STANDARD TERMS AND CONDITIONS OF SALE
These Standard Terms and Conditions of Sale (these “Terms and Conditions”), as may be updated by Seller from time to time without notice, are between Hartland Controls L.L.C. and its affiliates (“Seller”) and Buyer (“Buyer”), and govern all sales of goods (“Goods”) by Seller to Buyer. SELLER’S ACCEPTANCE OF BUYER’S PURCHASE ORDER IS EXPRESSLY MADE CONDITIONAL ON BUYER’S ACCEPTANCE OF THESE TERMS AND CONDITIONS, WHICH SUPERSEDE ANY ADDITIONAL OR DIFFERENT TERMS CONTAINED IN BUYER’S PURCHASE ORDER OR OTHER DOCUMENT OR COMMUNICATION PERTAINING TO BUYER’S ORDER OR THE GOODS. ANY PURCHASE ORDER, OFFER OR COUNTER-OFFER MADE BY BUYER BEFORE OR AFTER IS HEREBY REJECTED AND ALL DOCUMENTS EXCHANGED PRIOR TO THESE TERMS AND CONDITIONS ARE MERELY PRELIMINARY NEGOTIATIONS AND NOT PART OF ANY AGREEMENT BETWEEN SELLER OR BUYER. BUYER’S ASSENT TO THESE TERMS AND CONDITIONS CONTAINED IN THIS DOCUMENT SHALL BE CONCLUSIVELY PRESUMED FROM BUYER’S ACCEPTANCE OF ALL OR ANY PART OF THE GOODS OR FROM PAYMENT BY BUYER FOR ALL OR ANY PART OF THE GOODS. NONE OF THESE TERMS AND CONDITIONS MAY BE ADDED TO, MODIFIED, SUPERSEDED OR OTHERWISE ALTERED, EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY AN AUTHORIZED EXECUTIVE OF SELLER. FAILURE OF SELLER TO OBJECT TO ANY TERMS OR CONDITIONS WHICH MAY BE CONTAINED IN ANY DOCUMENT OR FORM OF BUYER SHALL NOT BE CONSTRUED AS A WAIVER OF THESE TERMS AND CONDITIONS, NOR AS AN ACCEPTANCE OF ANY SUCH ADDITIONAL TERMS AND CONDITIONS.
2. Payment Terms.
Payment for Goods are due net thirty (30) days from the date of invoice. Any payments not made within thirty (30) days of the date of the invoice shall be subject to a late payment charge of 1½% per month (compounded) (or, if less, the maximum legal rate) on all amounts not received by the due date on the unpaid balance of any amount then past due. Buyer shall pay all invoices in USD, unless otherwise specified and approved in writing by Seller. Seller may, at its sole discretion, impose a transaction fee on payments processed via wire transfer, Automated Clearing House or letter of credit.
The quoted purchase price may be increased to the extent that Seller’s costs for the Goods increase as a result of (1) any agreements, codes, or legislative enactments made or enacted pursuant to federal, state of municipal legislation; and (2) increase in the cost of labor or raw materials. In addition to paying the quoted purchase price, Buyer is solely liable for any excises, levies or taxes which Seller may be required to pay or collect, under any existing or future law, upon or with respect to the sale, purchase, delivery, storage, processing, use, consumption or transportation of any of the Goods covered hereby, and Buyer agrees to pay the amount thereof on the same terms as it shall pay the quoted purchase price.
Seller warrants that the Goods Seller sells to Buyer shall conform to the description stated on the applicable purchase order or invoice for 18 months from date of manufacture (the “Warranty Period”). THE FOREGOING WARRANTY IS SELLER’S SOLE AND EXCLUSIVE WARRANTY WITH RESPECT TO THE GOODS. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF ANY KIND WITH RESPECT TO ANY THIRD PARTY PRODUCTS, WARRANTY OF TITLE AND WARRANTIES AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY ARE HEREBY DISCLAIMED. BUYER ACKNOWLEDGES AND AGREES THAT IT HAS SELECTED AND ORDERED GOODS BASED ON BUYER’S OWN SKILL AND JUDGMENT AND AGREES THAT BUYER IS SOLELY RESPONSIBLE FOR ENSURING THAT THE GOODS SELECTED ARE FIT FOR BUYER’S PURPOSE. SELLER’S LIABILITY FOR BREACH OF WARRANTY HEREUNDER IS LIMITED SOLELY TO THE REPAIR OR REPLACEMENT OF THE DEFECTIVE GOODS, WHICH SHALL BE RETURNED TO SELLER’S PLANT, TRANSPORTATION CHARGES PREPAID BY BUYER OR IN SELLER’S SOLE DISCRETION, SELLER MAY REFUND THE PURCHASE PRICE PAID BY BUYER FOR THE GOODS THAT FAILED TO CONFORM TO THE SPECIFICATIONS. SELLER’S OBLIGATIONS UNDER THIS SECTION ARE SUBJECT TO BUYER PROVIDING NOTICE OF A WARRANTY CLAIM WITHIN THE WARRANTY PERIOD. FAILURE TO PROVIDE NOTICE OF A CLAIM WITHIN THE WARRANTY PERIOD SHALL CONSTITUTE A WAIVER BY BUYER OF ALL CLAIMS IN RESPECT OF SUCH GOODS. THE FOREGOING SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY OF BUYER AND THE SOLE LIABILITY OF SELLER UNDER THIS WARRANTY. NOTWITHSTANDING THE FOREGOING, SELLER’S WARRANTY IS EXPRESSLY CONDITIONED ON BUYER (A) NOT MAKING ANY UNAUTHORIZED REPAIRS OR ALTERATIONS TO THE GOODS; AND (B) NOT BEING IN DEFAULT OF ANY PAYMENT OBLIGATION TO SELLER. ADDITIONALLY, SELLER’S WARRANTY DOES NOT COVER DAMAGES CAUSED BY IMPROPER OPERATION, HANDLING OR MISUSE OF THE GOODS.
5. LIMITATION OF LIABILITY.
SELLER’S LIABILITY TO BUYER, WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE, SHALL NOT EXCEED, IN ANY CASE, THE PURCHASE PRICE PAID BY BUYER FOR SUCH GOODS OR PART THEREOF INVOLVED IN THE CLAIM, REGARDLESS OF CAUSE OR FAULT, AND UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR LOST PROFITS OR REVENUE, BUSINESS INTERRUPTION, SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES. THE PRICE STATED FOR THE GOODS IS CONSIDERATION FOR LIMITING SELLER’S LIABILITY AND THIS LIMITATION OF LIABILITY AND REMEDIES REFLECT A DELIBERATE AND BARGAINED-FOR ALLOCATION OF RISKS BETWEEN SELLER AND BUYER AND CONSTITUTES THE BASIS OF THE PARTIES’ BARGAIN, WITHOUT WHICH SELLER WOULD NOT HAVE AGREED TO SELL GOODS TO BUYER. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF ANY GOODS SOLD BY SELLER TO BUYER MAY BE BROUGHT BY BUYER MORE THAN EIGHTEEN (18) MONTHS AFTER THE DATE OF THE GOOD’S INVOICE. WITHOUT LIMITATION OF THE FOREGOING, IN NO EVENT WILL SELLER BE RESPONSIBLE OR LIABLE FOR (A) PENALTIES OR PENALTY CLAUSES OF ANY DESCRIPTION, OR (B) INDEMNIFICATION OF BUYER OR OTHERS FOR COSTS, DAMAGES OR EXPENSES ARISING OUT OF OR RELATED TO THE GOODS.
Claims by Buyer for shortages or errors in delivery must be made within five (5) days after the delivery of the Goods. Goods are sold subject to the standard manufacturing practices of Seller’s suppliers. Goods purchased on the basis of weight are subject to customary quantity variations recognized by practice in the industry.
No Goods shall be returned for credit without first obtaining written consent from the Customer Service member of Seller.
Delivery terms are either F.O.B. Seller’s plant, or C.F., as specified on the purchase order or invoice. In either case, Buyer shall assume all risk of loss or damage upon delivery by Seller to the carrier at the point of shipment. Scheduled dates of delivery are determined from the date of Seller’s acceptance of any order or orders placed by Buyer and are estimates of approximate dates of delivery, not a guaranty of a particular date of delivery. Seller shall not be liable for any damages caused by failure or delay in shipping the Goods described in any purchase order. Additionally, Seller shall not be liable to Buyer for failing to perform its obligations due to contingencies beyond Seller’s control including but not limited to war, embargo, riot, fire, flood, accident, mill condition, strike or other labor difficulty, an act of Buyer, an act of God, an act of a governmental authority, transportation shortage or failure, inability to obtain sufficient fuel, labor, materials or manufacturing facilities.
9. Security Interest.
Shipments, deliveries and performance of work by Seller shall at all times be subject to the approval of and requirements of the credit department of Seller, including the requirement that Buyer pay part or all of the purchase price in advance. Seller retains a purchase money security interest in all Goods not paid for in full, notwithstanding that the Goods have been delivered to Buyer, and Buyer hereby authorizes Seller to execute and file financing statements describing the Goods, and other document which may be requested by Seller to evidence its security interest.
Orders accepted by Seller are subject to cancellation by Buyer only upon the express written consent of Seller. Upon such cancellation and consent, Seller shall cease work and hold for Buyer all completed and partially completed Goods and work in progress and Buyer shall pay Seller: for all work and materials that have been committed to and/or identified to Buyer’s order plus a cancellation charge as prescribed by Seller, in addition to a reasonable profit to Seller on the entire contract.
In addition to the foregoing, Buyer agrees to defend, indemnify, save and hold Seller harmless from any claims, demands, liabilities, costs, expenses or judgments arising in whole or in part, directly or indirectly, out of the negligence or lack of care by Buyer or Buyer’s affiliates, subcontractors, customers, agents, employees or invitees involving the use of the Goods sold by Seller. This indemnification shall include all costs, attorney’s fees and other expenses paid or incurred by or imposed upon Seller in connection with the defense of any such claim.
12. Governing Law.
Any agreement arising out of this transaction shall be deemed to have been made in Rock Falls, Whiteside County, Illinois. The parties agree that the validity, interpretation and performance of any agreement arising out of this transaction shall be governed by the laws of the State of Illinois without regard to its conflicts of laws rules. Buyer and Seller hereby submit to the exclusive jurisdiction for the resolution of any disputes hereunder, to the Circuit Court of the Seventeenth Judicial Circuit, Whiteside County, Rock Falls, Illinois. This shall be the sole and exclusive jurisdiction and venue for the purpose of adjudication of any rights and liabilities hereunder. Any provision of these Terms and Conditions held to be invalid, illegal or unenforceable will be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions of these Terms and Conditions. Buyer shall not transfer or assign these Terms and Conditions (including by operation of law) without the prior written consent of Seller, such consent to be in Seller’s sole discretion, and any attempted assignment of these Terms and Conditions without such consent shall be null and void.
In the case of default or breach by Buyer in the performance of any or all of the provisions of these Terms and Conditions, Seller may cancel any outstanding order from Buyer, without liability to Seller or any third party, and declare all obligations immediately due and payable, and shall in addition have all remedies afforded by the Uniform Commercial Code as enacted in Illinois, and any other applicable law. Buyer shall in addition, be liable for Seller’s expenses incurred in exercising any remedies available to it, including reasonable attorney’s fees and legal expenses. All unpaid obligations shall bear interest at the contract rate provided under terms of payment above. Buyer shall not withhold any payments it owes to Seller by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach of these Terms and Conditions or otherwise.
If Buyer requests deferral of deliveries, Seller’s agreement to defer delivery shall not excuse Buyer from its obligation to pay for the Goods at the same times and in the same quantities as the original delivery schedule, including interest due pursuant to these Terms and Conditions. In addition to adhering to the original payment schedule, Buyer shall pay such storage charges as Seller may assess for storing the Goods awaiting delivery. If Buyer requests deferral prior to commencement of production, Seller may require progress payments in connection with expenses for materials and services incurred by Seller in anticipation of production.
15. Export Controls.
Buyer hereby warrants and represents that it will comply with any and all laws with respect to the purchase and use of any Goods. Buyer acknowledges and agrees that Seller is not required to sell any Goods the sale of which would violate applicable law, rule or regulation, including without limitation those with respect to import or export controls. Buyer agrees to provide all information and documents, and to procure all necessary permits, authorizations and approvals with respect to Seller’s sale of any Goods.
16. Intellectual Property Rights.
Any intellectual property contained within any Goods Seller sells to Buyer is and shall remain the sole and exclusive property of Seller.
17. Modifications to Terms and Conditions.
Seller reserves the right to modify these Terms and Conditions at any time and from time to time and Buyer is advised to check Seller’s website WWW.HARTLANDCONTROLS.COM periodically for updates. Any terms existing on such website that vary from or supplement these Terms and Conditions are hereby incorporated by reference and shall control in the event of a conflict with these Terms and Conditions. In continuing to purchase Goods from Seller after publication of any modification or supplementation of these Terms and Conditions on such website, Buyer agrees to any such modified or supplemental terms as if they were fully set forth herein. Notwithstanding anything herein to the contrary, to the extent any provision of these Terms and Conditions conflicts with terms in a written quote, purchase order, invoice or other document originating from Seller for Goods, the terms of such other document originating from Seller shall apply, shall be deemed to be part of these Terms and Conditions and shall prevail in the event of any conflict with the provisions of these Terms and Conditions.
Revision May 14, 2018