1. PRIORITY OF TERMS AND CONDITIONS
The General Terms and Conditions of Sale of Intelliworks HT, LLC (therein called “Seller”) are set forth as follows in order to give the Seller and the Purchaser a clear understanding thereof. No variation from these terms and conditions of sale by the Seller shall be binding upon the Seller unless they are expressly consented in writing by an authorized officer of the Seller. The acceptance of any order of the Purchaser is expressly conditioned upon the Purchaser’s agreement to said General Terms and Conditions. The acceptance of acknowledgment, written, oral, by conduct or otherwise, by the Seller of the Purchaser’s order shall not constitute written consent by the Seller for an addition to or change in said Terms and Conditions of sale which are different from said Terms and Conditions.
2. QUOTATIONS
Quotations are subject to the Terms and Conditions as specified thereon. All deliveries quoted are subject to receipt of the Purchaser’s order by the Seller. Prices and availability will remain valid for a period not to exceed 30 days. Unless otherwise agreed in writing, all prices quoted are FOB Seller’s facility and subject to change based on Seller’s selling prices in effect as of the date of shipment. Prices quoted do not include any federal, state, local excise, sales, lease, service, rental use, property, occupation, or other taxes, all of which will be added to Seller’s invoice and paid by Purchaser, except as exempt by law. For blanket orders, prices quoted are subject to review and retroactive adjustment, if necessary, based on actual quantities shipped.
3. PRICES
Prices are subject to change without notice. All orders of the Purchaser are subject to acceptance, which shall be made in writing by an authorized Seller representative on the Seller’s acknowledgement for or by letter on the Seller’s letterhead. The Seller may refuse to accept any order for any reason whatsoever without incurring any liability to the Purchaser. The Seller reserves the right to correct clerical and stenographic errors at any time. All orders shall be subject to a minimum charge as specifically stated at the time of quotation.
4. ORDERS
Purchaser’s orders are subject to Seller’s credit approval. Seller reserves the right to reject any order or amendment if Seller reasonably determines that it cannot comply with all the requirements of said order. Purchaser orders accepted or acknowledged by Seller may not be canceled or amended, or deliveries deferred, by Purchaser without Seller’s prior written approval and then only upon terms as shall be acceptable to Seller. Seller reserves the right to reject Buyer orders if Purchaser’s account is in arrears. A 20% monthly stocking fee shall be assessed for all product(s) produced and held in inventory due to amendments or deferred deliveries for any reason from Purchaser.
5. ORDER CHANGES
Any changes by the Purchaser to the original order which affect tooling parts, or material presently in the manufacturing processes, or purchased by the Seller may be charged to the Purchaser by the Seller. This will include the costs of work in process or the purchased products at the date of change. The Seller will notify the Purchaser of such charges when a change is received.
6. ORDER CANCELLATION
Any cancellation by the Purchaser of any order or contract between Seller and the Purchaser must be made in writing and receive written approval. In the event of a cancellation by the Purchaser, the Purchaser shall pay to the Seller the reasonable costs, expenses, damages and loss of profit to the Seller incurred thereby, including but not limited to engineering expenses, commitments to suppliers of the Seller and sub-contractors, as determined by the Seller.
7. SHIPPING DATES
Quotation of a shipping date by the Seller is based on conditions as of the date upon which the quotation was made. Any such shipping date is subject to change occasioned by agreements entered into prior to the Seller’s acceptance of the Purchaser’s order, governmental priorities, strikes, riots, fires, the elements, explosions, wars, embargoes, epidemics, quarantines, acts of God, the public enemy of government authorities, labor troubles, delays of vendors or of transportation, inability to obtain raw materials, containers or transportation or manufacturing facilities or any other cause beyond the reasonable control of the Seller. In no event shall the Seller be liable for consequential damages for failure to meet any shipping date as a result of any of the above causes or any other cause. In the event of any delay in the Purchaser’s acceptance or shipment of products in accordance with scheduled shipping dates, which delay has been requested by the Purchaser, or any delay which has been caused by lack of shipping instructions, the Seller, may, at its option, store all products involved at the Purchaser’s risk and expense and may, at its option, invoice the Purchaser for the full contract price of such products on the date scheduled for shipment or on the date on which the products are ready for delivery, whichever occurs later.
8. NON-STANDARD PRODUCTS
The Seller will have the option of over-shipping or under-shipping any products which are non-standard or non-catalog items by a quantity not the exceed 10 percent of the total quantity ordered. This change of quantity will appear on the Seller’s final invoice for the particular Purchaser’s order.
9. SHIPMENT AND RISK OF LOSS
All orders delivered within the United States are shipped FOB, Seller’s facility. Orders delivered outside the United States are shipped from Seller’s facility (Norwalk, OH). Unless otherwise agreed in writing, Seller shall be allowed a plus or minus ten (+/- 10%) percent leeway on the quantities called for by Purchaser’s order placed hereunder and the Purchaser agrees to accept such quantities as fulfillment of Seller’s delivery obligation. Title to and risk of loss of the Products shall pass to the Purchaser upon delivery to the common carrier.
10. REFUND MATERIAL
If the Purchaser desires to return any product, written Return Material Authorization (RMA) must first be obtained from an authorized Seller representative, who will advise the Purchaser of the credit to be allowed and restocking charges to be paid in regard to such return.
11. PACKAGING AND DELIVERY
Pricing and quotations include the Seller’s standard packing for domestic shipments. Additional expenses for the special packing of overseas shipment shall be paid by the Purchaser and will be quoted by the Seller upon request. In the absence of shipping instructions or accepts product unpacked from Purchaser, Seller will use its discretion as to the selection of shipping services and routings and no allowance will be made to the Purchaser in lieu of packing. Shipping dates quoted by Seller are made in good faith but are not guaranteed.
12. TRANSPORTATION POLICY
The F.O.B. point of shipment is as expressly defined in the Seller’s quotation. When the method is F.O.B. destination, the Seller will ship the best possible method. In cases where the Purchaser specifies a required method of shipment is shall be charged to the Purchaser. Partial shipments shall pass to Purchaser when the carrier signs for and accepts the shipment. Claims for non-delivery of products and for damages thereto must be filed with the carrier by the Purchaser. Title to products and risk of loss shall pass to Purchaser when the carrier signs for and accepts the shipment.
13. INSPECTION AND ACCEPTANCE
The Products covered hereby shall be deemed inspected and accepted within ten (10) days after receipt thereof unless a written notice of claim is given by Buyer within the ten (10) day period.
14. TAXES
The Seller’s quotations or published price lists do not include any applicable sales, use, excise or similar taxes. The amount of any such tax which the company may be required to pay or collect will be added to each invoice unless the Purchaser has furnished the Seller with an appropriate Tax Exemption Certificate acceptable to the taxing authorities in regard to such tax.
15. DATA
Any specifications, drawings, technical information or other data furnished by the Seller to the Purchaser shall remain the Seller’s property, shall be kept confidential by the Purchaser, and shall be promptly returned to the Seller upon the Seller’s request.
16. WAIVER OF BREACH
No waiver by the Seller of any breach of these General Terms and Conditions shall constitute a waiver of any other breach.
17. LAWS
After acceptance of the purchase order the Seller’s obligations to the Purchaser shall not be affected by any change in the Purchaser’s obligations or responsibilities under the statues, regulations or orders of Federal, State, or Local Government. All quotations made and all orders accepted by the Seller are governed by and construed under the laws of the State of Ohio without giving effect to principles of conflicts of law.
18. INVOICING AND PAYMENT TERMS
Unless agreed in writing by the Seller, payment terms are prepaid. Orders are subject to the approval of the Seller’s Credit Department. In the event the Seller’s Credit Department approves the Purchaser, terms are net thirty (30) days from the date of invoice, unless otherwise agreed in writing by the Seller. In the event products shall be manufactured to order, partial or complete prepayment is required. For invoice purposes, delivery shall be deemed complete at the time the products are shipped from the Seller.
If in the Seller’s judgment the financial condition of the Purchaser at any time does not justify continuance of production or shipment on the terms of payment originally specified, the Seller may require full or partial payment in advance. In the event of the bankruptcy or insolvency of the Purchaser, or in the event any proceeding is brought against the Purchaser under any applicable bankruptcy or insolvency laws, or in the event the Purchaser ceases to do business, is caused to cease, suspends doing business, or is caused to so suspend, or in the event the Purchaser commits or is caused to commit any other act amounting to a business failure, than the Seller shall be entitled to cancel any orders of the Purchaser then outstanding and shall receive reimbursement for cancellation charges pursuant to Paragraph 6 hereof. For prepaid terms, the Purchaser can choose to pay by Credit Card, PayPal, or wire transfer. A 5% fee will be assessed on all payments made by credit card. For net thirty terms the Seller shall invoice the Purchaser for products, freight and taxes upon shipment in US Dollars. In the event of delinquent payment deemed by the Seller as an extreme violation of the net thirty payment terms, the Purchaser shall be subject to two percent (2%) per month late fee, including all charges as denoted in the invoice(s) in question. Seller reserves the right to modify credit or payment terms at any time without prior notice to Purchaser, and to require payment guarantees, security or payment in advance in Seller’s sole discretion. Seller shall retain a security interest in the Product(s) until final payment is received. Purchaser is responsible to Seller for all reasonable attorney fees, court costs, and/or collection agency fees should Buyer default on payment.
19. WARRANTY/DISCLAIMER
The Employees of Seller are pleased to offer suggestions on the use of the various products we sell. However, Seller neither assumes responsibility for any information given, omissions or errors, nor does it assume any liability for any damages or losses that result from the use of the products sold in accordance with information provided, either verbal or written. Seller does not warranty any products sold by Seller, but rather passes through to its customers the warranties issued by the various manufacturers of the products sold. Seller makes no other warranties or representations of any kind whatsoever, expressed or implied, except that of title, and all implied warranties including any warranty of merchantability and fitness for a particular purpose are hereby disclaimed.
20. PROPERTY RIGHTS
Third party product names, symbols and logos are property and/or trademarks of their respective owners. No endorsement is expressed or implied.
21. LIMITATIONS OF LIABILITY
The remedies of purchaser set forth herein are exclusive, and the total liability of Seller with respect to any order, whether based on contract, warranty, negligence, indemnification, strict liability or otherwise, shall not exceed the purchase price of the component upon which liability is based. In no event shall Seller be liable for consequential, incidental or special damages.
22. CONDITIONS
Equipment sold by Seller is not intended to be used, nor shall it be used: (1) as a "Basic Component" under 10 CFR 21 (NRC), used in or with any nuclear installation or activity, or (2) in medical application or used on humans. Should any products(s) be used in or with any nuclear installation or activity, medical application, or used on humans, or misused in any way, Seller assumes no responsibility as set forth in our basic Warranty/Disclaimer language, and additionally purchaser will indemnify Seller and hold Seller harmless from any liability or damage whatsoever arising out of the use of the product(s) in any manner.
23. RETURNS AND REPAIRS
No Product may be returned without the prior written authorization of Seller. Authorized returns must (i) be returned in good (serviceable) condition to Seller’s facility from which it initially shipped, (ii) be accompanied by a packing slip, including Seller’s Return Material Authorization (RMA) number, and (iii) have transportation charges prepaid. Seller reserves the right to deduct an adequate service charge to cover all inspection, labor, testing and handling from any credit. All repairs are made on an FOB facility basis. All transportation charges on Products returned for repairs must be prepaid by Purchaser.
24. SOFTWARE
All rights and ownership in any software incorporated in the Products or otherwise supplied to Purchaser shall remain the sole and exclusive property of Seller. Purchaser is hereby granted a personal non-exclusive, non-transferable license to use the software, as provided and as intended by Seller, solely for Purchaser’s internal business purposes in the country in which the software or Product was furnished and solely for execution or use in the Product or system for which it was provided. Purchaser will not export or re-export the software without the appropriate licenses.
25. CONFIDENTIALITY
The price schedules, quotes and any other discounts contained herein are considered Confidential Information of Seller and Purchaser shall not discuss with or disseminate such Confidential Information to any third party without the prior written authorization of Seller.
26. INTELLECTUAL PROPERTY INDEMNIFICATION
Seller will defend, indemnify and hold Purchaser harmless from and against any claim that the Product or software of Seller’s own manufacture and design, as sold to Purchaser, or any part thereof, constitutes infringement of any United States Patent, provided that such infringement shall consist only in the use of such Product or software alone and not as a part of or in combination with any other devices and/or parts not provided by Seller and provided that; (i) Purchaser gives Seller immediate written notice of any claim of infringement and (ii) Seller is given full authority, information, and assistance by Purchaser (at Seller’s expense) for the defense of same. If at any time Seller determines there is a substantial question of infringement, or if the Product, software or any part thereof is judicially held to constitute infringement and the use of such Product, software or part is enjoined, Seller shall, in addition to the foregoing, at its own expense, and in its sole discretion either (i) procure for Purchaser the right to continue using and selling the Product, software or part, (ii) replace it with a non-infringing Product, software or part which substantially meets Purchaser's requirements, or (iii) refund the purchase price thereof to Purchaser. The foregoing is subject to the limitations of liability herein and states the Purchaser’s exclusive remedy for infringement of Seller’s Intellectual Property. In no event shall Seller be liable for, or defend, indemnify or hold Purchaser harmless from and against, any claim of infringement related to or arising from any Products or software manufactured or designed pursuant to Purchaser’s designs or specifications.
27. SURCHARGES
Surcharges maybe applied to invoices due to unforeseen increases in costs, including but not limited to, fuel, federal, state, local excise, sales, lease, service, rental use, property or other taxes/tariffs, transportation, international or domestic, and special packaging.
28. TOOLING
Unless otherwise agreed in writing, title to all tooling necessary to produce the Products shall remain vested in Seller, regardless whether the Purchaser pays a tooling charge or pays for such tooling. Tooling may be considered obsolete and destroyed by Seller if it does not receive any orders from Purchaser requiring the use of such tooling for a period of three (3) consecutive years.
29. LIMITATION OF LIABILITY
Notwithstanding anything else in these General Terms and Conditions of Sale, Seller’s liability shall be limited as follows:
IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOSS OF PRODUCTION, LOSS OF GOODWILL, LOSS OF CONTRACTS, LOSS OF ANTICIPATED SAVINGS, LOST REVENUES OR PROFITS, OR INCREASE IN OPERATING COSTS. IN NO EVENT SHALL SELLER’S LIABILITY EXCEED THE PURCHASE PRICE PAID TO SELLER FOR SELLER’S PRODUCT OR SOFTWARE FOR THE QUANTITIES OF SELLER’S PRODUCTS OR SOFTWARE ACTUALLY GIVING RISE TO THE LIABILITY. THESE LIMITATIONS SHALL APPLY EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER THE CLAIM FOR RECOVERY IS BASED ON BREACH OF WARRANTY OR CONTRACT, INTELLECTUAL PROPERTY INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT. THE RIGHT TO RECOVER DAMAGES WITHIN THE LIMITATIONS SPECIFIED ABOVE IS THE PURCHASER'S EXCLUSIVE ALTERNATIVE REMEDY IN THE EVENT THAT ANY OTHER CONTRACTUAL REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
30. GENERAL PROVISIONS
FORCE MAJEURE. Seller shall not be liable for any delay or failure in performance, or for any damages suffered by Purchaser by reason of such delay, if caused or arising directly or indirectly from any act beyond Seller’s reasonable control including, but not limited to, acts of God, vandalism, sabotage, accidents, fires, floods, strikes or other labor disputes, mechanical breakdown, shortages or delays in obtaining suitable parts, equipment, material, labor, power or transportation, acts of suppliers, interruption of utility services, acts of terrorism, or acts of any unit or agency of government. Any delays so occasioned shall affect a corresponding extension of Seller’s performance dates which are, in any event, understood to be approximate.
GOVERNING LAW. These General Terms and Conditions of Sale shall be governed and interpreted in accordance with the laws of the State of Ohio, regardless of the laws that might otherwise govern under applicable Ohio principles of conflicts of law, and without regard to the United Nations Convention on Contracts for the International Sale of Goods. Venue for any dispute arising from or related to these General Terms and Conditions of Sale shall be exclusively in the federal or state courts of the State of Ohio.
COMPLIANCE WITH LAWS. Seller will use its commercially best efforts to comply with all federal, state and local laws and regulations governing Seller’s Products. Purchaser agrees that it will specifically comply with; (i) the export/re-export laws of the United States, as promulgated by the U.S. Department of Commerce; (ii) the applicable export/re-export or import controls imposed by foreign countries; and (iii) all applicable laws and regulations imposed by any competent authorities including, without limitation, the U.S. Department of Commerce, and any controls or regulations of the U.S. Foreign Corrupt Practices Act and the anti-boycott regulations of the U.S. Department of State.
WAIVER. The failure of either party to enforce any provisions herein shall not be construed to constitute a waiver of such provision or of the right of such party to enforce each and every such provision.
TERMINATION. Seller shall have the right, without prejudice to any other remedy it may have, to immediately cancel all Purchaser orders and/or to stop all shipments to Purchaser, including stoppage in transit, in the event Purchaser fails to render payment on any invoice, Purchaser’s account is in arrears, or Purchaser becomes insolvent, enters into bankruptcy or is placed in receivership. Any such termination shall not relieve Purchaser of any of its obligations existing at the time of termination, including the obligation of Purchaser to pay for all Products received from Seller.
ASSIGNMENT. Seller reserves the right to assign, delegate or subcontract any order, in whole or in part, to its subsidiaries or affiliates or in the event of sale of more than 50% of stock or assets without the prior consent of Purchaser.
ENTIRE AGREEMENT. These General Terms and Conditions of Sale sets forth the entire understanding and agreement between the parties, and supersedes all previous and contemporaneous agreements, whether oral or written, expressed or implied, relating to the subject matter herein. These General Terms and Conditions of Sale may not be altered, amended or modified except by written instrument executed by the authorized representatives of both parties
IHT101 Rev 11 – General Terms and Conditions
