These Purchase Terms and Conditions (this “Agreement”) shall constitute the agreement between Industrial Sonomechanics, LLC (the “Company”) and the Customer (“you” or the “Customer”) purchasing equipment or parts (the “Equipment”) from the Company.
1. The Equipment. The Equipment the Customer is purchasing from the Company pursuant to the quotation or invoice accompanying this Agreement is described in the specifications section of such quotation or invoice.
2. Non-Cancelable. Once you have accepted our quotation or paid our invoice, in part or in full, you shall become bound to this Agreement; and your order shall become non-cancelable, non-refundable and non-returnable. If you abandon your order prior to shipment (see below), you hereby agree that the Company shall retain ownership and possession of the Equipment you ordered and that you will forfeit any payment you have made.
3. Delivery. Assembly of the Equipment shall not commence until at least 50% of the purchase price of the Equipment (the “Initial Payment”) is received and collected by the Company. The Company shall notify you when the Equipment you ordered is ready for delivery (the “Delivery Notice”) and shall provide an invoice for any remaining amounts then due before shipment. All sales of the Company’s Equipment are Ex Works the Company’s premises, and all risk of loss shall be borne by the Customer after the Customer or the shipping agent takes possession at such premises. You agree to insure the Equipment against all forms of loss or damage to it, to yourself or to others from the point at which you or your shipping agent takes possession. The Company may arrange for the shipment of your Equipment and purchase on your behalf the insurance provided by the shipping agent, at your cost, but assumes no liability for damage of any kind during shipment.
4. Payment. All payments, including the Initial Payment, shall be due within five (5) business days after the applicable invoice is sent. You shall be deemed to have abandoned your order if you fail to pay any balance due within thirty (30) days after the Company has given the Delivery Notice or if you fail to provide complete shipping instructions within sixty (60) days after the Company has given such notice. Any amount that remains unpaid at least five (5) business days after it is due to the Company shall be subject to an administrative fee of ten percent (10%) of the late payment and a carrying charge of one and one-half percent (1.5%) per month from the original due date until paid in full.
5. Damage and Defects.
(a) Shipping Damage; In the event of any damage to the Equipment occurring during shipment, you agree to (i) provide the Company with photographs of any such damage within three (3) business days of your receipt of the Equipment and (ii) file a claim with the insurance carrier insuring such shipment within the time period, and otherwise in accordance with the requirements, of such carrier. Promptly after your written request, the Company will provide an estimate of the cost to repair such shipping damage and, if you return the Equipment at your cost and prepay the estimate, we will use our best efforts to repair the Equipment for such estimated cost.
(b) Inspection. You also agree to inspect the Equipment after installation and notify the Company of any claims for defects within ten (10) business days after receipt of the Equipment.
(c) Other Claims. You also agree to notify the Company of any other claims for defects at any time thereafter within sixty (60) days of your discovery of such claim.
(d) You agree to preserve all materials in which the Company shipped the Equipment to you and, if you return the Equipment for repairs or for any other reason, to use such materials to repackage the Equipment for shipment back to the Company.
6. Sales Tax. You agree to bear any and all taxes imposed as a result of the sale of our products, such as sales tax, personal property tax, export or import duties and any other tax (each, a “Transaction Tax”) other than income tax imposed on the Company. If you have presented any certificate or other document that purports to relieve the Company from its duty to withhold or collect any such Transaction Tax, you represent that such document is genuine and currently in force.
7. Installation. The Company shall have no responsibility for the installation of its Equipment by you. Any advice given by the Company in that regard shall be given without warranty of any kind. See the Company’s Limited Warranty below.
8. Safety. The Customer shall be responsible for taking all safety and other precautions in installing and operating the Equipment, including all parts ordered separately. You agree to require all persons engaged in such installation or operation, and all other persons who reasonably should also require protection gear, to wear protective gear and take other reasonable protective measures.
9. Compliance with Law. You also represent that you have investigated all laws and regulations applicable to the installation and operation of the Equipment and that you are not relying upon any Company advice in that regard; and you agree to comply with all such laws and regulations.
10. Limited Warranty.
(a) The Company warrants to the original buyer that the Equipment furnished hereunder will be free from defects in material and workmanship under normal use and service and will conform to the Company’s applicable standard written specifications, or if applicable, to specifications accepted by the Company in writing. The Company’s sole obligation and liability under this warranty is, in the sole discretion of the Company, either to replace the Equipment or to repair it at the Company’s premises.
(b) The foregoing warranty shall not apply:
(i) unless the Equipment is returned to the Company, at the Customer’s sole cost and expense, within one year from the date such Equipment was originally shipped by the Company;
(ii) if the Customer has failed to pay any amount of the purchase price or other payments when due;
(iii) if the Customer fails to provide photographs to the Company of any shipping damage within three (3) business days of the Customer’s receipt of the Equipment, fails to file a timely insurance claim with respect to such damage, fails to inspect and test the Equipment after installation and notify the Company of any claims within ten (10) business days after receipt of the Equipment or fails to notify the Company of any claim thereafter within sixty (60) days of the Customer’s discovery of such claim;
(iv) if the Customer fails to follow any of the instructions in the User Manual for the Equipment provided by the Company, especially any instruction labeled “Warning” or “Caution”;
(v) to any owner or user of the Equipment other than the Customer;
(vi) to any Equipment designated “prototype”, “for developmental use” or “experimental” on your quotation or on your invoice;
(vii) to any Equipment on which the original identification information, including any logo label, has been altered, obscured, covered or removed;
(viii) to any Equipment that has been modified or repaired by any party other than the Company;
(ix) to any written, video, or oral advice provided by the Company or any agent of the Company;
(x) to any marks or scratches resulting from normal wear and tear, changes in surface finishes or discoloration due to aging, exposure to sunlight or to extreme environmental conditions;
(xi) to any damage resulting from negligence, unreasonable use or improper storage;
(xii) to any changes in the noise levels produced by the Equipment;
(xiii) to wear of the surfaces, and/or associated loss of functionality of an ultrasonic horn or microtip resulting from cavitation erosion; or
(xiv) to any Customer’s equipment or device used in conjunction with the Equipment.
(c) EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE, THE COMPANY MAKES NO REPRESENTATIONS OR GRANTS ANY WARRANTY, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND THE COMPANY SPECIFICALLY DISCLAIMS ANY OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, OR EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE OR ANY WARRANTY AS TO THE VALIDITY OF ANY PATENTS OR THE NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.
11. Limitation of Liability. THE COMPANY SHALL NOT BE LIABLE FOR LOST PROFITS, LOST REVENUES, LOST BUSINESS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL THE COMPANY BE LIABLE FOR ANY LOSS, COST, LIABILITY, DAMAGE OR OBLIGATION IN EXCESS OF THE AMOUNT PAID BY THE CUSTOMER TO THE COMPANY FOR THE EQUIPMENT SOLD HEREUNDER. NO CLAIM OF ANY KIND SHALL BE MADE AGAINST THE COMPANY OR ANY OF ITS OFFICERS OR EMPLOYEES MORE THAN ONE YEAR AFTER THE EQUIPMENT IS SHIPPED BY THE COMPANY.
12. Indemnification. The Customer (the “Indemnitor”) shall defend, indemnify and hold harmless the Company and its directors, officers, employees, agents and subcontractors (collectively, the “Indemnified Parties”) from and against any and all claims, damages, expenses, and losses of any kind whatsoever (“Losses”) that may be incurred by, imposed upon or asserted or awarded against an Indemnified Party to the extent that such Losses arise out of acts or omissions of the Indemnitor or its officers, directors, shareholders, agents, employees or contractors (including any violation of law) in connection with the installation, use, operation or storage of the Equipment. Such Indemnified Party will give the Indemnitor prompt written notice of the existence of any such event of which the Indemnified Party becomes aware, provided that the failure to provide such notice in a timely fashion shall not relieve the Indemnitor from any liability or obligation of Indemnitor hereunder unless such failure actually and materially prejudices the interests of the Indemnitor. The Indemnitor will give each Indemnified Party an opportunity to participate in the defense thereof at the Indemnified Party’s expense and will pay all reasonable expenses of the Indemnified Party in assuming such defense if the Indemnitor fails to pursue such defense in a timely and competent manner.
13. Deconstruction. You agree not to take any action to develop a product competitive with the Equipment by deconstructing such Equipment or otherwise.
14. Insurance. You hereby agree to obtain and maintain insurance that adequately protects you against damage to the Equipment and to others as a result of your installation, operation, use or storage of the Equipment and to add the Company as an additional insured party.
15. Authority. The individual that orders the Equipment hereby represents that he or she has the authority on behalf of the Customer to place such order and enter into this Agreement. The Customer represents that this Agreement does not conflict with any law regulation or other agreement to which he, she or it is subject.
16. General Terms.
(a) Injunctive Relief. The Customer acknowledges and agrees that a breach of this Agreement by the Customer may cause irreparable harm to the Company and that a remedy at law may be inadequate. Therefore, in addition to any and all remedies available at law, the Company shall be entitled to seek an injunction or other equitable remedies in all legal proceedings in the event of any threatened or actual breach of any of the foregoing provisions or representations by the Customer, without posting any bond.
(b) Governing Law. This Agreement shall be governed in all respects by the laws of the State of New York notwithstanding such state’s law that would otherwise specify the law of a different state. The parties hereby waive and disclaim the applicability of the provisions of the United Nations Convention on the International Sale of Goods and any trade usage or course of dealings or performance between the parties. In the event of any controversy, claim, or dispute between the parties arising out of or relating to this Agreement, the parties irrevocably submit to the exclusive jurisdiction of the federal and state courts located in New York, New York. Notwithstanding such exclusive jurisdiction, any judgment obtained in such a court may be enforced in any court having jurisdiction over such enforcement. You shall reimburse the Company for all of its costs, including reasonable legal fees, incurred by it in enforcing this Agreement.
(c) Entire Agreement; Modification. This Agreement, along with the quotation and invoices sent to the Customer, constitute the entire agreement between the parties, and supersede all previous and contemporaneous negotiations, representations and agreements heretofore made by the parties with respect to the subject matter hereof. This Agreement shall not be modified except by a subsequently dated written amendment signed on behalf of the party to be bound thereby. In no case shall any purchase order or other similar document sent by the Customer alter the terms of this Agreement. The Customer represents that no oral or written comments by the Company, including comments regarding the Equipment, have induced the Customer to enter into this Agreement.
(d) Waiver. Any failure to enforce, or delay in enforcing, any provision of this Agreement by either party shall not be construed to be a waiver of any breach of such provision or any other provision of this Agreement. No waiver of any breach of a provision of this Agreement shall be effective unless made in writing and signed by the waiving party. The waiver of a breach of a provision of this Agreement shall in no way be construed as a waiver of any subsequent breach of such provision or as a waiver of the provision itself.
(e) Severability. In the event that any provision of this Agreement is unenforceable or invalid under any applicable law or is so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law or applicable court decision.
(f) Notices. All notices, including invoices, required or permitted under this Agreement shall be in writing, shall reference this Agreement and shall be deemed given: (i) when delivered personally; (ii) when sent by email if the recipient of such email responds to it or confirms its receipt; (iii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) day after deposit with a commercial express carrier, specifying delivery in one (1) day or less, with written verification of receipt. All communications shall be sent to the addresses set forth on the signature page hereto, or such other addresses as the parties may notify each other of from time to time in accordance with this Notices provision.
(g) Language. This Agreement is in the English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall be for accommodation only and shall not be binding upon the parties hereto. All communications, notices, documentation and technical assistance pursuant to this Agreement, and all documentation and support to be provided hereunder, unless otherwise provided for herein, shall be in the English language.
(h) Assignment. Except in the case of a sale of all or substantially all of the assets of the Customer, the Customer shall not assign or transfer, by operation of law or otherwise, any of his, her or its rights or obligations under this Agreement without the prior written approval of the Company, and any attempt to make such assignment without such approval shall be invalid and void. Subject to the foregoing, the rights and obligations of the parties under this Agreement shall inure to the benefit of, and shall be binding upon, their respective successors and assigns.
(i) Counterparts. This Agreement shall become binding upon the Customer when the Customer sends an email to the Company accepting the Company’s quotation, when the Customer sends a purchase order to the Company or when the Customer pays the Company invoice for the Equipment, whichever occurs first.
(j) Force Majeure. Except for payment of money, neither party shall be liable for failure to fulfill his, her or its obligations under this Agreement or for delays in such fulfillment due to causes beyond his, her or its reasonable control, including but not limited to acts of God, man-made or natural disasters, earthquakes, fire, riots, flood, material shortages, strikes, delays in transportation or inability to obtain labor or material through its regular sources. The time for performance of any such obligation shall be extended for the time period lost by reason of the delay.
(k) Foreign Corrupt Practices Act. In conformity with the United States Foreign Corrupt Practices Act, the parties and their employees and agents shall not directly or indirectly make any offer, payment, or promise to pay; authorize any payment; nor offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing any act or decision of an official of any government worldwide or the United States Government (including a decision not to act) or inducing such person to use his or her influence to affect any such governmental act or decision in order to assist such party in obtaining, retaining or directing any such business.