| Terms
and Conditions |
| 1. |
The
terms and conditions set forth below, together with those set forth or referred
to on the face of the invoice sent by EXCESS INVENTORY SOLUTIONS to Customer,
constitute the final expression and a complete and exclusive statement of the
agreement between Customer and EXCESS INVENTORY SOLUTIONS with respect to the
products set forth on the invoice. EXCESS INVENTORY SOLUTIONS’ acceptance of
any order or offer by Customer is expressly conditioned upon Customer’s
assent to these TERMS AND CONDITIONS. These TERMS AND CONDITIONS supersede
additional, different or conflicting terms and conditions in any printed forms
of Customer, or conflicting terms implied from course of dealing and trade
usage, and integrate and replace all prior representations of
EXCESS INVENTORY SOLUTIONS. These TERMS AND CONDITIONS may not be subsequently
modified, varied, or waived except by an agreement in writing signed by an
officer of EXCESS INVENTORY SOLUTIONS. No assignment by Customer shall be binding
upon EXCESS INVENTORY SOLUTIONS without EXCESS INVENTORY SOLUTIONS’ written
consent. |
| 2. |
These
TERMS AND CONDITIONS together with those set forth or referred to on the face
of the invoice sent by EXCESS INVENTORY SOLUTIONS to Customer represent the
agreement between EXCESS INVENTORY SOLUTIONS and Customer and any proposal by
Customer for any additional or different terms and conditions, whether in a
purchase order or any other form in connection with an order are objected to
and rejected. |
| 3. |
Any
shipment prior to acceptance by Customer of these TERMS AND CONDITIONS is not
an acceptance by EXCESS INVENTORY SOLUTIONS of any other terms and conditions,
but is an accommodation by EXCESS INVENTORY SOLUTIONS and subject exclusively to
these TERMS AND CONDITIONS and is without prejudice to
EXCESS INVENTORY SOLUTIONS. |
| 4. |
Customer’s
assent to these TERMS AND CONDITIONS shall be conclusively presumed from
Customer’s receipt of EXCESS INVENTORY SOLUTIONS’ acknowledgement or
acceptance of any products, which may be furnished by EXCESS INVENTORY SOLUTIONS. |
| 5. |
IN
NO EVENT SHALL EXCESS INVENTORY SOLUTIONS BE LIABLE FOR ANY INCIDENTAL,
CONTINGENT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF
EXCESS INVENTORY SOLUTIONS’ DEFAULT OR DELAY IN FILLING THE ORDER OR FROM
ANY OTHER BREACH OF CONTRACT, OBLIGATION, OR DUTY OWING TO CUSTOMER. |
| 6. |
EXCESS INVENTORY SOLUTIONS’
products are components used in larger assemblies and risks of application and
use are unknown to and/or uncontrollable by EXCESS INVENTORY SOLUTIONS and are
not assumed by EXCESS INVENTORY SOLUTIONS. Customer agrees that
EXCESS INVENTORY SOLUTIONS shall not be responsible for failures, problems, or
occurrences of any kind or suffer loss because of them. Customer, and
purchasers from Customer, expressly assume all known and unknown risks of use
of the products and of inability to use the products. It is understood and
warranted by Customer that Customer and purchasers from Customer know how to
store, install, assemble, use, maintain, and handle
EXCESS INVENTORY SOLUTIONS’ products properly and Customer is responsible
for the selection of the design for its purpose. All new designs or
applications of EXCESS INVENTORY SOLUTIONS’ products are to be deemed
experimental until Customer has tested and approved them or successfully used
them and Customer shall assume all responsibility and liability as to said new
designs or application. Customer shall notify those purchasing from it of the
contents of these TERMS AND CONDITIONS. |
| 7. |
If
there is any warranty of EXCESS INVENTORY SOLUTIONS, other than as set forth
hereinafter, or set forth or referred to on the face of any document previously
sent by EXCESS INVENTORY SOLUTIONS to Customer, which is deemed to be excluded by
the terms hereof, it shall be limited in duration to one (1) year from the date
of shipment and shall be subject to the limitation of remedy and damages
herein. EXCESS INVENTORY SOLUTIONS shall be subject to no obligation of
indemnification or contribution express or implied or otherwise nor shall any
be based on indemnity provisions in printed forms or the like of Customer, all
such provisions being expressly rejected. All claims of indemnification or
contribution against EXCESS INVENTORY SOLUTIONS are waived, released and
discharged by Customer. If goods sold hereunder were purchased by
EXCESS INVENTORY SOLUTIONS from another supplier, EXCESS INVENTORY SOLUTIONS’
warranty, if any, shall be limited to that warranty received by
EXCESS INVENTORY SOLUTIONS from its supplier. |
| 8. |
Action
on any claim against EXCESS INVENTORY SOLUTIONS that may arise out of, be
instituted in relation to, or be instituted in connection with, the purchase of
products or services from EXCESS INVENTORY SOLUTIONS must be commenced during the
period of one (1) year after the date of receipt of products by Customer. |
| 9. |
EXCESS INVENTORY SOLUTIONS
MAKES NO WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED AND MAKES NO WARRANTY
OF MERCHANTABILITY OF THE GOODS OR OF THEIR FITNESS FOR ANY PURPOSE. NO AGENT
OR REPRESENTATIVE OR EXCESS INVENTORY SOLUTIONS IS AUTHORIZED TO CHANGE THIS
PROVISION IN ANY MANNER WHATSOEVER. |
| 10. |
CUSTOMER
HEREBY WAIVES ALL REMEDIES, WARRANTIES, OR GUARANTEES, EXPRESS OR IMPLIED,
ARISING BY LAW, STATUTE, OR OTHERWISE (INCLUDING WITHOUT LIMITATION ANY
OBLIGATIONS OR WARRANTIES OF EXCESS INVENTORY SOLUTIONS WITH RESPECT TO
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESCRIPTION, DESIGN,
DURABILITY, RELIABILITY, PERFORMANCE AND CONSEQUENTIAL, SPECIAL OR INCIDENTAL
DAMAGES) OR WHETHER OR NOT OCCASIONED BY EXCESS INVENTORY SOLUTIONS’
NEGLIGENCE, STRICT LIABILITY, STATUTORY LIABILITY OR TORT, AND ALL SUCH OTHER
REMEDIES, WARRANTIES OR GUARANTEES ARE EXCLUDED AND DISCLAIMED. |
| 11. |
ALL
OBLIGATIONS OF EXCESS INVENTORY SOLUTIONS FOR DAMAGES EXCEEDING THE PURCHASE
PRICE OF THE PRODUCTS SOLD BY IT TO CUSTOMER ARE EXCLUDED AND DISCLAIMED
INCLUDING WITHOUT LIMITATION (1) THOSE ARISING OUT OF CLAIMS OR LIABILITY BASED
ON CONTRACT, TORT, STRICT LIABILITY, STATUTE OR OTHERWISE OR (2) THOSE DEEMED
TO BE INDIRECT, SPECIAL, COMPENSATORY, INCIDENTAL, RESULTANT, CONSEQUENTIAL FOR
ECONOMIC OR COMMERCIAL LOSSES, FOR COSTS OF INSPECTION REPAIR OR RECALL FOR
ATTORNEY FEES OR EXPENSES OR FOR LOST PROFITS, INDEMNIFICATION, CONTINGENT LOSS
OR OTHERWISE, AND (3) WHETHER OR NOT OCCASIONED BY
EXCESS INVENTORY SOLUTIONS’ NEGLIGENCE, TORT, BREACH OF EXPRESS OR IMPLIED
WARRANTY, STRICT LIABILITY, LIABILITY UNDER STATURE OR REGULATION OR OTHERWISE. |
| 12. |
EXCESS INVENTORY SOLUTIONS
TAKES EVERY REASONABLE PRECAUTION TO MAKE CERTAIN ALL MATERIAL MEETS THE
STANDARDS AND SPECIFICATION ACCEPTED IN OUR INDUSTRY OR TO THE SPECIFIC
SPECIFICATION OF THE CUSTOMER, BUT IN NO CASE SHALL
EXCESS INVENTORY SOLUTIONS’ LIABILITY EXTEND BEYOND THE REPAIR OR
REPLACEMENT OF A DEFECTIVE SHIPMENT. THE CUSTOMER SHALL NOT REPAIR OR REPLACE
THE MATERIAL WITHOUT EXPRESS WRITTEN CONSENT FROM EXCESS INVENTORY SOLUTIONS. ANY
ACTION TAKEN BY THE CUSTOMER WITHOUT THE EXPRESS WRITTEN CONSENT FROM
EXCESS INVENTORY SOLUTIONS WILL RELEASE THE EXCESS INVENTORY SOLUTIONS FROM ALL
FURTHER LIABILITY OF ANY KIND WHATSOEVER. ANY ADDITIONAL OPERATION (S)
PERFORMED BY THE CUSTOMER (SUCH AS PLATING, ETC.) WHICH CHANGES THE ORIGINAL
CHARACTERISTIC OF THE MATERIAL RELEASES THE EXCESS INVENTORY SOLUTIONS FROM ALL
FUTURE LIABILITY WITH NO LIABILITY TO REPAIR OR REPLACE THE MATERIAL.
EXCESS INVENTORY SOLUTIONS URGES CUSTOMER TO ORDER THE MATERIAL AS IT IS TO BE
USED IN THE END APPLICATION. |
| 13. |
Except
as may be otherwise provided herein and on the face of the invoice sent by
EXCESS INVENTORY SOLUTIONS to Customer, orders are not subject to cancellation or
deferment without EXCESS INVENTORY SOLUTIONS’ written consent and then only
upon terms protecting EXCESS INVENTORY SOLUTIONS against loss, including lost
profits. |
| 14. |
EXCESS INVENTORY SOLUTIONS shall not be liable for damages due to default or
delay in production of delivery of all or any part of the product ordered or to
property of Customer which result directly or indirectly from labor or work
disputes, embargoes, fire, explosion, riots, national emergency, fuel or
material shortages, government restriction on orders, delays of suppliers or
carriers, accident to or breakdown of plant machinery or equipment, act of God,
commercial impracticality, or any condition or cause beyond the control of
EXCESS INVENTORY SOLUTIONS. |
| 15. |
Prices
are quoted F.O.B. Buffalo Grove, IL. Terms of payment are as shown on the
invoice and shall be effective from date of invoice. Customer assumes freight cost and liability for all loss or damage once products have left EXCESS INVENTORY SOLUTIONS’ facility. |
| 16. |
Any
taxes or charges which EXCESS INVENTORY SOLUTIONS may be required to pay or
collect under any existing or future law applicable to the sales of the
products hereunder shall be added to the price or, in lieu thereof, Customer
may provide EXCESS INVENTORY SOLUTIONS with a tax exemption certificate or
receipts for payment of such taxes acceptable to EXCESS INVENTORY SOLUTIONS and
taxing authorities. All quoted prices are excusive of all sales, use, gross
income, occupational and similar taxes, which will be either billed to or
assumed by Customer as EXCESS INVENTORY SOLUTIONS may elect. |
| 17. |
EXCESS INVENTORY SOLUTIONS
has the right to ship in installments. Installments may be separately invoiced
by EXCESS INVENTORY SOLUTIONS and shall be paid for when due without regard to
subsequent deliveries. Delay in the delivery of an installment shall not
relieve Customer of its obligations to accept the remainder of the order. Any
shipment prior to acceptance of this document is an accommodation by
EXCESS INVENTORY SOLUTIONS and subject to these TERMS AND CONDITIONS. |
| 18. |
If
at any time in EXCESS INVENTORY SOLUTIONS’ sole opinion, Customer’s
credit is impaired, EXCESS INVENTORY SOLUTIONS shall have the right to require
payment in advance before further shipment. If Customer shall fail to make such
payment in advance or shall fail to make any other payment when due or shall
breach any provision of these TERMS AND CONDITIONS, EXCESS INVENTORY SOLUTIONS
shall have to the right to terminate upon notice without prejudice to any other
remedies EXCESS INVENTORY SOLUTIONS may have.
|
| 19. |
Customer
agrees to do a receiving inspection of the products upon receipt. Claims that
the products are unsatisfactory shall be made by the Customer within fifteen
(15) days of receipt. Customer hereby expressly waives provisions of the U.C.C.
regarding notification to EXCESS INVENTORY SOLUTIONS contrary to this paragraph. |
| 20. |
EXCESS INVENTORY SOLUTIONS
has the right to inspect, at a reasonable place selected by it, any products
claimed by Customer to be defective for any reason. No allegedly defective
products are to be returned without prior written consent of
EXCESS INVENTORY SOLUTIONS. |
| 21. |
The
parties hereby agree that telefacsimile shall be sufficient and binding for any
contract or modification thereof. |
| 22. |
No
one is authorized by EXCESS INVENTORY SOLUTIONS to bind it to any oral
affirmation, assurance, representation, promise, or warranty concerning its
products or services. Product descriptions are approximate and for
identification only. Information, statements, suggestions, or service to
Customer or representations to Customer by salesman, engineers or other
representatives of EXCESS INVENTORY SOLUTIONS or contained in advertising,
promotional material, catalogs, brochures and the like are for explanation
and/or cooperation or assistance and are not warranties or warranted or a part
of the basis of the bargain, and EXCESS INVENTORY SOLUTIONS shall not be deemed
to incur any legal liability whatsoever on account of them. Cooperation or
assistance in connection with insurance matters or product difficulties shall
not be claimed or deemed to be waivers or admission by
EXCESS INVENTORY SOLUTIONS. |
| 23. |
An
order and any contract resulting therefrom, its validity, its interpretation,
and its performance, shall be governed by the laws of the State of Illinois, as
if wholly executed and wholly to be performed in said State of Illinois,
without reference to the principles of conflict of laws. Customer and
EXCESS INVENTORY SOLUTIONS agree further that any legal action arising out of an
order or any contract resulting therefrom, shall be brought and maintained only
in either the state or federal courts located in Cook County, Illinois and each
hereby consents to the personal jurisdiction over it by such courts, submits to
such courts' jurisdiction, and consents to venue therein. |
| 24. |
It
is expressly understood that EXCESS INVENTORY SOLUTIONS’ price is based on
the allocation of risk set forth in these TERMS AND CONDITIONS and that
Customer has not bargained for, nor is it entitled to, damages in excess of the
purchase price. The EXCLUSIVE REMEDY provided hereinafter shall not be deemed
to have failed of its essential purpose, even if difficulties are first
discovered after products are in use, so long as EXCESS INVENTORY SOLUTIONS is
willing and able to repair or replace the products comprising the failure
within its normal “lead” time or to refund the purchase price in the
prescribed manner. |
| 25. |
EXCESS INVENTORY SOLUTIONS
warrants for a period of fifteen days (15) from the date its products are
received by Customer that said products were shipped free from substantial
defects in materials and workmanship and are in conformance with Certificates
of Conformance or Compliance or the like, if any, signed by its authorized
representative; provided, however, that the foregoing is subject as to each
shipment or variation permitted by the quality level or sampling products
specified by Customer or the quality level or sampling procedure of
EXCESS INVENTORY SOLUTIONS if they are not specified by Customer. Customer is to
inspect the products and should failure to conform to this warranty be
discovered within the warranty period, EXCESS INVENTORY SOLUTIONS will, if
promptly notified, remedy the failure by suitable repair or replacement of the
products at its own expense or, at its option, by refund of the portion of the
purchase price attributable to products comprising the failure. |
| 26. |
Products
manufactured by others and furnished by EXCESS INVENTORY SOLUTIONS are limited to
the original manufacturer’s warranty, if any, and are sold “AS
IS” and all liability of EXCESS INVENTORY SOLUTIONS due to inadequacies of
such products is excluded and disclaimed. |
| 27. |
All
liability of EXCESS INVENTORY SOLUTIONS due to inadequacies of products which
have been damaged, altered, reworked, repaired, modified, or processed after
shipment is excluded and disclaimed. |
| 28. |
An
order may not be assigned by Customer without the express written consent of
EXCESS INVENTORY SOLUTIONS. |
| 29. |
To
secure the payment of any indebtedness hereunder, Customer irrevocably
authorizes any attorney of any court of record to appear for the Customer and
consent to judgment in favor of the EXCESS INVENTORY SOLUTIONS for such sum as
may appear to be unpaid and owing hereon, together with costs and reasonable
attorney’s fees incurred by EXCESS INVENTORY SOLUTIONS and to waive and
release all errors which may intervene in such proceedings and consent to
immediate execution upon such judgment or judgments hereby ratifying and
confirming all that said attorney may do by virtue hereof. |
|
30.
|
The CONDITIONS OF SALE AND MANUFACTURING PRACTICES as published by the National Screw and Machine Products Association (latest edition) are hereby incorporated by the reference into these TERMS AND CONDITIONS. Any provisions of said CONDITIONS OF SALE AND MANUFACTURING PRACTICES inconsistent with these TERMS AND CONDITIONS, however, shall be controlled by the terms and conditions herein. |
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