Subject to the terms and conditions (“Terms and Conditions”) stated herein, IsoNova Technologies LLC. (“IsoNova”) shall provide you (Purchaser”) with certain goods (“Goods”) and/or services (“Services”), pursuant to the quote (“Quote”) delivered herewith. No prior, additional, contrary or inconsistent terms and/or conditions contained in any purchase order, confirmation or written correspondence of Purchaser will apply to the sale of Goods from IsoNova to Purchaser, even if Purchaser expressly conditions its purchase on IsoNova’s agreement to such terms and conditions. These terms and conditions will supersede all prior terms and conditions. No other terms or conditions will be effective unless made in writing and signed by an officer of IsoNova.
1. Price and Payment Terms: The total amount due under this Agreement shall be as set forth in the Quote. The invoice amount shall be due and payable within 15 days from the invoice date; and a 3-6 week lead time on all stock items shall be allowed, unless expressly agreed to in writing by IsoNova; the parties agree to attempt to negotiate a resolution to such dispute within 30 days following the scheduled payment date.
2. Order Change/Cancellation Fees and Guidelines. Domestic: Any changes need to be made within 3 business days of scheduled shipment. In all of the above instances, additional carrier fees may also apply and be charged to Purchaser. International: Requested changes/cancellation after approval of proforma may not be possible because of completed production or transportation arrangements. A minimum $150.00 fee would apply to orders that can be changed. Additionally, any applicable carrier fees would be for the account of the Purchaser. This section does not apply to custom products/goods manufactured using Purchaser’s Specifications and Purchaser shall remain liable for all of IsoNova’s costs arising from changes to or cancellation of such orders.
3. Title; Risk of Loss; Shipment; Freight. Title to the Goods and risk of loss thereof shall pass to Purchaser upon delivery to carrier at IsoNova’s location, and Purchaser shall be responsible for obtaining insurance if desired. Unless otherwise specified in the Quote: (i) delivery will be made EXW – Ex Works, Incoterms 2010, at IsoNova’s designated shipping point; (ii) freight will be paid by IsoNova, but IsoNova will be reimbursed by Purchaser in accordance with the shipping and handling charges set forth in the Quote; and (iii) IsoNova will ship by a carrier selected by IsoNova. IsoNova may charge Purchaser an additional shipping fee for priority, rush or drop shipments. Purchaser must confirm all delivery and pickup appointments at least 24 hours in advance by calling the appropriate IsoNova plant the product is shipping from.
4. Acceptance and Returns. Goods are deemed accepted by Purchaser on the earlier of payment for the Goods or 30 days after shipment. Purchaser shall have no longer than 30 days to inspect and reject Goods. Goods may only be returned to IsoNova with a Material Return Authorization (“MRA”) number. To obtain a MRA number, please call Customer Service at 888-304-5849. Return of Goods is permitted only in the event that the Goods do not contain any customized components and are returned in a new and unused condition. Purchaser is responsible for all costs to transport returned Goods to IsoNova.
5. Limited Warranty. IsoNova warrants that Goods manufactured by IsoNova shall be free from defects of manufacture, labeling and packaging for a period of one (1) year from the date of shipment, provided that (i) written notice of such defect is given to IsoNova within the applicable warranty period and (ii) the defective Good(s) are returned prepaid to IsoNova for inspection. Upon a determination by IsoNova that a Good is under warranty, IsoNova shall, at its exclusive option, replace or repair said defective Good or parts thereof at its own expense, provided that, in no event shall the aggregate liability of IsoNova in connection with any breach of warranty exceed the amount actually paid for the defective Good as indicated in the Quote. IsoNova shall pay or reimburse all reasonable shipping, insurance and similar charges incurred in connection with the replacement of the defective Good or parts thereof covered by this warranty. Notwithstanding the foregoing, this warranty is void in the case of adulteration, material modification to the Goods, storage beyond the stated expiration date, misuse, abnormal usage, or if for any other reason IsoNova determines that said Good is not suitable for the intended uses a result of causes other than defective manufacture, labeling or packaging.
EXCEPT AS EXPRESSLY STATED HEREIN, ISONOVA MAKES NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ALL OF WHICH ARE HEREBY DISCLAIMED.
6. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PURCHASER EXPRESSLY ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL ISONOVA BE LIABLE FOR ANY DIRECT, COLLATERAL, INCIDENTAL, EXEMPLARY, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOVEVER, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOSS OR CORRUPTION OF DATA, OR BUSINESS INTERRUPTION RESULTING FROM ANY CAUSE WHATSOEVER, EVEN IF ISONOVA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ISONOVA’S TOTAL LIABILITY ARISING FROM OR RELATED TO THE GOODS AND/OR SERVICES, CUMULATIVE OF ALL INCIDENTS OR CLAIMS, SHALL NOT EXCEED THE LESSER OF THE PURCHASE PRICE AND AMOUNT ACTUALLY PAID BY PURCHASER TO ISONOVA FOR SUCH GOODS AND/OR SERVICES. THE EXISTENCE OF ONE OR MORE CLAIMS SHALL NOT ENLARGE THIS LIMIT.
7. Indemnification. Purchaser agrees to indemnify, defend and hold harmless IsoNova and its officers, directors, agents, affiliates, subsidiaries, and consultants from and against all claims, demands, obligations and liabilities (including reasonable attorney’s fees), for injuries to, and death of, any person, and loss of or damage to property, arising from or relating to installation of the Goods, the use of the Goods, or use of the Goods for any unintended or unapproved purpose. This indemnification specifically includes any and all of the above described costs involved with a recall initiated by Purchaser, its officers, directors, agents, affiliates, subsidiaries, and consultants or any third party recipient of the Goods.
8. Intellectual Property. Goods and/or Services may be the subject of patents, pending patent applications, copyrights, trademarks or trade secrets. Except as expressly provided in a signed writing or as required by applicable law, no license or other rights, whether express or implied, are granted to Purchaser with respect to any patents, copyrights, trademarks, trade secrets, or other intellectual property rights owned or controlled by IsoNova, whether wholly or in part. Purchaser will not conduct any testing, qualitative analysis, reverse engineering of any Goods and/or Services without prior written approval of IsoNova.
9. Force Majeure. IsoNova shall not be responsible to Purchaser for any delay, damage, or failure caused or occasioned by circumstances beyond the reasonable control of IsoNova, including but not limited to, acts of God, floods, fire or other natural causes, riots, war, rebellion, sabotage, acts of terrorism, civil strife, acts of public enemies, accidents, strikes, lockouts, inability to obtain necessary material and labor from suppliers, subcontractors and carriers, and supply chain shortages or raw material in-availabilities due to industry restrictions, limitations, recalls or other events beyond the control of IsoNova. Upon the occurrence of a Force Majeure Event, IsoNova shall immediately notify Purchaser of such and shall diligently attempt to correct the Force Majeure Event. In such event, the time of performance shall be extended for such reasonable time as IsoNova may determine and under no circumstances shall IsoNova be liable to Purchaser for any damages due to delays resulting from a Force Majeure Event.
10. Export and Use Restrictions. Purchaser shall not use, export or re-export any Goods except as authorized by United States and local law, as applicable. In particular, Purchaser shall not export or re-export into any U.S.-embargoed country or to any person or entity on the Specially Designated Nationals List of the U.S. Department of the Treasury or the Denied Persons List or Entity List of the U.S. Department of Commerce.
11. Purchaser’s Own Use. Purchaser agrees that all Goods are purchased for Purchaser’s own use. To the extent, if any, Purchaser’s use of such Goods is for or involves others, Purchaser agrees that IsoNova’s Limited Warranty and Limitation of Liability found in paragraphs 5 and 6 herein shall also apply to such third parties, and Purchaser agrees to hold harmless and indemnify IsoNova for any loss in excess thereof. Purchaser further represents and warrants that all purchases of Goods are solely for commercial purposes and not subject to any laws applicable only to consumer transactions, and Purchaser waives all requirements of any such laws.