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This Agreement is entered into by and between Western First Aid & Safety, LLC, a Kansas limited liability company ("Western First Aid & Safety, LLC") with offices located at 357 S. Pattie, Wichita, Kansas 67211, and the customer submitting an order with Western First Aid & Safety, LLC (the "Customer").
The Customer desires to purchase from Western First Aid & Safety, LLC products, services and/or special items (the "Products"):
Western First Aid & Safety, LLC is willing to sell to Customer the Products as provided by the terms of this Agreement for a period of one year from the date of this Agreement.
In consideration of the mutual promises contained in this Agreement, the parties agree as follows:
1. Western First Aid & Safety, LLC agrees to supply to Customer the Products upon receipt of Customer's order therefore. Western First Aid & Safety, LLC reserves the right, during the term of this Agreement, to discontinue any one or more of the Products, replace any one or more of the Products with products substantially similar to the discontinued Products, and/or increase the Current Retail Price for any one or more of the Products, by notice to Customer of the nature of the substitution or Retail Price increase. THIS IS NOT A FIXED PRICE AGREEMENT.
2. The sale of the Products by Western First Aid & Safety, LLC and the purchase of the Products by Customer shall be governed by the terms and provisions of Western First Aid & Safety, LLC's then current invoice form, the terms and provisions of which are incorporated in and made a part of this Agreement. No other forms, documents, or purchase orders submitted by Customer to Western First Aid & Safety, LLC with respect to any orders of the Products shall be deemed to be part of the terms and provisions of the sale and purchase of the Products, it being understood that such forms, documents, and purchase orders from Customer will not be binding upon Western First Aid & Safety, LLC.
3. In the event of an occurrence of any "Triggering Event" (as that term is defined below), Customer shall be obligated to purchase from Western First Aid & Safety, LLC the greater of (a) a quantity of the Products in Western First Aid & Safety, LLC's inventory equivalent to twice Customer's Monthly Usage of the Products, or (b) eighty percent of the projected revenue for the full range of Western First Aid & Safety, LLC's Products which would have been sold to Customer over the next twelve months, determined by Customer's average usage for previous months. Such sums will be due and payable by Customer to Western First Aid & Safety, LLC upon Customer's receipt of Western First Aid & Safety, LLC's invoice. Nothing contained in this Paragraph 3 shall limit Western First Aid & Safety, LLC's damages at law or in equity. For the purposes of this Agreement, a Triggering Event shall be deemed to be any one or more of the following:
(i) any request by Customer to change any Product which is not offered by Western First Aid & Safety, LLC in its normal ongoing inventory to another similar product;
(ii) Customer orders and/or purchases from others products and/or services similar to the Products offered by Western First Aid & Safety, LLC;
(iii) Customer's termination of this Agreement except as expressly provided for in this Agreement; and
(iv) Customer's failure to timely pay Western First Aid & Safety, LLC for the Products.
4. WESTERN FIRST AID & SAFETY, LLC DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE PRODUCTS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER UNDERSTANDS AND AGREES THAT WESTERN FIRST AID & SAFETY, LLC'S LIABILITY FOR DEFECTIVE OR NONCONFORMING PRODUCTS IS EXPRESSLY LIMITED TO THE REPLACEMENT OF SUCH PRODUCTS. WESTERN FIRST AID & SAFETY, LLC SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONTINGENT, CONSEQUENTIAL, OR EXEMPLARY DAMAGES OR EXPENSES OF ANY KIND OR CHARACTER.
5. This Agreement shall have a term of one year from the date Customer accepts it. At the end of the term this Agreement shall automatically renew for another one year term unless the Agreement has been terminated pursuant to this Paragraph. Western First Aid & Safety, LLC may terminate this Agreement at any time and for any reason by giving Customer written notice of termination. Customer may terminate this Agreement by providing Western First Aid & Safety, LLC written notice of termination at least ninety (90) days prior to the end of the term in effect at the time of termination. If Customer provides termination notice consistent with this paragraph, the Agreement will terminate at the end of the term.
6. This Agreement, and the Customer's orders of Products during the term of this Agreement constitute the entire agreement between the parties and supersede all prior proposals, communications, representations and agreements, whether oral or written. No change to the terms of this Agreement shall be made except by written instrument executed by both parties. The provisions of this agreement shall extend to the successors and assigns of Western First Aid & Safety, LLC. By accepting this Agreement, the Customer agrees to accept the full range of products and services provided by Western First Aid & Safety, LLC for the entire term.
7. The failure of either party to enforce at any time any of the provisions of this Agreement should not be construed as a waiver of those provisions or of the right of that party thereafter to enforce those provisions.
8. If any provision of this Agreement is or becomes or is deemed invalid, illegal or unenforceable, such provision shall be deemed amended to conform to applicable law so as to be valid and enforceable, or if it can not be so amended without materially altering the intention of the parties, it shall be stricken, and the remainder of this Agreement shall remain in full force and effect.
9. This Agreement shall be governed by Kansas law, regardless of choice of law rules. Any action brought on this Agreement or arising out of the subject matter of this Agreement may only be brought in the District Court of either Sedgwick County, Kansas or Johnson County, Kansas.
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