1. Agreement. All purchases for products and goods (and related services or maintenance) placed with IML North America, LLC (“IML”) whether pursuant to a Purchase Order or if otherwise accepted by IML, shall be subject to these standard terms and conditions herein set forth. Unless otherwise expressly agreed to in writing, these terms and conditions shall override any terms or conditions stipulated, incorporated or referred to by the customer named on the first page of the purchase order (the “Purchaser”) in the Purchaser’s order or in any negotiations. These conditions, along with the purchase order (or invoice) and any attached schedules or exhibits, embody the entire agreement between IML and the Purchaser (the “Agreement”). Accordingly, any promises, representations or understandings not expressed herein shall be of no force or effect. No variation of, or addition to, these conditions shall be effective against IML unless expressly accepted or confirmed in writing of subsequent date hereto and signed by IML’s duly authorized employee on IML’s behalf, as further provided in Section 11 of this Agreement.
2. Authorization for Purchases. The undersigned is an authorized officer, representative or agent of Purchaser and is duly empowered and authorized to enter into and to make binding agreements on Purchaser’s behalf.
3. Pricing Information. Purchaser’s order is accepted only in accordance with this Agreement and all orders are subject to product availability. All prices are subject to change without prior notice. Invoices will be at the price in effect on the date of shipment unless otherwise expressly agreed to in writing by Purchaser and IML.
4. Payment, Delivery, Title, Risk of Loss, Security Interest. Payment in full shall be made to IML within thirty (30) days of a standard purchase order or invoice. For repair, payment in full shall be made to IML prior to IML returning the unit. The prices charged for the goods ordered hereunder are F.O.B. Moultonborough, New Hampshire (IML’s premises). All orders will be sent via a carrier of IML’s choosing, unless another method is specified by Purchaser in writing. Purchaser shall acquire title to the goods upon delivery of goods to carrier from IML’s location and Purchaser shall bear the risk of loss or damage to the goods from and after the time of such delivery. Notwithstanding the passage of title upon delivery of goods to carrier, IML retains a security interest in the goods to secure payment of the charges incurred by Purchaser. Purchaser authorizes IML to perform lien searches, to contact Purchaser’s secured creditors concerning the security interests granted herein and to file and record any financing statements necessary to perfect the security interests granted herein. Should Purchaser fail to pay all charges incurred, title to the goods shall revert to IML after forty-five (45) days. Purchaser shall be responsible for all shipping and related charges.
5. Inspection of Goods; Nonconformity. Purchaser shall inspect each shipment promptly and shall notify IML in writing within five (5) days from receipt of the goods, of its rejection of all or any part of a shipment. All shipments, wherein Purchaser fails to give notice of rejection within such five (5) day period, shall be deemed accepted. Purchaser shall hold any rejected goods pending IML’s instructions concerning the disposition of said goods. A return shipment of goods without prior approval from IML will be rejected.
6. Force Majure. Shipping dates are approximate and are not guaranteed. IML will not be liable for any delay in the performance of orders or contracts, or in the delivery or shipment of goods, or for any damages suffered by Purchaser by reason of such delay, if such delay is, directly or indirectly, caused by, or in any manner arises from, fires, floods, accidents, civil unrest, acts of God, war, terrorism, governmental interference or embargoes, strikes, labor difficulties, shortage of labor, fuel, power, materials, or supplies, transportation delays, or any other cause or causes (whether or not similar in nature to any of these hereinbefore specified) beyond IML’s control.
7. Warranties; Disclaimer of Warranties. IML WARRANTS THAT THE QUALITY OF GOODS PROVIDED PURSUANT TO THE PURCHASER SHALL BE FREE FROM DEFECTS IN MATERIAL OR WORKMANSHIP AND WILL REPAIR ANY AND ALL DEFECTS WITH THE PRODUCTS FOR A PERIOD OF 1 YEAR FOR NEW IML RESI UNITS AND 6 MONTHS FOR REFURBISHED UNITS FROM THE DATE OF DELIVERY TO PURCHASER. THIS WARRANTY IS MADE ONLY TO PURCHASER AND DOES NOT EXTEND TO ANYONE TO WHOM ANY PRODUCTS ARE SOLD AFTER PURCHASED FROM IML. THIS WARRANTY IS EXPRESSLY MADE IN LIEU OF ANY AND ALL WARRANTIES AND THE SOLE LIABILITY OF IML SHALL BE TO REPAIR OR REPLACE ANY PRODUCTS NOT MANUFACTURED TO THE ABOVE STATED STANDARDS. NO FURTHER WARRANTY OR GUARANTEE, EXPRESS OR IMPLIED, IS MADE. NOTWITHSTANDING THE FOREGOING, ANY ALTERATION MADE BY THE PURCHASER TO ANY OF THE GOODS SHALL TERMINATE IML’S OBLIGATIONS UNDER THE WARRANTY. THIS SECTION SHALL SURVIVE ANY TERMINATION OF THE AGREEMENT.
8. Indemnification. Purchaser shall indemnify, defend and hold IML, its managers, members, officers, employees and affiliates harmless from and against any and all claims, losses, liabilities, damages, judgments, suits and all legal proceedings of any nature whatsoever and related attorneys fees including, but not limited to, any such claims, losses, liabilities, damages, judgments, suits and legal proceedings related to negligence, tort, strict liability, product liability, infringement, product recall, lost profits, loss of business, or any other consequential, special, indirect or punitive damages, and any and all costs and expenses in connection therewith arising out of: (a) improper selection, improper application of or other misuse of the products or goods purchased by Purchaser from IML; (b) any act or omission, negligent or otherwise, of Purchaser; or (c) Purchasers failure to comply with this Agreement. Purchaser shall give IML immediate written notice of any claims, suits or actions instituted against Purchaser in anyway related to any product(s) sold pursuant to this Agreement, and IML shall have the right to participate in any such suit or action with counsel of its choice.
9. Limitation of Liability. IML will not be liable for purchaser’s lost profits, loss of business or other consequential, special, indirect or punitive damages, even if advised of the possibility of such damages, or for any claim by purchaser or any other person, firm, entity or third party. Purchaser’s exclusive remedy in the event that any of the PRODUCTS do not conform, except within the ninety (90) day limited warranty period provided herein, shall be the repair or replacement of the goods upon instructions to Purchaser pursuant to Section 7 of this Agreement, or in the event that repair or replacement is inadequate as mutually agreed to by both parties hereto or as determined by a court of competent jurisdiction and venue pursuant to Section 14 of this Agreement, then Purchaser agrees that IML SHALL not BE liable or responsible for any amount of damages above the dollar amount paid by Purchaser for the goods giving rise to the claim.
10. Interpretation. This Agreement constitutes the sole and entire agreement between Purchaser and IML with regard to the subject matter hereof. No course of prior dealings between the parties and no usage of trade shall be relevant or admissible to supplement, explain, or vary any of the terms of this Agreement. Acceptance of, or acquiescence in, a course of performance rendered under this or any prior agreement shall not be relevant or admissible to determine the meaning of this Agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and an opportunity to make objection. No representations, understandings, or agreements have been made or relied upon in the making of this Agreement other than those specifically set forth herein.
11. Modifications. This Agreement may be modified only in an instrument of subsequent date hereto signed by the parties hereto specifically referencing this Section 11. Except as provided in the preceding sentence, it is a condition of this Agreement that any provisions, printed or otherwise, contained in any subsequent purchase orders from Purchaser, inconsistent with or in addition to the terms and conditions herein stated, and any alteration in this Agreement, shall have no force or effect. This Agreement contains the entire agreement of the parties, and failure of either party to enforce any of its rights hereunder shall not constitute a waiver of such rights or of any other rights hereunder. This Agreement shall be binding upon, and shall inure to the benefit of, the parties, and their legal representatives, successors and assigns.
12. Taxes. All amounts due for taxes and assessments will be added to the Purchaser's invoice and are the responsibility of the Purchaser. No tax exemption will be granted unless the Purchaser's "Exemption Certificate" (or other official proof of exemption) accompanies the purchase order. If, after the Purchaser has paid the invoice, it is determined that more tax is due, then the customer must promptly remit the required taxes to the taxing authority, or immediately reimburse the provider for any additional taxes paid. IML shall not be liable for handling or customs charges for shipments outside the United States.
13. Cancellation and Termination. Purchaser may terminate this Agreement only upon delivery of written notice to IML and upon payment to IML of reasonable and proper termination and cancellation charges including, but not limited to: (a) the proportionate contract price for all products completed, whether shipped or not, prior to IML’s receipt of such written notice of termination or cancellation; (b) all costs therefore incurred by IML in connection with special orders for products that are uncompleted at the time of IML’s receipt of such written notice of termination or cancellation; (c) an amount equal to IML’s expected profits on all such cancellations; and (d) the expenses incurred by IML by reason of such termination or cancellation, including reimbursement for any changes arising from termination of subcontract claims.
14. Governing Law and Choice of Forum. This Agreement and any sale hereunder shall be governed by the laws of the State of New Hampshire, without regard to conflicts of laws rules or rulings and regardless of location of Purchaser. Any and all disputes, actions or litigation must be brought exclusively in New Hampshire and Purchaser consents to the exclusive jurisdiction of the federal and state courts located in New Hampshire, submits to jurisdiction there, and waives the right to request a change of venue. Purchaser agrees that such venue is appropriate and that IML’s agreement to sell and deliver goods to Purchaser is dependent on this provision. Notwithstanding the foregoing, IML may seek equitable relief or legal damages in any jurisdiction and venue of its choice.
15. Acceptance. Acceptance of this offer is expressly limited to the exact terms contained herein and any attempt to alter or omit any of such terms shall be deemed a rejection and a counteroffer. Any additional or different terms in any forms delivered by Purchaser are hereby deemed to be material alterations and notice of objection to them and rejection of them is hereby given.
16. Partial Invalidity. If any provision of the Agreement shall be held to be invalid or unenforceable by a court of competent jurisdiction and venue, then such invalidity or unenforceability shall not invalidate or render the Agreement unenforceable, but rather the Agreement shall be construed as if not containing the invalid or unenforceable provision. However, if such provision is an essential element of the Agreement, then the parties shall promptly attempt to negotiate a substitute therefor.
17. Non-US or Export Sales. Sales of IML’s goods must follow the Export Administration Regulations of the United States Commerce Department and applicable State Department restrictions. Purchaser represents and warrants that it is eligible to receive products under United States law and agrees to abide by any export or re-export restrictions imposed by IML. IML’s warranties for exported products may vary or may be null and void for products exported outside the United States.