express terms of any invoice issued by Seller conflict with the Terms herein, the terms of such purchase order will be controlling.  Otherwise, the Terms herein shall control.

  1. APPLICABILITY:  Seller’s acknowledgement and acceptance of Customer’s order is conditioned on Customer’s acceptance of these Terms, which Terms shall be deemed to have been accepted by Customer unless Customer shall have given Seller written notice of rejection within ten (10) days after issuance of Customer’s purchase order, whether oral or written, to Seller or the day before the delivery date specified in Customer’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 Seller, 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 Customer’s purchase order. In the event of any conflict between these Terms and the Customer’s purchase order, 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 Customer’s general terms and conditions.
  2. PAYMENT TERMS: (a)  In consideration for the satisfactory provision of the goods and/or services provided by Seller, Customer agrees to pay the fees set forth in the invoice issued by Seller to Customer.  If Customer disagrees with such fees, Customer shall provide written notification of such disagreement within five (5) days of receipt of the corresponding invoice.  Failure to provide such notice shall be a waiver of any claims or disputes related to such price. (b) Seller shall issue invoices to Customer and Customer shall pay all invoiced amounts to Seller within thirty  (30) days of the date of such invoice.  Such amount shall be paid regardless of whether Customer disputes such amount or such goods and/or services.  Customer hereby waives any right to setoff any claim it has against the Seller, whether related to the goods and/or services provided by Seller or otherwise.  (c) Unless otherwise specified, the prices quoted in any invoice do not include any taxes. Unless prohibited by statute, Customer agrees to pay to Seller the amount of any federal, state, municipal or other tax which Seller may be required to pay on account of the ownership at the place of installation, or the manufacture, transportation, sale or use of, the material and equipment which is the subject of the invoice(s).  (d)  Seller reserves the right to require payment in advance or upon delivery and/or otherwise modify credit terms. When partial shipments are made, payments therefor shall become due in accordance with the designated terms upon submission of invoices therefore. Any invoice unpaid by Customer within thirty (3) calendar days after due date shall be subject to a late fee of one and one-half percent (1.5%) monthly (18% per annum). Seller’s failure to demand payment of late fees shall not constitute a waiver of Seller to do so later. Furthermore, such demand, if made, shall not alter the obligation of Seller with regard to said order. Should Customer become delinquent in the payment of any sum due hereunder, Seller shall not be further obligated to continue performance. Customer shall pay all reasonable costs and expenses, including attorney and collection fees, incurred by Seller in connection with any amounts not timely paid by Customer for goods ordered.
  3. DELIVERY:Scheduled shipping dates are approximate. If conditions arise that prevent compliance with the scheduled delivery, Seller shall not be liable for any damage or penalty for delay in delivery, or for failure to give notice of delay. Without limiting the generality of the foregoing, Seller shall not be liable for delay by reason or inability, due to causes beyond its reasonable control, to obtain the necessary labor, materials or manufacturing facilities, or for delays due to elements, acts of God, acts of the Customer, acts of civil or military authorities, fines, floods, epidemics, quarantine restrictions, war, riot, strikes, accidents to machinery, delays in transportation, or any other causes beyond the control of Seller, whether or not similar to the foregoing. In any such event, the scheduled delivery dates shall be deemed extended for a period equal to such delay.
  4. INSPECTION AND REJECTION OF NONCONFORMING GOODS: (a) Customer shall inspect the goods received from Seller within five (5) days of receipt (“Inspection Period”) for all visible and inspectable defects (e.g., dents, scratches, paint issues, etc.). Customer will be deemed to have accepted such goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes sufficient evidence of such defects to Seller. “Nonconforming Goods” means only the following: (i) good shipped is different than identified in Customer’s purchase order; or (ii) good’s label or packaging incorrectly identifies its contents. (b)  If Customer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) 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 Customer in connection therewith. Customer shall ship, at its expense and risk of loss, the Nonconforming Goods to the facility specified by Seller. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Customer’s shipment of Nonconforming Goods, ship to Customer, at Customer’s expense and risk of loss, the replaced goods. (c)  Customer agrees and acknowledges that any legal action against the Seller related to these Terms, any invoice from Seller, and/or any Nonconforming Goods shall be commenced within nine (9) months from the date such claim or issue arose.  (d)  Customer acknowledges and agrees that the remedies set forth in Section 4(b) are Customer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 4(b), all sales of goods to Customer are made on a one-way basis and Customer has no right to return goods purchased under these Terms to Seller.
  5. TITLE AND RISK OF LOSS:All prices are FOB Seller’s plant, unless otherwise specified on the face of this document. Title to, and risk of, loss of each good to be delivered by Seller to Customer shall pass from Seller to Customer upon delivery thereof by Seller to the carrier or delivery service, regardless of which party pays the freight.
  6. INTELLECTUAL PROPERTY: (a) All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights in and to all documents, work product and other materials that are delivered to Customer under, or in connection with, any invoice or prepared by or on behalf of the Seller, including any items identified as such in the RFP, shall be owned exclusively by Seller.  (b) Customer agrees, at its expense, to indemnify, defend, and hold harmless Seller, its subsidiaries, affiliates, successors, or assigns and their respective directors, officers, shareholders, and employees and Seller’s customers and users, against any and all liability, loss and expense  (including attorney’s fees), by reason of any claim, action or litigation arising out of or related to any breach of this section of the Terms.
  7. CONFIDENTIAL INFORMATION: (a) All non-public, confidential, or proprietary information of Seller, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by Seller to Customer, 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 Customer is confidential, and shall not be disclosed or copied by Customer without the prior written consent of Seller. Confidential Information does not include information that is: (i)   in the public domain; (ii)  known to Customer at the time of disclosure without obligation of confidentiality to Seller; or (iii) rightfully obtained by Customer on a non-confidential basis from a third party. (b)  Confidential Information furnished to Customer by Seller pursuant to these Terms shall in no event become the property of Customer.  Seller’s provision of Confidential Information shall not be construed as granting any rights whatsoever, express or implied, under any intellectual property of Seller.  (c)  Seller shall be entitled to injunctive relief for any violation of this Section.
  8. INDEMNIFICATION: Customer shall indemnify, defend, and hold harmless Seller, its subsidiaries, affiliates, successors or assigns and their respective directors, officers, shareholders, and employees, and Seller’s customers (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 Customer’s negligence, willful misconduct, or breach of these Terms.
  9. TERMINATION: (a) Seller may terminate any invoice with immediate effect upon written notice to Customer, if Customer:  (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) Customer shall indemnify Seller 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 Seller with the foregoing.
  10. LIMITATION OF LIABILITY: (a)  IN NO EVENT SHALL SELLER BE LIABLE TO CUSTOMER 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 SELLER 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 SELLER’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 PAID TO SELLER FOR THE GOODS SOLD HEREUNDER. (c)  The limitation of liability set forth in Section 10(b) above shall not apply to liability resulting from Seller’s gross negligence or willful misconduct.
  11. WAIVER: No waiver by Seller of any provision of these Terms shall be effective unless explicitly set forth in writing and signed by Seller.  A failure by Seller 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.
  12. FORCE MAJEURE: Seller shall not be liable for a failure to perform hereunder arising from causes or events beyond the reasonable control and without Seller’s fault or negligence and which by their nature could not have been reasonably foreseen by Seller or, if they could have been foreseen, were unavoidable, including but not limited to, labor disputes of any kind, fires or accidents.
  13. 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 Customer without first obtaining the written consent of the Seller, 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 Customer of any of its obligations hereunder.  Seller may, at any time, assign, transfer, or subcontract any or all of its rights or obligations under these Terms without Customer’s prior written consent.
  14. COMPLIANCE WITH LAW: Customer shall comply with all applicable laws, regulations and ordinances. Customer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms.  Customer 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 Customer. Customer assumes all responsibility for shipments of goods requiring any government import clearance. Seller may terminate these Terms if any governmental authority imposes antidumping or countervailing duties or any other penalties on goods
  15. 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.
  16. 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.
  17. 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 Seller brings any legal action or other proceeding in connection with these Terms or any related invoice, Seller 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.
  18. 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.
  19. 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.
  20. 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.
  21. 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).
  22. 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.