ISONOVA TECHNOLOGIES LLC (ISO) – TERMS AND CONDITIONS
Subject to the terms and conditions (“Terms and Conditions”) stated herein, ISONOVA TECHNOLOGIES LLC (“ISO”) will sell to you (“Purchaser”) certain goods (“Goods”) pursuant to the quote (“Quote”) delivered herewith. The Quote and any attachments, exhibits, or other information attached thereto or incorporated therein, together with these Terms and Conditions (collectively, the “Agreement”), constitute the entire and exclusive agreement between ISO and Purchaser regarding the sale of Goods to Purchaser. No prior, additional, contrary or inconsistent terms and conditions contained in any purchase order, confirmation or written correspondence of Purchaser will apply to the sale of Goods under this Agreement, even if Purchaser expressly conditions its purchase on ISO’s agreement to such terms and conditions. No other terms or conditions will be effective unless made in writing and signed by ISO.
1. Price and Payment Terms. (a) The total amount due under this Agreement shall be as set forth in the Quote (the “Purchase Price”); (b) ISO will invoice Purchaser as set forth in the Quote and the invoice amount shall be due and payable within 15 days from the invoice date unless otherwise agreed in writing; (c) A 2-3 week lead time on all stock items shall be allowed, unless expressly agreed to in writing; (d) In the event Purchaser fails to make payments in accordance with these Terms and Conditions and the Quote, ISO may, in addition to all other remedies available at equity or law, (i) defer further shipments until such payments are made or (ii) terminate the Agreement. ISO may also assess a late payment charge on any amount not received by ISO on or before the due date therefor equal to one and one-half percent (1½%) per month, or the highest rate permitted by applicable law whichever is less; (e) In the event of any disputed charge on an invoice, Purchaser shall pay the undisputed portion of such invoice and provide ISO with written notice of such dispute and the reasons therefor on or before the applicable payment due date. 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. Purchaser’s first change to an existing order will be allowed free of charge if made at least 5 business days prior to scheduled shipment. All additional ordered changes will result in a minimum $55.00 change fee. All changes made within 3 business days of scheduled shipment will result in a minimum $100.00 fee. If an order is cancelled within 3 business days of the date of the scheduled shipment, a $46.00 per hour (minimum two hours) restocking fee will apply and be charged to Purchaser. In all of the above instances, additional carrier fees may also apply and be charged to Purchaser. This section does not apply to custom products/goods manufactured using Purchaser’s Specifications and Purchaser shall remain liable for all of ISO’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 ISO’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 ISO’s designated shipping point; (ii) freight will be paid by ISO, but ISO will be reimbursed by Purchaser in accordance with the shipping and handling charges set forth in the Quote; and (iii) ISO will ship by a carrier selected by ISO. ISO 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 (417) 235-8337 x266, x254 or after hours x237.
4. Taxes. In addition to the price payable for Goods sold pursuant to this Agreement, Purchaser will promptly pay and be responsible for, or reimburse ISO upon invoice if ISO pays, any taxes and/or charges imposed or required to be paid by any federal, state, local or foreign governmental authority in connection with any Goods or the price, sale, transfer, transport, delivery or provision thereof to Purchaser hereunder or the use of any Goods by Purchaser, including any federal, state, local or foreign excise, sales, use, value-added and/or other tax or charge (except taxes on ISO’s income); any tariffs, duties, fees, licenses or other charges; and any charges or fees for any act performed or document of title or instrument used in connection with this Agreement; (collectively, “Taxes”). The foregoing applies whether the Taxes are included on the invoice for the applicable Goods or are separately invoiced to Purchaser.
5. 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 ISO with a Material Return Authorization (“MRA”) number. To obtain a MRA number, call Customer Service at (800) 641-6509. Return of Goods is permitted only if the Goods do not contain any customized components and are returned in a new and unused condition. All permitted returns are subject to a twenty-five percent (25%) restocking fee, and Purchaser is responsible for all costs to transport returned Goods to ISO.
6. Limited Warranty. ISO warrants that Goods manufactured by ISO 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 ISO within the applicable warranty period and (ii) the defective Good(s) are returned prepaid to ISO for inspection. Upon a determination by ISO that a Good is under warranty, ISO 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 ISO in connection with any breach of warranty exceed the amount actually paid for the defective Good as indicated in the Quote. ISO 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 ISO determines that said Good is not suitable for the intended use as a result of causes other than defective manufacture, labeling or packaging.
EXCEPT AS EXPRESSLY STATED HEREIN, ISO 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 EXPRESSLY DISCLAIMED.
7. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PURCHASER EXPRESSLY ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL ISO 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 ISO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ISO’S TOTAL LIABILITY ARISING FROM OR RELATED TO THE GOODS, CUMULATIVE OF ALL INCIDENTS OR CLAIMS, SHALL NOT EXCEED THE LESSER OF THE PURCHASE PRICE AND AMOUNT ACTUALLY PAID BY PURCHASER TO ISO FOR SUCH GOODS. THE EXISTENCE OF ONE OR MORE CLAIMS SHALL NOT ENLARGE THIS LIMIT.
8. Goods Damaged in Transit. All claims for loss or damage to Goods in transit shall be made by Purchaser directly to the designated carrier and its insurer, and ISO shall have no liability therefor.
9. Indemnification. Purchaser agrees to indemnify, defend and hold harmless ISO 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 the possession, use or sale of the Goods 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 unless ISO products are the direct cause of the recall.
10. Title. Purchaser hereby grants to ISO a security interest in the Goods and proceeds thereof to secure the Purchase Price of the Goods and all amounts now and hereinafter owing by Purchaser to ISO hereunder.
11. Intellectual Property. Goods 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 ISO, whether wholly or in part. Purchaser will not conduct any testing, qualitative analysis, conduct reverse engineering or decompile any Goods without prior written approval of ISO.
12. Force Majeure. ISO shall not be responsible to Purchaser for any delay, damage, or failure caused or occasioned by circumstances beyond the reasonable control of ISO, 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 ISO. Upon the occurrence of a Force Majeure Event, ISO shall notify Purchaser of such and will diligently attempt to correct the Force Majeure Event. In such event, the time of performance shall be extended for such reasonable time as ISO may determine and under no circumstances shall ISO be liable to Purchaser for any damages due to delays resulting from a Force Majeure Event.
13. Termination. ISO may, at any time, terminate this Agreement upon thirty (30) days written notice to Purchaser.
14. Dispute Resolution. (a) Any proceedings to resolve or litigate any dispute, controversy or claim, whether through arbitration or otherwise, shall be considered unique as to its facts and must be, conducted solely on an individual basis. Neither Purchaser nor ISO shall seek to have any dispute heard as a class action, private attorney general action, multi-plaintiff action, consolidated or collective action, or in any other proceeding in which a party proposes to act in a representative capacity. There shall be no right to consolidate or combine any dispute, controversy or claim subject to this Section 14 with any other dispute, controversy or claim without the prior written consent of all parties to all affected proceedings or arbitrations; (b) PURCHASER SHALL BE BARRED FROM BRINGING ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS AND THE GOODS SOLD IN CONNECTION THEREWITH UNLESS JUDICIAL PROCEEDING IS COMMENCED WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO THE DISPUTE, CONTROVERSY, OR CLAIM. (c) This Section 14 shall survive the termination of these Terms and Conditions.
15. 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. 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.
16. Miscellaneous. (a) Assignment. Neither party shall have the right to assign its rights or obligations under this Agreement without the prior written consent of the other party hereto; provided, however, that ISO shall be permitted to assign this Agreement to any of its subsidiaries or affiliates now or hereinafter existing, including any acquirer of or successor in interest to ISO; (b) Waiver. No delay or failure by ISO in exercising any right hereunder shall constitute a waiver of that right or any other right; (c) Severability. The provisions of this Agreement shall be deemed severable, and the invalidity or unenforceability of any one or more of the provisions hereof shall not affect the validity or enforceability of the other provisions hereof; (d) Modifications. No change, amendment or modification of this Agreement between the parties shall be binding upon the parties unless made in writing and signed by both ISO and Purchaser; (e) Authority. Purchaser represents and warrants that Purchaser has the right and authority to enter into this Agreement and to perform on its obligations herein; (f) Governing Law. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Missouri, without regard to choice or conflict of laws rules. Any legal action concerning a claim or dispute involving Purchaser and ISO shall be brought in a state court located in Greene County, Missouri or in the federal courts of the Western District of Missouri, and Purchaser expressly consents to the jurisdiction of any such court and agrees that venue is proper in any such court; (g) Notice. All notices, requests and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Quote or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the Quote, a Notice is effective only (i) upon receipt of the receiving party, and (ii) if the party giving the Notice has complied with the requirements of this Section 16.g; (h) No Agency. These Terms and Conditions do not create an agency, partnership, joint venture or franchise relationship between ISO and Purchaser. Neither party shall have the authority to create an obligation on the other or assume an obligation of the other.