General Terms and Conditions of Business
General Conditions of Sale and Delivery
These terms and conditions (the “Terms”) apply to all sales of products (“Goods”) and services (“Services”) by ERGOSWISS AMERICA INC. (“Seller”) which you (“Buyer”) order using the Seller’s online ordering system. “Contract” means the contract between Seller and Buyer with respect to the Goods and Services which includes, without limitation, these Terms.
1. Agreement
Buyer’s placing of any order for any Goods or Services using Seller’s online ordering system shall constitute Buyer’s acceptance of and agreement to these Terms. Any terms or conditions that are printed on or contained in a purchase order or other form or acknowledgement prepared by or on behalf of Buyer, or which are otherwise provided or submitted to Seller by or on behalf of Buyer, which are additional to, in conflict with or inconsistent with these Terms are hereby rejected and shall have no force or effect, any rule or principle of law to the contrary notwithstanding.
2. Cancellation/Reschedule of Purchase Order(s)
Buyer may not cancel any purchase order after the Goods are shipped to Seller’s warehouse in Illinois. In the event of any cancellation of all or part of any order, Buyer agrees to pay Seller for all reasonable and allocable materials, material management, labor, overhead and general and administrative costs and expenses incurred as a result of any such cancellation including, without limitation, any charges, fees or costs which the manufacturer charges to Seller, plus a reasonable profit, within 10 days from the date of Seller’s invoice. Anything herein to the contrary notwithstanding, non-standard or custom-ordered Goods are not returnable and cannot be cancelled under any circumstances.
3. Payment Terms
Payment in full of the price is due 30 days after shipment of the Goods or performance of the Services, except that if at any time Seller determines that Buyer’s financial condition or credit rating does not justify a sale on credit or if Buyer is at any time in default in any indebtedness or obligation that Buyer owes to Seller, then Seller may require advance payment or may ship C.O.D. Any payment that is not made when it is due shall accrue a finance charge of 1-1/2% per month. Payment is to be made to Seller at the place and in the manner described on the invoice or by other direction provided to Buyer by Seller. Seller shall have the right to increase its prices at any time upon notice to Buyer to reflect any unusual or unforeseen increase in Seller’s costs, including but not limited to any increase in the cost of materials. Buyer may not setoff against amounts due Seller. Unless otherwise agreed in writing signed by Buyer and Seller, all payments shall be in U.S. Dollars.
4. Delivery and Risk of Loss
Unless Seller agrees otherwise in writing, Seller shall deliver the Goods EXW (Incoterms 2010) Seller’s warehouse in the State of Illinois. Buyer acknowledges that shipping, delivery and performance dates are estimates only, and time is not of the essence for Seller’s obligations hereunder. Seller may deliver all the Goods at one time or in portions from time to time
5. Taxes
Seller’s price does not include any privilege, occupation, personal property, value-added, sales, excise, use or other taxes, and Buyer shall be liable for all such taxes, whether or not Seller invoices Buyer for them. If Buyer does not furnish to Seller an appropriate sales and use tax exemption certificate with respect to Buyer’s purchase of the goods and if Seller is required by a governmental entity to collect and remit sales or use tax with respect to Seller’s sale of the goods to Buyer, then Seller’s invoice to Buyer for the purchase price shall include, and Buyer shall pay to Seller, the full amount of that tax.
6. Unavoidable Delay
If Seller is not able to finish and deliver the Goods to Buyer, or to perform the Services within the time stated in Seller’s written proposal as a result of matters beyond Seller’s control, (such as strikes or other work stoppages, acts of war or civil insurrection, acts of terrorism, acts of God, unseasonable storms, accidents, unavailability of supplies or transportation, or Buyer’s failure to approve production samples), then the estimated delivery or performance time shall be extended for each day of such delay, and Seller shall not be liable to Buyer for any damages caused by the delay.
7. Changes
Buyer acknowledges that the manufacturer reserves the right to make design or engineering changes in its parts, equipment, processes and methods of manufacture, but Seller will not, without Buyer’s prior approval, permit any changes in operational or dimensional specifications that Buyer submits with its order, unless Seller first provides Buyer with written notice of any such changes and provides Buyer with a time to cancel its order. Stenographical and clerical errors in Seller’s online ordering system are subject to correction.
8. Limited Warranty; Remedies
(a) Goods Seller warrants to Buyer that any goods manufactured solely by Seller (“Products”) will be free from defects in material or workmanship under normal and intended use and service for the Applicable Warranty Period (set forth below) after the date of manufacture of the Products except that the Products shall not be defective to the extent that:
(i) they conform with drawings of or specifications for or a sample of goods that have been approved by Buyer;
(ii) they conform with goods, testing results, dimensional layouts or manufacturing methods that have been submitted by Buyer;
(iii) they are damaged due to the method or length of storage by Buyer; (iv) to the extent they conform to the specifications as changed or waived if Buyer’s representative agrees, either orally or in writing, to the change in or waiver of the specifications for any Product; or
(v) to the extent they were exposed to a chemical, biological, radiological, nuclear or explosive event or otherwise exposed to a hazardous material after Buyer or Buyer’s representative has accepted delivery of the Goods at Seller’s warehouse.
In the event of a defect in any Goods constituting a breach of the express warranty stated in this Paragraph 8 (a), Seller will at its option either (x) repair or replace such Goods free of charge, or (y) in lieu of repair or replacement, refund to Buyer the original purchase price less the reasonable value of Buyer’s use of the Goods. Seller shall furnish to Buyer instructions for the disposition of the defective Goods. Seller shall have the option of requiring the return of the defective Goods, transportation prepaid, and proof that the Goods were not used, installed or altered or subject to misuse or abuse to establish the claim.
No Goods shall be returned to Seller without its prior written consent or if the Goods were exposed to a chemical, biological, radiological, nuclear or explosive event or otherwise exposed to a hazardous material, substance or waste. The acceptance of any Goods returned to Seller shall not be deemed an admission that the Goods are defective or in breach of any warranty, and if Seller determines that the Goods are not defective, they may be returned to Buyer at Buyer’s expense.
This paragraph sets forth Buyer’s sole and exclusive remedies for any defect in the Goods. The rights and obligation under this warranty may not be assigned or delegated to a third party by Buyer without the prior written permission of Seller. Neither Buyer nor any other person may modify or expand the warranty provided herein, waive any of the limitations, or make any different or additional warranties with respect to the Goods. Any statements to the contrary are hereby rendered null and void unless expressly agreed to in writing by an authorized officer of Seller.
(b) Services If a Service proves to be defective (as defined below) within one year after Seller performs the Service, then Seller shall, at its option, either re-perform the Service, at Seller’s expense, or refund to Buyer the price that Buyer paid to Seller for that part of the Service that was defective. A Service shall be considered “defective” if it is found by Seller to have failed to meet the standards in Seller’s industry and if that failure materially impairs the value of the service to a reasonable person obtaining similar services, except that if Buyer shall have approved or furnished to Seller specifications for the Service, then the Service shall not be considered defective to the extent it conforms to the specifications. This paragraph sets forth Buyer’s sole and exclusive remedy for any defect in the Services.
9. Limitations on Warranty
(a) EXCEPT AS STATED IN PARAGRAPH 8 HEREOF, SELLER DOES NOT MAKE ANY WARRANTY AS TO THE GOODS OR SERVICES DELIVERED BY SELLER UNDER THIS CONTRACT AND, IN PARTICULAR, DOES NOT MAKE ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND BUYER IS SOLELY RESPONSIBLE FOR DETERMINING THE PROPER APPLICATION AND USE OF THE GOODS. BUYER SPECIFICALLY DISCLAIMS ANY FURTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, WHETHER UNDER APPLICABLE LAW OR OTHERWISE, WHICH DEVIATES IN ANY WAY FROM THE EXPRESS WARRANTY PROVIDED IN PARAGRAPH 8 HEREOF.
(b) SELLER SHALL NOT BE LIABLE TO BUYER OR ANY OTHER PERSON FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, CLAIM FOR LOST PROFITS, INDIRECT OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE DELIVERY BY SELLER OF GOODS AND/OR SERVICES PROVIDED UNDER THIS CONTRACT INCLUDING, WITHOUT LIMIATION, ANY CLAIM OF PRODUCT DEFECT, DELAY, NONDELIVERY, RECALL, PERSONAL INJURY OR DEATH, DAMAGE TO PROPERTY, LOSS OF FUTURE REVENUE, INCOME OR PROFITS, DIMINUTION OF VALUE OR LOSS OF BUSINESS REPUTATION OR OPPORTUNITY OR OTHER CLAIMS, WHETHER SOUNDING IN TORT, IN CONTRACT OR OTHERWISE, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED TO SELLER IN ADVANCE OR COULD HAVE BEEN REASONABLY FORESEEN BY SELLER.
(c) BUYER SHALL NOT HAVE ANY RIGHT OF REJECTION OR OF REVOCATION OF ACCEPTANCE OF THE GOODS.
10. Solvency and Security Interest
Buyer represents that Buyer is solvent.
(a) Buyer grants to Seller a security interest in and the right of repossession of the Goods, including a purchase money security interest, until full and final payment for the Goods and Services (including, without limitation, collection costs and attorney’s fees) has been made. In the event of default in any payment due from Buyer to Seller, the full amount unpaid shall be due and payable on demand, and Seller may at Seller’s option either (i) recover the full amount unpaid or repossess the Goods and all additions thereto, wherever found, free from all claims whatsoever; or (ii) treat this contract as void and retain all payments made as rent for the use of goods.
(b) The Goods or any part thereof, shall not be considered a fixture, or be incorporated into any real property by reason of its attachment thereto, and may be separated from any real property, as well as personal property, for the purpose of repossession. Seller shall not be liable to Buyer nor shall Seller be subject to any legal proceedings, criminal or civil, for Seller’s acts in such repossession. Seller shall not be liable to Buyer for the repayment of any money paid as part payment for the goods.
(c) Buyer hereby designates Seller or its representatives as Buyer’s attorney-in-fact to execute, deliver and file any and all documents necessary to perfect Seller’s security interest in the Goods and Seller shall have the benefit of the Uniform Commercial Code as enacted in the jurisdiction in which the Goods may be found and the remedies thereunder. Seller shall have the right to elect to assert a claim of a mechanic’s lien against the real property upon which the Goods are erected or to which they have been incorporated or upon which they have been made a fixture.
(d) Buyer shall not grant any right or security interest in or to the Goods to any other person prior to payment in full to Seller for all Goods and Services without the prior written consent of Seller, which consent may be withheld for any reason or for no reason at all.
(e) Except as otherwise provided herein or required by law, pursuit of any right reserved herein or granted by law shall not preclude or waive the pursuit of any other right which Seller may have under this Contract or under applicable law.
11. Permits and Compliance
Seller is not responsible for obtaining any permit, inspection or license that is required for installation or operation of the goods. Seller does not make any promise or representation that the goods will conform to any law, ordinance, regulation, code or standard.
12. Safety Features
Buyer shall install and operate the Goods properly and according to Seller’s operating instructions and shall not remove or change any safety device, warning or operating instructions that Seller placed on the Goods or which Seller delivered with the Goods.
13. Permits and Compliance
If any of the Goods are incorporated or installed in a product that is manufactured or assembled by or for Buyer or for a third party, then Buyer shall
(a) obtain, or cause the end-user of the product to obtain, all permits, inspections and licenses required for installation or operation of the product;
(b) cause the product to conform to all applicable laws, ordinances, regulations, codes and standards;
(c) place on the product all safety devices and warnings, and furnish to the end user of the product all operating instructions, labels, safety warnings and ratings that are provided by Seller; and
(d) not make any representation regarding the performance of the product or the Goods supplied by Seller that does not strictly conform to the written product specifications, safety ratings and warnings and other documentation that Seller may supply to Buyer from time to time. Failure by Buyer or Buyer’s agents to comply with the requirements of this Section 13 shall void the warranties set forth in Section 8 hereof.
14. Resale
On any resale of the Goods by Buyer without incorporating the Goods into another product as set forth in Section 13 above, Buyer shall contractually limit its buyer’s rights and remedies against Seller and manufacturer to the same extent that Paragraphs 8 and 9 above limit Buyer’s rights and remedies.
15. Independent Contractor
Nothing in this Contract shall be deemed to make Seller or its officers, directors, managers, employees or agents an employer, employee, partner or joint venture of Buyer and nothing contained in this Contract shall be deemed to give Buyer any authority to take any actions or to make any commitment to any third party on behalf of Seller or the manufacturer.
16. Quantities
Seller may overrun or underrun the agreed-upon quantities by up to 5%, and Buyer shall pay Seller at the unit price for quantities that Seller delivers within these limits. Any claim by Buyer that Seller failed to deliver the agreed-upon quantity of Goods (subject to any adjustment under the preceding sentence) or that the Goods do not conform to the quality or other specifications submitted by Seller must be submitted to Seller in writing within 10 days after Buyer receives the Goods. If Buyer fails to submit any claim regarding the quality or quantity of Goods within such ten (10) day period, then Buyer shall be deemed to have waived all such claims.
17. Blanket Purchasing Agreement
If the Contract is a blanket purchasing agreement under which Buyer will from time to time issue to Seller “releases” with respect to portions of the Goods, then, except to the extent that Seller otherwise expressly agrees in writing, (a) when Buyer issues a release for any of the Goods, Seller shall be permitted to ship all of those Goods within the time period that Seller’s quotation specifies or that Seller otherwise agrees to in writing, notwithstanding any contrary provision in the release, (b) any delivery dates specified in any release shall be extended automatically to the extent that Seller is not reasonably able to meet those dates and (c) Buyer shall be obligated to release the entire quantity of goods provided for in the Contract within one year after the date on which the Contract is formed.
18. Tooling
If Buyer’s order requires Seller or Seller’s manufacturer to obtain separate tooling to be used in the manufacture of the Goods, then Seller shall pay Buyer an amount as set forth in Seller’s written proposal for such tooling and, upon receipt of such payment from Buyer, such tooling shall be the property of Buyer, subject to the following:
(a) risk of loss of the tooling shall at all times remain with Buyer;
(b) Buyer shall maintain standard fire and extended coverage insurance with respect to the tooling for its full replacement value, shall cause Seller to be named as an additional insured on the policy and, upon Seller’s request, shall give Seller evidence of Buyer’s compliance with this clause,
(c) Seller retains a security interest in the tooling to secure all obligations that Buyer at any time owes to Seller;
(d) Buyer shall not have any right to possess the tooling as long as Seller has any outstanding obligation to sell to Buyer goods whose manufacture requires use of the tooling;
(e) Buyer shall reimburse Seller on demand for all costs of modifications of the tooling that are made reasonably necessary by changes in the specifications for the goods; and
(f) upon Seller’s demand, Buyer shall immediately remove the tooling from Seller’s premises, at Buyer’s expense, and if Buyer fails to do so within ten days after that demand, then Seller may destroy or otherwise dispose of the tooling, without further notice or liability to Buyer.
19. Intellectual Property
All inventions (whether or not patentable), devices, technologies, ideas, improvements, processes, systems, software and other works and matters that Seller, the manufacturer, or their respective employees, contractors or agents create or develop in the course of Seller or manufacturer’s design, development or manufacture of the Goods or performance of the Services and all drawings and specifications that Seller provides to Buyer (collectively, the “Intellectual Property”) shall be Seller’s sole property, and Buyer assigns, and agrees to assign, to Seller all right, title and interest that Buyer now has or in the future acquires in the Intellectual Property without any further consideration from Seller. Buyer further agrees that, to the extent that such Intellectual Property contains any work by Buyer or Buyer’s agents, that such work was “work for hire” and that the consideration for such “work for hire” includes, inter alia, the prices charged by Seller.
20. Confidentiality
Buyer shall not disclose or use any of the Intellectual Property or any information regarding Seller’s business, operations, activities, costs, prices, business plans, customers, source of products, business structure, designs or other proprietary information or matters (collectively, the “Confidential Information”) to any third party or to any officer, director, manager or agent of Buyer and then only to the extent that such person has a need to know such information in connection with the transactions contemplated by this Contract.
21. Cancellation
(a) Buyer does not have any right to cancel its agreement to buy the Goods or Services from Seller. If, however, Seller agrees in writing to permit cancellation, then Buyer shall immediately pay to Seller a cancellation charge in an amount equal to the purchase price (including any tooling charge) less allowances (in amounts that Seller determines) for
(i) the realizable value to Seller of any standard components that Seller purchased or ordered before cancellation,
(ii) the realizable scrap value to Seller of the remaining material and tooling that Seller purchased, fabricated or ordered before cancellation and
(iii) any direct labor costs that Seller saved by reason of the cancellation.
(b) If Buyer fails to pay or perform any indebtedness or obligation that Buyer at any time owes to Seller (whether or not it is related to the sale of Goods to which these Terms of Sale apply), then Seller may consider Buyer’s failure to be an anticipatory repudiation of any or all outstanding contracts that provide for Seller to sell Goods or Services to Buyer, and Seller may, without liability to Buyer, cancel any or all of those outstanding contracts.
22. Indemnity Buyer shall indemnify and hold harmless Seller, its officers, directors, shareholders, affiliates, parents, subsidiaries, managers and employees (“Seller’s Indemnitees”) with respect to all damages, losses, claims, expenses, liabilities, costs of investigation and costs of defense including, without limitation, any consequential or incidental damages which may be asserted against any of Seller’s Indemnitees as well as any attorney’s and expert’s fees (collectively, “Losses”), that Seller’s Indemnitees incur which, in whole or in part, result from or relate to:
(a) Buyer’s breach of any of Buyer’s obligations under this Contract;
(b) any claimed unfair competition or patent, trademark or copyright infringement or any other claim that results from Seller’s manufacture of the goods, or performance of the services, to the extent the Goods were manufactured, in whole or in part, to Buyer’s specifications;
(c) Buyer’s modification of any of the goods, inserting or combining the Goods in contravention of Buyer’s obligations under Section 13 hereof;
(d) Buyer’s use of the Goods in contravention of any written directions or warnings which Seller or the manufacturer may supply to Buyer with the Goods or at any time thereafter;
(e) making representations or warranties concerning the qualities or capabilities of the Goods that is not expressly authorized by Seller in writing;
(f) any breach of Buyer’s obligations under Sections 19 or 20 hereof regarding Intellectual Property or Confidential Information including, without limitation, any disclosure of Seller’s Confidential Information by any person to whom Buyer disclosed Seller’s Confidential Information including, without limitation, any officer, director, manager, agent, employee or contractor of Buyer; or
(g) the return of any Goods to Seller that were exposed to a chemical, biological, radiological, nuclear or explosive event or otherwise exposed to a hazardous substance, waste or material at any time after the Goods left Seller’s warehouse.
In the event that Seller asserts a right to indemnification under this Section 21, Seller shall provide written notice to Buyer at the address provided by Buyer at the time that Buyer placed its last order within a reasonable time after Seller has actual knowledge of a claim hereunder. Late notice by Seller shall not limit Buyer’s obligations hereunder, except to the extent that such late notice materially limits Buyer’s ability to defend against any third-party claim. If Buyer does not accept the defense of any third party claim that is enclosed or referenced in any notice by Seller hereunder by the earlier of (X) ten (10) days after Buyer’s receipt (or refusal to accept delivery) of such notice or (Y) three (3) days before a response is due to the court, panel or other authority before which such third-party claim is pending, then Seller shall be entitled to investigate, defend and compromise or settle the action or matter giving rise to the claim for indemnification at Buyer’s expense including, without limitation, Seller’s attorney’s and expert fees and costs of litigation.
23. Seller’s Rights; Waiver
Seller has all rights, remedies and defenses that the laws of the State of Illinois and the laws of the United States generally provide, together with such other rights, remedies and defenses as may be generally available under any other applicable law. Seller’s rights, remedies, and defenses are cumulative, and Seller may exercise them at once, serially or in any manner or at any time as Seller may choose. Any waiver of Seller’s rights, remedies or defenses must be in a writing signed by an authorized officer of Seller and Seller’s waiver of any right on one occasion shall not be a waiver with respect to any future exercise of that right.
24. Time for bringing Action
Any action that Buyer brings against Seller for breach of this Contract or for any other claim that arises out of or relates to the Goods or their design, manufacture, sale or delivery or the Services must be brought within one year after the Goods are delivered to Seller.
25. Governing Law and Language
(a) This Contract between Seller and Buyer shall be considered to have been made in the State of Illinois, and it shall be governed by and interpreted according to the laws of the State of Illinois excepting any conflicts of laws principles or rules.
(b) Buyer and Seller agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to any transaction made under this Contract.
(c) Any action that arises out of or relates to this Contract, including any challenge to the validity or interpretation or application of the Contract, shall be brought exclusively before those state and federal courts having jurisdiction in and for Cook County, Illinois. Buyer irrevocably consents that any such court shall have personal jurisdiction over Buyer and waives any objection that the court is an inconvenient forum either for the parties or witnesses.
26. Complete Agreement; Amendment
These Terms and the written proposal submitted to Buyer by Seller (if any) contain the entire agreement between Buyer and Seller with respect to the subject matter hereof including, without limitation, any order placed by Buyer on Seller’s online ordering system. Any change in this Contract must be in a writing signed by an authorized officer of Seller.