Terms & Conditions
1. TERMS CONTROLLING
These terms and conditions of sale (“Terms”) apply to all proposals, quotations, and offers (collectively “Quotations”) made by Infinite Material Solutions, LLC (“Seller”) for the sale of products (individually a “Product” and collectively the “Products”) to a purchaser (“Buyer”) as well as to all of Seller’s invoices and other procurement and shipment documents (“Invoices”) regarding any and all Products. Seller, upon acceptance of an order for Products placed by Buyer (“Order”), agrees to supply the Products specified in the Order to Buyer, under these Terms. Seller hereby rejects any additional or different provisions, including, but not limited to, those on Buyer’s Order, confirmation, or other documentation. Seller’s failure to object to provisions contained in any communication from Buyer differing from these Terms shall not be deemed an acceptance of such provisions or a waiver of these Terms. If, and to the extent that, these Terms conflict with any provisions affixed to any Order, confirmation, purchase, or procurement documentation issued by Buyer, these Terms shall prevail regardless of whether Buyer accepts these Terms by a written acknowledgement, or by implication, or by acceptance and payment for Products, or otherwise. EACH OF SELLER’S QUOTATIONS AND INVOICES ARE EXPRESSLY MADE CONDITIONAL ON BUYER’S ASSENT TO THESE TERMS AND AGREEMENT THAT THESE TERMS REPRESENT THE SOLE AND EXCLUSIVE TERMS AND CONDITIONS UPON WHICH SELLER AGREES TO SELL PRODUCTS TO BUYER. Any changes in these Terms must be agreed to specifically and in writing signed by Seller’s duly authorized representative before becoming binding on Seller.
2. PAYMENT AND DELIVERY TERMS
a. Prices for the Products are as specified on Seller’s Quotation, or as otherwise agreed in writing. All prices are in USD and firm for 30 days from the Quotation date. Thereafter, prices are subject to change, and Buyer should inquire about the validity of the Quotation and request written confirmation or revision. Unless expressly stated otherwise in a Quotation, Seller’s price for Products sold more than 30 days after the Quotation date are subject to change.
b. Payment terms are as quoted by Seller, specified in the Invoice, or as otherwise agreed to by the parties in writing. Buyer may not deduct, counterclaim, or set off against the price of any Products, or against any other amount owing under any Invoices, or any claim or alleged claim arising under these Terms or with respect to any other transaction with Seller. The maximum interest rate permitted by applicable law for payment for the Products shall be due and paid by Buyer for each month payment is overdue. Seller may suspend or terminate delivery if Buyer is in arrears with payment. Buyer shall be liable for all costs of collection, suit, and reasonable attorney fees. Seller may at any time suspend or terminate Buyer’s open account credit without advance notice.
c. If a shipping/delivery date is specified by Seller, that date reflects Seller’s best estimate of the probable time required for completion of an Order based on Seller’s then-current capacity and scheduling. Seller shall use reasonable efforts to meet such shipping date but shall have no liability if Seller is unable to do so despite such reasonable efforts.
d. Products shall be packaged and labeled in accordance with standard labeling of Seller. Identification of all packages shall be with the standard labels of Seller and with Seller’s part number. Buyer shall be charged an additional amount for special packaging or labeling.
Prices are exclusive of any other amount including, without limitation, fees for export, customs duties, tariffs, special packaging, transportation, insurance, and all federal, state, and local charges, fees, and excise, sales, use, and other taxes. Any such amount in connection with the transaction between Seller and Buyer shall be paid by Buyer in addition to the Product price. To obtain a tax exemption certificate (resale certificate), Buyer shall provide Seller with a valid written form of exemption or signed Order marked “For Resale.”
4. CANCELLATION BY BUYER
a. If Buyer cancels shipment of any Order or a portion of any Order or reschedules, without prior agreement by Seller, any Order or a portion thereof, 100% of the Invoice charges shall apply and be assessed against Buyer for that Order unless otherwise agreed in writing by Seller’s duly authorized representative.
b. If Buyer fails, with or without cause, to furnish Seller with instructions for, or refuses to accept deliveries of, any of the Products sold under these Terms, or is otherwise in default under or repudiates all or any part of these Terms or any other agreement with Seller, or advises Seller that it will default in the performance of any of its obligations, or fails to pay when due any Invoice or any other agreement with Seller, or if any action is started by or against Buyer seeking the appointment of a trustee or receiver or the entry of an order for debtor’s relief for Buyer, then, in addition to any and all remedies allowed by law, Seller, without notice may: (1) bill and declare due and payable all undelivered Products; (2) cease performance of its obligations and defer shipment until such default, breach, or repudiation is removed; (3) cancel any undelivered portions of the Products with Buyer in whole or in part; and/or (4) recover Products in transit or delivered, retrieve delivered Products, repossess all Products which may be stored by Seller for Buyer’s account, and otherwise enforce its remedies for Buyer’s default. Buyer shall remain liable for all damages, losses, and liabilities Seller suffers or incurs in any such circumstances. Seller shall be awarded incidental damages including, without limitation, reasonable profits and costs such as actual attorney fees in any proceeding to enforce its remedies in which it obtains relief for damages or injunctive relief. All rights granted to Seller in these Terms and by law are cumulative, provided Seller shall be entitled to only a single full recovery.
Products are deemed accepted by Buyer unless Buyer notifies Seller in writing of Product shortages, damages, or defects within 10 days of delivery of each shipment as evidenced by signed waybill, bill of lading, or receipt by Buyer’s employee or agent. Buyer’s failure to notify Seller in writing of nonconforming Products within such period shall be deemed an unqualified acceptance.
No return from Buyer of Products will be accepted without Buyer first obtaining a Return Material Authorization (“RMA”) issued by Seller. Seller may, at its sole discretion, refuse to issue an RMA and if Seller chooses to take back the Products, Seller may require Buyer to pay a restocking fee.
7. WARRANTY; LIMITATION OF WARRANTY;
a. Seller warrants to Buyer that for a period of 30 days from the date of shipment of the Goods (“Warranty Period”), that such Goods will materially conform to the specifications set forth in Seller’s published specifications in effect as of the date of manufacture and will be free from material defects in material and workmanship.
b. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 7.a, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; OR (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
c. Seller shall not be liable for a breach of the warranty set forth in Section 7.a unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within 2 business days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective.
d. Seller shall not be liable for a breach of the warranty set forth in Section 7.a if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Buyer alters such Goods without the prior written consent of Seller.
8. REMEDIES FOR BREACH OF WARRANTY
a. Subject to Section 7.c and Section 7.d above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller.
b. THE REMEDIES SET FORTH IN SECTION 8.a. SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 7(A).
9. LIMITATION OF LIABILITY
a. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
b. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THREE TIMES THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER DURING THE THREE MONTHS PRIOR TO THE DATE THAT BUYER FIRST BECAME AWARE OF THE FACTS GIVING RISE TO SELLER’S LIABILITY.
c. The limitation of liability set forth in Sections 9.a and 9.b above shall not apply to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s acts or omissions.
10. CONFIDENTIAL INFORMATION
No information shall be deemed to be given or received in confidence by either party unless and only if it is covered by a separate written agreement.
11. INSTALLATION AND TECHNICAL ADVICE AND DATA
Buyer is solely responsible for the installation and operation of Products sold hereunder, including, without limitation, obtaining all permits, licenses, or certificates required for the installation or use thereof. Any technical advice offered or given in connection with the use of any Products is solely an accommodation to Buyer, and Seller disclaims any warranty and is not liable or responsible for the content or use of that advice. Without Seller’s prior written consent, Buyer shall not use, duplicate, or disclose any technical data disclosed to Buyer for any purpose other than for installing, operating, maintaining, or using the Products. Buyer acknowledges and agrees it has not relied on the skill or judgment of Seller in connection with any and all uses, installations, selections, and/or operation of the Products.
12. FORCE MAJEURE
Neither party shall be responsible for its complete or partial failure to perform, or for delay in performance of, a Quotation or Order due to acts of God, nature, hazardous weather conditions (actual or forecasted), wars (declared or undeclared), fires, riots or other hostilities, civil disorder, the imposition of governmental law, ordinances, rules, regulations, directives, and actions or omissions to act (valid and invalid), epidemic, sabotage, accidents, labor disputes, unavailability of suitable and sufficient labor, materials, capacity, or technical or yield failures, and any other event beyond its control. The anticipated Product delivery date shall be deemed extended for a period equal to the time lost due to any delay excusable under this provision. Seller shall also have the right, to the extent necessary in Seller’s reasonable judgment, to apportion fairly, among itself and its various customers in such manner as Seller may consider equitable, Products then available for delivery. This Section shall be effective even as to circumstances existing at the time of Quotation or as of the date of the parties’ agreement with respect to purchase of the Products by Buyer.
13. COMPLIANCE WITH LAWS, ETHICAL PRACTICE
Buyer hereby certifies and warrants on its own behalf as well as on behalf of any person or entity under its direction or control, including any party with which it has contractual relations (“Buyer” as referred to in this Section 13), that it shall comply with all applicable governmental laws, regulations, and orders in the purchase and resale of any Product sold hereunder. Buyer will not export or re-export such Product except in full compliance with all applicable laws and regulations. Buyer acknowledges that it is solely responsible for complying with all U.S. Export Administration laws, rules, and regulations. Buyer certifies that it is not on the U.S. Commerce Department’s Denied Party or Entity List or the Unverified Parties List and agrees that it will not sell or distribute any Product sold hereunder to any party on such lists. Buyer warrants that in performing its obligations under these Terms, it will not take any action rendering Seller liable for violation of the United States Foreign Corrupt Practices Act, which prohibits offering, giving, or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, political party, or instrumentality of these organizations, to assist it or Seller in obtaining or retaining business.
a. These Terms (together with the Quotations and Invoices, both of which are hereby incorporated by reference) constitute the entire agreement between the parties and supersedes all prior agreements and understandings between them relating to the subject matter thereunder.
b. Buyer shall not (whether by operation of law, merger, acquisition, or otherwise) assign, transfer, or delegate Seller’s Quotation, Invoice, or any obligations thereunder. Any purported assignment, transfer, or delegation without Seller’s written consent shall be void and constitute a material breach by Buyer.
c. These Terms shall be binding on, and inure to the benefit of, the parties and to their successors and permitted assigns.
d. No waiver by Seller of any provision of these Terms shall be effective unless made in writing. Waiver by, or failure of, Seller to exercise in any respect any right provided for herein shall not be later deemed a waiver nor prevent Seller from strictly enforcing any right hereunder at a later time. No waiver by Seller of any breach of any provision of these Terms shall constitute a waiver of any subsequent breach of the same or of any other provision of these Terms.
e. The laws of the state of Seller’s office processing Buyer’s Order for shipment as shown on the Quotation, Invoice, and/or other Seller-issued document, without reference to its conflict of laws principles, govern these Terms and all transactions contemplated by it, as well as all matters arising out of or relating to it. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed.
f. The arbitration provisions of this Section 14 will be governed by the United States Federal Arbitration Act. At Seller’s option, exercised by written notice any time within 30 days following the service of process in a legal action, any dispute regarding the Products, any Quotations or Invoices or their validity, any of these Terms, or any other matter between the parties (other than requests for injunctive relief) will be resolved exclusively by binding arbitration, conducted in the English language, as follows: (1) the arbitration will be conducted under the commercial arbitration rules of the American Arbitration Association (AAA) and under Rules 26 through 37 of the U.S. Federal Rules of Civil Procedure, in a location agreed by the parties; (2) if the parties cannot agree on a location within 30 days of either party’s request for arbitration, the arbitration will be conducted in the county and state of Seller’s office processing the Order for shipment; and (3) the arbitrator will be selected from an AAA list using the AAA recommended selection method. Each party will bear equally the costs and expenses of AAA and the arbitrator, and each party will bear its own costs and expenses — provided, however, (i) that the failure by one party to pay its share of the arbitration fees constitutes a waiver of such party’s claim or defense in the arbitration, and (ii) that the arbitrator may award attorney fees and costs to the substantially prevailing party. In no event shall a party be awarded punitive or exemplary damages. All arbitration proceedings shall be confidential, except if, and to the extent, disclosure is necessary to enforce an arbitration award in a court of competent jurisdiction. The arbitration award shall be final and binding upon the parties and enforceable in any court of competent jurisdiction.
g. Section headings are for convenience only and shall not be considered in the interpretation of these Terms.
h. If any provision of these Terms is to any extent illegal, otherwise invalid, or incapable of being enforced, such provision shall be excluded to the extent of such invalidity or unenforceability. All other provisions hereof shall remain in full force and effect. If permitted and possible, the invalid or unenforceable provision shall be deemed replaced by a provision that is valid and enforceable and that comes closest to expressing the intention of such provision.