ABC INDUSTRIES, INC.
TERMS AND CONDITIONS OF PURCHASE
(a) Acceptance. Notwithstanding any conflicting terms of any quotation, proposal, or acceptance of Seller, as to the goods and/or services which are the subject matter hereof (collectively, the “goods”), this Purchase Order (i) supersedes all prior communications and agreements between Buyer and Seller and represents their entire agreement; (ii) is revocable, in whole or in part, at any time prior to its acceptance by Seller; (iii) becomes a binding contract upon the terms and conditions set forth herein by Seller’s acknowledgment or Seller’s commencement of performance; and (iv) may not be amended except in writing signed by Buyer.
(b) Changes. Buyer may at any time, by written direction, and without notice to any sureties or assignees, make changes in the drawings, specifications, quantities, delivery schedules, methods of shipment, or packaging. Should any such change increase or reduce the cost of, or the time required for performance of, this Purchase Order, an equitable adjustment will be made in the contract price or delivery schedule; provided, however, that any requests for an increase in the contract price or an extension in delivery schedule must be made within ten (10) working days from the date of such written direction. Failure to agree upon an equitable adjustment shall not relieve the Seller from proceeding without delay in performance under the Purchase Order, as changed.
(c) Termination. Prior to shipment, Buyer may terminate this Purchase Order in whole or in part, without cause, liability, or expense. After shipment, Buyer may terminate this Purchase Order, in whole or in part, without cause, subject to any valid termination claim submitted by Seller to Buyer within sixty (60) days after the date of termination. Prior to or after shipment, Buyer may, in addition to any other right or remedy under this Purchase Order at law or in equity, terminate this Purchase Order, in whole or in part, with cause and without liability or expense, if (i) Seller fails to make any delivery in accordance with the agreed delivery date or schedule or otherwise fails to comply with any of the other instructions, terms, conditions, or warranties applicable to this Purchase Order; (ii) fails to make progress so as to endanger timely performance of this Purchase Order; (iii) in the event of any proceedings by or against Seller under bankruptcy or insolvency laws, or laws for the reorganization or rehabilitation of a debtor; or (iv) if a receiver or trustee is appointed or an assignment for the benefit of creditors is made. Any notice of termination shall be in writing. In the event of termination for cause, Buyer may acquire like goods elsewhere on such terms or in such manner as Buyer may deem appropriate, and Seller shall be liable to Buyer for any excess cost and all expenses incurred by Buyer in acquiring such alternative goods, and for any other loss, damage, and expense resulting to Buyer by reason of such termination for cause.
2. PACKING, SHIPMENT, AND DELIVERY
(a) Inspection. Buyer reserves the right to inspect all goods prior to shipment by Seller, and Seller shall permit access to Seller’s facilities and all drawings, specifications, and other technical data applicable to the goods ordered at all reasonable hours for such purpose. Defective goods may be returned for credit or replacement at Seller’s expense. Buyer’s inspection, or its lack of inspection, shall not affect any express or implied warranties.
(b) Drawings and Technical Data. Seller shall, on or before delivery of any goods, supply any and all printed materials, such as catalogs, drawings, cuts, certified prints, characteristic curves, parts lists, service and technical manuals, and diagrams relating to such goods. The failure of Seller to deliver the foregoing printed materials required shall constitute a basis for nonpayment of the price of the goods until delivery is made. Seller shall furnish Buyer with accurate data defining the quality and physical properties within each shipment. For special finishes such as Flame Retardants, Mildew Resistance, or Water Repellents, Seller shall furnish valid certification of content.
(c) Packing and Shipping. At Seller’s expense, Seller shall: (i) ship only as specified herein and in strict conformity with governing law; (ii) pack and prepare all goods to meet carrier requirements and to safeguard against damage; and (iii) mark each package to show Purchase Order number and include a packing sheet in each package.
(d) Delivery and Risk of Loss. Buyer and its customers are dependent upon delivery of the goods on the required delivery date shown on the face hereof. Therefore, time is of the essence. Seller shall be responsible for all damages of any kind incurred by Buyer which are caused by any delay of Seller in making deliveries. Seller agrees to notify Buyer immediately if at any time it appears that Seller may not meet the delivery schedule. Such notification shall include the reasons for the delay, the steps being taken to remedy the delay, and the schedule Seller believes it will be able to meet. Buyer’s receipt of notice shall not constitute approval of the delay or the proposed revised delivery schedule or a waiver of the delivery schedule in the Purchase Order. Any assistance furnished by Buyer to overcome delays shall not be regarded as waiving Buyer’s remedies for default, including termination rights, if Seller fails to meet schedule. Identification of the goods under Section 2-501 of the Uniform Commercial Code shall occur at the moment Seller accepts this Purchase Order. Seller shall not be excused from performing its obligations hereunder if the goods identified are destroyed. Delivery shall not be deemed complete until the goods have been actually received by Buyer at destination. The risk of loss and damage in transit shall be upon Seller and shall not pass to buyer until received at Buyer’s facility in the condition required by this Purchase Order. The cost of all return shipments shall be borne by Seller.
3. PRICING AND PAYMENT
(a) Pricing. If the price is not shown on the face of this Purchase Order, Seller will furnish the goods ordered at no higher prices than those at which such goods were last purchased, unless otherwise expressly authorized in writing by Buyer. Whether or not the price appears on the face of this Purchase Order, Seller agrees that the price of the goods is the lowest prevailing price to any purchaser of commodities of like grade and quality and that Buyer will be given the benefit of any price reductions prior to shipment. Buyer reserves the right to reject price increases during the life of this Purchase Order by canceling the remainder of this Purchase Order.
(b) Taxes. Except as otherwise specified herein or as prohibited by law, Seller shall pay all sales, use, excise, or other taxes or withholdings, federal, state, and local, that may be levied upon any of the goods or the parties hereto by reason of the sale, delivery, or use of the goods. All taxes of any nature which are billed to Buyer shall be specifically identified and separately stated. If any tax added to the price paid by Buyer is subsequently refunded to Seller, Seller shall promptly pay to Buyer the amount of such refund.
(c) Payments and Discounts. Payments shall be made upon the submission of proper invoices for goods delivered and accepted. With respect to any discount offered, time shall be computed from the date of delivery or from the date a correct invoice is received by Buyer, whichever occurs later. Payment is deemed to be made, for the purpose of earning the discount, on the date Buyer’s check is mailed.
(d) Quantity. This Purchase Order must not be filled in greater quantities than shown without written approval of Buyer. Goods shipped in excess of the quantity specified in this Purchase Order will, at Buyer’s option, be returned at Seller’s expense.
(e) Invoices; Statements. Unless otherwise provided in this Purchase Order, no invoice shall be issued and no payment will be made prior to physical delivery of goods to Buyer. Individual invoices, in duplicate, showing this Purchase Order number, the description of goods, the number of cartons shipped, and the carrier and weight shall be issued for each shipment. One copy of each individual invoice must be plainly marked “ORIGINAL.” Shipping charges and all applicable taxes or charges for which Buyer has agreed to pay and has not furnished an exemption certificate shall be itemized separately on Seller’s invoices. Unless such charges are itemized, Buyer may take the applicable discount on the full amount of each invoice. Each invoice must be accompanied by: (i) the original bill of lading when shipment is made by freight or express; (ii) the delivery receipt when delivery is made by messenger or truck; and (iii) any receipted bill for transportation charges when such charges are added to invoice. Invoices, shipping notices, and bills of lading shall be mailed within 24 hours after shipment. Payment of an invoice shall not constitute acceptance of goods and shall be without prejudice to claims of Buyer.
(f) Limitation of Buyer’s Liability. Seller agrees that in the event of breach by Buyer, Seller’s recovery shall be limited to Seller’s actual damages, which shall in no event exceed the purchase price.
4. WARRANTIES AND INDEMNITIES
(a) Warranties. All warranties of Seller, implied or at law, are incorporated herein by reference and shall include, and are hereby supplemented by, the following express warranties: (i) the goods comply with any and all specifications, drawings, samples, or other descriptions furnished by Buyer; (ii) the goods are merchantable, of good material and workmanship, free from defects, suitable for their intended purpose, and in compliance with law; and (iii) the manufacture and sale by Seller of the goods, the use, resale, installation, and intended use of the goods by Buyer, and disclosures by Seller to Buyer hereunder do not infringe upon or violate the legal or equitable rights of any person or entity arising out of any license or franchise, or out of any patent, trademark, trade name, trade secret, copyright, or other proprietary right (collectively, “Proprietary Rights”). Such warranties, together with any service warranties or guarantees, shall run in favor of Buyer and its successors and assigns, including, without limitation, all customers and subsequent owners of the goods or end products of which the goods become part.
(b) Inspection and Rejection. Notwithstanding any earlier inspection, all items ordered will be subject to final inspection and approval at destination. If any of the items are found at any time to be defective in design, material, or workmanship, unsuitable for intended purposes, or otherwise not in conformity with the requirements of this Purchase Order or Seller’s warranties, Buyer shall have the right to reject future shipments and reject and return, at Seller’s risk and expense, or to hold the goods delivered for Seller’s instructions at Seller’s risk and expense. Buyer reserves the right to charge to the Seller any cost of inspection and tests when goods rendered for final inspection and acceptance do not comply with the requirements of this Purchase Order.
(c) Remedies. The remedies expressly provided for in these conditions shall be in addition to any other remedies which Buyer may have under the Uniform Commercial Code or other applicable laws.
(d) Indemnity. Seller hereby indemnifies and holds harmless Buyer and its successors, assigns, properties, and customers from and against any claims, liabilities, losses, damages, liens, injury to persons (including agent and employees of Buyer), damage to property, judgments, costs, and expenses, including, without limitation, costs, expenses, and attorneys’ fees, arising out of or relating to this Purchase Order, or the goods furnished hereunder, the performance of work pursuant hereto, the breach of any warranty or covenant herein (including, without limitation, the failure to comply with applicable law), or any claim or litigation based thereon, including, without limitation, claims or liabilities arising out of or in connection with any actual or alleged infringement of any Proprietary Right, whether or not the negligence of Buyer or Buyer’s customer was a contributing cause; and Seller, if requested to do so, shall defend, at its own expense, any such litigation.
(e) Setoff. Buyer shall be entitled at all times to set off any amount owing from Seller to Buyer against any amount payable hereunder by Buyer whether or not arising under this Purchase Order.
(f) Mechanic’s Liens. If Seller performs work on the premises of Buyer or one of its customers, Seller shall, at its expense: (i) keep the premises and work free and clear of all mechanic’s liens, and furnish Buyer proper affidavits and/or waivers certifying thereto; (ii) perform the work at Seller’s risk and replace all work damaged or destroyed by fire, force, or violence of the elements or any other cause whatsoever; (iii) comply with all federal, state, and local safety laws and codes while on Buyer’s premises and all safety rules and regulations established by Buyer; and (iv) maintain public liability, property damage, and employee’s liability and worker’s compensation insurance as will protect Buyer from risk.
(g) Liability for Damage to Buyer’s Property. Whenever Seller shall, by virtue hereof, have in its possession property of Buyer, Seller shall be responsible for its safe return to Buyer.
5. LEGAL COMPLIANCE AND GOVERNING LAW
(a) Legal Compliance. Seller warrants that the goods furnished hereunder will comply with all applicable federal and state laws and executive orders (and with regulations, orders, and standards thereunder), including but not limited to, Fair Labor Standards Act, the Equal Opportunity Act, the Occupational Safety and Health Act of 1970, the Civil Rights Act of 1964, the Resource Conservation and Recovery Act of 1976, the Federal Water Pollution Act, the Toxic Substances Control Act, the Clean Air Act, and U.S. Department of Transportation regulations, each as amended, to the extent of their applicability. Seller shall give Buyer all certificates, notices, and reports required or needed in such connection and to label all goods furnished hereunder as required by such applicable legislation, regulations, orders, or standards.
(b) Governing Law; Jurisdiction. This Purchase Order and all of its terms and conditions shall be governed by and interpreted pursuant to the laws of the State of Indiana, United States of America; provided, however, that the United Nations Convention or Contracts for the International Sale of Goods shall have no application to this Purchase Order. Seller hereby consents that any and all disputes relating to this Purchase Order or any products and services of Seller purchased hereby shall be litigated exclusively within the federal courts of the Northern District of Indiana or in courts of the State of Indiana located within the Northern District of Indiana.
6. CONFIDENTIAL INFORMATION AND BUYER’S PROPERTY
(a) Drawings, Specifications, and Technical Information. Drawings, data, designs, inventions, and other technical illustrations supplied by Buyer or specifically prepared at Buyer’s request shall remain Buyer’s property and shall be held in confidence by Seller. Such information shall not be reproduced, used, or disclosed to others by Seller without Buyer’s prior written consent, and shall be returned to Buyer, together with any copies, upon completion of this Purchase Order or upon demand. Any information which Seller may disclose to Buyer with respect to the design, manufacture, sale, or use of the items covered by this Purchase Order shall be deemed to have been disclosed as part of the consideration of this Purchase Order, and Seller shall not assert any claim (other than a claim for patent infringement) against Buyer by reason of Buyer’s use thereof.
(b) Advertising. Seller shall not, without first obtaining the written consent of Buyer, advertise, publish, or disclose any of the facts of, or the details connected with, this Purchase Order to any third party, except as may be required to perform this Purchase Order.
(c) Buyer’s Property. Buyer shall retain title to all property used by Seller but owned, furnished, charged to, or paid for by Buyer, and any replacement thereof. All such property shall be suitably identified and marked as Buyer’s property and shall be used only to fill Buyer’s Purchase Orders. Seller shall hold, maintain, and adequately insure such property at its risk and expense. Seller shall return any such property to Buyer upon demand in the original condition, consumables and reasonable wear-and-tear excepted.
(d) Inventions. Seller agrees to assign to Buyer the entire title and interest in all inventions, including all works capable of patent, trade secret, or copyright protection, made or first reduced to practice in the performance of this Purchase Order arising out of any engineering or development paid for by Buyer. Seller agrees not to disclose to others any information supplied by Buyer relative to this Purchase Order, and not to use such information in the supplying to others of similar goods.
7. PROVISIONS OF GENERAL APPLICATION
(a) Assignment. Neither this Purchase Order, nor any of the sums due or to become due, nor any other interest herein is assignable by Seller, voluntarily or involuntarily, nor shall any subcontract be made with, or other delegation of duties made to, any other party for the furnishing of any complete or substantially complete items, without Buyer’s prior written consent, and any such attempted delegation or assignment shall be void without Buyer’s prior written consent. Any such consent shall not be deemed as a waiver of any of Buyer’s rights to recoupment or set-off of claims arising out of this or any other transaction with Seller, its affiliates, or subsidiaries, or to adjust matters with Seller without notice to the assignee.
(b) Partial Invalidity. If any provision of this Purchase Order conflicts with law, then such provision shall be deemed void to the extent of such conflict without invalidating the remaining provisions hereof.
(c) Waiver. The failure of Buyer to insist in any one or more instances upon the performance of any of the terms, covenants, or conditions of this Purchase Order, or to exercise any right hereunder shall not be construed as a waiver or relinquishment of the right to compel future performance of any such terms, covenants, or conditions or the future exercise of such right.
(d) Survival. All representations, warranties, covenants, and indemnities of the Seller shall survive delivery, inspection, and acceptance of, and payment for, the goods.
PURCHASE ORDER ACKNOWLEDGEMENT TERMS AND CONDITIONS
1. PURCHASE ORDER ACKNOWLEDGEMENT TERMS CONTROL. By this Purchase Order Acknowledgement ("Purchase Order Acknowledgement"), Manufacturer confirms to purchaser ("Purchaser") Manufacturer's acceptance of Purchaser's separate offer to purchase products ("Products") from Manufacturer, as indicated upon the reverse side hereof, on the terms and conditions hereof, which shall control and prevail over any contrary terms in Purchaser's purchase order. This Purchase Order Acknowledgement is for delivery to Purchaser's carrier, F.O.B. Manufacturer's plant or other point or points of delivery designated by Manufacturer, and shall be on the terms and conditions herein specified. Orders for Product not acknowledged on Manufacturer's Purchase Order Acknowledgement form shall be ineffective, null and void.
2. CONFIRMATION. Manufacturer shall, within thirty (30) days of the receipt of Purchaser's purchase order, either confirm in writing on this Purchase Order Acknowledgement form its acceptance thereof, or else send its written non-acceptance thereof on Manufacturer's letterhead. In the event that Purchaser's order is accepted by Manufacturer, this Manufacturer's Purchase Order Acknowledgement form shall set forth the approximate date of delivery.
3. CANCELLATION CHARGES. Any order that is accepted by manufacturer, and later cancelled or changed by Purchaser, will be subject to a cancellation charge regardless of the order status. The cancellation charge will be based on the work completed, including office and engineering time incurred prior to the cancellation or change notice, and the raw materials used and/or purchased for the cancelled or changed order, plus a reasonable allowance for overhead and profit.
4. TERMS OF PAYMENT. A 2% discount is allowed on invoice (for materials only), if payment is postmarked no later than 15 days from date of Manufacturer's invoice. Any discount taken beyond this 15-day limitation will be carried as a balance owing and may result in revocation of this discount privilege. Net Amount is due 30 days from date of invoice. Credit card payments shall not be eligible for the 2% discount.
5. PAYMENT ASSURANCE. If Purchaser fails to comply with terms of payment of sale (2% discount on materials only if paid within 15 days after date of invoice; net due 30 days after date of invoice), or if Purchaser's financial responsibility becomes impaired or unsatisfactory to Manufacturer, Manufacturer reserves the right to withhold further deliveries on partially filled orders and/or to require payment in advance or satisfactory security or guarantee that invoices will be paid when due. Purchaser shall accept and pay for partial shipments and any additional materials required which were not part of Manufacturer's original quotation, order, or shipment.
6. INTEREST, ATTORNEY'S FEES, COSTS OF COLLECTION. Interest will be charged at the rate of 1.50% per month (18% annually) on past-due accounts. Purchaser shall pay all costs incidental to the preparation, filing and prosecution of liens, notices of claims, and similar costs of collection. In the event that any obligations covered by these Purchase Order Terms and Conditions are referred to an attorney for any reason, Purchaser shall be liable to pay any and all attorney's fees, including fees and costs in both trial and appellate courts, or fees incurred without suit, and all expenses and all court costs, including, without limitation, all costs of a collection agency.
7. CREDIT APPROVAL. All orders are subject to approval of credit by Manufacturer.
8. ADDITIONAL TRANSPORTATION CHARGES. Manufacturer shall not be responsible for spotting, switching, demurrage or other transportation charges unless agreed to in writing.
9. SHIPMENT DATES. Shipment or delivery dates are the best estimates of Manufacturer's production departments and are computed from the time of receipt of order by Manufacturer's production facilities. Manufacturer shall not be liable to Purchaser or any customer of Purchaser for any injuries or damages, including loss of commissions resulting from failure or delay of delivery of any order. Manufacturer will make reasonable efforts to deliver in accordance with orders it accepts, but shipping dates requested by customer or Purchaser and/or confirmed by Manufacturer shall be considered to be estimates only.
10. FORCE MAJEURE. Manufacturer shall arrange reasonably prompt shipment of Products, F.O.B. the point or points of delivery designated by Manufacturer, pursuant to terms hereof; provided, however, that Manufacturer shall not be responsible for delays in deliveries due to fire, flood, tornado, earthquake, war, riot, insurrection, strike, lockout, slowdown, epidemic, quarantine restriction, delay in transportation, car shortage, labor shortage, materials shortage, manufacturing facility shortage, accident at Manufacturer's plant, boycott, embargo or any act or regulation of government or governmental authority (including, without limitation, preference, allocation or priority systems for government), force majeure and other contingencies beyond Manufacturer's control resulting in impossibility of performance of Manufacturer's duties and obligations hereunder.
11. RISK OF LOSS. Risk of loss of, damage to and title to Products shall pass upon delivery thereof to Purchaser's carrier, F.O.B. Manufacturer's plant or other point or points of delivery designated by Manufacturer as provided in this Purchase Order Acknowledgement. Upon receipt of shipment, it shall be the responsibility of Purchaser or the consignee receiving shipment to check materials and secure written acknowledgement from delivering carrier for any shortages, loss or damage. Notification of such shortages, loss or damage must also be made in writing to Manufacturer.
12. RETURNS. No materials or Products may be returned without the written approval of Manufacturer. All material returned with such approval must be returned freight pre-paid. All returned materials will be subject to a 25% restocking charge and must be returned in reusable condition, such condition to be determined by Manufacturer.
13. LIMITED AND CONDITIONAL WARRANTY, DISCLAIMER OF WARRANTIES AND LIMITATION OF REMEDIES AND LIABILITY.
(I) LIMITED AND CONDITIONAL WARRANTY. Manufacturer warrants to the original Purchaser or the original end-use Purchaser that the Products supplied hereunder shall be free from defects in material and workmanship. Manufacturer shall repair or replace, F.O.B. its selected factory location in the United States of America, any part or parts of Products defective in workmanship or material, freight prepaid, within six months from the date of delivery to the original end-use Purchaser; provided, however, that in no event shall the duration of this warranty extend beyond twelve months following the date of Manufacturer’s first delivery of Products to the original Purchaser.
(II) CONDITIONS OF WARRANTY.
(a) Repair or replacement will be at the option of Manufacturer.
(b) Manufacturer's repair or replacement hereunder shall be exclusive of any removal, installation, freight or insurance costs.
(c) Any request for repair or replacement hereunder must be directed to Manufacturer at the following address:
P.O. Box 77
Warsaw, IN 46581-0077
Manufacturer will not accept shipments of any parts or Products unless it has provided prior written authorization and a Returns Goods
(d) This Limited and Conditional Warranty is conditioned upon operation of Products in accordance with generally approved industry practice,
and in accordance with conditions of service and operating instructions specified by Manufacturer, including proper installation and maintenance of Products, and prompt notice of non-conformity of Products.
(e) Excluded from Manufacturer's obligations for repair or replacement hereunder are repairs or replacements required as a result of wear and
tear of Products, abrasion, erosion, corrosion, effects of heat, external forces, or other conditions of service beyond the control of Manufacturer.
(f) Purchasers which are not end-use Purchasers may pass Manufacturer's standard Limited and Conditional Warranty on to end-use
Purchasers of Manufacturer's Products, but such non-end-use Purchasers may make no additional or other warranty on behalf of Manufacturer.
(III) DISCLAIMER OF WARRANTIES. THE LIMITED AND CONDITIONAL WARRANTY AND REMEDIES SET FORTH ABOVE ARE EXCLUSIVE AND IN
LIEU OF ANY AND ALL REPRESENTATIONS, SPECIFICATIONS, WARRANTIES AND REMEDIES, EITHER EXPRESS OR IMPLIED, HEREIN OR ELSEWHERE, OR WHICH MIGHT ARISE UNDER LAW OR EQUITY, OR PURSUANT TO ANY COURSE OF DEALING OR CUSTOM OR USAGE OF TRADE, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR ANY SPECIFIED OR INTENDED PURPOSE.
(IV) LIMITATION OF REMEDIES AND LIABILITY. PURCHASER'S SOLE AND EXCLUSIVE REMEDY AGAINST MANUFACTURER SHALL BE THE REMEDY OF
DEFECTS IN MATERIALS AND WORKMANSHIP OF ANY PART OR PARTS OF PRODUCTS DELIVERED HEREUNDER AS PROVIDED BY, AND WITHIN THE TIME PERIOD SPECIFIED IN, MANUFACTURER'S LIMITED AND CONDITIONAL WARRANTY SET FORTH ABOVE. MANUFACTURER'S LIMITED AND CONTITIONAL WARRANTY CONSTITUTES THE SOLE REMEDY OF PURCHASER WITH RESPECT TO OR ARISING OUT OF THE EQUIPMENT, PRODUCTS OR SERVICES OF MANUFACTURER, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE. NOTWITHSTANDING ANY OTHER PROVISIONS HEREOF, IN NO EVENT SHALL MANUFACTURER, OR ITS SUBCONTRACTORS OR SUPPLIERS, BE LIABLE, WHETHER ARISING UNDER PERFORMANCE OF THE CONTRACT ("CONTRACT") OF WHICH THIS LIMITED AND CONDITIONAL WARRANTY, DISCLAIMER OF WARRANTIES AND LIMITATION OF REMEDIES AND LIABILITY IS A PART, OR BREACH OF SUCH CONTRACT, OR TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, OR OTHERWISE, FOR LOSS OF ANTICIPATED PROFITS, LOST SALES, INJURY TO PERSONS OR PROPERTY, LOSS BY REASON OF PLANT SHUTDOWN, NON-OPERATION OR INCREASED EXPENSE OF OPERATION, SERVICE INTERRUPTIONS, CLAIMS OF CUSTOMERS OF PURCHASER, COST OF MONEY, LOSS OF USE OF CAPITAL OR REVENUE, OR FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE ANY KIND WHATSOEVER, ABC'S LIABILITY, FOR ANY LOSS OR DAMAGE ARISING OUT OF, OR RESULTING FROM SUCH CONTRACT, OR FROM ITS PERFORMANCE OR BREACH, SHALL IN NO CASE EXCEED THE CONTRACT PRICE AS SET FORTH IN SUCH CONTRACT.
14. GOVERNING LAW. This Purchase Order Acknowledgement shall be governed by and interpreted in accordance with the laws of the State of Indiana, United States of America. Purchaser hereby consents to settle any disputes with respect or relating to this Purchase Order Acknowledgement exclusively in state and federal courts located within the federal Northern District of Indiana.