1. Acceptance. ITW Hartness is herein referred to as (“HARTNESS”). HARTNESS is a division of Illinois Tool Works Inc. (“ITW”). The customer purchasing products (“Products”) or services (“Services”) from HARTNESS is referred to as (“Purchaser”). These terms and conditions of sale (“Terms”, any HARTNESS quotation, acknowledgment or invoice and all documents incorporated by specific reference herein or therein (“HARTNESS Documents” and together with these Terms, the “Agreement”), constitute the complete terms governing the sale of Products and Services. HARTNESS HEREBY REJECTS ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED BY PURCHASER, WHETHER OR NOT CONTAINED IN ANY OF PURCHASER’S BUSINESS FORMS OR IN PURCHASER’S WEBSITE, AND SUCH ADDITIONAL OR DIFFERENT TERMS WILL BE OF NO EFFECT. No site usage agreement or any other click through agreement on a website will have any binding effect whether or not HARTNESS clicks on an “ok,” “I accept,” or similar acknowledgment. Commencement of any work by HARTNESS or Purchaser’s acceptance of delivery of the Products or Services will manifest Purchaser’s assent to the Agreement. Additional or different terms applicable to a particular sale may be specified in the body of a HARTNESS Document or agreed to in writing by the parties. In the event of a conflict, the following order of precedence will apply: (a) terms agreed to in writing and executed by an authorized officer of HARTNESS; (b) HARTNESS Document terms; (c) these Terms.
2. Quotations. Quotations are only valid in writing and for 30 days from the date of the quotation. All quotations are subject to change or withdrawal without prior notice to Purchaser. Quotations are made subject to approval of Purchaser’s credit. HARTNESS may refuse orders and has no obligation to supply Products or Services.
3. Prices and Payment Terms. Prices are in U.S. Dollars and are subject to change without notice. All orders are accepted subject to ITW’s price in effect at time of shipment. Prices do not include any sales, use, value-added or other taxes, import duties, license fees or like charges (“Fees”) related to the sale, importation or use of Products or Services, and Purchaser is responsible for those Fees. For payment transactions greater than $50,000, HARTNESS requires payment by Automated Clearing House (ACH), Fedwire or U.S. Dollar check. If HARTNESS is subsequently required to pay any Fees, Purchaser shall fully defend and indemnify HARTNESS therefor. Terms of payment are 30 days net from the date of HARTNESS’ invoice. Overdue invoices will incur interest at the rate of 1.5% per month, or at the maximum rate allowable by governing law. Purchaser’s inspection rights herein will not affect the payment terms. Under no circumstances will Purchaser have a right of set-off. If Purchaser fails to make any payment as required, Purchaser agrees to indemnify HARTNESS for all associated costs incurred by HARTNESS, including reasonable attorney fees and court costs. HARTNESS, in it its sole discretion, may require progress payments on any order. Progress payment terms shall be: 50% of the total order value shall be due immediately upon acceptance and confirmation of the Order. HARTNESS will not commence work on the Order until payment is received. 40% of the total Order shall be due and received by HARTNESS prior to shipment, unless otherwise mutually agreed upon in writing. 10% of the total order value, including any required adjustments, shall be due and received no later than 30 days after shipment, unless otherwise agreed upon in writing. Adjustments for additional charges or credits, if applicable, shall be reflected in the final invoice. The Purchaser is responsible for freight and shipping charges.
4. Credit Approval. All shipments are subject to approval by HARTNESS’ credit department. HARTNESS may invoice Purchaser and recover for each shipment as a separate transaction. If, in HARTNESS’ sole judgment, Purchaser’s financial condition is or becomes unsatisfactory, then HARTNESS may, without prejudice to any of its other remedies: (a) defer or decline to make any shipments except upon receipt of satisfactory security or cash payments in advance; and/or (b) terminate any or all of Purchaser’s purchase orders.
5. Cancellation or Modification. HARTNESS may cancel any purchase order or release thereunder, or terminate any agreement relating to the purchase of HARTNESS’ Products or Services upon reasonable prior written notice to Purchaser. Once HARTNESS has accepted a purchase order or begun taking actions with respect to a purchase order, Purchaser cannot cancel or modify that purchase order except with HARTNESS’ written consent. In such event, Purchaser will be liable for cancellation or modification charges and all costs incurred and committed for the order or in connection with the cancellation or modification, as applicable, together with a reasonable allowance for prorated expenses and anticipated profits for work actually completed up until the time HARTNESS has received Purchaser’s notice of cancellation or modification.
6. Inspection / Non-Conforming Shipments. Purchaser may inspect Products for a period of 15 business days after delivery (“Inspection Period”). Purchaser must notify HARTNESS in writing of any Products that do not conform to the specifications applicable to their sale within the Inspection Period and afford HARTNESS a reasonable opportunity to inspect such Products and cure any nonconformity. If Purchaser fails to provide HARTNESS such written notice within the Inspection Period, Purchaser will be deemed to have accepted the Products. Purchaser may not return any Product without HARTNESS’ prior written authorization. Any return authorized by HARTNESS must be made in accordance with HARTNESS’ return policies. Purchaser will be responsible for all costs associated with returns of Products and will bear the risk of loss, unless HARTNESS agrees otherwise in writing or determines that the Products do not conform to the applicable terms of sale.
7. Shipment. Purchaser shall be responsible for all shipping costs. All Products will be shipped EXW HARTNESS’ facility (Incoterms 2010). Shipping dates are approximate and are based upon prompt receipt of all necessary information from Purchaser. HARTNESS may ship items in a single or multiple shipments. HARTNESS will not be responsible for failure to perform in a timely manner under the Agreement when its failure results from Purchaser’s delay or failure to provide designs, drawings, samples or other relevant information or materials in a timely manner.
8. Title/Risk of Loss. Title to the Products and risk of loss shall pass to Purchaser upon delivery to the carrier. Purchaser assumes all risk and liability for loss and use or misuse by third parties who acquire or use the Products illicitly after delivery to the carrier. Purchaser must notify HARTNESS and the delivering carrier within 15 business days from date of receipt of Products, of any damage or shortage, and afford HARTNESS a reasonable opportunity to inspect the Products. Any loss occasioned by damage or shrinkage in transit will be for Purchaser’s account, and claims for such loss must be made solely against the carrier.
9. Limited Warranty. HARTNESS warrants that it will convey the Products free and clear of all liens, security interests and encumbrances created by, through or under HARTNESS. HARTNESS further warrants that for a period of 12 months from the date of delivery to the common carrier (the “Warranty Period”), under normal use and given proper installation and maintenance as determined by HARTNESS, the Products: (a) will conform to mutually agreed upon written specifications or other descriptions; and (b) will be free from substantial defects in material and workmanship. In the event of a breach of the warranties set forth above (the “Warranties”), HARTNESS’s sole liability and Purchaser’s sole remedy will be (at HARTNESS’ option), for HARTNESS to repair, replace or credit Purchaser’s account for, any Product that fails to conform to the Warranties, provided that (i) during the Warranty Period HARTNESS is promptly notified in writing upon discovery of such failure with a detailed explanation of any alleged deficiencies; (ii) HARTNESS is given a reasonable opportunity to investigate all claims; and (iii) HARTNESS’ examination of such Product confirms the alleged deficiencies and that the deficiencies were not caused by accident, misuse, neglect, improper installment, unauthorized alteration or repair or improper testing. No Products may be returned to HARTNESS until inspection and approval by HARTNESS.
The Warranty against defects does not apply to: (1) consumable components or ordinary wear items; (2) use of the Products with equipment, components or parts not specified or supplied by HARTNESS or contemplated under the Product documentation. If the Products have been serviced or repaired by anyone other than HARTNESS, such actions shall render the warranty null and void. EXCEPT AS SET FORTH ABOVE, HARTNESS MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE).
10. Service Warranty. HARTNESS warrants that (a) it will perform Services in a timely, competent and professional manner and in accordance with industry standards; and (b) the Services shall conform to any mutually agreed upon specifications or statements of work. Purchaser’s sole remedy, and HARTNESS’ sole liability, for a breach of the foregoing warranty is for HARTNESS, at its option, to re-perform the Services or credit Purchaser’s account for such Services.
11. Limitation of Liability and Remedies. HARTNESS WILL NOT BE LIABLE, AND PURCHASER WAIVES ALL CLAIMS AGAINST HARTNESS, FOR INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, DOWN TIME, LOST PROFITS OR COMMERCIAL LOSSES, WHETHER OR NOT BASED UPON HARTNESS’ NEGLIGENCE OR BREACH OF WARRANTY OR STRICT LIABILITY IN TORT OR ANY OTHER CAUSE OF ACTION. IN NO EVENT WILL HARTNESS’ LIABILITY UNDER THESE TERMS OR IN CONNECTION WITH THE SALE OF HARTNESS’ PRODUCTS OR SERVICES EXCEED THE PURCHASE PRICE OF THE SPECIFIC PRODUCTS OR SERVICES AS TO WHICH THE CLAIM IS MADE.
12. Product Use. Purchaser is solely responsible for determining if a Product is fit for a particular purpose and suitable for Purchaser’s method of application. Accordingly, and due to the nature and manner of use of HARTNESS’ Products, HARTNESS is not responsible for the results or consequences of use, misuse or application of its Products. All physical properties, statements and recommendations are either based on the tests or experience that HARTNESS believes to be reliable, but they are not guaranteed.
13. Tooling/Molds/Dies. All material, equipment, facilities and special tooling (including tools, jigs, dies, fixtures, molds, patterns, special taps, special gauges, special test equipment and manufacturing aids and replacements thereof) used in the manufacture of the Products will remain the property of HARTNESS. Any material, tooling or equipment furnished to HARTNESS by Purchaser will remain the property of Purchaser with title to and right of possession remaining in Purchaser.
14. Ownership of Intellectual Property. All drawings, know-how, designs, specifications, inventions, devices, developments, processes, copyrights and other information or intellectual property disclosed or otherwise provided to Purchaser by HARTNESS and all rights therein (collectively, “Intellectual Property”) will remain the property of HARTNESS and will be kept confidential by Purchaser in accordance with these Terms. Purchaser has no claim to, nor ownership interest in, any Intellectual Property, and such information, in whatever form and any copies thereof, shall be promptly returned to HARTNESS upon request from HARTNESS. Purchaser acknowledges that no license or rights of any sort are granted to Purchaser hereunder in respect of any Intellectual Property, other than the limited right to use HARTNESS’ Products or receive the Services purchased from HARTNESS.
15. Use of Trademarks and Trade Names. Purchaser shall not use, directly or indirectly, in whole or in part, HARTNESS’ name, or any other trademark or trade name that is now or may hereafter be owned by HARTNESS (collectively the “Trademarks”), as part of Purchaser’s corporate or business name, or in any way in connection with Purchaser’s business, except in a manner and to the extent authorized herein or otherwise approved by HARTNESS in writing. Purchaser hereby acknowledges HARTNESS’ ownership of the Trademarks and the goodwill associated therewith. Purchaser shall not infringe upon, harm or contest the validity of any Trademarks. Purchaser shall be entitled to use the Trademarks only in connection with the promotion or sale of the Authorized Products pursuant to the terms of the Agreement. Purchaser shall reproduce the Trademarks exactly as specified by HARTNESS. Purchaser shall not use the Trademarks in combination with any other trademarks or names. Purchaser agrees that it will not register or attempt to register any Trademark or any colorable imitation thereof (including any non-English language variation thereof), or use such Trademarks for any products or for any purposes other than those set forth in the Agreement. Purchaser shall not at any time during or after termination of the Agreement use in its business any other trademark that is similar to or in any way resembles the Trademarks so as to be likely to cause deception or confusion with the Trademarks. Purchaser shall provide reasonable cooperation to HARTNESS with respect to any efforts of HARTNESS to protect, defend or enforce its rights to the Trademarks. Should Purchaser cease being an authorized customer of HARTNESS for any reason, Purchaser shall immediately discontinue any formerly permitted use of HARTNESS’ name or the Trademarks.
16. Confidential Information. All information furnished or made available by HARTNESS to Purchaser in connection with the subject matter hereof shall be held in confidence by Purchaser. Purchaser agrees not to use (directly or indirectly), or disclose to others, such information without HARTNESS’ prior written consent. The obligations in this section will not apply to any information that: (a) at the time of disclosure was or thereafter becomes generally available to the public by publication or otherwise through no breach by Purchaser of any obligation herein; (b) Purchaser can show by written records was in Purchaser’s possession prior to disclosure by HARTNESS; or (c) is legally made available to Purchaser by or through a third party having no direct or indirect confidentiality obligation to HARTNESS with respect to such information.
17. Audit. Unless agreed to in writing by an officer of ITW, neither Purchaser nor any Purchaser representative, may examine or audit ITW’s cost accounts, books or records of any kind or any matter, or any other data that ITW, in its sole discretion, considers confidential or proprietary.
18. Infringement and Indemnification. Except as set forth below, HARTNESS agrees to defend and indemnify Purchaser against any claims, costs, damages, liability and expenses resulting from actual patent, trademark or copyright infringement, misappropriation of confidential information, or violation of any other Intellectual Property right, domestic or foreign that may arise from the sale of HARTNESS’ proprietary Product to Purchaser as such pertains to the subject matter of the Agreement (each, a “Claim”); provided, however, (a) Purchaser supplies HARTNESS written notice of such Claim immediately after the Purchaser has notice of such Claim, (b) Purchaser cooperates with HARTNESS in the defense and settlement of such Claim; and (c) Purchaser allows HARTNESS the right to defend and settle such Claim at HARTNESS’ expense If a suit or claim results in any injunction or order that would prevent HARTNESS from supplying any part or Product falling under the Agreement, or if the result of such a suit or claim would, in the reasonable opinion of HARTNESS, otherwise cause HARTNESS to be unable to supply such parts or Products, HARTNESS agrees to, at its sole election, do one or more of the following: (i) secure the rights to permit HARTNESS to continue supplying those parts or Products; (ii) modify the appropriate part or Product so that it becomes non-infringing; (iii) replace the appropriate part or Product with a non-infringing Product that conforms to the Purchaser’s specifications; or (iv) accept return of the part or Product and refund the amount paid. Notwithstanding the foregoing, HARTNESS shall have no liability or duty to defend and indemnify Purchaser against any Claim relating to: (1) the use of any part or Product, (2) the combination of any part or Product with any other part or product not supplied by HARTNESS, or (3) any part or Product or process that is designed or specified by Purchaser.
19. Software. If the Products include or consist of software developed, owned or licensed by HARTNESS (“Software”), the use of the Software is subject to the software license agreement provided by HARTNESS or accompanying or contained in the Product (the “SLA”). In the event of a conflict between and the SLA and these Terms, the SLA will take precedence. In the event of a conflict between the terms contained in this section (the “Software Terms”) and terms contained elsewhere in these Terms, the Software Terms will take precedence.
20. HARTNESS Employees. HARTNESS sales and service employees do not have the training or authority to make legal representations or enter into any agreements or execute any Purchaser documents affecting legal responsibilities or waiving legal rights, including those regarding the transfer of intellectual property rights or related to privacy laws. Any such representations, agreements or documents will not be binding on HARTNESS or such HARTNESS employees.
21. Service Terms. The following terms and conditions apply to any on-site Services provided by HARTNESS:
A. Services will be provided at HARTNESS’ then current service rates.
B. Purchaser shall prepare the site, including, as applicable, the construction of all necessary electrical disconnects/connections. If the site is not available and prepared for the Services upon HARTNESS service personnel’s arrival at the agreed upon time and date for Services, HARTNESS may charge Purchaser for any delay and/or travel time at HARTNESS’ regular service rates.
C. Purchaser shall provide HARTNESS with advance notice of any rules, regulations, statutes and requirements applicable to the Services, including any required permits and licenses that are applicable to Purchaser’s local jurisdiction.
D. HARTNESS may refuse, without any liability, to provide Services and to allow HARTNESS service personnel to suspend Services or vacate any site where, in HARTNESS’s opinion, performance of Services would pose a risk to the safety of any person. In such event, Purchaser is responsible for payment of any delay and/or travel time at HARTNESS’ regular service rates.
E. Purchaser is solely liable for all damages or injuries caused or contributed to by Purchaser that may occur on the site, except to the extent damages or injuries are directly caused by the gross negligence or willful misconduct of HARTNESS service personnel.
F. Purchaser must provide at least 24 hours’ notice of cancellation of any Service order. If Purchaser cancels with less than 24 hours’ notice, Purchaser is responsible for any costs incurred by HARTNESS caused by such cancellation.
22. Compliance. Purchaser agrees to comply with all federal, state, local and foreign rules, regulations, ordinances and laws applicable to Purchaser’s obligations hereunder and Purchaser’s use of the Products and Services, including import/export laws, labor laws and anti-corruption laws.
23. Relationship of the Parties. Nothing in the Agreement or the course of dealing of the parties may be construed to constitute the parties hereto as partners, joint venturers or as agents for one another or as authorizing either party to obligate the other in any manner.
24. Force Majeure. HARTNESS will not be responsible for failure to perform in a timely manner under the Agreement when its failure results from events beyond its reasonable control (an event of “Force Majeure”), including acts of God, epidemics, acts of war whether declared or undeclared, blockades, labor disputes (whether of HARTNESS’ employees or the employees of others), raw material shortages and material increases in costs of raw materials. In the event of Force Majeure, the time for performance will extend for such time as reasonably necessary to enable HARTNESS to perform.
25. Assignment; Binding Effect. No assignment of any rights or interest or delegation of any obligation of Purchaser under the Agreement or Purchaser’s purchase order may be made without the prior written consent of HARTNESS. Any attempted assignment will be void. HARTNESS may assign the Agreement or otherwise transfer its rights and/or obligations under the Agreement. The Agreement will inure to the benefit of and be binding upon each of the parties hereto and their respective permitted successors and assigns.
26. Affiliates. ITW shall have no liability to Purchaser, nor will ITW be regarded as a guarantor under this Agreement. Purchaser waives any right to assert liens, claims or security interests against ITW or any other affiliate (other than HARTNESS) for the obligations of HARTNESS.
27. Integration Clause. The Agreement constitutes the entire agreement between HARTNESS and Purchaser with respect to the Products and Services covered by the Agreement, and supersedes any prior agreements, understandings, representations and quotations with respect thereto. No modification hereof will be of any effect unless in writing and signed by the party to be bound thereby.
28. Waiver. In the event of any default by Purchaser, HARTNESS may decline to ship Products or provide Services. If HARTNESS elects to continue shipping or otherwise fails to insist upon strict compliance with these Terms, HARTNESS’ actions will not constitute a waiver of Purchaser’s default or any other existing or future default, or affect HARTNESS’ legal remedies.
29. Bankruptcy. If either party becomes insolvent, is unable to pay its debts when due, files for or is the subject of involuntary bankruptcy, has a receiver appointed or has its assets assigned, the other party may cancel any unfulfilled obligations hereunder.
30. Limitation of Actions/Choice of Law/Litigation Costs. Any dispute arising out of or related to the Agreement will be governed by and construed according to the laws of the State of Illinois and litigated exclusively in a state or federal court located in Cook County, Illinois. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement. If either party commences litigation or arbitration concerning any provision of the Agreement, the prevailing party is entitled, in addition to the relief granted, to a reasonable sum for their attorney’s fees in such litigation or arbitration, provided that if each party prevails in part, such fees will be allocated in the manner as the court or arbitrator determines to be equitable in view of the relative merits and amounts of the parties’ claims.
31. Survival. Any provisions in the Agreement which, by their nature, extend beyond the termination or expiration of any sale of Products or Services, will remain in effect until fulfilled.
32. Jury Waiver. The parties hereto expressly release and waive any and all rights to a jury trial and consent to have any dispute heard solely by a court of competent jurisdiction.
33. Severability. If any provision herein is held to be unlawful or unenforceable, the remaining provisions herein will remain in effect.