2. Authority To Bind Seller. Seller shall not be legally bound by any contract, quote, purchase order, terms and conditions, agreements or other document unless it is signed by an authorized officer of Seller. As used in these terms and conditions, “officer” shall mean only the President, Vice President, Secretary, Controller, Chief Financial Officer or Chief Engineer of Seller and no other person. Non-officer employees of Seller, outside sales representatives, distributors and other persons are not authorized and do not have the power to accept any offer, modify any contract or bind Seller in any way, whether orally or in writing or digitally.
Industry Solutions International, Inc.® Terms and Conditions #2013050528
Industry Solutions International, Inc.® Terms and Conditions #2013050528
Industry Solutions International, Inc. devices are NOT sold as safety devices and are not marketed as safety devices. They are sold only as a secondary method of making the hoist or other equipment have less maintenance. Industry Solutions International, Inc. prohibits any re-seller or installer from making any claim other than the above for its products.
1. Order Subject to Acceptance. All orders are subject to approval and acceptance in writing by an authorized officer of Industry Solutions International, Inc. (“Seller”), at Seller’s offices in East Dundee, Illinois U.S.A.
3. Entire Agreement. Acceptance of orders, whether oral or written, is based on the express condition that Buyer agrees to all of the terms and conditions contained herein. Acceptance of delivery or pre-payment by Buyer will constitute Buyer’s assent to these terms and conditions. These terms and conditions represent the complete agreement of the parties, and no terms or conditions in any way adding to, modifying or otherwise changing the provisions stated herein shall be binding upon Seller unless made in writing and signed and approved by an officer of Seller. No modification of any of these terms will be affected by Seller’s shipment of goods following receipt of Buyer’s purchase order, shipping request or similar forms containing printed terms and conditions conflicting or inconsistent with the terms herein, and notice is hereby given that Seller objects to any such terms or conditions in Buyer’s purchase order or other document or communication. An order acknowledgement by Seller does not indicate acceptance of any standard or special terms and conditions of Buyer.
4. Seller’s Quote. Seller’s written quote is the definitive document governing the description, specifications and other details of the goods sold to Buyer, and Seller shall be responsible for delivering goods only as described in Seller’s quote. This Terms and Conditions document is a substantial and necessary part of that quotation and subsequent invoice. No other written or oral statement shall serve to modify, add or delete the description, specifications, and details of Seller’s quote. Buyer has sole responsibility to verify that Seller’s quote accurately and completely references all necessary descriptions, specifications and details of goods ordered. Buyer acknowledges that all documents it supplies to Seller for purposes of Seller’s quote preparation are subject to Seller’s interpretation of such documents and specifications. Buyer has sole responsibility to ensure that the goods or services quoted by Seller meet Buyer’s (and any of Buyer’s customers) exact interpretations of specifications. In the event a variation in interpretation of a specification is discovered by Buyer after its acceptance of Seller’s quote and entry of a purchase order but before shipment, Seller may, but shall not be obligated to, issue a revised quote to Buyer. If the order is then cancelled by Buyer, cancellation charges shall apply.
5. Drawings. Buyer must request to review Seller prepared drawings within 5 days of placing an order, otherwise Buyer shall have waived its right to review and object to Seller prepared drawings for that order or, in the alternative, Buyer must pay for new drawings.
6. Prices. All prices are F.O.B. Seller’s dock within the USA or Ex Works for international shipments, unless otherwise specified in writing by Seller on the face side hereof, and are subject to adjustment, without notice, to Seller’s prices in effect at the time of shipment. Any increase in transportation rates (including any fees, duties, taxes or other) or any changes in routing resulting in an increase in transportation costs shall be paid and borne by Buyer.
7. Cash Discount. Cash discount, if any is indicated, will apply only on the net amount of invoice after deducting transportation charges, duties and taxes thereon, unless otherwise specified, and will be allowed only if taken within the time stated, and provided there are no past due items or other past due invoices.
8. Payment. All accounts shall be paid net in United States Dollars at Seller’s offices located at 561-5 Plate Drive, East Dundee, Illinois 60118 per the terms set forth on Seller’s invoice. A service charge of the lesser of 1.5% per month or the maximum permissible rate will be added to all past due accounts. Buyer waives any right of offset or recoupment and shall pay all amounts owed to Seller when due regardless of any claim of Buyer regarding warranties or other issues arising under contract, tort, statute or otherwise.
9. Security. Buyer hereby grants Seller a security interest in all goods delivered hereunder until the purchase price and all other liabilities due Seller hereunder have been paid in full. Seller may record any and all UCC financing statements and other documents it deems necessary or desirable in order to evidence and perfect said security interest. If, at any time, reasonable grounds for insecurity arise with respect to Buyer’s performance of its payment or other obligations, Seller may demand immediate payment in full or a documentary letter of credit approved by a U.S. bank acceptable to Seller or other financial security for such payment or other obligations. In addition, all amounts owed by Buyer to Seller shall be accelerated and payable immediately if Buyer fails to make any payment on time and as otherwise required or if Buyer sells or transfers the line of business for which the goods are purchased or is a participant in a merger or other reorganization.
10. Taxes. All taxes and excises of any nature whatsoever now or hereafter levied by governmental authority, whether federal, state, local or foreign, either directly or indirectly, upon the sale or transportation of any goods covered hereby shall be paid and borne by Buyer, even if levied or discovered after the initial invoice has been paid. In that event, an additional invoice for any taxes or duties will be sent to Buyer to be paid in full to Seller or directly to the state or governmental office.
11. Force Majeure. Seller shall not be liable for delays in shipment or default in delivery for any reason of force majeure or for any cause beyond Seller’s reasonable control including, but not limited to, (a) government action, war, acts of terrorism, riots, civil commotion, embargoes or martial laws, (b) Seller’s inability to obtain necessary materials from its usual sources of supply, (c) shortage of labor, raw material, production or transportation facilities or other delays in transit, (d) labor difficulty involving employees of Seller or others, (e) fire, flood or other casualty, or (f) other contingencies of manufacture, including software issues or hardware issues or shipment. In the event of any delay in Seller’s performance due in whole or in part to any cause beyond Seller’s reasonable control, Seller shall have such additional time for performance as may be reasonably necessary under the circumstances. Acceptance by Buyer of any goods, in part or whole, shall constitute a waiver by Buyer of any claim for damages on account of any delay in delivery of such goods.
12. Shipping Dates. Shipping dates are estimates based on Seller’s present engineering and manufacturing capacity and scheduling, and may be revised by Seller upon receipt or scheduling of Buyer’s order. All shipping dates are approximate and shall be initially computed from the date of entry of the order on Seller’s books. All shipping dates are further subject to Seller’s prompt receipt from Buyer of a signed quote, written purchase order, letter of credit, signed agreements, down payment, and other conditions as specified Seller’s quote or other sale documents, and of all drawings, information and approvals necessary to provide the goods and to grant any credit proposed in the Agreement. Actual SFSD (see 13) therefore may be +/- several days or weeks changed from original estimate depending on the goods or system supplied .
13. Holding of Goods by Seller. Seller will attempt to honor reasonable requests from Buyer to delay a scheduled shipment of goods, but in no event shall Seller be obligated to store goods past Seller’s Final Shipping Date (“SFSD”). SFSD is the date where the product is actually readied (or would have been ready) to ship at the Seller’s dock. Seller may at its option cancel orders for any goods which remain at Seller’s warehouse more than 10 days past the SFSD, without notice, if no down payment has been received. Goods which are to be stored past 10 days will be require a down payment of 25% minimum for the first 29 days and an additional 25% due at the beginning of each additional 30 days stored (calculated from the SFSD and payable the first week of each extended 30 day period). In any case, a minimum 5% storage fee is due and chargeable ON DAY 30 and additionally at the beginning of every 30 day period past SFSD regardless of actual time stored. Storage fees will also apply on a delay of SFSD due to delayed receipt of “Buyer to supply” components or for other delays caused by the Buyer. In all cases, Seller may refuse to extend storage of goods and may ship and invoice (including unpaid storage fees and other costs) such goods to the Buyer at Seller’s earliest convenience.
14. Title/Risk of Loss. Delivery of goods to carrier shall be deemed delivery to Buyer, and thereupon title to such goods, and risk of loss or damage, shall be Buyer’s. Any claim by Buyer against Seller for shortage or damage occurring prior to such delivery must be made in writing within ten (10) days after receipt of shipment and accompanied by original transportation bill signed by carrier noting that carrier received goods from Seller in the condition claimed. Any claim by Buyer for damage, loss or shortage occurring during shipment shall be made directly against the freight carrier, with a copy of such claim forwarded to Seller within ten (10) days. Internal damage to goods may occur during shipment and it they are not warranted.
15. Returned Shipments. Any shipments returned to Seller as a result of Buyer’s unexcused delay or failure to accept delivery will require Buyer to pay all additional costs incurred by Seller, including storage fees. Invoice date will be the date of original shipment unless rescinded in writing by Seller at Sellers option.
16. Buyer’s Installation and Troubleshooting. Buyer is responsible for the installation of goods and all related costs and expenses. Buyer must schedule a reasonable amount of time to install the goods and conduct related start-up trouble shooting and adjustments before goods are operational, including additional time in the case of complications. This includes having professional electrical and mechanical personnel on hand who are familiar with the type of goods ordered. In the case of custom designed control systems, significant additional time must always be scheduled including that for the unexpected (unusual applications or custom systems will not be able to test all variables apart from the actual installation). Seller shall not be liable to Buyer or any third party for installation and related troubleshooting costs and expenses, including any lift or equipment rental or transportation charges or personnel or for any other contractual obligations of the Buyer to its customer(s). Unless specified in a quotation, on-site Seller assistance is not included.
17. Product Use. Seller does not sell safety products. Primary electrical and mechanical safety devices must be used on Buyer’s (or Buyer’s customer’s) equipment, and Seller’s goods are not to be relied on or used as a safety device. Regular testing of equipment by Buyer is mandatory along with regular OSHA and other inspections of Buyer’s equipment and attached equipment when applicable. Buyer must use only professionally trained electricians and mechanics for service or installation of Seller’s goods. Buyer must take all appropriate safety measures when installing or testing Sellers equipment, including all OSHA requirements and adherence to local and national electrical/mechanical safety codes and test procedures. It is Buyer’s responsibility to educate its actual customer in this regard. ISI products are expressly sold to increase reliability of the crane/hoist and under no conditions sold as personnel safety devices. No sales representative or second or third party may represent otherwise to any re-seller or end user.
18. Limited Warranty. Seller warrants at the time that its goods provided that the goods will substantially meet the specifications that are expressly set forth in Seller’s quote. In the case of custom controls or panels, some adjustment or troubleshooting may be necessary in the field by the customer. If goods or services fail to conform to the foregoing warranties set forth in this section, Seller will, at Seller’s option, and as Buyer’s sole and exclusive remedy, either: (i) refund to Buyer an amount equal to the price that Buyer paid Seller for such nonconforming goods (or for the non-conforming portion of the goods in question) or (ii) repair or replace the goods so that such goods meet the foregoing warranty at as Seller may elect. Any repair or attempted repair by Buyer of non-conforming goods, without the prior express written consent of Seller, shall void all Seller warranties. Seller shall not be liable to pay for or reimburse Buyer for any repairs to or replacements or service costs including any time, travel, equipment, personnel or materials, or losses due to any contractual obligation by Buyer to any other party.
19. Disclaimer. THE FOREGOING WARRANTY IS N LIEU OF AND EXCLUDES ALL OTHER WARRANTIES NOT EXPRESSLY SET FORTH HEREIN, WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDNG BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
20. Infringement. Seller disclaims any implied warranty of non-infringement. Buyer shall notify Seller promptly of any assertions of patent infringement and provide Seller with assistance and information requested by Seller for its defense, or shall have no further obligation to defend or indemnify. Seller shall defend with its counsel or other counsel of its choice and shall have the sole right, without consultation with Buyer, to take all action Seller deems appropriate to prosecute or settle such claims. Seller’s exclusive obligation to indemnify as to goods declared to infringe is limited to the acquisition of a license, the replacement of goods with non-infringing goods, the modification of the goods so that they are non-infringing, or the return of the purchase price and shipping costs in exchange for the goods, as Seller may elect. This Section states Seller’s entire and exclusive obligation regarding patent infringement and remedies therefor, and Buyer waives all other rights.
21. Limitation of Liability. EXCEPT AS EXPRESSLY SET FORTH IN THE LIMITED WARRANTY SECTION ABOVE, SELLER SHALL NOT BE LIABLE TO BUYER OR TO ANY OTHER PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM TRANSACTIONS BETWEEN BUYER AND SELLER EVEN IF SELLER WAS PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER’S TOTAL LIABILITY, WHETHER IN CONTRACT OR TORT OR OTHERWISE SHALL NOT EXCEED THE PRICE PAID BY BUYER FOR THE SPECIFIC GOODS OR SERVICES GIVING RISE TO THE LIABILITY.
22. Method of Shipment. Seller will use all reasonable efforts to comply with Buyer’s requests as to method of shipment, but Seller reserves the right to use an alternate method of transportation or route of shipment if substantial delay might otherwise occur. In such cases Seller will notify Buyer of such changes as soon as reasonably possible.
23. Return of Goods. Goods cannot be returned by Buyer and orders once accepted cannot be cancelled except in accordance with the provisions of these terms and conditions.
24. Termination for Convenience. If Buyer notifies Seller that it terminates this or any order for its convenience, Seller will stop all work as promptly as reasonably possible, but Buyer shall promptly pay Seller’s cost of manufacture and liquidated damages (including labor, engineering, materials, equipment time, and overhead) computed using Seller’s standard internal costing procedures, plus 25% of the sale price of the goods. Cost of manufacture shall include all materials or services which Seller has ordered and which cannot be canceled and all costs incurred in canceling material and service orders which can be canceled. Seller will retain without cost all materials and partially completed goods on canceled orders. The parties acknowledge the great difficulty of proving damages for the cancellation of products such as the goods and the reasonableness of this liquidated damages provision.
25. Confidentiality. Any proposals, prints, brochures, drawings, electronic communications, digital communications, access to Seller’s customer web portal, data or other information furnished to Buyer by Seller are intended for confidential use and shall remain the property of Seller, and shall not be disclosed or used to the detriment of Seller’s competitive position.
26. Indemnification. Buyer shall indemnify and hold harmless Seller from any and all third party claims, liability, damages and expenses (including reasonable attorney fees, expert fees and court costs) under theories of tort, product liability, negligence, warranty, contract, statute of otherwise arising out of the use, storage, sale or disposition of the goods sold to Buyer hereunder or supplies or materials used in connection with such goods, if any action or inaction of Buyer or its employees, contractors, customers or agents was a material or proximate cause of injuries or damages giving rise to third party claims against Seller.
27. Exclusions. All of Seller’s drawings, descriptive matter, weights, dimensions, descriptions and illustrations contained in Seller’s catalogues, price lists, internet, or advertisements are approximate only and intended merely to give a general idea of the goods described therein and shall not form part of this Agreement.
28. Waiver. Waiver by Seller of any breach of these terms and conditions shall not be construed as a waiver of any other breach, and failure to exercise any right arising from any default hereunder shall not be deemed a waiver of such right which may be exercised at any subsequent time.
29. Severability. In the event that any one or more of these terms or conditions is held invalid, illegal or unenforceable, such provision or provisions shall be severed and the remaining terms and conditions shall remain binding and effective.
30. Controlling Law. This Agreement shall be deemed to have been executed and delivered in East Dundee, Illinois, U.S.A. Except as otherwise provided herein, this Agreement and all rights and obligations hereunder, including matters of construction, validity and performance, shall be governed by the internal laws of the State of Illinois, U.S.A., including the Uniform Commercial Code as enacted in that jurisdiction, without giving effect to the principles of conflicts of law thereof. In the event Buyer’s place of business is in a country that has ratified the United Nations Convention on Contracts for the International Sale of Goods (1980) (“Convention”), the parties agree to exclude application of the Convention.
31. Legal Proceedings. The jurisdiction and venue of any legal proceedings for the resolution of disputes arising under or in connection with this Agreement shall be, at the option of Seller, in the federal or state courts of Kane County or Cook County, Illinois, U.S.A. as Seller may elect.
32. Attorneys’ Fees. If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, Seller shall be entitled to recover its reasonable attorneys’ fees and all other costs and expenses of litigation from Buyer, which amounts may be set by the court in the trial of such action or may be enforced in a separate action brought for that purpose, and which amounts shall be in addition to any other relief which may be awarded. Without limiting the foregoing provision, in the event of non-payment of an invoice(s), Seller shall have the right to recover its reasonable collection and/or attorney’s fees along with all other related costs and expenses from Buyer. 2013050528 Terms and Conditions ©2018 Industry Solutions International, Inc.®