Shar Systems, Inc.

TERMS AND CONDITIONS

Effective January 3, 2022

  1. The Agreement. Microtech Shar Systems, LLC, d/b/a Shar Systems, an Indiana limited liability company, its employees, representatives, and contractors (collectively “Shar Systems”) shall provide certain goods and/or services as requested by Customer (the “Goods, the “Services”, or collectively the “Goods and Services”), subject to and in accordance with these terms and conditions (hereafter the “Agreement”).  For purposes of this Agreement, “Customer” shall mean the party identified on the proposal, quote, purchase order, or invoice receiving the benefit of the Goods and Services provided by Shar Systems.   Customer’s authorization to allow Shar Systems to provide the Services or manufacture the Goods constitutes Customer’s acknowledgement of, and acceptance of this Agreement.
  2. Entire Agreement. This Agreement constitutes the complete and exclusive agreement between Shar Systems and Customer with respect to the Goods and Services. The terms and conditions herein supersede any and all prior or contemporaneous communications, written or oral agreements, representations, and other understandings relating to the Services.  Any prior agreements or understandings between Shar Systems and Customer are merged into and are replaced by this Agreement alone.
  3. Compliance with Laws. If Shar Systems is required to obtain any federal, state or local licenses, operating certificates, permits, or approvals to manufacture the Goods or to perform the Services, then Customer shall, at its own expense, procure and maintain for Shar Systems all necessary federal, state or local licenses, operating certificates, permits, or approvals.
  4. Price. The price for the Goods and Services shall be the amount quoted on the Shar Systems’ proposal or quote. With respect to Services, if no such proposal or quote was provided, the price for Services shall be Shar Systems’ then current standard billing rate as is reflected on Shar Systems’ invoice. If Customer fails to dispute any charge on a Shar Systems invoice within ten (10) days of the invoice’s issue date, then Customer shall be conclusively presumed to have accepted that charge and waives its rights to object to it.
  5. Payment. Except as otherwise stated on a Shar Systems’ generated proposal, quote, or invoice, Customer shall pay Shar Systems for the Goods and Services within thirty (30) days of the invoice date. If the invoice is not timely paid, then the following provisions shall apply:
    1. Shar Systems may, at its option, cease to manufacture the Goods and suspend all Services until payments are current, and Shar Systems shall have no liability to Customer for any delay occasioned thereby;
    2. Any late payments shall be subject to a $25.00 late fee, and any past due accounts shall accrue interest at a rate of one-point-five percent (1.5%) per month; and
    3. Customer shall be liable to Shar Systems for the reimbursement of its costs and expenses, including, but not limited to, court costs and reasonable attorneys’ fees, incurred in collecting payment of such unpaid invoices.
  6. Cancellation. Customer may cancel Shar Systems’ Goods and Services only with reasonable, prior written notice to Shar Systems.  With respect to Services, Customer and Shar Systems agree that 48 hours prior notice is reasonable notice.  Customer agrees to pay for any Services provided by Shar Systems through the effective date of the notice of cancellation as well as to compensate Shar Systems for any reasonable expenses incurred by Shar Systems prior to the effective date of the cancellation. Customer agrees to pay Shar Systems for the cost of any partially manufactured Goods, including any non-fungible or specialty parts that were purchased prior to Customer’s cancellation.  If Customer owes Shar Systems any amount under this Section, Shar Systems may apply some or all of Customer’s deposit to that amount.
  7. Liability. With respect to the Goods and Services provided hereunder, Shar Systems’s liability shall be limited as follows:
    1. SHAR SYSTEMS’ MAXIMUM LIABILITY, AND CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM ARISING OUT OF OR RELATED TO THE GOODS AND SERVICES, WHETHER ARISING IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT THAT CUSTOMER ACTUALLY PAID FOR THE GOODS AND SERVICES;
    2. Except for Customer’s rights pursuant to paragraph 12, in no event shall Shar Systems be liable, whether in contract, tort, warranty, under any statute, or on any other basis for special, incidental, indirect, punitive, multiple or consequential damages sustained by Customer or any other person or entity arising out of Shar Systems’ performance or failure to perform its obligations relating to the Goods and Services, whether or not foreseeable and whether or not Shar Systems is advised of the possibility of such damages, including without limitation, damages arising from or related to downtime, loss of revenue, lost profits, lost goodwill, lost business, or any other financial loss; and
    3. Customer waives any rights of offset for any alleged breach of contract and breach of warranty (except as set forth in paragraph 12), negligence, strict liability in tort, and/or other tort.
  8. Claims; Lawsuits. Shar Systems shall not be liable for any claim or lawsuit of any type whatsoever arising out of or related to the Goods or Services, unless Customer takes the following actions:
    1. Customer pays Shar Systems’ invoices in full for the Goods and Services upon which the claim is based;
    2. Customer presents such claim (the “Claim”) to Shar Systems, in writing, within a reasonable time, not exceeding sixty (60) days after the Customer learned or should have learned of such claim.  The Claim should indicate the date the Services were provided and/or Goods were delivered, the type of Goods and Services provided, and a brief summary of the defective nature of the Goods and Services provided; and
    3. Customer initiates any lawsuit no later than one (1) year following the date when written notice is provided by Shar Systems to Customer that Shar Systems has disallowed the Claim or any part of the Claim.
      1. Notwithstanding the foregoing, under no circumstances can a Claim be brought against Shar Systems relating to the Services more than one (1) year and one (1) month after the last date Shar Systems provided the Goods and Services, and under no circumstances may Customer file a lawsuit against Shar Systems relating to the Goods and Services more than two (2) years after the last date Shar Systems provided the Goods and Services.
      2. As a condition precedent to filing any lawsuit against Shar Systems, Customer agrees to participate in pre-suit mediation with Shar Systems under the following minimum terms:
        1. Customer shall supply notice of its intent to mediate within thirty (30) days of Shar Systems’ denial of Customer’s Claim; 
        2. The mediator shall be an attorney certified as a mediator of commercial disputes and reasonably acceptable to both Customer and Shar Systems;
        3. The mediation shall take place at a location within a one hundred (100) mile radius of Allen County, Indiana;  
        4. The costs of the mediator shall be split evenly between Shar Systems and Customer, regardless of whether the mediation results in a settlement of the Claim; and
        5. Such other reasonable terms as may be requested by either Customer or Shar Systems that are consistent with the Commercial Arbitration Rules established by the American Arbitration Association, provided however that such requested term(s) may not conflict with the minimum terms enunciated above in parts (i) through (iv), inclusive.
  9. Shar Systems’ Remedies. In addition to Shar Systems’ rights pursuant to paragraph 5, upon a breach by Customer of any promise, term, and/or condition contained in this Agreement, Shar Systems shall have the right, in addition to any other right Shar Systems may have at law or in equity, to take all or any of the following actions, at its sole option:
    1. Suspend its performance of the Services and/or manufacture of the Goods, even if partial payment for the Goods and Services has been received;
    2. Demand adequate assurance of due performance, including, but not limited to, the delivery to Shar Systems of a third-party bond satisfactory to Shar Systems;
    3. Declare the unpaid balance of the price for the Goods and Services immediately due and payable; and/or
    4. Collect from Customer all costs and expenses, including, but not limited to, court costs and reasonable attorneys’ fees, incurred by Shar Systems in enforcing any right or remedy hereunder or any right or remedy available to it at law or in equity, that pertains in whole or in part to the Goods and Services, Customer’s compliance with the terms and conditions of this Agreement, and/or securing payment for the Goods and Services.
  10. Risk of Loss. Unless otherwise stated, with respect to the Goods, the risk of loss shall pass to Customer upon the actual delivery of the Goods to Customer or any agent, broker, carrier, contractor, customer, employee, or representative of the Customer (collectively for purposes of this paragraph and paragraph 11, the “Customer”), regardless of whether the Goods are accepted by Customer.
  11. Indemnification. Customer shall defend, indemnify and hold Shar Systems, its members, directors, managers, officers, employees, agents, successors and assigns (the “Shar Systems Indemnitees”) harmless from and against any and all losses, damages, injuries (including death), demands, liabilities, claims, fines, penalties, lawsuits, administrative proceedings, petitions, costs and expenses (including without limitation reasonable attorneys’ fees incurred in responding to any of the foregoing actions), made or brought against any of the Shar Systems Indemnitees arising from, related to, or caused by Customer’s acts or omissions, Customer’s breach of or failure to comply with the terms and conditions of this Agreement, or Customer’s failure to comply with any law.
  12. Express Warranty; No Implied Warranties. Shar Systems warrants that the Goods and Services will be completed in accordance with the specifications requested by Customer in writing and in a professional and workmanlike manner (the “Express Warranty”). This Express Warranty is subject to the Claims filing requirements set out under paragraph 8 of this Agreement.  Shar Systems disclaims all implied warranties, including the implied warranties of fitness for a particular purpose and for merchantability and this Express Warranty is in lieu of all implied warranties, including the implied warranties of fitness for a particular purpose and for merchantability.  The Express Warranty of Shar Systems is subject to the following further limitations:
    1. The Customer must pay for the Goods and Services in full as a condition precedent to Shar Systems honoring the Express Warranty;
    2. The Express Warranty shall apply only to the Customer and is not transferrable unless agreed to in writing by Shar Systems prior to supplying the Goods and Services;
    3. In no event shall Shar Systems be liable for anticipated or lost profits, consequential damages or down time incurred by Customer; 
    4. THE EXPRESS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND SHAR SYSTEMS SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; and
    5. Subject to the liability limitations set out in paragraph 7(a) of this Agreement, for any Goods and Services Shar Systems determines to be defective, Shar Systems shall have the option to  (a) supply Customer with a refund of part or all of the cost of the Goods and Services that are subject to the Claim, and/or (b) supply Customer with additional Goods and Services at no additional charge to Customer to remedy the defective Goods and Services. 
  13. Modifications. Any alteration, addition, or modification to this Agreement shall be of no force and effect unless in writing and signed by a duly authorized representative of Shar Systems and Customer.
  14. No Implied Waiver. A party’s failure to require, in one or more instances, the performance of any term or condition contained herein shall not be construed as a waiver or relinquishment of that party’s right to such performance or other future performance of such term or condition, and the other party’s obligations with respect thereto shall continue in full force and effect. A party’s consent to or approval of any act by the other party requiring such party’s consent or approval shall not be deemed to render unnecessary the obtaining of such consent or approval of any subsequent act.
  15.  Severability. If any term or condition contained herein is determined to be invalid or illegal by any court of competent jurisdiction or other lawmaking authority, then, to the extent allowed by law, that term or condition shall be deemed automatically amended to the extent necessary to make it valid, or, if not allowed by law, such provision shall be severed from this Agreement, and all remaining terms and conditions contained herein shall remain in full force and effect.
  16. Rules of Construction. There is no presumption against Shar Systems as the drafter of this Agreement. Customer has had the opportunity to review all terms and conditions of this Agreement and negotiate those terms prior to authorizing Shar Systems to proceed with the Goods and Services. Additionally, the headings contained in the Agreement are for convenience of reference only.
  17. Independent Contractor. The parties hereto expressly agree that nothing in this Agreement or the provision of the Goods and Services by Shar Systems to Customer shall create a partnership, joint venture, agency, or any other similar relationship.  Each party enters into this Agreement for its own account, carrying out its respective business, separately and independently, limited only by the terms and conditions contained herein. No party may bind the other to any agreement or obligation with any other third party, without the other party’s written consent.
  18. Binding Effect.  This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, and assigns, but shall not confer any rights or remedies upon any third-party beneficiaries or other persons who are not parties to this Agreement.
  19. Assignment. Customer may not delegate or assign any duties or rights under this Agreement without Shar Systems’ prior written consent, which may be withheld for any or no reason. Any such delegation or assignment in violation of this paragraph shall be void.
  20. Termination. Shar Systems may terminate this Agreement and have no obligation to provide the Goods and Services to Customer immediately upon the bankruptcy or insolvency of Customer or Customer’s breach of this Agreement. Shar Systems shall not be liable to Customer in such instances, for any costs, expenses, losses, damages, or liabilities arising out of such termination.
  21. Notices. To be effective, all notices and other communications under this Agreement shall be in writing and sent to the intended recipient by personal delivery, by registered or certified mail, return receipt requested, or recognized overnight courier, at the party’s address as set forth on the Shar Systems invoice to Customer for the Goods and Services. Each party may change its address for receipt of notice by giving notice of such address change pursuant to this paragraph. Notice is given immediately upon personal delivery, three (3) business days following the date on which such notice is mailed in accordance with this paragraph or the next day following the date on which such notice is sent by overnight courier.
  22. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana. The parties agree that venue shall be proper in the state and federal courts located in Allen County, Indiana, for any legal proceedings that may be necessary to enforce the terms and conditions of this Agreement.
  23. Attorneys’ Fees.  In addition to its other rights under this Agreement, if any legal action becomes necessary by Shar Systems to enforce the terms and conditions of this Agreement, or, alternatively, Shar Systems is responding to any legal action brought against it by Customer, Shar Systems shall be entitled to recover its reasonable attorneys’ fees and costs incurred if it is the substantially prevailing party in such action.