In consideration of the extension of credit by Seller to Applicant, or the delivery of goods and/or services, Applicant agrees to the following terms and conditions:
1. Upon approval of this Application and Agreement, Seller in its sole discretion, and notwithstanding any request of Applicant, will assign Applicant a maximum credit line (if applicable) and shall have the right to increase, decrease or terminate Applicant’s credit privileges under this Application and Agreement at any time without prior notice to Applicant, except as otherwise provided by law.
2. All purchases by Applicant of goods and/or services from Seller will be made in accordance with the terms and conditions of this Application and Agreement, and any invoice, distributor agreement, and/or other documents evidencing Applicant‘s obligations to Seller (each, a “distributor agreement’’), all of which are incorporated herein by this reference. To the extent Applicant is part of or subsequently becomes part of a national or regional pricing program governed by a distributor agreement, Applicant acknowledges and agrees that it shall be bound by the terms and conditions of any such distributor agreement, notwithstanding that Applicant is not and will not be a signatory to such agreement. Applicant further agrees to waive, release, forever discharge and hold harmless the Seller, its officers, directors, employees and agents, from any and all losses, damages, costs, expenses, rights, claims, demands, judgments, obligations, actions and causes of action, which Applicant may have arising out of or in connection with any dispute or disagreement regarding whether or not Applicant is bound by the terms of such distributor agreement. Applicant agrees and understands that this is a legally binding agreement, and that Seller in its sole discretion, may change the terms and conditions of this Application and Agreement. Any such changes shall apply to all sales after such change is made. If Applicant is or subsequently becomes party to or bound by the terms of a distributor agreement, Applicant acknowledges and agrees that to the extent that there is any conflict between the terms and conditions set forth in this Application and Agreement and the distributor agreement, the terms and conditions of the distributor agreement shall control.
3. Title to all goods purchased from Seller shall pass upon delivery to the receiving dock of Applicant and acceptance by authorized signature, subject to rejection of certain items by notation on the invoice . Applicant shall have twenty-four (24) hours from the time of delivery to notify Seller (i) of any concealed damage or rejected goods or (ii) with respect to products not jointly checked in, of any shortages, damages, or rejected goods. Applicant shall make arrangements through Seller’s sales department for any goods to be returned to Seller in accordance with Seller’s return policy as in effect from time to time. Seller may terminate its obligations to provide product to Applicant pursuant to the terms of this Application and Agreement at any time, unless otherwise provided in a distributor agreement. Seller shall not be in default in the performance of its obligations under this Application and Agreement if such performance is prevented or delayed because of any cause beyond the reasonable control and without the fault or negligence of Seller.
4. Payment of the purchase price for goods and/or services acquired from Seller shall be made pursuant to the terms set forth on each invoice, and Applicant agrees to pay all charges according to the payment terms established in said invoice. The entire outstanding balance due to Seller on all invoices shall become due in full immediately upon default in the payment of any invoice. Applicant agrees to pay interest in the amount of 1.5% per month, or the maximum rate that Applicant may lawfully contract to pay, whichever is less, and in all events calculated in accordance with applicable law, on any payment considered past due until collected. Applicant agrees to pay all costs of collection incurred by Seller including reasonable attorneys’ fees and expenses, should a default in payment or any other obligation of Applicant occur.
5. This Application and all transactions between Applicant and Seller shall be governed by and interpreted in accordance with the laws and decisions of the State of Missouri.
6. Applicant hereby agrees to immediately notify Seller via certified mail of any sale of a significant portion of the assets or business of Applicant, or a sale of a substantial interest in the capital stock or other ownership interest of Applicant.
7. IF THIS APPLICATION AND AGREEMENT IS NOT APPROVED IN FULL OR IF ANY OTHER ADVERSE ACTION IS TAKEN WITH RESPECT TO APPLICANT’S CREDIT WITH SELLER, APPLICANT HAS THE RIGHT TO REQUEST WITHIN 60 DAYS OF SELLER’S NOTIFICATION OF SUCH ADVERSE ACTION, A STATEMENT OF SPECIFIC REASONS FOR SUCH ACTION, WHICH STATEMENT WILL BE PROVIDED WITHIN 30 DAYS OF SAID REQUEST. The federal Equal Credit Opportunity Act prohibits creditors from discrimination against credit applicants on the basis of race, color, religion, national origin, sex, marital status or age (provided that the applicant has the capacity to enter into a binding contract); because all or part of the applicant’s income derives from any public assistance programs; or because the applicant has in good faith exercised any right under the Consumer Credit protection Act. The federal agency that administers compliance with this law concerning the creditor is the Federal Trade Commission, Washington , D.C.
8. This Agreement and any action or proceeding arising from, relating to or in connection with Applicant’s obligations to Seller and all rights of the parties thereunder shall be governed by the laws of the State of Missouri. Any action under this Agreement for the payment of goods sold and delivered shall be brought in the Circuit Court of New Madrid County, Missouri.
9. Applicant agrees that all information as to source, quantity, and price of goods and services provided by Seller shall be maintained in confidence and shall not be released to any private third party for any reason whatsoever other than pursuant to a validly issued subpoena from a court or governmental authority having jurisdiction over Applicant, pursuant to the rules, regulations or requirements of any state or federal agency or department or pursuant to a discovery request made under applicable court rules and to which Applicant is required to respond.
10. WAIVER OF JURY TRIAL. APPLICANT HEREBY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH THE SELLER AND THE APPLICANT MAY BE PARTIES, ARISING OUT OF OR IN ANY WAY PERTAINING TO (A) THIS APPLICATION AND AGREEMENT; AND (B) ANY OTHER GOVERNING DOCUMENTS INCLUDING INVOICES AND DISTRIBUTOR AGREEMENTS. IT IS AGREED AND UNDERSTOOD THAT THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL PARTIES TO SUCH ACTIONS OR PROCEEDINGS. THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY THE APPLICANT AND THE APPLICANT HEREBY REPRESENTS AND WARRANTS THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY.
11. To secure the full and timely payment by Applicant to Seller of all now existing and hereafter arising amounts due Seller. Applicant hereby grants to Seller a purchase money security interest and lien in and to all goods, inventory, equipment and fixtures sold to Applicant by Seller from time to time, and a separate security interest in all other assets of Applicant, including, without limitation, all of Applicant‘s now existing or owned hereafter arising or acquired (a) accounts; (b) goods for sale, lease or other disposition which have given rise to Accounts and have been returned to or repossessed or stopped in transit by Applicant; and (c) goods, including, without limitation, inventory, equipment, fixtures, trade fixtures and vehicles. Applicant hereby authorizes Seller to file and perfect any and all statutory lien rights and any rights under indemnity or performance bonds at any time regardless of whether payment is due to Seller under Seller’s payment terms with Applicant. Applicant hereby authorizes Seller to prepare and file any Uniform Commercial Code (“UCC”) financing statements, amendments to UCC financing statements and any other filings or recordings in all jurisdictions where Seller determines appropriate without Applicant’s signature, and authorizes Seller to describe the collateral in such financing statements in any manner as Seller determines appropriate.
12. This Agreement may be delivered by electronic transmission or facsimile which shall be deemed to be an original.