TERMS AND CONDITIONS OF PURCHASE
THESE TERMS AND CONDITIONS APPLY TO ALL PRODUCTS AND SERVICES PROVIDED BY QMOTION INCORPORATED.
1. CONDITION OF SALE. SALE AND DELIVERY OF PRODUCTS AND SERVICES BY MANUFACTURER ARE CONDITIONED ON DEALER'S ACCEPTANCE OF THE TERMS AND CONDITIONS SET FORTH IN THIS DOCUMENT. BY PLACING AN ORDER WITH MANUFACTURER, DEALER ACCEPTS ALL OF THESE TERMS AND CONDITIONS AND AGREES TO WAIVE ALL OTHER TERMS AND CONDITIONS SET FORTH IN ANY OF DEALER’S DOCUMENTS. THESE TERMS AND CONDITIONS SHALL TAKE PRECEDENCE OVER ALL OTHER TERMS AND CONDITIONS. NO ADDITIONAL OR DIFFERENT TERMS OFFERED BY DEALER SHALL BE OR BECOME PART OF THE CONTRACT BETWEEN DEALER AND MANUFACTURER, AND ANY SUCH TERMS ARE HEREBY REJECTED. THE MANUFACTURER. ALL ORDERS, INCLUDING THOSE PLACED BY DEALER ELECTRONICALLY, SHALL BE DEEMED TO INCORPORATE AND SHALL BE SUBJECT TO MANUFACTURER'S TERMS AND CONDITIONS SET FORTH HEREIN. *AS USED HEREIN, THE TERM “MANUFACTURER” MEANS QMOTION INCORPORATED, AND ITS DIVISIONS; AND THE TERM “DEALER” MEANS ANY PERSON OR ENTITY PLACING AN ORDER WITH MANUFACTURER, REGARDLESS OF DEALER’S POSITION IN THE MARKETPLACE.
2. Orders. Dealer acknowledges all information entered in any Direct Order Entry (“DOE”) system have been entered
accurately, and does hereby release Manufacturer to manufacture items exactly as entered and appearing in the DOE
system. Dealer expressly consents to issuing orders and communicating with Manufacturer electronically via e-mail,
facsimile, or other automated ordering system which Manufacturer may request from time to time. All orders placed by
telephone are subject to a risk of error, which risk Dealer hereby accepts. Manufacturer shall not be liable for any error
placed in person or by telephone. All duplicate orders are the sole responsibility of Dealer. Orders are not subject to
cancellation without the consent of the Manufacturer, which consent Manufacturer may withhold in its absolute
discretion. No completed order may be cancelled.
3. Prices. All prices for products are subject to change or withdrawal without notice. Unless otherwise stated by
Manufacturer, prices, terms of payment and pricing policies will be those set forth in Manufacturer's published price list
or Manufacturer's pricing policies in effect at the time of shipment. Acknowledged prices on non-standard products
may be subject to change. All pricing is subject to surcharges for increased energy costs, raw material increases, and
increased shipping charges on components which are supplied by third parties.
4. Credit Approval. All orders are subject to credit approval. Manufacturer shall not be liable for any delays in shipment
resulting from a credit-related problem. Manufacturer will rely upon the information in all credit applications and
failure of such information to be complete and accurate shall constitute an immediate breach of Manufacturer’s contract
with Dealer. All sales and shipments are subject at all times to credit approval by Manufacturer. Until credit is
accepted by Manufacturer, all orders must be paid in full upon placing the order. Unless otherwise provided in writing
by Manufacturer, standard credit terms require payment in full within thirty (30) days after the date of invoice.
5. Taxes. Any taxes which Manufacturer may be required to pay or collect upon the sale, delivery, storage, processing,
use or consumption of any of the products covered hereby shall be for the account of Dealer who shall promptly pay the
amount thereof to Manufacturer upon demand.
6. Freight. Unless otherwise stated herein, all products are F.O.B. Manufacturer's plant and all freight and shipping
charges shall be paid by Dealer. All freight for products shipped within the continental U.S. shall be prepaid by Dealer.
All shipments outside the continental U.S., and shipments of accessory orders, shall be subject to additional freight
charges. Manufacturer reserves the right to select the method of shipment. Dealer shall pay all freight charges
associated with returns, repairs, or replacements, unless otherwise agreed by Manufacturer in writing. All returns for
repair, unless otherwise herein provide are subject to freight charges.
7. Defective Product. All defective product must be reported to Manufacturer within ten (10) days after Dealer takes
delivery of the product. All defective product not so reported shall be deemed accepted by Dealer, in which case
Manufacturer shall have no further responsibility in connection therewith. Dealer must contact Manufacturer’s
customer service before returning any product for repair and must receive a return authorization (“RA”) number from
Manufacturer. No product may be returned to Manufacturer without an RA number. Subject to all limited warranty
provisions issued now or in the future, any product which no cost to Dealer. In the event that a product is manufactured
incorrectly as a result of Dealer’s error, Dealer shall be charged, and will be responsible, for the full cost of the original
order plus the replacement order.
8. Performance. Manufacturer shall not be held responsible for any delay in performance of any contract resulting in
whole or in part from, or made impossible or impracticable by, any cause beyond the control of Manufacturer,
including, but not limited to, fire, explosion, accident, breakdown, strike, terrorist activity, adverse weather conditions,
failure or refusal of any carrier to transport thereof, failure of any source of supply to honor orders within time period,
customarily or heretofore experienced by Manufacturer in the trade, shortage or lack of material, fuel, power,
transportation media, sale or transfer of manufacturing facilities, embargo or any act of nature or action or request of
any governmental authority, failure or refusal of any carrier or contractor, any contingency or delay or failure or cause
beyond Manufacturer's control.
9. Shipping. Specified shipping dates are based upon Manufacturer's estimates, are approximations only and cannot be
guaranteed. Manufacturer shall have no responsibility or liability for damages that may be incurred due to delay in
shipment of product. In the event that freight damage is visible upon Dealer’s receipt of the product, Dealer is
instructed to refuse acceptance of the shipment and immediately report the incident (with Dealer’s order number) to
Manufacturer’s customer service.
10. Service Charge and Interest. All past due amounts on any invoice will accrue INTEREST until paid in full at the rate
of 1.5% per month (18% per annum) unless prohibited by applicable law. In the event such interest may not be charged
under applicable state or federal law, then the maximum amount of service charge permitted by applicable state or
federal law shall be charged. Buyer agrees to pay or reimburse QMotion for any and all costs, collection agency commissions
(which can be up to 35% - 40% or more of the Buyer’s past due balance), expenses and all reasonable attorney fees incurred
in any manner by QMotion should QMotion be required to undertake collection activity (including litigation or arbitration) to
secure or collect payment of any amount owed by Buyer.
11. Return of Material. Without limiting any other provision of these terms and conditions, returned material will be
subject to Manufacturer’s prior approval; all unauthorized returns will be refused. Custom manufactured orders are
non-returnable. All other standard product returned must be in re-salable condition, undamaged and in standard
inventory packages, where applicable. All returned product will be subject to a 25% restocking charge. No product
may be returned unless: i) the product is packaged to avoid damage to the product (in original packaging whenever
possible), ii) a written explanation of the defect is included in the packaging, and iii) an RA number is clearly marked
on the outside packaging. No product that has been mis-handled or damaged, or which does not comply with these
terms and conditions will be accepted by Manufacturer, and Manufacturer will have no responsibility for such product.
12. Cancellation of Order. Upon Manufacturer’s receipt of a purchase order from Dealer, Manufacturer will issue a
Confirmation of the purchase order. Upon approval of the Confirmation by the Dealer, custom manufactured products
shall be deemed non-cancellable and the Dealer will be responsible for payment of the entire contract price. Standard
product may be cancelled at Manufacturer’s sole discretion by written consent, and a cancellation charge of twenty
percent (20%) of the those items be paid by Dealer to Manufacturer as liquidated damages.
13. Payment. Payment is due and payable according to the terms of this document and as set forth on any invoice Terms of
payment are as specified on the front side hereof. Sales tax, transportation, and labor are not subject to cash discounts.
Cash discounts shall be allowed only within the discount period as specified. If not specified, the net amount shall be
due 30 days following the date of invoice. Upon Dealer's failure to make payment within the specified terms of
payment, Manufacturer may, without notice, accelerate and declare Dealer's entire unpaid balance due and owing,
including therewith sums due for goods that have shipped but for which the stated payment term has not expired. Any
check sent as payment for this order may be converted to an electronic format for presentation to seller’s bank.
Pursuant to current Florida law for any check(s) returned not paid the following fees as appropriate will be added to the
check amount: a $25.00 fee if check amount is under $50.00; a $30.00 fee if check exceeds $50.00 but less than
$300.00; a $40.00 fee or 5% of the check amount, whichever is greater, if check amount exceeds $300.00; or the
maximum fee allowable by law. Dealer may request, in writing to seller, alternate forms of presentation. NO
CHARGE BACKS ARE PERMITTED BY DEALER FOR ANY REASON, INCLUDING COSTS INCURRED BY
DEALER FOR ADDITIONAL INSTALLATION EXPENSES, TRIPS TO THE JOB, REPAIRS, OR OTHERWISE.
14. Indemnification. Dealer hereby agrees on behalf of itself and its successors and assigns, to defend, indemnify, and hold
Manufacturer and its shareholders, officers, directors, employees and agents, and the heirs, successors and assigns of
the foregoing (collectively the “Indemnified Parties”) harmless against all loss, claims, damages, lawsuits, judgments,
liabilities or expenses, including, without limitation, attorneys fees and expenses, incurred as a result of or arising out of:
(1) Dealer’s breach of this Agreement; (2) Dealer’s and/or its agent’s or contractors transportation, installation,
improper storage, unauthorized service, alteration of the product; and (3) Dealer’s removal, neglect, abuse and use of
product in a manner inconsistent with the product’s design or intended use.
15. Consensual Lien. As security for all amounts which Dealer owes Manufacturer at any time, Dealer hereby irrevocably
grants and conveys to Manufacturer, and its successors and assigns, a lien on: (a) all product in Dealer’s possession or
control sold to Dealer by Manufacturer, whether or not the amounts owing and hereby secured represent the purchase
price for the products to which this lien attaches; (b) all cash, equipment, inventory (whether or not purchased from
Manufacturer), bank deposits, accounts, accounts receivable, and all amounts which any third party may owe to Dealer.
Dealer hereby consents to the filing a UCC Financing Statement, and to all other legal actions, in order to perfect the
security interests herein granted. Dealer hereby grants to Manufacturer, and its agent, an irrevocable license, coupled
with an interest, to enter upon Dealer’s premises at any time, during or after business hours, to repossess all of said
property (whether or not purchased from Manufacturer) subject to this security interest, without legal action or due
process. Upon exercise of the rights under this paragraph to repossess the product, Manufacturer, in its sole and
absolute discretion, may: i) elect to credit Dealer’s unpaid account for the value to Manufacturer of the product at the
time of repossession, as if sold in a distressed sale outside the ordinary course of business, without actually selling said
product; or ii)Manufacturer may sell the repossessed product in any manner which it deems appropriate for any amount
which is acceptable to Manufacturer under the circumstances, and such amounts shall be credited against Dealer’s
account. Dealer hereby waives any objection, cause of action, lawsuit, and/or damages arising in connection with
repossession of the product, sale of the product, or exercise of the rights created by these Terms and Conditions
16. Additional Terms. The terms and conditions set forth herein shall constitute the sole agreement between Dealer and
Manufacturer. Any changes which Dealer request shall be authorized only if in writing and signed by Manufacturer.
These terms and conditions shall be binding upon and inure to the benefit of the respective parties, their successors,
representatives and assigns. The contract between Dealer and Manufacturer, and these Terms and Conditions, shall be
governed by and determined in accordance with the laws of the State of Ohio. Dealer, its successors and assigns, by
and through the placement of an order for Manufacturer's product, or by accepting said product, hereby waives its right
to remove from state to federal court, consents to the exclusive jurisdiction of the Pensacola, Escambia County, Florida,
or Stark County, Ohio, or such other forum as Manufacturer may select to hear and settle any dispute arising from the
terms hereof or any dispute arising in connection with any product sold by Manufacturer to Dealer. Should any term or
condition above, or any portion thereof, be invalid or inapplicable, the balance of such terms and conditions shall
govern. Any waiver or failure of Manufacturer to require strict compliance with the provisions of any agreement by
and between Dealer and Manufacturer in any respect shall not be deemed a waiver of Manufacturer's right to insist upon
strict compliance in other respects or thereafter in the same respect. Manufacturer shall not be liable to Dealer (or
Dealer’s customer) for any consequential damages or any amount in excess of the purchase price of the product sold to