ITM4 TERMS & CONDITIONS OF SALE
ALL SALES ARE SUBJECT TO THESE TERMS AND CONDITIONS OF SALES (“TERMS”) AND AS CONTAINED IN ITM4’S INVOICE AND ARE SUBJECT TO ITM4’S CREDIT AND OTHER POLICIES AND PROCEDURES, WHICH ARE HEREBY INCORPORATED BY REFERENCE AND SUBJECT TO CHANGE.
1. TERMS TO GOVERN: These Terms shall be binding upon ITM4, LLC, a Delaware limited liability company, and its subsidiaries and affiliates (collectively, "Seller") and the buyer (“Buyer”). No modification, amendment or change, whether in Buyer’s purchase order, shipping release forms or otherwise shall obligate Seller, unless authorized in writing by Seller. Any different or inconsistent terms and conditions of sale contained in Buyer’s forms, contracts or invoices are hereby superseded by these Terms.
2. ACCEPTANCE & PRICES: Any quotes offered by Seller to Buyer are valid for thirty (30) days. Upon the expiration of the thirty (30) day period, the quote shall expire unless renewed by Seller in writing. Seller reserves the right, at any time, to withdraw a quote or a price that contains an error or in the event that tariffs or other price increases outside of Seller’s control materially affect the cost of Seller’s materials or other inputs. Notwithstanding Seller’s acceptance of an order, prices for Seller’s products (“Products”) are subject to change any time prior to the date of production of the ordered Products. Prices do not include transportation charges.
3. PAYMENT & TAXES: Upon credit approval, payment terms for Products shipped hereunder or labor performed will be thirty (30) days net with no retainages unless contrary terms appear on the face hereof or otherwise expressly agreed to in writing by Seller. Should Buyer default in the timely payment to Seller of sums due on an order, Seller is entitled to any remedies provided in these Terms or by law. If Buyer fails to pay any amounts when due, Buyer shall pay Seller interest thereon at a periodic rate of the lesser of one and one-half percent (1.5%) per month or the maximum allowable legal interest rate, along with all costs and expenses (including without limitation reasonable attorneys' fees and disbursements and Court costs) incurred by Seller. Buyer is responsible for all sales, customs, or use tax imposed by any governmental agency, including, but not limited to, federal, state, local or international agencies payable on the transaction under any applicable statute, except those taxes due as a result of Seller’s gross profits.
4. PERFORMANCE: Seller shall be obligated to furnish only the Products or labor described in the applicable purchase order or acknowledgement and agreed to in writing. The duty to perform under any order on the part of Seller and the price thereof is subject to the approval of its Credit Department, and is contingent upon the absence of strikes, accidents, floods, act(s) of terrorism, war, fires, fuel shortages, the inability to procure materials from the usual sources of supply, the requirements of the US Government (through the use of priorities or preference or any other manner) that Seller divert either the material or the furnished Product to the direct or indirect benefit of the US Government, or upon any like or unlike cause beyond the reasonable control of Seller. Upon disapproval of the Credit Department or upon the occurrence of any such event, Seller may delay performance or, at its option, renegotiate prices and terms and conditions of sale with Buyer. If Seller elects to renegotiate and Seller and Buyer are unable to agree on revised prices or terms, Seller may cancel without any liability.
5. SHIPMENT & RISK OF LOSS: Shipment dates are estimates only. Shipment shall be FOB origin with title passing to Buyer upon delivery of Products to a transportation carrier. Seller specifically rejects any time is of the essence clauses or liquidated damage penalties for late shipments in any orders. Risk of loss, including but is not limited to loss of goods from shortages, damages or transit delays, shall pass to Buyer when the Products have been delivered to the transportation carrier (excluding proprietary transportation facilities of Seller). Any claims for loss or misdelivery of, or damage to, the Products shall be filed either by Buyer or by Seller as agent for Buyer. Seller reserves the right to pass on a 20% mark up on any charges incurred by Seller shipping Best Way or as a freight claim or reclassification. For the purpose of this Agreement, Best Way shall not be limited to the lowest rate and Seller may consider other factors, including but not limited to, a transportation career’s reputation, quality of insurance, or transit time.
6. CHANGES, CANCELLATION & RETURNS: Changes requested by Buyer following Seller’s acceptance of order must be approved by Seller in writing and may result in an increase in price deemed appropriate by Seller to recover all associated labor and material costs, including normal overhead and profit. If any portion of a Seller accepted order is cancelled by Buyer without default on the part of Seller or without Seller's written consent, Buyer shall be liable to Seller for cancellation charges including, but not limited to, Seller's incurred costs and such profit as would have been realized by Seller from the transaction had the agreement not been breached by Buyer. Products shall not be returned except by written permission of Seller pursuant to Seller’s return policy.
7. AUTHORITY OF AGENTS: No agent, employee or representative of Seller has the authority to bind Seller to any affirmation, representation or warranty concerning the Product or labor sold, except for Seller’s authorized agents, employees or representatives.
8. INDEMNITY: Seller shall protect and indemnify Buyer from and against all claims, damages, judgments and loss arising from infringement or alleged infringement of any United States patent by any of the articles or material delivered hereunder, provided that in the event of suit or threat of suit for patent infringement, Seller shall promptly be notified and given full opportunity to negotiate a settlement. Seller does not warrant against infringement by reason of Buyer's design of the articles or the use thereof in combination with other materials, or in the operation of any process. In the event of litigation, Seller’s obligation to indemnify is contingent upon Buyer providing reasonable cooperation to Seller. All parties concerned shall be entitled, in connection with any proceeding under the provisions of this Article, to be represented by counsel at their own expense. Seller shall also defend, indemnify and hold harmless Buyer from any third party personal injury, wrongful death or property damage caused solely by Seller’s negligent act(s). Buyer shall defend, indemnify and hold Seller harmless from any personal injury, wrongful death or property damage caused by Buyer’s negligent or intentional act(s).
9. LIMITED WARRANTY AND DISCLAIMER: Seller warrants that at the time of delivery and for a period of twelve (12) months from the date of shipment. Products will be free from defects in material that impacts performance and manufacture provided that Products have been installed properly, maintained and operated under normal conditions for service in accordance with the instructions of Seller, and that Products have the capacities and ratings set forth in Seller's design specifications. No warranty is made against corrosion, erosion, discoloration or deterioration. At Seller’s option, Seller's obligations and liabilities under this warranty are limited to repair of Products or replacement of components for Products not conforming to this warranty. This limited warranty does not cover labor for component replacement. Once Seller’s service department has been notified and approves any warranty related service work, Seller will repair or replace components as needed and ship FOB factory at standard service. No warranty or liability whatever shall attach to Seller until full payment has been received. If the Product is replaced, the replacement may not be new but will be in good working order and at least functionally equivalent to the item or Product replaced. The replacement assumes the warranty status of the replaced Product. The warranty period does not start over.
THIS LIMITED WARRANTY IS IMMEDIATELY VOIDED AND CANCELLED BY ANY MISUSE, NEGLECT, FAILURE TO FOLLOW INSTRUCTIONS OR MANUALS OF INSTALLATION OR MAINTENANCE REPAIR, SERVICE, RELOCATION OR ALTERATION TO OR OF, OR OTHER TAMPERING WITH, THE PRODUCTS PERFORMED BY ANY PERSON OR ENTITY OTHER THAN SELLER WITHOUT SELLER’S PRIOR WRITTEN APPROVAL OR ANY USE OF REPLACEMENT PARTS NOT SUPPLIED BY SELLER WITH RESPECT TO THE AFFECTED PRODUCTS. BACK CHARGES RESULTING FROM CLAIMS UNDER THE WARRANTY SHALL BE RECOGNIZED ONLY WHEN PREVIOUSLY AUTHORIZED IN WRITING BY SELLER. THE WARRANTY AND LIABILITY SET FORTH HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES AND LIABILITIES WHETHER IN CONTRACT, TORT, OR IN NEGLIGENCE, EXPRESSED OR IMPLIED, IN LAW OR IN FACT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE. SELLER PROVIDES NO INDEPENDENT WARRANTY FOR THIRD PARTY PRODUCTS OR COMPONENTS SOLD TOGETHER OR INCORPORATED WITH SELLER’S PRODUCT(S).
10. LIABILITY DISCLAIMER: TO THE MAXIMUM EXTENT PERMITTED BY LAW, SELLER’S TOTAL LIABILITY FOR CLAIMS, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING CONTRACT, TORT OR WARRANTY), SHALL BE LIMITED TO THE FEES PAID TO SELLER BY BUYER FOR THE PRODUCTS OR LABOR ALLEGED TO CAUSE THE DAMAGE. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR INDIRECT DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, OR CLAIMS OF THIRD PARTIES) THAT MIGHT OCCUR AS A RESULT OF THE PERFORMANCE OR BREACH OF THE AGREEMENT OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT.
11. ASSIGNMENT: No right or interest may be assigned by Buyer, nor may any obligation or performance delegated by Buyer without Seller’s written permission. Any attempted assignment or delegation shall be void and ineffective for all purposes. Seller may assign its rights or obligations under this Agreement in the event of a merger or change of control of Seller.
12. GOVERNING LAW AND VENUE: This Agreement shall be governed and construed in accordance with the laws of the state of Minnesota. Buyer consents to the exclusive jurisdiction of the state or federal courts of Hennepin County, Minnesota for any disputes arising out of or related to this Agreement.
13. EXPORT CONTROLS: Buyer shall comply with the export laws and regulations of the United States and other applicable jurisdictions with regard to Products and labor. Buyer agrees it shall not export or enter into an agreement for the export any goods from Seller to any prohibited or embargoed country or to any denied, blocked or restricted person or entity including those so designated by the US Dept. of Commerce or Treasury.
14. MISCELLANEOUS: In the event that any provision of this Agreement is held invalid by the final judgment of any court of competent jurisdiction, the remaining provisions shall remain in full force and effect as if such invalid provision had not been included herein. The waiver or failure of either party to enforce the terms of this Agreement in one or multiple instances shall not constitute a waiver of that party’s rights under this Agreement with respect to other violations. The titles and headings used herein are for convenience only and do not constitute any part of this Agreement. Those sections of this Agreement, which by their nature are intended to survive, shall survive termination of this Agreement.
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