Illinois Lock Company Terms and Conditions of Sale
Acceptance. The following terms and conditions of sale are applicable to all Quotations and Sales Order Acknowledgements from Illinois Lock Company division of The Eastern Company and its affiliates (“Seller”) and to all Purchase Orders from Seller’s customers (“Purchasers”) and are the only terms and conditions applicable to the sale of Seller’s products or services, except those relating solely to prices, quantities, delivery schedules, terms of payment, invoicing, shipping instructions, the description and specifications of the products, and similar matters set forth in Purchaser’s Purchase Orders, provided that such Purchase Orders are accepted by Seller and that such terms are not inconsistent with the terms and conditions set forth herein or in Seller’s Quotations and Sales Order Acknowledgements. SELLER HEREBY REJECTS ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED BY PURCHASER, WHETHER OR NOT CONTAINED IN ANY OF PURCHASER’S BUSINESS FORMS, AND SUCH ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS SHALL BE VOID AND OF NO EFFECT UNLESS SPECIFICALLY AGREED TO BY SELLER IN WRITING. 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 (this “Agreement”). Any changes to this Agreement must be in writing and signed by Seller.
Inspection; Non-Conforming Shipments. The inspection rights granted to Purchaser under this paragraph will not affect or alter the payment terms or the timing of Purchaser’s payment obligations, Seller grants Purchaser the right to inspect goods for a period of fifteen (15) business days after delivery (“Inspection Period”). Purchaser must notify Seller of any goods that do not conform to the terms applicable to their sale within the Inspection Period, and afford Seller a reasonable opportunity to inspect such goods 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 goods. Purchaser will have no right to return any goods without Seller’s prior written authorization. Any return authorized by Seller must be made in accordance with Seller’s return policies then in effect as noted in the ILC Website Conditions of Use and must be accompanied by a Return Goods Authorization (“RGA”) from Seller. Purchaser will be responsible for all costs and expenses associated with any authorized returns of goods and will bear the risk of loss or damage of such goods. Seller, in its sole discretion, may reject any return of goods not approved by Seller in accordance with this paragraph or otherwise not returned in accordance with Seller’s then-current return policies.
Quotations and Sales Order Acknowledgements. Written Quotations are valid for 30 days from the date of the Quotation unless otherwise notified. 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. No purchase order for the sale of Products or Services covered by Seller’s Quotation shall be binding on Seller unless and until approved and accepted in writing by Seller by the issuance of a Sales Order Acknowledgement form or upon the shipment of products or commencement of services by Seller.
WARRANTY. RETURN OF PRODUCTS TO SELLER WILL NOT BE ACCEPTED WITHOUT PRIOR WRITTEN AUTHORIZATION. 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 MONTHS FROM THE DATE OF SHIPMENT. ANY CLAIM ON ACCOUNT OF DEFECTIVE PRODUCTS OR SERVICES FOR ANY OTHER CAUSE WHATSOEVER SHALL CONCLUSIVELY BE DEEMED WAIVED BY PURCHASER UNLESS WRITTEN NOTICE THEREOF IS GIVEN TO SELLER PROMPTLY AFTER ANY PRODUCTS OR ANY SERVICES ARE PROVIDED HEREUNDER. 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.
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.
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, EVEN IF SELLER MAY HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL SELLER’S LIABILITY UNDER 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. 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.
Prices. Prices are in U.S. Dollars and are subject to change without notice. All orders are accepted subject to Seller’s price in effect at time of shipment.
Title/Risk of Loss/Delivery. All Products shall be shipped F.O.B. Seller’s plant and shall become the property of Purchaser upon delivery to the carrier. Purchaser shall assume all risk and liability for loss, damage, or destruction after 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 in multiple shipments.
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, acts of sabotage, riots, acts of or 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 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 customers in such manner as Seller, in its judgment, deems fair and equitable.
Cancellation. Upon acceptance by Seller of Purchaser’s Purchase Order by the issuance of a Sales Order Acknowledgement, 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. Purchaser shall indemnify Seller for any costs incurred, including material and labor costs, in connection with any Purchase Order that Purchaser desired to cancel, terminate or modify, plus pay a cancellation charge of 30% of the initial quoted charge.
Tooling/Molds/Dies. Unless otherwise agreed in a 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.
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.
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.
Waiver. No failure of Seller to insist upon strict compliance by Purchaser with the terms and conditions of this Agreement 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 this Agreement shall not be construed as a waiver of any other existing or future breach.
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 this Agreement as a separate transaction without regard to any other shipment. If Purchaser is in default under this Agreement or 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, or (b) terminate all Purchase Orders of Purchaser.
Litigation Costs. If any litigation or arbitration is commenced between Seller and Purchaser concerning any provision of this Agreement or related Purchase Order, 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 attorneys’ 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.
Assignment and Delegation. No assignment of any right or interest or delegation of any obligation or duty of Purchaser under this Agreement 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.
Integration Clause. This Agreement constitutes the entire contract of sale and purchase between Seller and Purchaser with respect to the products covered by this Agreement, and supersedes any prior agreements, understandings, representations, purchase orders, Quotations and Sales Order Acknowledgements 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.
Ownership of Intellectual Property. All drawings, know?how, designs, specifications, inventions, devices, developments, processes, software, code, data and other information or intellectual property, including patent rights, disclosed to Purchaser by Seller or incorporated into the Products or Services associated with the Quotation or Sales Order Acknowledgement, and all rights therein (collectively, “Proprietary or Confidential Information”) 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 Proprietary or Confidential Information 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, including patent rights, are granted to Purchaser hereunder in respect of any Proprietary or Confidential Information or inventions incorporated into the Products or Services associated with the Quotation or Sales Order Acknowledgement.
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 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 sale or use of any item or Product that is owned by Seller and that pertains to the subject matter of this Agreement (provided that the item or Product is not modified in any way by the Purchaser or any other party, and that the item or Product 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, software or product falling under this Agreement, or if the result of such a suit or claim would, in the reasonable opinion of Seller’s counsel, 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, software or product so that it becomes non-infringing, provided that any modification does not cause any material change to the operation or performance of the part or product; or (iii) replace the appropriate part, software or product with a non-infringing but practically equivalent part or product. (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, software or product or using any process that is owned by the Purchaser or is designed or specified by the Purchaser and that pertains to the subject matter of this Agreement. (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.
Construction. All sales, agreements for sale, offers to sell, proposals, acknowledgments and contracts of sale, including, but not limited to, purchase orders accepted by Seller shall be considered a contract under the laws of the State of Illinois, USA, and the rights and duties of all persons, and the construction and effect of all provisions hereof, shall be governed by and construed according to the laws of the State of Illinois, USA.
Inspection/Damage. If any product should arrive at Purchaser’s destination in a damaged condition or should a shortage exist, the damage or shortage shall be immediately called to the attention of the delivering carrier and Seller and in case of damaged products, a joint inspection of the loaded vehicle by representatives of the carrier and Seller shall be arranged. Any loss occasioned by damage in transit will be for Purchaser’s account and claims for such loss shall be made solely against the carrier.
Terms of Payment. Unless otherwise expressly agreed to by Seller in writing, terms of payment are net 30 days from the date of Seller’s invoice. No discount shall be allowed on transportation charges. Purchaser agrees to pay interest on overdue invoices at the rate of 1½% per month, but not higher than the highest rate permitted by law. All invoices are due and payable in United States dollars at Seller’s address specified on the invoice.
Technical Data. All physical properties, statements and recommendations are either based on tests Seller believes to be reliable based on its experience, but they are not guaranteed.
Product Use. User is responsible for determining whether any Product is fit for a particular purpose and suitable for user’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.
Inventory. Except as provided in Sections 2, 9 and 13 hereof, Seller will neither accept return of product, or packing material, nor be responsible for their destruction.
Cumulative Remedies. The remedies herein reserved by Seller shall be cumulative and in addition to any other legal remedies available to Seller, at law or in equity.
Limitation of Actions. Notwithstanding any contrary statute of limitations, any cause of action for any alleged breach of this Agreement or related purchase order by Seller shall be barred unless commenced by Purchaser within one (1) year from the accrual of such cause of action.
Jurisdiction and Venue. Any dispute arising out of or related to the Agreement will 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 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. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement. If either party commences litigation concerning any provision of the Agreement or if the parties agree to alternative dispute resolution, the prevailing party is entitled, in addition to the relief granted, to a reasonable sum for their attorney’s fees in such litigation or mutually agreed upon alternative dispute resolution, provided if each party prevails in part, such fees will be allocated in the manner as the court or mediator determines to be equitable in view of the relative merits and amounts of the parties’ claims.
Severability. If any provision of this Agreement shall be held to be unlawful or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.