Terms and Conditions

TERMS AND CONDITIONS OF SALE
These terms and conditions of sale (“Terms and Conditions”) apply to all sales of product
and services (“Products”) made by The Gatestone Group, LLC (“Gatestone”) to you
(“Purchaser”). Purchaser’s acceptance of these Terms and Conditions shall be made by
either (i) Purchaser providing a purchase order to Gatestone or (ii) Gatestone’s acceptance
of any Product from Purchaser, whichever occurs first.
1. ENTIRE AGREEMENT. Notwithstanding any different or additional terms or
conditions contained in Purchaser’s purchase order or other communication, Gatestone
accepts Purchaser’s order only on the condition that Purchaser expressly accepts these
Terms and Conditions. In the absence of Purchaser’s acceptance hereof, Gatestone’s
commencement of performance or Gatestone’s acknowledgment of Purchaser’s purchase
order shall be for Purchaser’s convenience only and shall not be construed as Gatestone’s
acceptance of any of Purchaser’s terms. Any confirmation by Purchaser that states different
or additional terms shall operate as an acceptance of these terms, but Gatestone hereby
objects to and rejects such different or additional terms and any such different or additional
terms shall be deemed to be material alterations and notice of objection to them is hereby
given. Purchaser’s acceptance of any Products and/or Services shall be deemed to be
acceptance of these Terms and Conditions. Gatestone hereby objects to any additional,
contradictory or different terms contained in any initial or subsequent order or
communication from Purchaser pertaining to the Products and/or Services. Any notice by
Purchaser objecting to these terms must be in writing separate from any form purchase
order. Gatestone’s failure to object specifically to provisions contained in any
communication from Purchaser shall not be deemed a waiver of these Terms and
Conditions.
2. PRICE. Gatestone’s written price quotations are valid for the length of time, if
any, indicated on the quotation; if no length of time is specified, quotations are subject to
change at any time after issuance due to price or discount changes by Gatestone’s supplier.
Prices do not include shipping, handling, special packing and insurance charges and
Purchaser agrees to pay such charges. Prices for backordered items are not guaranteed.
3. ORDERING. All orders for Products will be evidenced by a purchase order,
which must identify, at a minimum, the Products being ordered and the quantity of such
Products, request a delivery date, and provide shipping instructions and shipping address.
All orders for Products and Services are subject to approval by Gatestone.
4. SHIPMENT AND DELIVERY. Products are shipped FOB origin. Product title
and risk of loss will transfer to Purchaser upon Gatestone tendering the Product for delivery
to the carrier. Unless Purchaser requests expedited delivery and provides Gatestone with
its carrier account number, choice of carrier and shipping method shall be at Gatestone’s
election. If Purchaser chooses the carrier, Purchaser shall bear all risk of loss in transit and
is responsible for filing claims with the carrier and all freight and handling costs. Gatestone
shall have the right to deliver all Products in an Order at one time or in partial shipments
within the agreed-upon time for delivery. Gatestone shall not be liable for delays in delivery
or for other failure to perform due to causes beyond the reasonable control of Gatestone,
including, but not limited to, force majeure, acts of God, acts or omissions of Purchaser, acts
of civil or military authorities, fire, strikes, power surges or outages, epidemics, quarantine
restrictions, flood, natural disasters, riot, war, delays in transportation or inability to obtain
necessary labor, materials or supplies. In the event of any such delay, the set date of
delivery, if any, shall be extended for a reasonable period or the delivery may be canceled
at Gatestone’s option.
5. CANCELLATION AND RESCHEDULING. Purchaser may cancel or
reschedule orders only with Gatestone’s written consent, which may be withheld for any
reason. If Gatestone consents to the cancellation or re-scheduling of an order, Purchaser
agrees to pay Gatestone any restocking fees and cancellation charges assessed by
Gatestone’s supplier.
6. INVOICING, CREDIT AND PAYMENT TERMS. Gatestone will invoice
Purchaser upon shipment of Products. Purchaser shall furnish to Gatestone all financial
information reasonably requested by Gatestone from time to time for the purpose of
establishing or continuing Purchaser’s credit limit. Purchaser agrees that Gatestone shall
have the right to decline to extend credit to Purchaser and to required that the applicable
purchase price be paid prior to shipment. Gatestone shall have the right, without notice, to
change or revoke Purchaser’s credit limit on the basis of changes in Gatestone’s credit
policies or Purchaser’s financial condition and/or payment record. Purchaser shall pay (and
prices do not include) all sales, use, services, excise, tariffs, duties or similar taxes or
charges unless Purchaser provides Gatestone with a valid tax exemption certificate(s) prior
to shipment. Purchaser’s outstanding unpaid balances shall be subject to a finance charge
of 1-1/2% per month (or such lower rate as may be the maximum permitted by law) until
paid in full. Purchaser shall also pay Gatestone’s cost of collection (including reasonable
attorney’s fees). Purchaser shall not offset any amounts due to Purchaser from Gatestone
against any of Gatestone’s invoices. To secure the payment of the purchase price of
Products sold, Purchaser grants Gatestone a purchase money security interest in all
Products sold under this Agreement whether constituting equipment, inventory, goods,
fixtures, payment intangibles and/or general intangibles, including all accessions to and
replacements thereof, and all proceeds of the foregoing. Purchaser authorizes Gatestone
to file one or more financing statements signed only by Gatestone without Purchaser’s
signature and to use a copy of this Agreement as an exhibit to any financing statement.
Upon Gatestone’s request, Purchaser shall execute any additional documents, instruments,
financing statements or amendments to perfect or continue the security interest created by
this Agreement. Gatestone shall have all of the rights and remedies of a secured party
under the Uniform Commercial Code in effect in the State of Ohio from time to time, which
remedies shall be cumulative and not exclusive. Any obligation of Purchaser under these
terms and conditions to deliver Products on credit terms shall terminate without notice if
Purchaser files a voluntary petition under a bankruptcy statute, or makes an assignment for
the benefit of creditors, or if an involuntary petition under a bankruptcy statute is filed
against Purchaser, or if a receiver or trustee is appointed to take possession of the assets of
Purchaser.
7. ACCEPTANCE. Upon receipt of Products, Purchaser agrees to promptly
inspect and/or test Products. Products shall be deemed accepted by Purchaser unless
Purchaser provides Gatestone, within 5 business days of delivery, a written notice
specifying all defects or discrepancies in the quality or quantity of Products.
8. RETURNS. Defective or damaged products may be returned only with
Gatestone’s prior consent. Upon confirmation of a right to return, Gatestone shall issue, or
facilitate with Gatestone’s supplier, a Return Material Authorization (“RMA”) number.
Purchaser shall return Products freight prepaid, in accordance with Gatestone’s instructions,
in the original packaging and in good condition, without alteration. Purchaser assumes risk
of loss for returned Products until receipt by Gatestone or its supplier at the designated
return location. Upon receipt of returned Products which comply with this Section,
Gatestone has the right to issue and Purchaser agrees to accept a credit memo in the
amount of the value of the returned Products which may be used as a credit toward future
purchases for a period of one (1) year after issuance.
9. WARRANTY. Product warranties, if any, are provided by the manufacturer or
publisher of the Products. Gatestone makes no warranty regarding the Products.
GATESTONE MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING (i) THE
MERCHANTABILITY OF PRODUCTS, (ii) THE FITNESS OF PRODUCTS FOR ANY
PARTICULAR PURPOSE OR USE, (iii) ANY COURSE OF DEALING, COURSE OF
PERFORMANCE OR USAGE OF TRADE, (v) NONINFRINGEMENT. Purchaser’s sole and
exclusive remedy for Products not conforming to the manufacturer or publisher’s warranty
shall be, at Gatestone’s option, the replacement or repair of defective Products.
10. LIMITATION OF LIABILITY. IN NO EVENT SHALL GATESTONE’S
LIABILITY ARISING IN CONNECTION WITH OR UNDER THESE TERMS AND
CONDITIONS (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT, TORT,
MISREPRESENTATION, FRAUD, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR
ANY OTHER THEORY OF LAW) EXCEED THE PURCHASE PRICE OF THE PRODUCTS
AND/OR SERVICES. PURCHASER SHALL IN NO EVENT BE ENTITLED TO, AND
GATESTONE SHALL NOT BE LIABLE FOR, INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO,
LOSS OF PROFIT, PROMOTIONAL AND/OR MANUFACTURING EXPENSES,
OVERHEAD, INJURY TO REPUTATION AND/OR LOSS OF CUSTOMERS OR DATA.
11. INTELLECTUAL PROPERTY. Gatestone shall have no liability or obligation
to Purchaser in connection with any claim arising from the infringement of any patent,
trademark, copyright or other proprietary right or information related to the Products.
12. ADVICE. If technical advice is offered or provided in connection with the sale
of any Products, it is provided as an accommodation to Purchaser, without charge, and
Gatestone does not warrant and has no responsibility or liability whatsoever for the content
of or use of such advice.
13. SOFTWARE. The sale of software requires Purchaser’s agreement to the
software licensor’s terms as specified in the applicable licensing agreement.
14. COMPLIANCE WITH U.S. EXPORT LAWS. Purchaser acknowledges that
the Products are controlled for export by the U.S. Department of Commerce and that the
Products may require authorization prior to export from the United States. Purchaser
agrees that it will not export or distribute Products in violation of any U.S. export control laws
or regulations. Purchaser warrants that it will not export any Products with knowledge that
they will be used in the design, development, production, or use of chemical, biological,
nuclear, or ballistic weapons, or in a facility engaged in such activities, unless Purchaser
has obtained prior approval from the Department of Commerce. Purchaser further warrants
that it will not export, directly or indirectly, any Products to embargoed countries or to
companies or individuals listed on the Denied Persons List published by the Department of
Commerce.
15. CHOICE OF LAW AND VENUE. This Agreement shall be governed by the
laws of the State of Ohio and incorporates the terms of the Uniform Electronic Transactions
Act as enacted in Sections 1306.01 et. seq. of the Ohio Revised Code, including, but not
limited to, the definitions of “Electronic Record”, “Electronic Signature”, and “Contract”,
whether or not capitalized herein. This Agreement shall not be governed by the UN
Convention on the International Sale of Goods. All unresolved disputes concerning the sale
of Products by Gatestone to Purchaser shall be resolved in the state Court of Common
Pleas of the State of Ohio, Franklin County. Purchaser consents and agrees that
jurisdiction and venue for such proceedings shall lie exclusively with such courts. Purchaser
expressly waives its right to trial by jury. No action or other claim, regardless of form, arising
out of or in any way connected with or related to Products, may be brought by Purchaser
more than one (1) year after the cause of action or claim has accrued.
16. MISCELLANEOUS. All agreements, covenants, conditions and provisions
contained herein shall apply to and bind the successors in interest and permitted assignees
of Gatestone and Purchaser. These Terms and Conditions are not assignable by
Purchaser without Gatestone’s prior written consent. Facsimile signatures or other reliable
means of authentication by which Purchaser signifies its assent to these Terms and
Conditions shall be effective to bind Purchaser. The waiver by Gatestone of any breach or
default shall not be deemed to be a waiver of any later breach or default. The exercise or
failure to exercise any remedy shall not preclude the exercise of that remedy at another time
or of any other remedy at any time. If any provision or portion of this Agreement is held to
be invalid, illegal, unconscionable or unenforceable, the other provisions and portions shall
not be affected. The headings are used for the convenience of the parties only and shall
not affect the construction or interpretation of this Agreement. Any clerical errors are
subject to correction.