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Terms

All products (“Products”) and services (“Services”) sold or provided by or through HBC Radiomatic, Inc. (“HBC”) to a customer (“Customer”), including but not limited to Services for the repair or maintenance of Customer equip-ment (the “Equipment”), are furnished subject to the following terms and conditions (these “Terms and Conditions”):

  1. Priority of Terms and Conditions. HBC hereby notifies Customer in advance that HBC objects to any terms and conditions in Customer’s purchase order or other document which are additional to or different from these Terms and Conditions, whether or not such additional or different terms would materially alter this contract. If a contract between Customer and HBC is established through performance or other conduct of the parties, the terms and conditions of that contract shall not be deemed to consist only of terms and conditions as to which the parties’ writings agree, but rather these Terms and Conditions will be a part of that contract and will prevail over the conflicting and/or different terms and conditions of any other document forming a part of the contract. 
  2. Price and Order Acceptance. Prices for all sales are “Ex Works” (EXW) (INCOTERMS 2000 Ed.) HBC’s facility. Packing or shipping charges are not included. Customer is responsible for, and will indemnify HBC against, all applicable duties, levies, governmental charges and taxes, including without limitation sales, use, excise, V.A.T., withholding, and property taxes, relating to the Products or Services. All such charges and taxes are in addition to the quoted prices and may be invoiced by HBC to Customer at any time. Prior to acceptance, the price quoted is subject to change. Once accepted by HBC, orders may not be cancelled, except with HBC’s consent and upon terms that will indemnify HBC against loss or damage arising from the cancellation. 
  3. Payment and Security Interest. All orders must be prepaid, unless Customer has been pre-approved for credit facilities with HBC. International orders may be prepaid by irrevocable letter of credit based on the following terms: Customer will establish an irrevocable letter of credit in favor of HBC in the amount of the purchase price and applicable taxes and charges, issued by a bank satisfactory to HBC, confirmed by HBC’s U.S. bank, and in a form satisfactory to HBC. Such letter of credit will permit periodic or multiple draws, will permit HBC to draw cancellation charges as provided herein, will be negotiable against the shipping documents specified below, will not limit HBC’s choice of port or ocean carrier, and will remain valid for one-hundred eighty (180) days after the last scheduled shipment date of the Products. Except as otherwise agreed by HBC in writing, the sole documents to be required under such letter of credit will be as follows: (i) complete set of clean on-board shipped bill of lading, marked “freight prepaid”, made out to order, and endorsed in blank, with notification to be made to the consignee specified by HBC, (ii) insurance certificate in duplicate, (iii) four copies of commercial invoice, and (iv) two copies of packing list describing the Products.
    All payments are to be made without setoff or reduction of any kind for any reason. Restrictive endorsements or other statements on checks will not apply to HBC. Com-mencing 30 days after invoice date, interest at the rate of 1.5% per month may be added to any unpaid portion of the invoiced amount. In order to secure payment of the purchase price and the performance of Customer’s other obligations to HBC, Customer by its order grants HBC a purchase money security interest in each Product and, upon request by HBC, Customer promptly will execute any additional documents required by HBC to perfect this security interest. 
  4. Shipping. Any schedule provided by HBC to Customer for delivery or repair is HBC’s then current estimate. HBC will use reasonable efforts to meet the schedule, but does not warrant or guarantee any particular dates. HBC shall not be liable for any damages, including indirect, incidental or consequential damages, in connection with the delivery, partial, or non-delivery of any Product, Service, or Equipment, including but not limited to damages incurred during shipment or caused by a delay in delivery. Customer’s acceptance of the Product, Service, or Equipment constitutes a waiver of any claim for delay. HBC may select the carrier for delivery unless otherwise agreed to by HBC in writing. All shipments will be made ”Ex Works” (EXW) (INCOTERMS 2000 Ed.) HBC’s facility. The carrier will be deemed to be Customer’s agent and Customer bears all risk of loss or damage during transit. 
  5. Limited Warranty. HBC warrants to the original Cus-tomer that (i) Products will be free from defects in material and workmanship for a period of 24 months after the date of shipment to the Customer, (ii) Services will be performed with due care and in a manner consistent with industry standards for a period of 12 months after the date of shipment of the Equipment to Customer, and (iii) replacement parts used for repair or maintenance Ser-vices will be free from defects in material and workman-ship for a period of 12 months after the date of shipment of the Equipment to Customer. In addition, HBC warrants to the original Customer that the electrical components contained within Products that are not replacement parts will be free from defects in material and workmanship for a period of 36 months after the date of delivery. HBC MAKES NO OTHER WARRANTIES, EXPRESS OR IM-PLIED, REGARDING THE PRODUCTS (INCLUDING ELECTRICAL COMPONENTS), SERVICES OR RE-PLACEMENT PARTS, AND HBC SPECIFICALLY DIS-CLAIMS THE IMPLIED WARRANTIES OF MERCHANT-ABILITY, FITNESS FOR A PARTICULAR PURPOSE AND FREEDOM FROM INFRINGEMENT CLAIMS. Warranty claims must be made in writing during the warranty period to HBC at the following address: HBC Radiomatic, Inc., 1017 Petersburg Road, Hebron, Kentucky 41048, Attention: Warranty Claims Manager. If Products or Ser-vices are alleged to be defective, the Products or the affected Equipment must be returned during the warranty period to HBC at the address stated above. If a warranty claim is made, the Customer must return the entire Prod-uct or Equipment and not just the affected component. In no event will HBC be liable for consequential, incidental or special damages of any kind. This warranty does not cover damage resulting from ordinary wear and tear, mis-use, neglect, accident, alterations, failure to follow instructions, fire, or acts of God. This warranty does not cover batteries. Shipping costs to and from HBC are not covered by this warranty and shall be paid by Customer. 
  6. No Other Representations. Customer acknowledges and agrees that no employee, officer, agent, or repre-sentative of HBC has the authority to make any represen-tations, statements, or promises in addition to or in any way different than those contained herein, and that Cus-tomer is not entering into this contract or transaction in reliance upon any representation, statement, or promise of HBC except as expressly stated herein. 
  7. Limitation of Remedies and Liabilities. Customer’s sole and exclusive remedy pursuant to any claim of any kind against HBC will be, at HBC’s sole discretion, (a)(i) with respect to a Product the repair or replacement of the Product or (ii) with respect to a Service the repair or re-placement of the affected Equipment or (b) a refund of the price paid for the Product or Service. For any claim of any kind against HBC concerning a Product or a Service (including, but not limited to, any claim that HBC has failed to satisfy its repair/replacement obligation), Customer will be limited (subject to the exclusions set forth below) to recovering only its direct damages up to but not in excess of the price paid by Customer to HBC for such Product or Service. HBC SHALL NOT BE LIABLE TO CUSTOMER, ITS CUSTOMERS, EMPLOYEES, OR AGENTS, UNDER ANY CLAIM OR CIRCUMSTANCE (INCLUDING WITHOUT LIMITATION ANY CIRCUMSTANCE INVOLVING A FINDING THAT A WARRANTY OR REMEDY HAS FAILED OF ITS ESSENTIAL PURPOSE), WHETHER THE CLAIM SOUNDS IN CONTRACT, TORT, OR OTHER LEGAL THEORY, FOR INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS OR REV-ENUE, LOST SALES, LOST GOODWILL, OR LOSS OF USE OF ANY PRODUCT, SERVICE OR EQUIPMENT. 
  8. Inspection and Acceptance. Customer will inspect promptly each Product, Service and Equipment upon receipt. Unless Customer timely notifies HBC in writing that Customer rejects the Product, Service or Equipment and sets forth with specificity the reasons for such rejec-tion, the Product, Service or Equipment will be deemed accepted by Customer within 14 days of delivery. Ac-ceptance arising from a failure to reject timely shall be final and irrevocable. 
  9. Safe Operation. Customer will use, and require all persons operating a Product or the Equipment to use, any and all proper and safe operating procedures set forth in the applicable operator's manual and instruction sheets. Customer shall not remove or modify any safety device or warning sign installed on or attached to a Product or Equipment. 
  10. Indemnification. Customer will defend, indemnify and hold harmless HBC, its affiliates, and their respective officers, agents, and employees, from and against all loss, liability, claim, action, or expense, including reason-able attorneys’ fees, by reason of bodily injury, including death, and property damage, sustained by any person or persons, arising from or attributed to Customer’s use of the Product, Service or Equipment. 
  11. Force Majeure. HBC shall not be responsible for failure of or delay in delivery of Products, Services or Equipment hereunder if such failure or delay is due to an act of God or public enemy, war, terrorism, government acts or regulations, fire, flood, embargo, quarantine, epi-demic, labor strike or work stoppage by workers, inability to acquire raw materials, accident, unusually severe weather, or any other cause that is beyond HBC’s control. 
  12. Relationship of Parties. HBC and Customer are and will be independent contractors to one another, and noth-ing herein may be deemed to create an agency, partner-ship, or joint venture between the parties. Nothing in the-se Terms and Conditions may be interpreted or construed as creating or establishing the relationship of employer and employee between Customer and either HBC or any employee or agent of HBC. 
  13. Governing Law, Forum Selection, and Limitation Period. This contract, the construction of this contract, all rights and obligations between the parties to this contract, and any and all claims arising out of or relating to the subject matter of this contract (including all tort claims), shall be governed by the laws of the Commonwealth of Kentucky, U.S.A., without regard to its conflicts of law principles. The applicability of the U.N. Convention on the International Sale of Goods is hereby excluded. Any litigation or other legal proceeding of any kind based upon or in any way related to this contract, its subject matter, or the rights or obligations of the parties to this contract, will be brought exclusively in an appropriate court of competent jurisdiction (state or federal) located in Boone County, Kentucky, U.S.A. (if the action is brought in state court) or in the Eastern District of Kentucky, U.S.A. (if the action is brought in federal court); provided that nothing contained herein will prevent HBC from bringing any action or exercising any rights against Customer or its property within any other state or nation. Any such proceeding must be brought within two years from the date on which the claim accrued. Any action brought in such courts shall not be transferred or removed to any other court or tribunal. The parties consent to the exercise of jurisdiction and venue over them by the above-named courts as their freely negotiated choice of forum for all actions subject to this forum selection clause, and irrevocably waive any objection to the personal and subject matter jurisdiction and venue of the above-named courts. The parties waive trial by jury in any dispute arising hereunder. 
  14. Severability of Terms. The provisions of these Terms and Conditions will be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of these Terms and Conditions, or the application thereof to any person or any circumstance, is invalid or unenforceable, (i) a suitable and equitable provision will be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision, and (ii) the remainder of these Terms and Conditions and the application of such provision to other persons or circumstances shall not be affected by such invalidity or unenforceability, nor will such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.