TERMS AND CONDITIONS OF SALE
These terms and conditions govern the sale of Products (“Products”) and provisions of services (“Services”) by International Material Control Solutions and its affiliate, Peerless Contracting Solutions (collectively the “Seller”) as well as by third party vendors and/or service providers of Seller. These terms and conditions, together with any other documents which Seller has attached or referenced as part of the contract (the “Agreement”), are the sole and complete contract between Buyer and Seller regarding the Products and supersede all prior oral and written understandings. Seller rejects those provisions of any previous order, offer, or other communication from Buyer, which are additional to or different from these terms and conditions. Neither Seller’s delivery of the Products nor any other action at any time on the part of Seller shall constitute acceptance of any additional or different terms. Buyer shall be bound by all of the terms of this Agreement when Buyer accepts this Agreement by any statement, act or course of conduct which constitutes acceptance under applicable law, including failure to object in writing within a reasonable time and acceptance of delivery of the Products. Seller’s failure to object to conflicting or additional terms will not change or add to the terms of this Agreement.
All orders placed by Buyer are subject to acceptance by Seller. All orders require a signed purchase order to Seller, prior to shipment. If a purchase order has not been accepted and signed by Seller within thirty (30) days from the quote date, the terms and conditions of the issued quote are subject to change. Orders may not be cancelled or rescheduled without Seller’s written consent. All orders must identify the products, unit quantities, part numbers, applicable prices and requested delivery dates of the Products being purchased. Minimum purchase order is One Hundred Dollars ($100). Seller may designate certain Products and Services as non-cancelable, nonreturnable, and the sale of such Products shall be subject to Seller’s special terms and conditions which shall prevail and supersede any inconsistent terms and conditions contained herein or elsewhere.
Deposits received on equipment, system and service orders are non-refundable. In the event that an order is canceled, deposit monies will be applied to all work completed, materials and components purchased, engineering services and administrative costs. Any remaining balance against the deposit will be placed on account for future IMCS equipment and service purchases.
SPECIFICATIONS AND TECHNICAL ASSISTANCE
Specifications are subject to change at any time without advance notice. All test material must arrive at Seller in a timely manner, shipping cost prepaid. Seller’s standard equipment color is “IMCS light grey,” and if a custom color is required, Buyer shall provide Seller with the color specification prior to receiving a quote. If technical assistance or advice is offered or given to Buyer, such assistance or advice is given only as an accommodation to Buyer. Seller shall not be held liable for the content or Buyer’s use of such technical assistance or advice nor shall any statement made by any of Seller’s representatives in connection with the Products or Services constitute a representation or warranty, express or implied.
The prices of the Products are those prices specified on the front of the invoice. Fees and permits are Buyer’s responsibility, unless stated otherwise in the invoice. Pricing for undelivered Products may be increased in the event of an increase in Seller’s cost, change in market conditions, or any causes beyond Seller’s reasonable control. Price quotations shall automatically expire in thirty (30) days from the date issued, unless an expiration date is stated in the quote. Published pricing and Quote pricing are subject to change without notice.
Unless otherwise agreed to in writing by Seller, all prices quoted are exclusive of transportation and insurance costs, duties, and all taxes including federal, state and local sales, excise and value added, goods and services taxes, and any other taxes. Buyer agrees to indemnify and hold Seller harmless for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon. When applicable, transportation, packaging and taxes shall appear as separate items on Seller’s invoice.
Payment may be made by check, money order, credit card, or wire transfer (all fees are borne by the Buyer). All credit card payments shall be charged a two percent (2%) convenience fee. Where Seller has extended credit to Buyer, terms of payment shall be net thirty (30) days from date of invoice, without offset or deduction. On any past due invoice, Seller may cancel and revoke any discounts, and charge interest at the rate of one and a half percent (1.5%) per month on the unpaid balance. If Buyer fails to make each payment when it is due, Seller reserves the right to change or withdraw credit, and suspend or cancel performance under any or all purchase orders or agreements in which Seller has extended credit to Buyer. In the event of default by Buyer, Seller shall be entitled to costs, fees, and expenses, including but not limited to recovery of attorney fees, court costs and fees, and collections costs.
EQUIPMENT AND SYSTEM ORDERS
Orders under $5,000 USD, balance due net 30 from Seller final invoice date. Orders over $5,000 USD, 40% payable at the date of the purchase order; 40% payable prior to shipment and balance due net 30 from Seller final invoice date. Orders shipping outside the Continental United States, where the final destination is outside the United States or invoicing is outside the United States, require 100% payment prior to shipping. Seller reserves the right to change or amend payment terms in its sole discretion.
BOLT, CORRUGATED AND WELDED SILOS AND SPECIAL / CUSTOM ORDERS
40% down payment required, payable at the date of the purchase order, 40% upon receipt of material(s) from the factory, balance due net 10 days from the final Seller invoice date.
PEERLESS CONTRACTING SOLUTIONS SERVICES
40% payable at the date of the purchase order, monthly progress payments invoiced by Seller on the 20th of each month payable net 10 days.
EQUIPMENT PURCHASED UNDER PEERLESS CONTRACTING SOLUTIONS SERVICE CONTRACT
40% payable at the date of the invoice; balance due net 30 days from the Seller invoice date.
All deliveries will be made motor freight, COLLECT, unless Seller agrees otherwise in a signed purchase order. All prepaid motor freight is subject to a 20% handling charge. All UPS shipments are shipped prepaid and add unless otherwise specified in the Seller accepted purchase order. All Federal Express, Emery and other carriers are shipped bill consignee; consignee’s account number is required by Seller. Silo orders are F.O.B factory, all other equipment is F.O.B. Holland, Michigan. All freight and packaging bills are due upon receipt.
DELIVERY AND TITLE
Title and risk of loss pass to the Buyer upon delivery of the Product to the carrier. Seller’s delivery dates are estimates only and Seller is not liable for delays in delivery, or for failure to perform due to causes beyond the reasonable control of the Seller. If delivery dates change, Seller will endeavor to inform the Buyer as soon as possible of the new estimated ship date. Shipping dates on orders that require the Buyer’s approval of engineering drawings will be estimated only after Seller’s receipt of the Buyer’s signed approval of the drawings. The carrier not be deemed an agent of the Seller. A delayed delivery of any part of an Order does not entitle Buyer to cancel other deliveries.
Buyer shall inspect for shortages, and must notify Seller in writing no later than sixty (60) days after the shipment date stated on the packing slip. Buyer shall inspect a shipment for damage. If the package is damaged, Buyer shall not sign for the delivery prior to inspection. In the event of damage, Buyer shall make a claim directly with the carrier. Failure to follow this procedure will result in no refund or repair of the damage to the shipment.
Products must be in original condition to be returned, unless there is a manufacturer defect. Buyer must notify Seller within 60 days of ship date, then return the item within 14 days of receiving a Return Authorization Number (RAN) from Seller. If the Product is approved for return, Seller will issue a RAN. Once the RAN is received, Product must be returned within 14 days. All authorized returns must arrive at Seller with shipping cost prepaid, unless otherwise agreed. Seller will provide Buyer with specific instructions on where to return Products with the RAN. Include the signed RAN in the return package stating the reason for the return and the original receipt. Unless otherwise agreed, returns are subject to a fifty percent (50%) restocking fee on stock items. Custom products and systems are subject to a seventy percent (70%) restocking fee. Seller will not refund the original shipping and handling paid on the order. Buyer must prepay the return freight charges and Seller will not accept COD shipments. Return Balances will be put on account for future IMCS equipment and service products.
SELLER WARRANTS TO THE ORIGINAL BUYER THAT ITS PRODUCT(S), WITHOUT MODIFICATION, WILL SUBSTANTIALLY CONFORM AND FUNCTION IN ACCORDANCE WITH SELLER’S PUBLISHED SPECIFICATIONS (OWNERS MANUAL), UNDER ORDINARY INTENDED USE AND SERVICE, FOR A PERIOD OF TWELVE (12) MONTHS AFTER DELIVERY TO THE BUYER, EXCEPT THAT THE WARRANTY PERIOD FOR AUGERS SHALL BE LIMITED TO NINETY (90) DAYS AFTER DELIVERY. EXCEPT AS STATED IN THIS LIMITED WARRANTY, SELLER MAKES NO WARRANTIES OR PREPRESENTATIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, OR RELATED MATERIALS, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, QUALITY, PRODUCTIVENESS, CAPACITY, OR ANY OTHER WARRANTY IMPLIED AT LAW OR EQUITY. SELLER DOES NOT WARRANT THAT THE PRODUCTS WILL MEET BUYER’S REQUIREMENTS, ANY RESULTS TO BE ACHIEVED, OR THAT THE USE OR OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE MINIMAL PERIOD ALLOWABLE BY LAW. THIS WARRANTY DOES NOT COVER DEFECTS OR MALFUNCTIONS WHICH RESULT FROM CAUSES BEYOND SELLER’S CONTROL, INCLUDING, WITHOUT LIMITATIONS (A) UNUSUAL PHYSICAL OR ELECTRICAL STRESS; (B) ACCIDENT, NEGLECT, ABUSE, MISUSE OR OTHER ABNORMAL USE; (C) FAILURE TO PERFORM ROUTINE MAINTENANCE IN ACCORDANCE WITH SELLER’S RECOMMENDED PROCEDURES; (D) NORMAL WEAR AND TEAR; (E) REPAIRS OR ATTEMPTED REPAIRS BY AN UNAUTHORIZED PERSON; (F) MODIFICATIONS OR ALTERATIONS TO THE PRODUCT; (G) IMPROPER SERVICING; (H) SHIPPING DAMAGES; AND (I) OPERATION OF PRODUCTS INCONSISTENT WITH SELLER PROVIDED INSTRUCTIONS. THIS WARRANTY SHALL EXTEND ONLY TO THE ORIGINAL BUYER AND SHALL BE VOID IF THE PRODUCT IS ALTERED OR DEFACED. BUYER SHALL NOTIFY SELLER OF ANY COVERED DEFECT WITHIN THE WARRANTY PERIOD, AND SELLER SHALL AT ITS SOLE OPTION, REPAIR OR REPLACE THE PRODUCT WHICH PROVES TO BE DEFECTIVE. THIS IS BUYER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS LIMITED WARRANTY. IF SELLER IS UNABLE TO REPAIR OR REPLACE THE COVERED DEFECT WITHIN A REASONABLE TIME, SELLER WILL, UPON WRITTEN REQUEST BY BUYER, REFUND ANY PAYMENT MADE FOR THE PRODUCT. SUCH REMEDY SHALL BE BUYER’S SOLE REMEDY WITH RESPECT TO ANY PARTICULAR DEFECT IN A PRODUCT. THE FOREGOING IS THE COMPLETE WARRANTY FOR THE PRODUCTS AND SUPERSEDES ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER ORAL OR WRITTEN.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SELLER’S TOTAL LIABILITY TO BUYER OR ANY OTHER PERSON OR ENTITY, FOR ANY CAUSE OR COMBINATION OF CAUSES, WHETHER ARISING OUT OF CLAIMS BASED UPON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, IS IN THE AGGREGATE, LIMITED TO AN AMOUNT NO GREATER THAN THE PURCHASE PRICE PAID FOR THE PRODUCT. IN NO EVENT SHALL SELLER, ITS OFFICERS, EMPLOYEES, AFFILIATES, CONTRACTORS, SUPPLIERS, AGENTS, AND REPRESENTATIVES, BE LIABLE TO BUYER, OR ANY OTHER ENTITY OR PERSON, FOR ANY DAMAGES, EXPENSES, LOSS OF PROFITS OR REVENUE, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEADS, BUSINESS INTERRUPTION COST, LOSS OF DATA, REMOVAL OR REINSTALLATION COSTS, INJURY TO REPUTATION OR LOSS OF CUSTOMERS, OR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, PUNITIVE, CONSEQUENTIAL, OR OTHER DAMAGES ARISING OUT OF A DEFECTIVE PRODUCT, USE OR INABILITY TO USE A PRODUCT, OR ANY OTHER MATTER WHATSOEVER, REGARDLESS OF (a) THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED, OR (b) WHETHER SELLER HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LIBILITIES OR CLAIMS.
INDEMNIFICATION BY BUYER
Buyer shall indemnify, defend and hold Seller harmless from and against any and all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with (a) Seller’s compliance with Buyer’s designs, specifications, or instructions; (b) modification of any Products by anyone other than Seller; (c) use or possession of the Products; or (d) use of the Products in combination with other products.
Seller is not liable for failure to fulfill its obligations for any accepted order or for delays in delivery due to causes beyond Seller’s reasonable control including, but not limited to, acts of God, natural or artificial disaster, riot, war, strike, protest, delay by carrier, acts or omissions of other parties, acts or omissions of civil or military authority, changes in law, fire, floods, acts of terrorism, delays in transportation or inability to obtain labor or materials through its regular sources, any of which shall be considered as an event of force majeure excusing Seller from performance and barring remedies for non-performance. In an event of force majeure condition, the Seller’s time for performance shall be extended for a period equal to the time lost as a consequence of the force majeure condition without subjecting Seller to any liability or penalty. Seller may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to the Buyer.
Buyer certifies that it will be the recipient of the Products to be delivered by Seller. Buyer understands that the associated hardware, software, and/or technical data for the Products listed on the purchase order may include items that are governed by the U.S. Export Administration Regulations (“EAR”), by the U.S. Foreign Assets Control Regulations (“OFAC”) and the International Traffic in Arms Regulations (“ITAR”). Buyer understands that its sale or distribution of said products may constitute exports or re-exports, and as such, must be in accordance with the requirements administered by Bureau of Industry and Security, Department of Treasury, and Department of State. It is understood that the country of ultimate destination, commodity classification, end-user, or end-use for any said products, could affect the applicable license requirements and exportability. Buyer agrees to consult various resources, such as the EAR, ITAR, and OFAC, by the U.S. Department of Commerce’s Bureau of Industry and Security’s (“BIS”) Export Counseling Division, and other appropriate Government Sources to ensure that the sales and distribution of said products, is processed in accordance with all applicable laws. The Seller will not transfer any export-controlled products to a non “U.S. Person” without the proper authority of the United States Government, and the Buyer’s written approval.
To secure Buyer’s obligations to pay the purchase price in full, Buyer grants to Seller a lien and security interest on the Products, wherever located, and all proceeds, accessories, and additions now or hereafter placed in or on the Products. The Products shall be and remain subject to such lien and security interest of Seller for payment of all unpaid sums owed by Buyer to Seller. The provisions of this section relating to said lien and security interest shall constitute a security agreement under the Uniform Commercial Code so that Seller, or either of them, shall have and may enforce a security interest on all Products received by Buyer from Seller, now or hereafter acquired. Buyer hereby irrevocably appoints Seller as its attorney-in-fact to execute any and all documents which Seller deems reasonably necessary to effectuate the terms hereof, including filing a financing statement in the appropriate jurisdiction(s). This appointment is coupled with an interest, and is irrevocable.
The laws of the State of Michigan will exclusively govern any dispute between Seller and Buyer. Buyer may not assign this Agreement without the prior written consent of Seller. Seller or its affiliates may perform the obligations under this Agreement. This Agreement is binding on Buyer’s successor and assigns. Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and/or user licenses. Seller and Buyer agree that signatures sent and received via facsimile, PDF or e-mail shall be valid and binding upon the party signing this Agreement in such manner. Seller and Buyer further agree that this Agreement may be signed in any number of counterparts with the same effect as if the signature on each such counterpart were upon the same instrument. Each copy executed in compliance with this section shall be deemed an executed original for all purposes.