INNOVATIV HOISTING LLC
STANDARD TERMS AND CONDITIONS OF SALE
ONLY TERMS AND CONTAINED IN STANDARD LEASE OR RENTAL AGREEMENTS PREPARED BY INNOVATIV HOISTING MAY SUPERSEDE, AMEND OR MODIFY THOSE HERE BELOW.
- PARTIES: Seller hereunder is INNOVATIV HOISTING LLC and its Authorized Dealers and their directors, officers, employees, agents, attorneys, and affiliates, successors and assigns. Buyer hereunder is the party referred to on the face of Seller's invoice or in the Quotation to which this relates and their directors, officers, employees, agents, attorneys, and affiliates, successors and assigns.
- TAXES, DUTIES AND TRANSPORTATION: Applicable excise, sales, use and similar taxes, duties, export fees, transportation charges and costs of insurance, demurrage or bonds of any kind are not included in the pricing and shall be paid by Buyer. In lieu of any tax, Buyer may provide Seller with a tax exemption certification acceptable to the taxing authorities.
For sales of equipment, destined for Canada, Buyer is expressly and solely responsible for all elements of import into Canada, including payment of HST and any other applicable tax, duty, fee or cost and further shall serve as sole Importer of Record, for which Seller shall have no responsibility to register with Canadian taxing or other authorities (or make any payment or filing).
- DELIVERY, TITLE AND RISK OF LOSS: Unless expressly stated otherwise on the face of Seller's Invoice or in Seller's written Quotation applicable hereto, all shipments are FOB IH’s inventory yard, Tolland, Connecticut, except for exports on prior written approval of IH; export shipments are, at Seller’s discretion, EXW or FCA (per INCOTERMS 2020) Seller's U.S. inventory yard or U.S. port of export or Seller's branch office or other location designated by Seller (including as applicable for drop shipment or equivalent, OEM’s place of manufacture). Risk of loss or damage to Goods shall pass to Buyer upon delivery to the carrier (i.e., carrier’s first contact with items). Buyer shall have the responsibility to obtain and pay for insurance and for dealing with the carrier and/or insurer. Buyer shall notify Seller in writing relative to any shortages or defects within ten (10) days from receipt of shipment. At least thirty (30) days prior to the scheduled delivery date for Goods purchased hereunder, Buyer shall provide Seller with written instructions regarding the destination to which the Goods are to be shipped, choice of carrier and type of conveyance. In the absence of such specific instructions, Goods will be packaged and shipped in accordance with Seller's standard practices. Title to Goods and right of ownership shall pass to Buyer conditioned upon and only upon Sellers receipt of full payment therefor, and Seller hereby reserves a security interest therein to secure such payment.
- FORCE MAJEURE: Seller shall not be liable for delays in delivery or for failure to manufacture due to causes beyond its reasonable control, including but not limited to acts of God, acts or omissions of buyers acts or omissions of any civil or military authority, fire, pandemic, terrorism, strikes, delays, losses or damage in transportation, and inability to obtain necessary materials. In the event of any such delay, Buyer agrees that the date of delivery shall be extended for a period equal to the time lost by reason of the delay without penalty to Seller.
- DELIVERY DOCUMENTATION: Buyer shall be responsible for obtaining and providing to Seller licenses, letters of credit and other documentation of any nature necessary to enable Seller to deliver the Goods. In the event all such items are not received by Seller at least thirty (30) days prior to the scheduled delivery date or such other time as is needed or processing by Seller and applicable Government or other entity with actual or apparent authority, Seller shall have the right to reschedule delivery and/or reassign scheduled Goods. All such rescheduling and reassignment shall be deemed to have been made for the convenience of Buyer and is subject to reasonable administrative and other charges payable to Seller.
- FINAL INSPECTION AND ACCEPTANCE: Final inspection and acceptance shall be made by Buyer at Buyer's facility. Unless Buyer notifies Seller, in a timely manner, of other final inspection location or procedures in writing and same is agreed to by Seller in writing, by signing the accompanying Bill of Sale Buyer shall be conclusively presumed to have accepted the Goods upon delivery by Seller to Buyer.
- WARRANTY: Seller warrants, to the original Buyer only, that the Goods, excluding consumables, delivered herewith or hereafter, will be free from defects in workmanship or material for a period of one  year from the date of the shipment (i.e., carrier’s first contact with items). This warranty shall apply only to items manufactured by Seller or by an affiliate of Seller: without limiting the foregoing, this warranty specifically excludes such items as may be attached to or installed, at the request of the Buyer, into Goods manufactured by Seller. This warranty shall terminate and become void if Goods shipped by Seller are (i) altered, modified or repaired by anyone other than Seller or Seller's authorized repair personnel, or (ii) connected to or used with items manufactured by anyone other than Seller or Seller's parent company (excepting only test equipment approved by Seller), or (iii) not used and maintained in accordance with Seller's recommended procedures. Seller's sole liability and Buyers sole remedy for breach of warranty shall be the replacement, repair or adjustment, at Seller's, delivered at Buyer's expense to the place of manufacture or authorized repair station, of defective warranted Goods with respect to which Buyer claims a breach of warranty by written notice to Seller received by Seller within one (I) year from the date of shipment of such Goods from IH inventory yard. All items claimed to be in breach of this warranty must be returned by Buyer to place of manufacture or authorized repair station, at Buyer's expense, and will be returned to Buyer, at buyer's expense.
IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT CAUSED BY OR RESULTING FROM THE NEGLIGENCE OF SELLER, THERE ARE NO EXPRESS WARRANTIES OTHER THAN THOSE DESCRIBED HEREIN; AND NO WARRANTIES BY SELLER SHALL BE IMPLIED OR OTHERWISE CREATED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH WARRANTIES ARE HEREBY DISCLAIMED.
The warranties herein are in lieu of all other warranties express, implied or statutory, including without limitation warranties of fitness for a particular purpose and merchantability, and this provision sets forth Buyer's exclusive remedy in connection with such warranties.
- INSTALLATION, MAINTENANCE AND OTHER SERVICE: limited to the terms and provisions stated in Seller's standard 'Service' statement, incorporated herein by reference.
- CHANGES: Seller reserves the right to modify the Goods, in whole or in part, at no cost to Buyer, at any time prior to delivery in order to include electrical or mechanical improvements deemed appropriate by Seller, but it is agreed that Seller shall have no obligation to modify the Goods before or after delivery.
- PAYMENT TERMS: Unless otherwise expressly provided on Seller's Invoice or in Seller's written Quotation applicable hereto, payment terms are Net 15 days from date of Invoice, in U.S. $, except Seller may require down payment, deposit or other forms of security including up to and exceeding the full purchase price, at its sole discretion. Buyer agrees to submit such financial information from time to time as may be reasonably requested by Seller. Buyer acknowledges that Seller shall have the right to determine Buyer's credit limit and to change payment terms from time to time at Seller's discretion. In the event Buyer exceeds its credit limit, fails to make payments when due or otherwise defaults or commits a breach hereunder, Seller shall have the right, without prior notice, to suspend credit, delay shipment, alter the terms of payment, cancel any orders, demand cash payment or return of Goods and/or pursue any other remedies available at law or in equity, including repossession, all of the foregoing being cumulative in addition to payment of Seller’s attorney’s fees. Seller shall charge one and one half percent (1- 1/2%) or the statutory maximum (whichever is lower) per month on overdue accounts and shall impose customary administrative, restocking or other charges in connection with any Goods canceled, reassigned or rescheduled pursuant hereto. The cost of bank and other fees and charges in connection with letters of credit and related documentation shall be for the account of Buyer. In the case of partial shipments, pro-rated payments shall become due on each shipment in accordance with the payment terms set forth herein.
- RESCHEDULING AND CANCELLATION: Buyer may not cancel this contract or reschedule delivery.
- INTELLECTUAL PROPERTY, SOFTWARE AND DOCUMENTATION: All intellectual property of any manner in IH machines, including but not limited to parts and accessories is reserved. Possession and/or purchase conveys limited right and license to use the relevant machines for their intended purpose only, but does not include transfer or assignment of rights to any associated intellectual property. Buyer agrees not to reverse engineer, model or gather manufacturing intelligence from such machines including associated software. Any Software, including but not limited to Object code software and/or font software (all software separately and collectively referred to hereinafter as 'Software') included in the Goods and documentation, including but not limited to drawings, manuals and the like, is provided by Seller hereunder solely for use in the operation and maintenance of the Goods. Software is, or may be, contained in various media including but not limited to ROM, PROM, RAM, diskette and disk and it shall not be extracted, decompiled, modeled, copied or modified in any way.
ALL INTELLECTUAL PROPERTY AND SOFTWARE AND DOCUMENTATION IS AND SHALL REMAIN THE EXCLUSIVE PROPERTY OF SELLER AND/OR ITS LICENSORS, AND NO TITLE TO, OWNERSHIP OROTHER INTEREST IN THE INTELLECTUAL PROPERTY, SOFTWARE OR DOCUMENTATION IS HEREBY TRANSFERRED TO BUYER.
Seller grants to Buyer a limited license to use Software solely in connection with the Goods. The Software and documentation shall not be copied and shall not be used in connection with any other equipment or for any other purpose without prior express written consent of Seller.
Buyer shall not alter, obscure or remove any intellectual property, copyright, legend, logo, trademark or other notice or identifying sign associated with the intellectual property, Software or documentation appearing in any intellectual property, Software or documents or in or upon any Software media or any training, maintenance or other documentation which includes or makes reference to the Software or documentation or in or upon any Goods delivered to Buyer in association with said Software or documentation.
As a condition of the intellectual property and Software license granted herein, Buyer agrees, and shall cause its successors and anyone else using the Goods to agree to abide by the above terms and conditions, together with the terms and conditions of any licensing agreement packaged or provided with the Goods or other item containing the Software.
Without limiting the foregoing, Buyer shall not for any purpose publish, copy or otherwise reproduce in any form the intellectual property or Software or documentation provided hereunder without the prior express written consent of Seller.
- DISCONTINUANCE: Seller reserves the right to discontinue availability of Goods or parts therefor sold hereunder at any time without liability to Buyer.
- WORK OFF SELLERS PREMISES: In the event of any work in connection herewith by Seller or Buyer off Seller's premises, Buyer shall take (or cause its customers and potential users or operators to take) all necessary precautions, including, but not limited to, full review of the operator’s manual (receipt of which is hereby acknowledged by the initialed cover page attached hereto), machine familiarization and basic operations training, and completion of the attached pre-delivery checklist (an additional copy of which has been completed by Buyer as an Operator) which is furnished herewith and incorporated herein by reference (and retaining documentation thereof) before any new operator uses the relevant machine, to prevent the occurrence of any injury to any person or property, including but not limited to personnel and property of Seller, Buyer, or any third party, during the progress of such work and shall indemnify and hold Seller harmless from all claims, losses, and liabilities relating to damage, injury or death to any person or property whatsoever.NON·WAIVER OF DEFAULT: Seller's failure to insist upon strict performance of anyone or more of the provisions contained herein shall in no way constitute a waiver of
- its rights, at law or in equity, and shall not constitute a waiver by Seller of any other provision or any prior, concurrent or subsequent default by Buyer in the performance of or compliance with any of the terms and conditions set forth herein. Should legal action become necessary to enforce any of the terms and conditions set forth herein, Buyer shall pay to Seller all expenses incurred in connection with such action, including reasonable attorney's fees.
- LIMITATION OF LIABILITY: IN NO EVENT SHALL SELLER BE LIABLE FOR ANY COLLATERAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR EXEMPLARY DAMAGES ARISING OUT OF OR CONNECTED IN ANY WAY WITH THIS AGREEMENT OR ANY GOODS SOLD PURSUANT HERETO. BUYER SHALL INDEMNIFY AND HOLD HARMLESS SELLER AGAINST ANY CLAIM AGAINST SELLER ARISING IN ANY WAY FROM BUYER’S (OR SELLER’S, AFTER SALE) USE OR POSSESSION OF GOODS OF SELLER, INCLUDING SELLER’S ATTORNEY’S FEES. ANY DAMAGES AGAINST SELLER ARE SOLELY LIMITED TO THE PURCHASE PRICE PAID TO SELLER.
- GOVERNING LAW AND RELATED MATTERS: This Agreement and all actions and proceedings arising out of or relating hereto snail be governed, construed and interpreted in accordance with the laws of Connecticut. All actions and proceedings relating to this Agreement shall be maintained in a court located in Hartford County, Connecticut, and the parties hereto consent to the jurisdiction and venue in said court and waive any objection to such venue.
- EXPORT: In the event Buyer exports or re-exports the Goods after prior written permission from Seller, Buyer is herewith informed that export shipment or diversion to certain countries may be prohibited by U.S. law (or the law of other countries) without special permits or entirely, and Buyer shall have full and sole responsibility for obtaining all necessary approvals, licenses and permits and to pay all fees, duties, penalties and the like which may be required by any regulatory or government body upon export. Buyer agrees to abide by the rules and regulations of the U.S. Department of Commerce, Office of Export Administration, when exporting or re-exporting the Goods, Software, spare parts or other items sold or licensed hereunder.
- TRADEMARKS: Buyer shall have no right to use Seller's or its licensors' trademarks, trade names, logos or other indicia without prior express written permission of Seller. Buyer is not and shall in no way hold itself out as a distributor or representative of Seller without prior express written permission of Seller.
- ASSIGNMENT: Delegation or Assignment by Buyer of any or all of its duties, obligations or rights hereunder, without prior express written consent of Seller, shall be void.
- SEVERABILITY: If any provision herein shall be held to be invalid or unenforceable for any reason, such provision shall, to the extent of such invalidity or unenforceability, be severed, but without in any way affecting the remainder of such provision or any other provision contained herein, all of which shall continue in full force and effect.
- CAPTIONS: Captions are for convenience of reference only and shall not modify limit or otherwise affect, or be used in the construction of, any of these terms and conditions.
- COMPLETE AGREEMENT: Buyer understands and agrees that acceptance by Seller of any Purchase Order issued by Buyer in connection with the applicable Quotation and/or Invoice is limited to, subject to and expressly made conditional upon Buyer's assent to the terms and conditions set forth hereinabove and/or upon the face of Seller's Invoice, Bill of Sale, and/or Seller's Quotation. The Agreement so formed constitutes the entire agreement between Seller and Buyer concerning the subject matter hereof, supersedes all prior communications and agreements, written and oral, and is intended by the parties to be a complete and exclusive statement of the terms and conditions of the agreement between them. Any terms and conditions appearing in Buyer's Purchase Order or in any other writing received from Buyer which are different from or in addition to the terms and conditions contained hereinabove and/or on the face of Sellers Invoice are null and void and of no force or effect.
This Agreement may be modified only by a writing signed by authorized representatives of both parties expressly referencing these Terms and Conditions.