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THESE TERMS GOVERN ALL CONTRACTS TO THE EXCLUSION OF ANY OTHER PROVISIONS. SELLER’S QUOTE/PROPOSALS (AND ESTIMATES THEREIN) ARE NOT OFFERS CAPABLE OF ACCEPTANCE BY PURCHASER, AND ANY ORDER PLACED BY PURCHASER CONSTITUTES AN OFFER THAT CAN ONLY BE ACCEPTED BY SELLER’S CONFIRMATION.
“Confirmation” means a document that Seller has provided to Purchaser which states that Seller has accepted Purchaser’s Order, Seller’s act of signing an Agreement to Purchase, or Seller accepting Purchaser’s payment via credit card. “Contract” means the Quote/Proposal and these Terms. “Goods” means the equipment or products or supplies sold by Seller to Purchaser under a Contract (including any services). “Invoice” means a written invoice issued by Seller to Purchaser requiring Purchaser to pay the prices for the Goods stated in the Contract. “Order” means a document issued by Purchaser to Seller offering to buy the Goods in a Quote/Proposal. “Purchaser” means the person or entity purchasing or receiving Goods from Seller. “Quote/Proposal” means a written quotation or written proposal (which may be by email) issued by Seller to Purchaser that describes Goods, associated pricing and any other provisions specified by Seller. “Seller” means Insight Vision, L.L.C., as stated in a Quote/Proposal. “Terms” means these “Terms and Conditions of Sale – Insight Vision, L.L.C.”.
2.1. Formation of Contract. Seller’s Quote/Proposals are not offers or acceptances and are subject to change or withdrawal without notice before Seller issues a Confirmation. A Contract between Seller and Purchaser is created by Seller’s Confirmation of Purchaser’s Order. Any changes to a Quote/Proposal or these Terms proposed by Purchaser shall not be a part of the Contract unless Seller expressly agrees to such requirements via a Confirmation.
2.2. Price Changes. For Quote/Proposals, Seller’s prices for Goods are subject to change without advance notice at any time prior to Confirmation.
2.3. Taxes and Government Action Pricing Changes. All Goods prices in a Contract are subject to increase by the amount of (a) any sales, excise or other tax or duty levied or charged by any governmental agency, and (b) any costs incurred by Seller due to Seller’s legally required compliance with any legal government action.
2.4. Modifications. Unless otherwise stated elsewhere in a Contract, Seller reserves the right to change or modify the design, specifications and/or construction of any Good in a manner equal to or superior to the Good as originally specified, without notice to the Purchaser.
Purchaser cannot cancel a Contract under any circumstances without Purchaser first reaching an agreement in writing with Seller covering Seller’s damages. Unless a cancellation schedule is agreed in the Contract, cancellation charges for Goods shall be an amount sufficient to reimburse Seller for all expenses incurred, including, but not limited to, costs of purchased materials, labor costs, engineering costs, third-party service costs, and a reasonable mark-up to cover overhead and profit. Purchaser will be responsible for any return freight and insurance.
The specifications for the Goods and all other designs, drawings, know-how, technologies, proprietary information and other intellectual property concerning the Goods or services (including all patents, copyright, design right, know how, trade secret and other intellectual property in them) are the sole property of Seller. Purchaser is not entitled, licensed or authorized to make any use of the Specifications or other intellectual property of Seller other than for the use of the Goods as contemplated by this Agreement. Any inventions, modifications, improvements, techniques, know-how or intellectual property rights affecting Seller’s products or services made or gained in the course of performing under a Contract shall belong to Seller.
5.1. Payment Terms. Purchaser shall pay to Seller all amounts due under a Contract within thirty (30) days from date of invoice. Delinquent accounts shall bear interest until paid at the lesser of 18% per annum and the maximum permissible rate under applicable law. In addition to late payment charges, Seller may add to the amount past due any costs associated with collection thereof, including reasonable attorneys’ fees.
5.2. Credit. All Contracts shall be subject to credit approval by Seller in its sole discretion. Unless specifically agreed otherwise in a Contract, payment shall be in U.S. funds by wire transfer or irrevocable letter of credit, confirmed by a major U.S. bank.
5.3. Deferrals and Cancellations Due to Purchaser Defaults. If Purchaser fails to fulfill the terms of payment, or if at any time before payment in full is made, a petition is presented or resolution passed for the winding up or bankruptcy of Purchaser, or in the event of the appointment of a receiver or administrator of Purchaser’s business, Seller may defer further shipment or, at its option, cancel the unshipped balance. Seller reserves the right, prior to making any shipments, to require from Purchaser satisfactory security for performance of Purchaser’s obligation. In the event of cancellation in accordance with the provisions hereof, or in the event of non-payment (in full or in part) for the Goods by the due date, Purchaser hereby licenses Seller to enter upon any premises to repossess the Goods.
Force Majeure. Any failure or delay by Seller in the performance of its obligations pursuant to this Agreement shall not be deemed a default or breach of the Agreement or a ground for termination hereunder to the extent such failure or delay is due to elements of nature or acts of God, pandemics, acts of war, terrorism, riots, revolutions, strikes, lockouts or other labor difficulties, embargoes, government controls or interventions, inability to obtain labor, materials or services, or other factor beyond the reasonable control of Seller (each, a “Force Majeure Event”). Upon Seller failing or delaying due to a Force Majeure Event, Seller shall give notice to Purchaser which describes such Force Majeure Event and includes a good faith estimate as to the impact of such Force Majeure Event upon its responsibilities hereunder, including any scheduling changes. Seller shall additionally engage in all reasonable measures to timely end such failures or delays. Scarcity. If there is a scarcity in any of Seller’s Goods due to a Force Majeure Event, Seller may allocate its available supply in Seller’s discretion.
Incoterms. Unless specifically agreed otherwise in a Contract, all sales are “Ex Works”. Shipping and Timing. Purchaser will bear all transportation, insurance while in transit, rigging, drayage, packing, customs, handling and placement charges from Supplier's shipping facility to Purchaser’s designated address(es). Purchaser has the right to reasonably approve in advance the insurance and carrier/method of transportation selected by Supplier, not to be unreasonable withheld or delayed. Seller shall make good faith efforts to estimate and meet delivery dates, but time is not of the essence. In case of delay by Purchaser in furnishing complete schedules, materials or information, delivery dates may be extended by Seller for a reasonable time. Purchaser may not refuse to accept delivery because of any such extensions or because of a delay due to a Force Majeure Event. Ownership, Title, and Risk of Loss. Ownership of, title to, and risk of loss for the Goods passes to Purchaser upon Seller’s delivery of the Goods to the carrier.
9.1. Warranty. Seller warrants to the first Purchaser that should the Goods prove to be defective in material or workmanship in normal use, within one (1) year from the date of delivery to such Purchaser (the “Warranty Period”), then Seller will, at its exclusive option, repair, replace or exchange the Goods.
9.2. Warranty Limitations. This warranty is subject to the following limitations: (a) this warranty does not apply to any Good which has been subject to accident, negligence, alteration, abuse, misuse, overload, repair by anyone other than Seller or its authorized representatives, or not maintained in accordance with the suggested maintenance schedule; (b) this warranty applies only to Goods components manufactured by Seller; (c) the appropriate manufacturer's warranty, if any, shall apply to Goods components not manufactured by the company; (d) this warranty does not apply to flex-link connectors, rod, LED light rings, cable, rollers, o-rings, and skids, or other parts, which are considered consumable (the replacement of these Goods components is part of normal product maintenance); (e) this warranty shall not apply if the Goods are used or operated in any manner not consistent with their intended purpose; (f) this warranty is limited to repair or replacement of defective Goods (including defective Goods parts and components) during the Warranty Period, and shall be Purchaser’s exclusive remedy for warranty breach; (g) Seller shall in no event have any other obligation or liability of any nature arising from the breakdown, malfunction, defect or other failure of the Goods, including any liability for service, maintenance, repairs, personal injury, property damage, loss of profits, loss of use or other consequential damages; (h) any action for any claimed breach of this warranty shall be brought within one (1) year from the date of delivery of the applicable Good; (i) this warranty does not extend to warranty breaches to the extent due to delays in Purchaser notifying Seller of the alleged warranty breach or failure to perform proper long-term storage preparations per Seller’s instructions; and (j) Seller neither assumes nor authorizes any person to assume any other liability or make any other warranty in connection with the Goods.
9.3. Repairs and Replacements. The Purchaser must return the defective Good (including defective parts or components) to Seller’s factory at the following address: Insight Vision, 600 N. Dekora Woods Blvd., Saukville, WI 53080. Such return shall be at the Purchaser's expense, properly and adequately packaged, with insurance and transportation pre-paid. Risk of loss shall pass to Seller upon seller’s receipt of such Good. Seller will either repair or replace the defective Good (including defective parts or components) at its option, and will return it to the Purchaser at the Purchaser’s expense. Seller will endeavor to effect appropriate repairs in a commercially practicable and reasonable time, but in no event shall Seller be liable for a delay in repair or replacement and return under this “Warranty of Seller’s Goods” provision.
SELLER DOES NOT WARRANT THE MERCHANTABILITY OF THE GOODS AND DOES NOT WARRANT THE FITNESS OF THE GOODS FOR A PARTICULAR PURPOSE. SELLER DOES NOT MAKE, AND HEREBY DISCLAIMS AND EXCLUDES, ANY WARRANTY, EXPRESS OR IMPLIED, OTHER THAN THE WARRANTY CONTAINED HEREIN OR OTHERWISE EXPRESSLY AGREED BY SELLER IN WRITING.
Seller and Purchaser shall treat all information received from the other party as confidential, to the extent such information is designated as confidential or the receiving party reasonably should have understood the confidential nature of such information (“Confidential Information”), per a reasonable standard of care and shall not disclose such Confidential Information to third parties except as expressly contemplated herein. A party may disclose Confidential Information to its contractors under a materially similar contractual duty of confidentiality. To the extent a party is required, by a government authority via subpoena or other means, to disclose Confidential Information of the other party, or must do so to pursue a claim, the party will give the other party reasonable advance notice and reasonably cooperate with any reasonable attempt by the other party to restrict such disclosure (if allowed to do so per applicable law). The receiving party shall return or destroy (and not retain any copies of) the disclosing party’s Confidential Information upon request, unless the receiving party is required to maintain such Confidential Information per applicable law, in which case these confidentiality restrictions will continue to apply. Information shall not be considered Confidential Information to the extent it was lawfully received from an independent third party (including the public domain) free of restrictions and without breach of this Agreement, or was independently developed by the receiving party without reference to the disclosing party’s Confidential Information.
12.1. Seller Indemnity. Seller indemnifies, defends and holds harmless Purchaser for any third party claims (“Claims”) and associated liabilities, losses, damages, settlements and costs (including reasonable attorneys' fees and associated defense costs) (collectively, “Losses”) to the extent caused by: (a) any defect in the design or manufacture of the Goods causing injury, death or property damage (except to the extent such Claims and Losses are caused by any specification, material, information or instruction provided by or on behalf of Purchaser); and (b) a claim of infringement of a third party’s intellectual property rights, but only to the extent caused by the Goods provided by Seller hereunder and not to the extent such Claims and Losses are caused by any specification, material, information or instruction provided by or on behalf of Purchaser, or by Purchaser’s combination of the Goods with materials not supplied by Seller, or by Purchaser’s use of the Goods other than as instructed by Seller. In the event Seller reasonably deems any Goods to infringe a third party’s intellectual property rights, Seller may, in its sole discretion, either license Purchaser to use the infringing content, modify the Goods so as not to infringe, or terminate the applicability of the Contract as to those Goods
12.2. Indemnification Procedures. Seller shall have sole control of the defense and settlement negotiations for Claims, as well as choice of counsel. Purchaser may participate in the defense with counsel of its choosing at its own expense. Purchaser shall promptly notify Seller of any indemnifiable Claim and shall provide Seller with reasonable assistance supporting the defense of the Claim. Failure to provide such notice shall not alter Seller’s duties under this provision unless such failure materially prejudices the defense.
THIS LIMITATION OF LIABILITY PROVISION APPLIES IN THE AGGREGATE AND NOT ON A PER CLAIM BASIS, WHETHER ANY DAMAGES ARE CHARACTERIZED IN TORT, NEGLIGENCE, CONTRACT, OR OTHER THEORY OF LIABILITY, REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF ESSENTIAL PURPOSE OF A LIMITED REMEDY. IN NO EVENT SHALL SELLER, ITS DIRECT OR INDIRECT SUBSIDIARIES, CONTROLLED AFFILIATES, AGENTS, EMPLOYEES OR REPRESENTATIVES (“RELATED PARTIES”), BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING ALL CONTRACTS AND ANCILLARY DOCUMENTS REFERENCED HEREIN), INCLUDING: (1) LOSS OF PROFITS, BUSINESS OR GOODWILL; (2) LOSS OF USE OF EQUIPMENT OR FACILITIES; (3) LOSS RESULTING FROM UNUSABLE MACHINERY OR FACILITY DOWNTIME OR SHIPPING DELAYS. THE FORGOING APPLIES HOWSOEVER ANY SUCH DAMAGES ARE CAUSED AND EVEN IF THE POTENTIAL FOR SUCH DAMAGES WAS DISCLOSED AND/OR KNOWN. IN NO EVENT SHALL SELLER OR ITS RELATED PARTIES BE LIABLE FOR ANY DAMAGES (INCLUDING DIRECT DAMAGES) FOR ANY MONIES THAT EXCEED AMOUNTS PAID BY PURCHASER TO SELLER FOR THE APPLICABLE GOODS UNDER THIS AGREEMENT IN THE 365 DAYS PRIOR TO THE ACT(S) THAT GAVE RISE TO THE APPLICABLE CLAIM(S). ANY ACTION FOR BREACH OF CONTRACT HEREUNDER MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED OR THE ACTION IS WAIVED.
Waivers, Cumulative Remedies. The failure of a party to enforce its rights under these Terms shall not be construed as a waiver of such rights. All remedies hereunder, at law and in equity are cumulative and nonexclusive. Governing Law and Venue. These Terms and any Contracts shall be governed by and construed in accordance with the laws of the State of Wisconsin, without regard to the conflicts or choice of laws provisions thereof. These Terms and any Contracts shall not be governed by the UN Convention on the International Sale of Goods. Any suit arising out of these Terms or a Contract shall be brought in a state or federal court located in the State of Wisconsin, and the parties irrevocably submit to such venue and jurisdiction, except when seeking temporary injunctive relief. Assignments. Purchaser may not assign, transfer, delegate or sublicense any of its rights or duties under a Contract without the prior written consent of Seller, and any attempt to do so without such consent is invalid. Interpretation. Unless the context requires otherwise, “including” (and any of its derivative forms) means “including, but not limited to”. Notices. Unless otherwise specified, all notices shall be in writing and delivered personally or mailed, first class mail, postage prepaid, with a copy to the attention of the party’s legal department. In the case of Seller, such notice shall be sent to The Heico Companies, LLC, Attorney for Insight Vision, L.L.C., 27501 Bella Vista Parkway, Warrenville, IL 60555.
Some jurisdictions provide rights in addition to those listed above, or do not allow the exclusion or limitation of implied warranties, or liability for incidental or consequential damages. If any provision or part of a provision of these terms is found to be illegal, invalid or unenforceable under any applicable law, such provision or part of a provision shall, insofar as it is severable from the remaining terms, be deemed omitted from these terms and shall in no way affect the legality, validity or enforceability of the remaining terms.
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