TERMS OF SALE
STANDARD SALES TERMS AND CONDITIONS
1. Acceptance: All offers to purchase, Purchase Orders (as defined below) or other proposed agreements for the sale of goods (“Goods”) by Industrial Boilers America, Inc. (“Company”) to purchasers of its Goods (“Customer(s)”) are subject to acceptance, in writing, by Company and are not binding on Company unless so accepted. These Standard Terms and Conditions for the sale of Goods (“Standard Terms of Sale”) are applicable to all Purchase Orders, quotations, schedules or ancillary agreements concerning the sale of Goods, of any nature (collectively, the “Purchase Order”), and are the only terms and conditions that apply to the sale of Company’s Goods, except those specifically set forth in any Purchase Order that are expressly accepted in writing by Company. Any term or condition or standard of performance different from or in addition to these Standard Terms of Sale, whether set forth on the Purchase Order or otherwise proposed by Customer, must be agreed to, in writing, by Company in advance, and in the event of any conflict or inconsistency, between these Standard Terms of Sale and any Purchase Order or other document proposed by Customer, these Standard Terms and Conditions will control. Customer agrees that Customer’s submission of a Purchase Order to Company or Customer’s acceptance of any Goods provided by Company shall constitute Customer’s irrevocable acceptance of these Standard Terms of Sale.
2. Prices: Prices for the Goods set forth in the Purchase Order, unless otherwise stated in writing, do not include taxes, as set forth in Paragraph 13 below, transportation or shipping charges, special packaging or other services unless otherwise set forth in the Purchase Order. Orders will be billed at the prices in effect at the time of the shipment unless specified in a written quotation issued by the Company. Prices are all quoted in denominations of United States Dollars. Unless otherwise stated in writing, prices as quoted by Company are firm for thirty (30) days after the date of written quotation.
3. Terms of Payment: Specific payment terms are stipulated in official quotations issues by Company and shall be binding unless otherwise modified in writing by Company. Company reserves the right to correct any error in prices. Payment shall be made in United States currency only unless otherwise agreed to by Company in writing. In the event Customer remits any late payments, late charges shall be added at the rate of 1-1⁄2% per month (18.0% per annum) on past due balances. Company does not guarantee the extension of payment terms will be offered. Such terms are offered on a case-by-case basis at Company’s sole discretion.
4. Minimum Order: The minimum Purchase Order for the sale of Goods is Five Hundred Dollars (US$500.00), unless purchased on EBAY.
5. Customer Inspection: Upon Customer’s receipt of shipment, Customer shall immediately inspect the Goods. Unless Customer provides Company with written notice of any claim for shortages of or patent defects in the Goods within five (5) days after receipt of shipment, such Goods shall be deemed finally inspected, checked and accepted by Customer.
6. Delivery/Risk of Loss/Transportation/Insurance/Packaging/Freight Allowance:
(a) Company shall use reasonable commercial efforts to make delivery of Goods or perform services within the time requested on Customer’s Purchase Order. In absence of written shipping and packing instructions from Customer, Company shall use its own discretion in choice of carrier and method of packing. Unless otherwise agreed to by the parties, all shipments are F.O.B. the original shipping point and risk of loss shall pass to Customer at such time as possession of such Goods is given to a transportation carrier. Unless otherwise agreed to in writing by the parities, Company has no obligation to obtain insurance for Customer covering Goods in transit to Customer. ANY AND ALL CLAIMS FOR LOSS OR DAMAGE TO GOODS IN TRANSIT MUST BE MADE TO THE DELIVERING CARRIER AND NOTED ON THE DELIVERY RECEIPT.
(b) Prices stated are based on Company’s standard packaging. Packaging will be standard commercial packaging and acceptable to the commercial carrier. Special customer packaging will be furnished only when specified and so stated in writing, and Company will charge Customer and Customer will be responsible for the charges for the special packaging.
7. Cancellation and Returns:
(a) Orders cannot be terminated, cancelled or modified, or shipment deferred after acceptance of Customer’s order by Company, except with Company’s written consent and subject to the conditions described in this Section. Company’s written consent will only be given upon payment of reasonable charges for any expenses incurred by Company in processing the order, including without limitation, current restocking charges.
(b) Customer may not return Goods and Company is not obligated to accept returned Goods without Company’s written authorization. Such written authorization will specify the manner of return and terms of any return of Goods.
8. Force Majeure: Company will not be liable for any default or delay, or otherwise responsible for any damage, loss, fault, or expenses arising out of delays beyond its control, or the control of its suppliers or manufacturers or any other supply chain component, or other non-performance of any Purchase Order caused or imposed by: strikes, fires, disasters, riots, acts of God; intervention of government, war or threat of war, acts of terrorism, conditions similar to war, sanctions, blockades, embargoes; acts of Customer; labor issues and shortages, fuel, power, materials, supplies, transportation, or manufacturing problems; governmental action, subcontractor delay or any other cause, credit or finance related problems, condition or circumstance beyond Company’s reasonable control (collectively, “Force Majeure”). If there is a delay or nonperformance due to Force Majeure, then Company may, at its option, and without liability, revoke all or any portion of its acceptance of Customer’s Purchase Order and/or extend any date upon which any performance thereunder is due.
9 (a). Limited Warranty/Disclaimer of Warranties: The parties expressly agree that Customer’s sole and exclusive remedy against the Company shall be for the repair and/or replacement of defective Goods as provided herein. THE WARRANTIES SET FORTH BELOW ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. NO AFFIRMATION OF COMPANY, BY WORDS OR ACTION, OTHER THAN AS SET FORTH IN THIS SECTION, NOR ANY ADDITIONAL WARRANTIES, EXPRESS OR IMPLIED, MADE BY COMPANY TO CONSUMER PURCHASERS OF THE GOODS SHALL CONSTITUTE A WARRANTY HEREUNDER. Company’s warranty does not apply to any Goods that have been subjected to misuse, mishandling, misapplication, neglect (including but not limited to improper maintenance), accident, improper installation, modification (including but not limited to use of unauthorized parts or attachments), or adjustment or repair performed by anyone other than Company or one of Company’s authorized agents. In no event shall Company be responsible for the quality or performance of any goods manufactured by other parties; such Goods shall carry only the warranty of the manufacturer. Except as otherwise set forth below, any claim by Customer with reference to the Goods sold pursuant to the Purchase Order shall be deemed waived by the Customer unless submitted in writing to Company within the earlier of (i) five (5) days following the date Customer discovered, or by reasonable inspection should have discovered, any claimed breach of the foregoing warranty, or (ii) thirty (30) days following the date of shipment. Any cause of action for breach of the foregoing warranty shall be brought within one (1) year from the date the alleged breach was discovered or should have been discovered, whichever occurs first.
9 (b). Limited Warranty on Emissions Performance: Company’s warranty on emissions performance shall be as stipulated in official quotations issued by Company.
10. Limitation of Liability: COMPANY WILL IN NO EVENT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES TO ANY PERSON, WHETHER BASED UPON BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, TORT, BREACH OF CONTRACT OR ANY OTHER THEORY, REGARDLESS OF WHETHER ANY REPLACEMENT, RETURN OR REFUND REMEDY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE OR FOR ANY OTHER REASON WHATSOEVER. “CONSEQUENTIAL DAMAGES” FOR PURPOSES HEREOF SHALL INCLUDE, BUT NOT BE LIMITED TO, LOSS OF USE, INCOME OR PROFIT, OR LOSSES SUSTAINED AS THE RESULT OF INJURY (INCLUDING DEATH) TO ANY PERSON OR LOSS OR DAMAGE TO PROPERTY (INCLUDING, WITHOUT LIMITATION, PROPERTY HANDLED OR PROCESSED BY THE USE OF THE GOODS).
11. Safety Information: Company has supplied or made available to Customer certain information relating to safety conditions and procedures concerning the Goods that are the subject of the Purchase Order, and Customer acknowledges receipt thereof and further acknowledges that it has reviewed and understands same.
12. Trademarks: The purchase of Goods from Company does not entitle Customer to use, register, or otherwise identify Customer or its business with the name, trademark, service mark or other identity of Company without express written permission from Company. All such marks and goodwill associated with such marks remain the sole and exclusive property of Company.
13. Taxes: Unless otherwise specifically provided on the face of any invoice or quotation for Goods, the price for the Goods purchased is net and does not include sales, use, excise or similar taxes, whether tariffs, duties, special assessments. The Customer shall pay the amount of any such taxes, tariffs, duties and special assessments applicable to the Goods in the same manner and with the same effect as if originally included in the purchase price.
14. Licenses, Permits & Export Restrictions: All responsibility for obtaining import or export licenses or governmental permits rests with Customer. Customer expressly assumes responsibility for determining the need for and obtaining import licenses, currency exchange approvals and any other governmental approvals that may be necessary to lawfully permit the sale, purchase, payment and use of the Goods ordered by Customer. Unless expressly stated otherwise in the Purchase Order, Customer warrants that its purchase of Goods from Company is for Customer’s own end use and not for re-export to any other country.
15. Questionable Payments: Customer certifies that at all times it shall comply, and shall cause its directors, officers, employees and agents to abide by and comply, in all respects, with the United States Foreign Corrupt Practices Act (15 U.S.C. §§78dd-1, 78dd-2, 78dd-3 and 78m, as amended) and all United States governmental agency regulations applying or interpreting said Act and, to the extent applicable in any non-U.S. jurisdiction, with the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (Dec. 18, 1997, 37 I.L.M 1 (1998), and/or the European Union Convention on the Fight Against Corruption Involving Officials of the European Communities or Officials of the Member States of the European Union (O.J. No. C195, 25.06.1997, May 26, 1997), or any similar treaty, convention, law or regulation applicable in the jurisdiction in question.
16. Intellectual Property: Customer shall defend and hold Company harmless against any expenses or losses from infringement of patents, trademarks, or other intellectual property rights arising from manufacture or use of the Goods according to Customer’s design, specifications or instructions.
17. Additional Charges: If substitute or additional Goods, or repair parts, are purchased by Customer from Company, the provisions of these Standard Terms of Sale shall be applicable to such purchase, the same as if such substitute or additional Goods or repair parts had been originally purchased hereunder.
18. Entire Agreement: These Standard Terms of Sale, together with the terms and conditions contained on the face side of Company’s invoice or quotation, constitute the entire agreement between Company and Customer with respect to the matters contained therein, and supersede all prior oral or written representations, proposals, correspondence, discussions, negotiations and agreements. No course of prior dealings, acceptance or acquiescence in a course of performance and no usage of trade shall be relevant to supplement, explain or modify any terms contained herein. All representations, promises, warranties or statements by an agent or employee of Company that differ in any way from the terms and conditions hereof shall be given no effect or force. No waiver or alteration of terms herein shall be binding unless in writing signed by an executive officer of Company.
19. Priority: In the event of any inconsistency among the provisions in these Standard Terms of Sale or the Purchase Order, precedence shall be given first to these Standard Terms of Sale, and second, to the special terms and conditions contained on the face of the Purchase Order and accepted, in writing, by Company.
20. Governing Law: The sale of Goods pursuant to the Purchase Order shall be subject to and construed in accordance with the laws of the State of Idaho, United States of America, applicable to contracts made and performed in the State of Idaho without giving effect to any choice or conflict of law provision or rule (whether of the State of Idaho or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Idaho. Jurisdiction and venue for any action arising between the parties with respect to the Goods will lie in the appropriate Idaho courts or federal district court of Idaho, in addition to any other court of competent jurisdiction. The parties irrevocably consent and submit to the personal jurisdiction of said courts and agree not to challenge or assert any defense to the jurisdiction of said courts including, without limitation, forum non conveniens. The parties hereby exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.
21. Severability: If any provision of these Standard Terms of Sale is deemed invalid or unenforceable by any court of competent jurisdiction or under any statute, regulation, ordinance, executive agreement or other rule of law, such provision shall be deleted or modified, at the election of Customer and Company, but only to the extent necessary to comply with such ruling, statute, regulation, ordinance, agreement or rule, and the remaining provisions of these Standard Terms of Sale and the Purchase Order shall remain in full force and effect.
22. Non-Waiver: No change, modification or waiver of any provision of these Standard Terms of Sale shall be valid or binding unless or until it is accepted by Company. A waiver by either party of any breach or failure to enforce any term or condition of these Standard Terms of Sale shall not in any way affect, limit or waive such party’s right at any time to enforce strict compliance with that or any other term or condition of these Standard Terms of Sale.
23. Binding Effect/Non-Assignment: This contract shall be binding upon and shall inure to the benefit of the successors, and permitted assigns of Customer and Company, provided, however, that Customer may not assign any portion of its rights or delegate any portion of its obligations hereunder or under any Purchase Order without in each instance obtaining Company’s prior written consent. Any attempted assignment by Customer or assignment by Customer of this contract without Company’s prior written consent is void.
24 . Company’s Performance Excused Upon Customer’s Breach: In addition to the rights and remedies conferred upon Company by law or in equity, Company shall not be required to proceed with the fulfillment of any Purchase Order or the performance of any contract if Customer is in default in the performance of any order or contract with Company, and in cases of doubt as to Customer’s financial responsibility, shipments under this order may be suspended or sent sight draft with bill of lading attached by Company. Additionally, in the case of subsequent orders or, in the case of open Purchase Orders, Company is not required to proceed with the fulfillment of any subsequent order or perform such open Purchase Order if Customer is in breach with regard to any prior fulfilled orders, including, without limitation, non-payment.