1.
Acceptance. The Illinois
Tool Works Inc. division, affiliation or subsidiary selling products
(“Products”) or services (“Services”) is herein referred to as “ITW,” and the
customer purchasing Products or Services from ITW is referred to as “Purchaser”
These terms and conditions of sale (“Terms”), any ITW quotation, acknowledgment
or invoice and all documents incorporated by specific reference herein or
therein (“ITW Documents” and together with these Terms, the “Agreement”),
constitute the complete terms governing the sale of Products and Services. ITW
HEREBY REJECTS ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED BY
PURCHASER, WHETHER OR NOT CONTAINED IN ANY OF PURCHASER’S BUSINESS FORMS OR IN
PURCHASER’S WEBSITE, AND SUCH ADDITIONAL OR DIFFERENT TERMS WILL BE OF NO
EFFECT. No site usage agreement or any other click through agreement on a
website will have any binding effect whether or not ITW clicks on an “ok,” “I
accept,” or similar acknowledgment. Commencement of any work by ITW or
Purchaser’s acceptance of delivery of the Products or Services will manifest
Purchaser’s assent to the Agreement. Additional or different terms applicable
to a particular sale may be specified in the body of an ITW Document or agreed
to in writing by the parties. In the event of a conflict, the following order
of precedence will apply: (a) terms agreed to in writing and executed by an
authorized officer of ITW; (b) ITW Document terms; (c) these Terms.
2.
Quotations. Quotations
are only valid in writing and for 30 days from the date of the quotation. All
quotations are subject to change or withdrawal without prior notice to
Purchaser. Quotations are made subject to approval of Purchaser’s credit. ITW
may refuse orders and has no obligation to supply Products or Services unless
ITW issues an order acknowledgement or upon the shipment of Products or
commencement of Services.
3.
Prices and Payment
Terms. Prices are in U.S. Dollars or Canadian dollars as specified by ITW and
are subject to change without notice. All orders are accepted subject to ITW’s
price in effect at time of shipment. Prices
do not include any sales, use, value-added or other taxes, import duties,
license fees or like charges (“Fees”) related to the sale, importation or use
of Products or Services, and Purchaser is responsible for those Fees. If ITW is
subsequently required to pay any Fees, Purchaser shall fully defend and
indemnify ITW therefor. Terms of payment are 30 days net from the date of ITW’s
invoice. Overdue invoices will incur interest at the rate of 1.5% per month, or
at the maximum rate allowable by governing law. Purchaser’s inspection rights
herein will not affect the payment terms. Under no circumstances will Purchaser
have a right of set-off. If Purchaser fails to make any payment as required,
Purchaser agrees to indemnify ITW for all associated costs incurred by ITW,
including reasonable attorney fees and court costs.
4.
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. If a
Purchaser’s purchase order does not specify quantities, or specifies the
quantities as “blanket order”, “as released”, “as scheduled”, “as directed”,
“subject to Purchaser’s production releases” or another similar reference, or
if a Purchaser’s purchase order purports to be a “Requirements Contract” (or
something similar) but ITW has not expressly agreed in writing to such
requirements obligations, ITW is not obligated to ship any Products beyond the
quantity contained in any firm release that has been accepted by ITW, and ITW
is not obligated to accept any future orders, releases or offers. Unless
otherwise agreed in writing, any Purchase Order that purports to be a
“Requirements Contract” and has been agreed to in writing by Seller shall be
deemed an exclusive contract between Seller and Purchaser, limited to a maximum
duration of five years.
5.
Credit Approval. All
shipments are subject to approval by ITW’s credit department. ITW may invoice
Purchaser and recover for each shipment as a separate transaction. If, in ITW’s
sole judgment, Purchaser’s financial condition is or becomes unsatisfactory,
then ITW may, without prejudice to any of its other remedies: (a) defer or
decline to make any shipments except upon receipt of satisfactory security or
cash payments in advance; and/or (b) terminate any or all of Purchaser’s
purchase orders.
6.
Cancellation or
Modification. ITW may cancel any purchase order or release thereunder, or
terminate any agreement relating to the purchase of ITW’s Products or Services
upon reasonable prior written notice to Purchaser. Once ITW has accepted a
purchase order or begun taking actions with respect to a purchase order,
Purchaser cannot cancel or modify that purchase order except with ITW’s written
consent. In such event, Purchaser will be liable for cancellation or
modification charges and all costs incurred and committed for the order or in
connection with the cancellation or modification, as applicable, together with
a reasonable allowance for prorated expenses and anticipated profits.
7.
Inspection /
Non-Conforming Shipments. Purchaser may inspect Products for a period of 15
business days after delivery (“Inspection Period”). Purchaser must notify ITW
in writing of any Products that do not conform to the specifications applicable
to their sale within the Inspection Period and afford ITW a reasonable
opportunity to inspect such Products and cure any nonconformity. If Purchaser
fails to provide ITW such written notice within the Inspection Period,
Purchaser will be deemed to have accepted the Products. Purchaser may not
return any Product without ITW’s prior written authorization. Any return
authorized by ITW must be made in accordance with ITW’s return policies.
Purchaser will be responsible for all costs associated with returns of Products
and will bear the risk of loss, unless ITW agrees otherwise in writing or
determines that the Products do not conform to the applicable terms of sale.
Any variation in quantities shipped over or under those ordered (not to exceed
10%) will constitute compliance with Purchaser’s order, and the stated price
per item will continue to apply.
8.
Delivery. ITW
anticipates use of common carriers for shipment of Products. The carrier, and
not ITW, will bill for freight rates and other shipping charges. Payments for
such charges shall be paid by Purchaser directly to the carrier. All Products
for international customers will be shipped ExWorks ITW’s facility (Incoterms
2020) or as otherwise directed by ITW and FOB origin (Incoterms 2020) for U.S.
based customers unless otherwise stated in a contract signed by both ITW and
Purchaser. Shipping dates are approximate and are based upon prompt receipt of
all necessary information from Purchaser. ITW may ship items in a single or
multiple shipments. Title to the Products and risk of loss shall pass to
Purchaser upon delivery in accordance with the applicable shipping term.
Purchaser assumes all risk and liability for loss and use or misuse by third
parties who acquire or use the Products illicitly after delivery. Purchaser
must notify ITW and the delivering carrier within 15 business days from date of
receipt of Products, of any damage or shortage, and afford ITW 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 must be
made solely against the carrier.
9.
Limited Warranty. ITW
warrants that it will convey the Products free and clear of all liens, security
interests and encumbrances created by, through or under ITW. ITW further
warrants that for a period of 6 months from the date of delivery to the common carrier
(the “Warranty Period”), under normal use and given proper installation and
maintenance as determined by ITW, the Products: (a) will conform to mutually
agreed upon written specifications or other descriptions; and (b) will be free
from substantial defects in material and workmanship.
In the event of a breach
of the warranties set forth above (the “Warranties”), ITW will, at ITW’s option
and as ITW’s sole liability and Purchaser’s sole remedy, repair, replace or
credit Purchaser’s account for, any Product that fails to conform to the Warranties,
provided that (i) during the Warranty Period ITW is promptly notified in
writing upon discovery of such failure with a detailed explanation of any
alleged deficiencies; (ii) ITW is given a reasonable opportunity to investigate
all claims; and (iii) ITW’s examination of such Product confirms the alleged
deficiencies and that the deficiencies were not caused by accident, misuse,
neglect, normal wear and tear, improper installation, unauthorized alteration
or repair or improper testing. No Products may be returned to ITW until
inspection and approval by ITW.
The Warranty against
defects does not apply to: (1) consumable components or ordinary wear items; or
(2) use of the Products with equipment, components or parts not specified or
supplied by ITW or contemplated under the Product documentation.
EXCEPT AS SET FORTH
HEREIN, ITW MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED
(INCLUDING NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE).
10.
Service Warranty. ITW
warrants that (a) it will perform Services in a timely, competent and
professional manner and in accordance with industry standards; and (b) the
Services shall conform to any mutually agreed upon specifications or statements
of work. Purchaser’s sole remedy, and ITW’s sole liability, for a breach of the
foregoing warranty is for ITW, at its option, to re-perform the Services or
credit Purchaser’s account for such Services.
11.
Limitation of Liability
and Remedies. ITW WILL NOT BE LIABLE, AND PURCHASER WAIVES ALL CLAIMS AGAINST
ITW, FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, DOWN
TIME, LOST PROFITS OR COMMERCIAL LOSSES, WHETHER OR NOT BASED UPON ITW’S
NEGLIGENCE OR BREACH OF WARRANTY OR STRICT LIABILITY IN TORT OR ANY OTHER CAUSE
OF ACTION. IN NO EVENT WILL ITW’S LIABILITY IN CONNECTION WITH THE AGREEMENT OR
SALE OF ITW’S PRODUCTS OR SERVICES EXCEED THE PURCHASE PRICE OF THE SPECIFIC
PRODUCTS OR SERVICES AS TO WHICH THE CLAIM IS MADE.
12.
Product Use. Purchaser
is solely responsible for determining if a 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 ITW’s Products, ITW is not responsible for
the results or consequences of use, misuse or application of its Products. All
physical properties, statements and recommendations are either based on the
tests or experience that ITW believes to be reliable, but they are not
guaranteed.
13.
Tooling/Molds/Dies. All
material, equipment, facilities and special tooling (including 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 will remain the property of ITW. Any material, tooling or
equipment furnished to ITW by Purchaser will remain the property of Purchaser
with title to and right of possession remaining in Purchaser.
14.
Consignment. If Products
are sold on a consignment basis, title in such Products will not pass to
Purchaser until the earlier of: (a) the time the Product is removed from
inventory for use; or (b) the date that is 90 days from the Product’s shipment
date. ITW will have a purchase money security interest in consigned Products
and may file a financing statement in accordance with the Uniform Commercial
Code. Purchaser agrees to store consigned Products in a segregated area and
will install and/or maintain any signs or other devices to clearly identify the
Products as ITW Products. Purchaser assumes the risk of loss of all consigned
Products. Purchaser shall insure consigned Products at Purchaser’s expense in
amounts at least equal to the replacement value.
15.
Ownership of
Intellectual Property. All drawings, know-how, designs, specifications,
inventions, devices, developments, processes, copyrights and other information
or intellectual property disclosed or otherwise provided to Purchaser by ITW
and all rights therein (collectively, “Intellectual Property”) will remain the
property of ITW and will be kept confidential by Purchaser in accordance with
these Terms. Purchaser has 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 ITW upon request from ITW. 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 ITW’s Products or receive the Services purchased from ITW.
16.
Use of Trademarks and
Trade Names. Purchaser shall not use, directly or indirectly, in whole or
in part, ITW’s name, or any other trademark or trade name that is now or may
hereafter be owned by ITW (collectively the “Trademarks”), as part of Purchaser’s
corporate or business name, or in any way in connection with Purchaser’s
business, except in a manner and to the extent authorized herein or otherwise
approved by ITW in writing. Purchaser hereby acknowledges ITW’s ownership of
the Trademarks and the goodwill associated therewith. Purchaser shall not
infringe upon, harm or contest the validity of any Trademarks. Purchaser shall
be entitled to use the Trademarks only in connection with the promotion or sale
of the Authorized Products pursuant to the terms of the Agreement. Purchaser
shall reproduce the Trademarks exactly as specified by ITW. Purchaser shall not
use the Trademarks in combination with any other trademarks or names. Purchaser
agrees that it will not register or attempt to register any Trademark or any
colorable imitation thereof (including any non-English language variation
thereof), or use such Trademarks for any products or for any purposes other
than those set forth in the Agreement. Purchaser shall not at any time during
or after termination of the Agreement use in its business any other trademark
that is similar to or in any way resembles the Trademarks so as to be likely to
cause deception or confusion with the Trademarks. Purchaser shall provide
reasonable cooperation to ITW with respect to any efforts of ITW to protect,
defend or enforce its rights to the Trademarks. Should Purchaser cease being an
authorized customer of ITW for any reason, Purchaser shall immediately
discontinue any formerly permitted use of ITW’s name or the Trademarks.
17.
Confidential
Information. All information furnished or made available by ITW to Purchaser in
connection with the subject matter hereof shall be held in confidence by
Purchaser. Purchaser agrees not to use (directly or indirectly), or disclose to
others, such information without ITW’s prior written consent. The obligations
in this section will not apply to any information that: (a) at the time of
disclosure was or thereafter becomes generally available to the public by
publication or otherwise through no breach by Purchaser of any obligation
herein; (b) Purchaser can show by written records was in Purchaser’s possession
prior to disclosure by ITW; or (c) is legally made available to Purchaser by or
through a third party having no direct or indirect confidentiality obligation
to ITW with respect to such information.
18.
Audit. Unless agreed to in writing by an officer of
ITW, neither Purchaser nor any Purchaser representative, may examine or audit
ITW’s cost accounts, books or records of any kind or any matter, or any other
data that ITW, in its sole discretion, considers confidential or proprietary.
19.
Infringement and
Indemnification. Except as set forth below, ITW agrees to defend and indemnify
Purchaser 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 ITW’s proprietary Product to Purchaser
as such pertains to the subject matter of the Agreement (each, a “Claim”);
provided, however, (a) Purchaser supplies ITW written notice of such Claim
immediately after the Purchaser has notice of such Claim, (b) Purchaser
cooperates with ITW in the defense and settlement of such Claim; and (c)
Purchaser allows ITW the right to defend and settle such Claim at ITW’s expense
If a suit or claim results in any injunction or order that would prevent ITW
from supplying any part or Product falling under the Agreement, or if the
result of such a suit or claim would, in the reasonable opinion of ITW, otherwise
cause ITW to be unable to supply such parts or Products, ITW may do one or more
of the following: (i) secure an appropriate license to permit ITW to continue
supplying those parts or Products; (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 ITW cannot reasonably accomplish the actions specified in subsections
(i) – (iii), then in ITW’s sole discretion, ITW may discontinue selling the
part or Product without any further liability to Purchaser. Notwithstanding the
foregoing, ITW shall have no liability or duty to defend and indemnify
Purchaser against any Claim relating to: (1) the use of any part or Product,
(2) the combination of any part or Product with any other part or product not
supplied by ITW, or (3) any part or Product or process that is designed or
specified by Purchaser.
20.
ITW Employees. ITW sales
and service employees do not have the training or authority to make legal
representations or enter into any agreements or execute any Purchaser documents
affecting legal responsibilities or waiving legal rights, including those regarding
the transfer of intellectual property rights or related to privacy laws. Any
such representations, agreements or documents will not be binding on ITW or
such ITW employees.
21.
Service Terms. The
following terms and conditions apply to any on-site Services provided by ITW:
A.
Services will be
provided at ITW’s then current service rates.
B.
Purchaser shall prepare
the site for the Services. If the site is not prepared for the Services upon
ITW service personnel’s arrival at the agreed upon time and date for Services,
ITW may charge Purchaser for any delay and/or travel time at ITW’s regular
service rates.
C.
Purchaser shall provide
ITW with advance notice of any rules, regulations, statutes and requirements
applicable to the Services, including any required permits and licenses, that
are applicable to Purchaser’s local jurisdiction.
D.
ITW may refuse, without
any liability, to provide Services and to allow ITW service personnel to
suspend Services or vacate any site where, in ITW’s opinion, performance of
Services would pose a risk to the safety of any person. In such event,
Purchaser is responsible for payment of any delay and/or travel time at ITW’s
regular service rates.
E.
Purchaser is solely
liable for all damages or injuries caused or contributed to by Purchaser that
may occur on the site, except to the extent damages or injuries are directly
caused by the gross negligence or willful misconduct of ITW service personnel.
F.
Purchaser must provide
at least 24 hours’ notice of cancellation of any Service order. If Purchaser
cancels with less than 24 hours’ notice, Purchaser is responsible for any costs
incurred by ITW caused by such cancellation.
22.
Compliance. Purchaser
agrees to comply with all federal, state, local and foreign rules, regulations,
ordinances and laws applicable to Purchaser’s obligations hereunder and
Purchaser’s use of the Products and Services, including import/export laws,
labor laws and anti-corruption laws.
23.
Relationship of the
Parties. Nothing in the Agreement or the course of dealing of the parties may
be construed to constitute the parties hereto as partners, joint venturers or
as agents for one another or as authorizing either party to obligate the other
in any manner.
24.
Force Majeure. ITW will
not be responsible for failure to perform in a timely manner under the
Agreement when its failure results from events beyond its reasonable control
(an event of “Force Majeure”), including acts of God, epidemics, acts of war
whether declared or undeclared, actions by any governmental agency or authority
(whether valid or invalid), blockades, labor disputes (whether of ITW’s
employees or the employees of others), raw material shortages and material
increases in costs of raw materials. In the event of Force Majeure, the time
for performance will extend for such time as reasonably necessary to enable ITW
to perform.
25.
Assignment; Binding
Effect. No assignment of any rights or interest or delegation of any obligation
of Purchaser under the Agreement or Purchaser’s purchase order may be made
without ITW’s prior written consent. Any attempted assignment will be void. ITW
may assign the Agreement or otherwise transfer its rights and/or obligations
under the Agreement. The Agreement will inure to the benefit of and be binding
upon the parties and their respective permitted successors and assigns.
26.
Waiver. In the event of
any default by Purchaser, ITW may decline to ship Products or provide Services.
If ITW elects to continue shipping or otherwise fails to insist upon strict
compliance with the Agreement, ITW’s actions will not constitute a waiver of
Purchaser’s default or any other existing or future default, or affect ITW’s
legal remedies.
27.
Bankruptcy. If either
party becomes insolvent, is unable to pay its debts when due, files for or is
the subject of involuntary bankruptcy, has a receiver appointed or has its
assets assigned, the other party may cancel any unfulfilled obligations hereunder.
28.
Limitation of
Actions/Choice of Law. 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. In any action concerning any
provision of the Agreement, the prevailing party is entitled, in addition to
the relief granted, to a reasonable sum for their reasonable and documented
attorneys’ fees incurred, provided if each party prevails in part, such fees
will be allocated in the manner as the court determines to be equitable in view
of the relative merits and amounts of the parties’ claims.
29.
Survival. Any provisions
in the Agreement which, by their nature, extend beyond the termination or
expiration of any sale of Products or Services, will remain in effect until
fulfilled.
30.
Severability. If any
provision herein is held to be unlawful or unenforceable, the remaining
provisions herein will remain in effect.
Integration and Modification. The Agreement
constitutes the entire agreement between ITW and Purchaser with respect to the
Products and Services covered by the Agreement, and supersedes any prior
agreements, understandings, representations and quotations with respect
thereto. No modification hereof will be of any effect unless in writing and
signed by the party to be bound thereby.