TERMS AND CONDITIONS
Acceptance of our offer is expressly limited to your assent to the terms and conditions Sections 1 through 12 as presented and on the offer contained in the previous pages (such terms collectively referred to as the “Terms”). Until you accept this offer, we may withdraw or modify it at any time after any expiration date of the offer stated above.
The agreement between you and us with respect to the equipment (the “Equipment”) and/or engineering services (the “Services”) described in the offer shall consist only of the Terms plus any additions to or revisions of the Terms to which you and we agree in a signed writing, which together constitute the final expression of our mutual agreement. We object to, and shall not be bound by, any additional or different terms, whether printed or otherwise and whether in your purchase order or in any other communication from you, unless we have specifically agreed to those additional or different terms in a signed writing. Prior courses of dealing, trade usage and verbal agreements not reduced to a writing signed by us, to the extent they differ from, modify, add to or detract from the agreement, shall not be binding on us. There are no agreements, promises, or understandings, either verbal or written that are not fully expressed herein. Neither you nor we have relied upon any statements made, recommendations from, or assistance by, the other party; and no such statement, recommendation or assistance shall constitute a waiver by either you or us of any of the provisions of the agreement. The agreement shall be for the benefit of you and us and not for the benefit of any other person.
3. Termination or Modification
The agreement may be modified or terminated only upon our mutual consent in a signed writing. If all or part of the sales contract is terminated, you shall reimburse us (unless you and we have reached a different written agreement) for all expenses and costs we have incurred in performing the agreement up to the date of termination, plus our reasonable overhead and profit.
4. Terms of Payment
Prices are F.O.B. our shipping point unless otherwise stated in writing. If we delay shipment at your request, payment for that shipment is due on the date when we were prepared to make that shipment.
The price does not include sales, use, occupation, excise or other taxes upon the production, sale or use of the Equipment and/or Services, and you shall pay all such taxes and all costs in connection with such taxes, wherever they may be levied and whether imposed before or after payment for the Equipment and/or Services.
Delivery dates are not guaranteed but rather are estimates based upon current information. We will endeavor in good faith to meet all estimated delivery dates. UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR ANY LOSS, DAMAGE, OR CONSEQUENTIAL DAMAGES DUE TO DELAY IN DELIVERY OR FAILURE TO MEET ESTIMATED DELIVERY DATES, unless there is a specific written agreement between you and us to the contrary.
We shall not be liable for failure to deliver or to perform our contractual responsibilities if due to causes beyond our reasonable control or the reasonable control of our suppliers, or due to acts of God, acts of civil or military authority, judicial action, fires, strikes, floods, epidemics, priorities, quarantine restrictions, war, riots, delays in transportation, car shortages, or inability due to causes beyond our reasonable control to obtain necessary labor, materials, or manufacturing facilities.
8. Risk of Loss
You assume all risk of loss or damage to the Equipment at the time we deliver the Equipment to the carrier, unless otherwise stated in writing.
9. Warranty and Warranty Limitations
We warrant that the Equipment shall conform to the specifications set forth in the Terms and shall be free from defects in material and workmanship. Except as may otherwise be specified in this offer, this warranty shall remain in force for a period of 12 months after initial operation of the Equipment or 18 months after shipment from the point of manufacture, whichever period is shorter. This warranty does not apply to Equipment that has been subject to misuse, neglect, accident, decomposition caused by chemical action, erosion, corrosion or improper installation or maintenance, or to Equipment that has been altered or repaired by anyone other than our authorized representative, or to any Services provided. The Buyer is solely responsible for selection of the materials of construction. This warranty also does not apply to any claim of which you do not notify us within a reasonable time, which shall not exceed 15 days after learning of a basis to believe that the Equipment does not meet the warranty. We make no other warranty or representation, express or implied, by operation of law or otherwise. IN PARTICULAR, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE IS EXPRESSLY EXCLUDED.
In cases where we only provide Services, it is understood and agreed by both you and we that the Services, engineering or otherwise, shall not be used or otherwise applied to the design or procurement of Equipment for this or any other installation, unless you and we specifically agreed to in a signed writing. You understand and agree that we (a) maintain all intellectual property rights on the ideas and inventions included in the Services provided; (b) offer no process or mechanical warranties on any application arising from the Services provided, and (c) accept no liability, neither direct or indirect, for any claims rising from the unapproved use of our Services. In the case where you and we specifically agree in writing that the Services can be utilized, our combined liability for all damages can not exceed the fee for the Service portion of the contract. If the Service is divided into phases, our responsibility is limited to the fee of the relevant phase from which the claim rose.
10. Remedies and Limitations of Liability
If you claim that we have breached any of our obligations under this contract, whether of warranty of otherwise, YOUR EXCLUSIVE REMEDY SHALL BE FOR US TO REPAIR OR REPLACE THE EQUIPMENT OR, AT OUR EXCLUSIVE OPTION, TO REFUND THE PURCHASE PRICE OF THE EQUIPMENT; OR REFUND THE PURCHASE PRICE OF THE ASSOCIATED SERVICES. Although we shall pay all transportation charges relative to repairing or replacing the Equipment, we shall not be responsible for costs of removal, loading, installation, or other similar related expense. No goods or Equipment may be returned without our written consent. UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES (other than any liability for consequential damages for injury to the person that may be imposed by law), AND ALL SUCH CONSEQUENTIAL DAMAGES ARE EXCLUDED, including but not limited to any lost profits, lost business opportunities, expenses or other consequential damages arising from system performance or defective parts, workmanship or materials. Loss of profits and costs associated with any plant downtime, no matter how either are incurred, are explicitly excluded.
We shall hold you harmless against any claim by any third party alleging infringement of any United States patent now issued, provided that the claim applies exclusively to apparatus we actually designed for and sold to you, and provided that the claim charges exclusively infringement of a mechanical apparatus claim of that patent. We shall have no such indemnification obligation or liability with respect to:
(a) any process or method patent claims arising from the Equipment or Services,
(b) claims based on the use of the Equipment and/or Services or part of the Equipment and/or Service in combination with products not supplied by us, or
(c) claims based on the use of the Equipment in an application other than that for which it was sold. THE FOREGOING INDEMNIFICATION IS IN LIEU OF ANY OTHER INDEMNITY OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO PATENTS.
You shall hold us harmless against any patent infringement claim which arises out of our compliance with your specifications. Our obligation to hold you harmless against the claims described above is conditioned upon you;
(a) notifying us in writing within 15 days of receipt of any claim as to which we have an indemnification obligation,
(b) allowing us, at our sole option, to assume absolute control over defense of the claim, including but not limited to granting us the sole right to contest, compromise, litigate, or otherwise dispose of such demand, action, suit, claim or proceeding, and
(c) if we assume that defense, providing us with all information available or known to you relating to such claim and providing reasonable cooperation in our defense.
If use of the Equipment and/or Services, or any part of the Equipment and/or Service, is enjoined because of a finding of infringement as to which we have an indemnification obligation under this section, we shall either (at our sole choice)
(a) procure at our expense your right to continue using the Equipment and/or Service,
(b) replace the Equipment with non-infringing equipment,
(c) modify the Equipment and/or Service so it becomes non-infringing, or
(d) refund the purchase price and transportation costs incurred by you in connection with the infringing Equipment. THESE ARE YOUR EXCLUSIVE REMEDIES AND OUR ENTIRE LIABILITY FOR PATENT INFRINGEMENT BY OUR EQUIPMENT AND/OR SERVICES, AND IN NO EVENT SHALL WE BE LIABLE FOR CONSEQUENTIAL DAMAGES FROM SUCH INFRINGEMENT.
12. Governing Law
The formation and performance of the contract shall be governed by the Uniform Commercial Code as adopted in the State of Illinois. Any action for breach of the contract, including any breach of warranty must be commenced within one year after the cause of action has accrued.