Marcus Paint Company, a Kentucky Corporation (the “Company”) agrees to sell goods to the customer identified below (“Customer”), as further described in Product Information Sheets, Stocking Agreements, and Invoices submitted by Company to Customer. Customer agrees that these Terms and Conditions shall govern and apply to any and all sales, transactions, contracts, and relationship between Company and Customer and shall supersede terms in any documents created by Customer (including purchase orders), regardless of when the sale is made, and that these Terms and Conditions are important consideration for any and all sales between Company and Customer.
Payments. Customer shall pay Company the amount(s) set forth in the Invoice(s) within the time set forth in the Invoice(s). In the event an invoice is not paid within the time set forth in the Invoice(s), such payment shall be deemed late and shall be subject to a late fee equal to five percent (5%) of the unpaid invoice amount for each month that the invoice remains unpaid. If Company must commence a legal action to collect any amounts due under any invoice, Company shall be entitled to recover from Customer its reasonable attorneys’ fees and costs incurred in collecting any unpaid amount.
COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESSS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES. COMPANY’S SOLE LIABILITY SHALL BE LIMITED TO REPLACING ANY PRODUCT.
Customer’s Risk/Indemnity. Customer understands and agrees that Company’s products are custom formulated based on Customer’s direction, control, and order, and that Customer shall be solely responsible for determining the adequacy of the product to fit any and all applications by Customer and the user of the product. Customer shall defend, indemnify and hold harmless Company from any and all claims related to Customer’s sale or use of the product or any person’s use of the product after the sale to Customer.
Entirety; Amendment. This Agreement (which may be supplemented by Company’s Product Information Sheets, Stocking Agreements, and/or Invoices) constitutes the entire agreement between the parties with respect to the subject matter hereof and there are no understandings or representations contained anywhere other than this Agreement, Company’s Product Information Sheets, Stocking Agreements, and Invoices. In the event of any conflict between this Agreement and Company’s Product Information Sheets, Stocking Agreements, Invoices, and/or any other document, this Agreement shall control. This Agreement may not be modified, altered, or amended except by written instrument executed by Company and Customer.
Jurisdiction; Applicable Law; Binding Effect; Severability. The sole and exclusive jurisdiction and venue for any dispute regarding or related to this Agreement shall be Jefferson County, Kentucky (either in Jefferson County Circuit Court or the USDC for the Western District of Kentucky). The parties expressly waive jurisdiction and venue in all other courts. This Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Kentucky, without regard to its principles of conflicts of laws. This Agreement shall constitute a legally binding contract on the part of Company and Customer and their respective heirs, successors, and assigns in accordance with the terms and conditions set forth herein.If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.
Construction. Customer agrees that the terms of this Agreement are clear and that it fully understand them. This Agreement shall not be construed for or against either party on account of who drafted it.