ITW TERMS
AND CONDITIONS OF SALE
ITW TERMS
AND CONDITIONS OF SALE
1. Acceptance.
The following terms and conditions of sale are applicable to all sales
of Products or Services, and all quotations, order acknowledgements, and
invoices from ITW North American Automotive divisions or subsidiaries,
which include, but are not limited to: ITW Chronomatic, ITW Chronotherm,
ITW Filtration Products, ITW Impro, ITW Tomco, ITW Delpro, ITW Deltar
Engineered Components, ITW Deltar IPAC, ITW Highland, ITW Drawform, ITW
Produx, ITW Tekfast, ITW Plastec Precision Products, ITW Deltar
Engineered Fasteners, ITW Superb Products, ITW Deltar Canada, ITW
Shakeproof Automotive Products, ITW California Industrial Products, ITW
Anchor Fasteners, ITW Bedford Wire, ITW Medalist, CIP Connecticut,
Morgan Polymers Seals, LLC, Morgan Polimer Seals, S DE R.L. DE C.V.,
Polimeros Morgan, S DE R.L. DE C.V., ITW Produx, ITW Southland
Technologies, Crest Products LLC, ITW Sexton, ITW Safety Components, ITW
Powertrain Fastening and all North American Automotive divisions of
Illinois Tool Works Inc., (“Seller”) and to all Purchase Orders from
Seller’s customers (“Purchasers”) with respect to any of the
aforementioned business units, and are the only terms and conditions
applicable to the sale of Seller’s Products or Services, except those
relating solely to quantities, shipping instructions, or descriptions of
the products set forth in Purchaser’s Purchase Orders (collectively,
“Purchase Order Terms”). Purchase Orders, if accepted by Seller, are
accepted subject to the terms and conditions set forth herein. SELLER
HEREBY REJECTS ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED
BY PURCHASER, WHETHER OR NOT CONTAINED IN ANY OF PURCHASER’S BUSINESS
FORMS OR ON PURCHASER’S WEBSITE, AND SUCH ADDITIONAL OR DIFFERENT TERMS
AND CONDITIONS SHALL BE VOID AND OF NO EFFECT UNLESS IN A WRITING
SPECIFICALLY AGREED TO BY SELLER SPECIFICALLY REFERRING TO AND AGREEING
TO THE CHANGE. In addition, no site usage agreement or any other click through agreement on a website
will have any applicability or binding effect whether or not Seller
clicks on an “ok,” “I accept,” or similar acknowledgment.
Purchaser’s acceptance of Products or
Services (“Products or Services”) called for in said Purchase Order
shall constitute its acceptance of the following terms and conditions of
sale (these “Terms and Conditions”). Any changes to these terms and
conditions must be in writing clearly identifying the change and signed
by Seller.
2. Quotations.
Quotations are only valid in writing and for thirty (30) days from the
date of the quotation unless otherwise set forth in Seller’s quote. All
quotations by Seller are subject to change or withdrawal without prior
notice to Purchaser unless otherwise specifically stated in the
quotation. Quotations are made subject to approval by Seller of
Purchaser’s credit. Seller shall have no obligation to sell or deliver
Products or Services covered by Seller’s quotation unless and until
Seller issues an order acknowledgement form or upon the shipment of
Products or commencement of Services by Seller.
3. Prices.
Prices are in U.S. Dollars and are subject to change without notice. If
a raw material, component, or service provider raises its prices, or
imposes a surcharge on Seller, Seller reserves the right to increase
prices and/or surcharge Purchaser and Purchaser agrees to accept such
price increase or surcharge until the term of such price increase or
surcharge or until the termination of the contract to which these terms
and conditions apply is reached. Time of payment is of the essence.
All orders are accepted subject to Seller’s price in effect at time of
shipment.
4. Terms of
Payment. The inspection rights granted to Purchaser will not affect
or alter the payment terms or the timing of Purchaser’s payment
obligations. Under no circumstances will Purchaser have a right of
set-off. Seller shall have the right to offset its payables against its
receivables related to goods or services purchased from Seller. Unless
otherwise expressly agreed to by Seller in Seller’s quotation, terms of
payment are thirty (30) days net from the date of Seller’s invoice. No
discount shall be allowed on transportation charges. In the event of
Purchaser’s failure to pay Seller’s invoice(s) or of any late invoice
payments by Purchaser, Seller reserves the right to take any or all of
the following actions: (a) any actions allowable under law; (b)
withhold shipment of goods; (c) demand the return of previously shipped
goods; (d) institute new payment terms; and/or (e) cancel any purchase
orders. In addition, Purchaser agrees to pay interest on overdue
invoices at the rate of 1 ½ % per month, but not higher than the highest
rate permitted by law. If Purchaser fails to make any payment as
required, Purchaser agrees to indemnify Seller for all costs and
expenses, including reasonable attorneys’ fees, court costs, and
associated expenses incurred by Seller.
5. Credit
Approval. All shipments to be made hereunder shall at all times be
subject to the approval of Seller’s credit department. Seller may
invoice Purchaser and recover for each shipment made pursuant to these
Terms and Conditions as a separate transaction without regard to any
other order or agreement with Seller, or if, in Seller’s sole judgment,
the financial responsibility of Purchaser is or becomes unsatisfactory,
then Seller may, at its option and without prejudice to any of its other
remedies, (a) defer or decline to make any shipments hereunder except
upon receipt of satisfactory security or cash payments in advance, and /
or (b) terminate all Purchase Orders of Purchaser.
6. Cancellation.
Seller reserves the right to cancel any Purchase Orders or releases
thereunder, or terminate any Agreement relating to purchase of Seller’s
Products or Services on not less than thirty (30) days notice. Once
Seller has either accepted a Purchase Order or has begun taking actions
with respect to such Purchase Order, such Purchase Order cannot
be canceled, terminated or modified by Purchaser in whole or in part
except with Seller’s consent in writing and then only upon terms and
conditions to be agreed upon which shall include protection of Seller
against all losses. If Purchaser nonetheless repudiates the contract or
notifies Seller to proceed no further therewith, Seller shall have the
right to deliver all finished goods and goods in process, and Buyer
agrees to accept same and to pay to Seller the contract price for all
finished goods plus reimbursement, including lost profits, for
unfinished goods.
7. Inspection /
Non – Conforming Shipments. Seller grants Purchaser the right to
inspect Products for a period of fifteen (15) business days immediately
following delivery (“Inspection Period”). Purchaser must notify Seller
of any Products that do not conform to the terms applicable to their
sale within the inspection period, and afford Seller a reasonable
opportunity to inspect such Products and cure any nonconformity. If
Purchaser fails to provide Seller with notice of nonconformity within
the Inspection Period, Purchaser shall be deemed to have accepted the
Products. Purchaser will have no right to return any Product without
Seller’s prior written authorization. Any return authorized by Seller
must be made in accordance with Seller’s return policies then in effect
and must be accompanied by a Returned Goods Authorization (“RGA”) from
Seller. Purchaser will be responsible for all costs and expenses
associated with any returns of Products and will bear the risk of loss
or damage of such Products, unless Seller agrees otherwise in writing or
determines that the Products do not conform to the applicable terms of
sale. Seller, in its sole discretion may reject any return of Product
not approved by Seller in accordance with this paragraph or otherwise
not returned in accordance with Seller’s then current-return policies.
8. Title / Risk
of Loss / Delivery. Unless other arrangements are made in writing,
Seller anticipates use of common carriers for transport of Products.
Unless specifically otherwise provided in Seller’s invoice, the carrier,
and not Seller, will bill for freight rates and other transportation
charges. Such payments are solely the responsibility of the Purchaser,
to be paid directly by the Purchaser to the carrier. Seller reserves
the right to schedule its production and to make deliveries
accordingly. In circumstances where the Purchaser specifies deliveries
to be made in installments, which do not conform to such schedule and
Seller elects to deliver as specified by Purchaser, Seller shall have
the right to adjust the price to cover Seller’s additional costs. All
Products shall be shipped F.O.B. Seller’s plant and shall become the
property of Purchaser upon delivery to the carrier and receipt of full
payment by Seller. Purchaser shall assume all risk and liability for
loss, damage, or destruction, as well as the results of any use or
misuse by third parties who may acquire or use the Products illicitly
after the delivery to the carrier. Unless mutually agreed upon, shipping
dates are approximate and are based upon prompt receipt of all necessary
information. Seller reserves the right to ship items in a single or
multiple shipments.
9. Damage.
Purchaser shall notify Seller and the delivering carrier within fifteen
(15) business days from date of receipt of Products, of any damage or
shortage, and afford Seller a reasonable opportunity to inspect the
Products. Any loss occasioned by damage or shrinkage in transit will be
for Purchaser’s account and claims for such loss shall be made solely
against the carrier.
10. Quantities.
Unless otherwise agreed in writing, any variation in quantities shipped
over or under the quantities ordered (not to exceed 10%) shall
constitute compliance with Purchaser’s Order and the stated price per
item will continue to apply.
11. Warranty.
SELLER WARRANTS ONLY THAT THE PRODUCTS OR SERVICES SOLD HEREUNDER
(A) WILL CONFORM TO THE DESCRIPTION, IF ANY, ON THE FACE HEREOF, (B)
WILL BE CONVEYED FREE AND CLEAR OF ANY LIEN, SECURITY INTEREST OR
ENCUMBRANCE CREATED BY SELLER OR ANY PARTY CLAIMING BY, THROUGH OR UNDER
SELLER, AND (C) WILL BE FREE FROM SUBSTANTIAL DEFECTS IN MATERIAL AND
WORKMANSHIP UNDER NORMAL USE GIVEN PROPER INSTALLATION AND MAINTENANCE
FOR A PERIOD OF SIX (6) MONTHS FROM THE DATE OF DELIVERY TO THE
CARRIER.
SELLER SHALL HAVE
THE RIGHT EITHER TO REPLACE OR REPAIR ANY DEFECTIVE PRODUCTS, TO REFUND
THE PURCHASE PRICE UPON RETURN OF THE PRODUCTS OR TO GRANT A REASONABLE
ALLOWANCE ON ACCOUNT OF SUCH DEFECTS, AND SELLER’S LIABILITY AND
PURCHASER’S EXCLUSIVE REMEDY FOR DEFECTIVE PRODUCTS SHALL BE LIMITED
SOLELY TO REPLACEMENT, REPAIR, REFUND OR ALLOWANCE AS SELLER MAY ELECT.
SELLER SHALL BE
GIVEN A REASONABLE OPPORTUNITY TO INVESTIGATE ALL CLAIMS AND NO PRODUCTS
SHALL BE RETURNED TO SELLER UNTIL AFTER INSPECTION AND APPROVAL BY
SELLER AND RECEIPT BY PURCHASER OF A RGA.
12. Disclaimer of
Further Warranties. EXCEPT AS SET FORTH ABOVE, SELLER MAKES NO
WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING NO
WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE) WITH
RESPECT TO ITS PRODUCTS OR SERVICES.
13. Limitation of
Liability and Remedies. SELLER SHALL NOT BE LIABLE, AND PURCHASER
WAIVES ALL CLAIMS AGAINST SELLER, FOR INCIDENTAL, SPECIAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES, LOST PROFITS OR COMMERCIAL LOSSES, WHETHER OR NOT
BASED UPON SELLER’S NEGLIGENCE OR BREACH OF WARRANTY OR STRICT LIABILITY
IN TORT OR ANY OTHER CAUSE OF ACTION. SELLER WILL NOT BE LIABLE TO
PURCHASER FOR ANY LOSS, DAMAGE, OR INJURY TO PERSONS OR PROPERTY
RESULTING FROM THE HANDLING, STORAGE, TRANSPORTATION, RESALE, OR USE OF
ITS PRODUCTS IN MANUFACTURING PROCESSES, OR IN COMBINATION WITH OTHER
SUBSTANCES, OR OTHERWISE. IN NO EVENT WILL SELLER’S LIABILITY UNDER
THESE TERMS AND CONDITIONS OR IN CONNECTION WITH THE SALE OF PRODUCTS BY
SELLER EXCEED THE PURCHASE PRICE OF THE SPECIFIC PRODUCTS OR SERVICES AS
TO WHICH THE CLAIM IS MADE.
14. Inventory.
Except as provided in Sections 7 and 11 hereof, Seller will neither
accept return of Product, nor be responsible for its destruction.
15. Technical
Data. All physical properties, statements and recommendations are
either based on the tests or experience that Seller believes to be
reliable, but they are not guaranteed.
16. Product Use.
Purchaser is solely responsible for determining whether any Product is
fit for a particular purpose and suitable for Purchaser’s method of
application. Accordingly, and due to the nature and manner of use of
Seller’s Products, Seller is not responsible for the results or
consequences of use, misuse or application of its Products by anyone.
17. Tooling /
Molds / Dies. Unless otherwise agreed in writing signed by Seller,
all material, equipment, facilities, and special tooling, (which term
includes but is not limited to tools, jigs, dies, fixtures, molds,
patterns, special taps, special gauges, special test equipment, and
manufacturing aids and replacements thereof), used in the manufacture of
the Products covered by any Purchase Order shall remain the property of
Seller. Any material, tooling, or equipment furnished to Seller by
Purchaser shall be and remain the personal property of Purchaser with
the title to and right of possession remaining in Purchaser.
18. Taxes.
Purchaser shall pay to Seller, in addition to the purchase price, the
amount of all fees, duties, licenses, tariffs, and all sales, use,
privilege, occupation, excise, or other taxes, federal, state, local or
foreign, which Seller is required to pay or collect in connection with
the Products or Services sold to Purchaser. Failure by the Seller to
collect any such fees or taxes shall not affect Purchaser’s obligations
hereunder and Purchaser shall fully defend, indemnify and hold harmless
Seller with respect to such tax obligations.
19. Ownership of
Intellectual Property. All drawings, know-how, designs,
specifications, inventions, devices, developments, processes,
copyrights, trademarks, patents and applications therefore, and other
information or Intellectual Property disclosed or otherwise provided to
Purchaser by Seller and all rights therein (collectively, “Intellectual
Property”) will remain the property of Seller and will be kept
confidential by Purchaser in accordance with these terms and
conditions. Purchaser shall have no claim to, nor ownership interest
in, any Intellectual Property and such information, in whatever form and
any copies thereof, shall be promptly returned to Seller upon written
request from Seller. Purchaser acknowledges that no license or rights
of any sort are granted to Purchaser hereunder in respect of any
Intellectual Property, other than the limited right to use the Seller’s
proprietary Products purchased from Seller. Unless specifically
provided for and itemized for payment as agreed to by Seller, the sale
of Products or Services by Seller to Purchaser does not include any
design, development or related services associated with the Intellectual
Property of the Seller.
20. Confidential
Information. All information furnished or made available by
Seller to Purchaser in connection with the subject matter of these Terms
and Conditions or of Purchaser’s Purchase Order shall be held in
confidence by the Purchaser. Purchaser agrees not to use such
information or disclose such information to others without Seller’s
prior written consent. The obligations in this paragraph will not apply
to any information which (a) at the time of disclosure was or thereafter
becomes, generally available to the public by publication or otherwise
through no breach by the Purchaser of any obligation herein, (b) the
Purchaser can show by written records was in the Purchaser’s possession
prior to disclosure by Seller, or (c) is legally made available to the
Purchaser by or through a third party having no direct or indirect
confidentiality obligation to Seller with respect to such information.
21. Infringement
and Indemnification. (a) Except as set forth below, Seller agrees
to defend, indemnify and hold the Purchaser harmless against any claims,
costs, damages, liability and expenses resulting from actual patent,
trademark, or copyright infringement, misappropriation of confidential
information, or violation of any other Intellectual Property right,
domestic or foreign, that may arise from the sale of Seller’s
proprietary Product to the Purchaser as such pertains to the subject
matter of these Terms and Conditions (provided that the Product (i) is
not modified in any way by the Purchaser or any other party, (ii) is not
a resourced part provided by Purchaser to Seller, and (iii) is used in
the manner intended by Seller). If a suit or claim results in any
injunction or any other order that would prevent Seller from supplying
any part or Product falling under these Terms and Conditions, or if the
result of such a suit or claim would, in the reasonable opinion of
Seller, otherwise cause Seller to be unable to supply such parts or
Products, Seller shall have the right, at its option, if it so chooses,
to do one or more of the following: (i) secure an appropriate license
to permit Seller to continue supplying said parts or Products to
Purchaser; (ii) modify the appropriate part or Product so that it
becomes non-infringing; (iii) replace the appropriate part or Product
with a non-infringing but practically equivalent part or Product;
or (iv) if the Seller cannot reasonably accomplish the actions specified
in subparagraphs (i) – (iii), then in Seller’s sole discretion, Seller
may discontinue selling the part or Product without any further
liability to Purchaser. (b) Purchaser agrees to defend,
indemnify and hold Seller harmless against any claims, costs, damages,
liability and expenses resulting from actual or alleged patent,
trademark, or copyright infringement, misappropriation of confidential
information, or violation of any other Intellectual Property right,
domestic or foreign, that may arise from the making, using or selling of
any part or Product or using any process that is designed or specified
by the Purchaser. (c) If any claim is made by a third party on the
basis of which indemnification may be sought under this paragraph, the
party entitled to indemnification (the “Indemnified Party”) shall give
written notice of such claim to the party liable for such
indemnification (the “Indemnifying Party”) promptly after the
Indemnified Party has actual notice of such claim. The Indemnifying
Party shall have the right to defend and/or settle such claim at its
expense, provided that it does so diligently and in good faith. The
Indemnified Party shall cooperate with such defense and/or settlement
and shall have the right to participate in (but not to control) such
defense and/or settlement at its expense. No settlement shall be
entered into unless the Indemnified Party shall be released from all
liability for such claim.
22. Force Majeure.
Seller shall not be liable for failure to perform or delay in
performance or delivery of any Products or Services due to (a) fires,
floods, strikes, or other labor disputes, accidents, sabotage,
terrorism, war, riots, acts of precedence or priorities granted at the
request or for the benefit, directly or indirectly, of any federal,
state or local government or any subdivision or agency thereof, delays
in transportation or lack of transportation facilities, restrictions
imposed by federal, state or local laws, rules or regulations; or (b)
any other cause beyond the reasonable control of Seller. In the event
of the occurrence of any of the foregoing, the time for performance
shall be extended for such time as may be reasonably necessary to enable
Seller to perform. Seller may, during any period of shortage due to any
of the above circumstances, allocate its available supply of Products or
Services among itself and its Purchasers in such manner as Seller, in
its judgment, deems fair and equitable.
23. Assignment
and Delegation. No assignment of any rights or interest or
delegation of any obligation or duty of Purchaser under these terms and
conditions, Seller’s quotation, order acknowledgement, or invoice, or
Purchaser’s Purchase Order may be made without the prior written consent
of Seller. Any attempted assignment or delegation will be wholly void
and totally ineffective for all purposes.
24. Integration
Clause. These Terms and Conditions constitute the terms and
conditions to the contract of sale and purchase between Seller and
Purchaser with respect to the Products covered by these Terms and
Conditions, and supersedes any prior agreements, understandings,
representations and quotations with respect thereto. No modification
hereof shall be of any force or effect unless in writing and signed by
the party claiming to be bound thereby.
25. Waiver.
No failure of Seller to insist upon strict compliance by Purchaser with
these terms and conditions or to exercise any right accruing from any
default of Purchaser shall impair Seller’s rights in case Purchaser’s
default continues or in case of any subsequent default by Purchaser.
Waiver by Seller of any breach by Purchaser of these terms and
conditions shall not be construed as a waiver of any other existing or
future breach.
26. Limitation of
Actions. Notwithstanding any contrary statute of limitations, any
cause of action for any alleged breach of these terms and conditions by
Seller shall be barred unless commenced by Purchaser within one (1) year
from the accrual of such cause or action.
27. Litigation
Costs. If any litigation or arbitration is commenced between Seller
and Purchaser concerning any provision of these Terms and Conditions,
the party prevailing in the litigation or arbitration is entitled, in
addition to such other relief that is granted, to a reasonable sum as
and for their attorney’s fees in such litigation or arbitration,
provided that if each party prevails in part, such fees shall be
allocated in such manner as the court or arbitrator shall determine to
be equitable in view of the relative merits and amounts of the parties’
claims.
28. Choice of
Laws. Any dispute arising out of or related to these Terms and
Conditions shall be governed by and construed according to the laws of
the State of Illinois and litigated exclusively in a state or federal
court located in Cook County, Illinois. The parties hereby agree to the
exclusive jurisdiction and venue of such courts.
29. Jury Waiver.
The parties hereto expressly release and waive any and all rights to a
jury trial and consent to have any dispute heard solely by a Court of
competent jurisdiction.
30. Severability.
If any provision herein shall be held to be unlawful or unenforceable,
the remaining provisions herein shall remain in full force and effect.
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