SCHMIDT TERMS AND CONDITIONS OF SALE
1. GENERAL: These Terms and Conditions of Sale (this “Agreement”) constitute the entire agreement between Geo. T. Schmidt, Inc, a.k.a SCHMIDT (as set forth on the document referencing this agreement) (“SCHMIDT”) and you, your subsidiaries and affiliates (“Buyer”). SCHMIDT will not be bound by any terms of Buyer’s order. No forms of acceptance, except SCHMIDT’s written acknowledgment sent to Buyer or SCHMIDT’s commencement of performance, shall constitute valid acceptance of Buyer’s order. Any such acceptance is expressly conditioned on assent to the terms hereof and the exclusion of other terms. By accepting an order for (i) delivery of the products, including systems, spare parts and any upgrades (each a "Product" and collectively the "Products") or (ii) installation, maintenance or software updates (“Services”) identified in the quote or other related documents issued by SCHMIDT, Buyer shall be deemed to have assented to the terms hereof. If tender of these terms is deemed an offer, acceptance is expressly limited to the terms hereof. A Buyer’s purchase order, acknowledgment, supplier registration forms and requirements or other writings which purport to expand, alter, or amend these Terms and Conditions are expressly rejected. This Agreement may only be amended, modified, supplemented or canceled through a written document signed by an authorized representative of SCHMIDT.
2. PRODUCTS: “Standard” goods sold by SCHMIDT refers to any items held in stock that are not in any way altered, changed or specifically made or purchased by SCHMIDT for the Buyer. “Non-Standard” goods and services (a.k.a “custom items”, “ custom products”) sold to Buyer are defined as any items that are not stocked by SCHMIDT, or any items that are altered, changed or specifically made or purchased by SCHMIDT for the Buyer. Nonstandard items are non-refundable and one-third of the total payment is due upon order acknowledgment.
3. SHIPPING: Each SCHMIDT Product purchased hereunder will be shipped in SCHMIDT standard shipping cartons marked for shipment to Buyer's address on the reverse or to such other address as Buyer may specify in writing. SCHMIDT Product(s) will be delivered FOB Niles, IL SCHMIDT factory unless otherwise stated by SCHMIDT in writing. Buyer shall pay all taxes, freight, insurance, brokerage, handling, shipping, and other expenses, as well as any special packing expenses, whether or not stated on the order. Buyer shall pay all handling and packaging fees even if supplying their own freight company or freight account number, whether or not stated on the quote, order, or order acknowledgment. Handling fees cannot be waived by Buyer for any reason. All items sold by SCHMIDT are subject to handling fees. Unless given written instruction, SCHMIDT shall select the carrier. SCHMIDT shall not be liable for damages or penalty for delay in delivery or for failure to give notice of any delay, and the carrier shall not be deemed to be an agent of SCHMIDT.
4. PERFORMANCE AND SHIPPING: SCHMIDT will make reasonable commercial efforts to meet any estimated performance or shipment date set forth on the quotation, however the failure to perform or ship on such dates shall not be considered a breach by SCHMIDT and SCHMIDT shall not be liable for any loss or damages (consequential or otherwise) due to delay in performance or shipment. SCHMIDT’s obligation to make delivery of the Products or Services is contingent on Buyer’s fulfillment of any payment-related obligations of Buyer, and Buyer’s failure to satisfy such obligations shall entitle SCHMIDT, in addition to all other available remedies in law and equity, to cancel the sales order, refuse to make further deliveries, refuse to perform further services and declare immediately due and payable all unpaid amounts for goods or services previously delivered to Buyer. Delivery of Products shall be deemed made upon transfer of possession to the carrier at the FOB point. SCHMIDT is entitled to make partial shipments under any order without compromising SCHMIDT’s right to decline any future shipments, and any such partial shipments shall be treated as a separate transaction and payment thereof shall be made accordingly. Except as expressly stated on the face of a SCHMIDT sales order confirmation, each Product or Service shall be deemed accepted by Buyer upon delivery, subject to SCHMIDT’s limited warranties and Return Materials Authorization procedures set forth below. For sale of custom Products or Services with contractually agreed upon acceptance requirements, the Products shall be considered accepted by Buyer upon the earlier to occur of (i) Buyer acceptance sign off; (ii) beneficial use of the Product or Services by Buyer or end user; or (ii) thirty (30) days after shipment. Beneficial use means using the Products or Services for purposes other than testing, including but not limited to pilot production, engineering test lots, production and device prototyping. Buyer may return any Product or reject Services or quantities not in conformity with a SCHMIDT sales confirmation. Progress or Down Payments made on custom orders are non-refundable. All sales are final.
5. INSTALLATION REQUIREMENTS: All installations of Products and Services shall be performed by a SCHMIDT service technician, an individual who has successfully completed SCHMIDT training, or an otherwise qualified individual as determined by SCHMIDT. Any damages caused in whole or in part by improper or incomplete installation or decommissioning by unqualified personnel will not be covered under warranty. Buyer is responsible for all facility connections to the Products and must comply with SCHMIDT installation requirements outlined in the operator’s manual. Installation delays not caused by SCHMIDT, such as inadequate site preparation or delayed or interrupted site access, may be charged to Buyer at SCHMIDT service rates, plus travel expenses incurred due to the delay. All installations are intended to be performed and completed in consecutive days and any interruption to the consecutive days caused by Buyer will be subject to the charges described above.
6. SUBSTITUTIONS AND MODIFICATIONS: SCHMIDT has the right to make substitutions and modifications of the specifications of the Products or Services provided that such substitutions or modifications will not materially affect overall performance of the Products or Services.
7. CHANGES: Orders may not be canceled, terminated or suspended except by prior written consent of SCHMIDT. A restocking charge of 25% of the price of the Products will be applied for the cancellation of standard items. Charges for the cancellation of Services, specialty items or items with non-standard configurations or specifications will be based on non-recoverable expenses accruing to the order sustained by SCHMIDT plus 50% of the selling price.
8. PAYMENT TERMS: The price of all Products and Services is FOB SCHMIDT’s factory or facility, exclusive of insurance and all applicable Federal, state or local excise, sales, use, value-added tax (VAT), goods and services tax (GST) or other taxes (including any customs or duties) and any similar charges, all of which are payable by Buyer. Unless otherwise stated in the SCHMIDT quotation or sales order acknowledgment, all quotations shall expire 30 calendar days after the date issued. Payment of the purchase price and all taxes, freight, handling fees, packaging fees, insurance or other charges invoiced shall be made to SCHMIDT in US dollars within 30 calendar days from date of shipment of Product(s). If Buyer is in breach of this Agreement, including delinquent in payment, or in excess of credit limits established by SCHMIDT, SCHMIDT may stop performance, cancel any pending order, terminate the warranty, withhold shipment or declare payable all undelivered goods under any contract with Buyer. Buyer shall be liable to SCHMIDT for all costs SCHMIDT incurs collecting past due amounts, including reasonable attorneys’ fees and expenses. SCHMIDT reserves the right to require alternative payment terms including, without limitation, letter of credit or payment in advance. Payment terms and credit limits are subject to periodic review. SCHMIDT reserves the right to modify existing payment terms from those previously granted or as stated on any valid quotation. Buyer hereby grants and SCHMIDT reserves a purchase money security interest in each Product and Service purchased hereunder, and in any proceeds thereof, for the amount of the purchase price of such Product. SCHMIDT’s security interest shall commence upon delivery of the Product(s) and Services and terminate upon full payment therefor. Buyer hereby irrevocably authorizes SCHMIDT to sign on behalf of Buyer and file in the appropriate public office(s) UCC financing statements covering the Products and Services and all proceeds thereof. In the event of default by Buyer of any obligations to SCHMIDT, SCHMIDT will have the right to repossess the goods sold hereunder without liability to Buyer. Buyer shall make the goods available to SCHMIDT so that SCHMIDT can repossess them without breach of the peace, and shall cooperate fully with SCHMIDT to execute such documents and accomplish any appropriate filings as IPG may deem necessary for the protection of SCHMIDT’s interests in the Products and Services. Buyer shall have no set-off or counterclaim rights whatsoever.
9. TERMINATION: SCHMIDT reserves the right to terminate the order without liability to SCHMIDT if Buyer shall become insolvent or bankrupt or make an assignment for the benefit of creditors or consent to the appointment of a trustee or receiver, or a trustee or receiver shall be appointed for a substantial part of its property without its consent, or bankruptcy or reorganization or insolvency proceeding shall be instituted by or against Buyer.
10. TITLE; RISK OF LOSS; INSURANCE: Unless otherwise agreed to in writing by SCHMIDT, all transportation shall be at the expense of Buyer, SCHMIDT reserving the right to ship Products freight collect or prepaid and add to invoice to select the means of transportation and routing. Unless otherwise advised, SCHMIDT may insure to full value of the Products or declare full value thereof to the transportation company at the time of delivery and all such freight and insurance costs shall be for Buyer’s account. Title and risk of loss or damage shall pass to Buyer upon delivery of the Products to the transportation company at the FOB point, whether or not installation is provided by or under supervision of SCHMIDT. SCHMIDT shall retain title to all software delivered by SCHMIDT, or embedded in the Products, if applicable, and use of such software by Buyer or third parties shall be limited to a license agreement provided with the Products, the assent by Buyer or third parties to such license agreement being use of the Products or as otherwise provided in such license agreement
11. RETURN MATERIALS AUTHORIZATION PROCEDURES: SCHMIDT will only accept Products or Services during the applicable warranty period that are returned under SCHMIDT’s Return Material Authorization procedures then in effect ("RMA”). Buyer shall obtain an RMA number from SCHMIDT prior to returning any Product or Service and return the Product or Service prepaid and insured to SCHMIDT to the FOB point or to such other location as designated in writing by SCHMIDT. Any product returned without RMA authorization number will be refused. Any Product or Service which has been returned to SCHMIDT but which is found to meet the applicable specification for the Product and Service and not defective in workmanship and material, shall be subject to SCHMIDT's standard examination charge in effect at the time and return shipping/insurance shall be charged to Buyer. SCHMIDT shall be responsible for shipping costs to Buyer for claims properly covered under SCHMIDT’s warranty. Any product or service that is tampered with; a repair is attempted by the customer or unauthorized third party (unauthorized is anyone other than a SCHMIDT technician), if software or controls are reprogrammed, or if products are disassembled, misused or mishandled, then those products are void of all warranties and are not eligible for a return or refund.
12. LIMITED EXPRESS PRODUCT WARRANTIES: SCHMIDT warrants to Buyer or, if Buyer is an authorized SCHMIDT reseller or distributor, to Buyer’s original customer of the Product or Service, that Products delivered hereunder which are standard products of SCHMIDT will conform to their applicable specifications and be free from defects in materials and workmanship, and that Services provided by SCHMIDT will be performed in a workmanlike manner. For goods which are not standard products of SCHMIDT, such as developmental or custom designed goods, SCHMIDT warrants to Buyer that such goods delivered hereunder will conform to their applicable specifications and be free of defects in materials and workmanship upon receipt by Buyer. These non-transferable warranties start on the shipment date from SCHMIDT (or other date specifically referencing the warranty start date in SCHMIDT’s sales order/order acknowledgment), and continue until the end of the warranty period listed in SCHMIDT’s sales order/order acknowledgment. If there is no warranty period listed, then warranty period is one year. Products or major components manufactured by parties other than SCHMIDT bear the original manufacturer’s warranty and warranty period. Buyer’s sole and exclusive remedy, and SCHMIDT’s exclusive obligation and liability, with respect to SCHMIDT’s warranties is, at SCHMIDT’s sole option, (i) for Product, to repair or replace the affected Product and correct the deficiencies and (ii) for Services, for SCHMIDT to re-perform the affected Services. SCHMIDT warrants repaired or replaced Products under warranty only for the remaining un-expired period of time in the original warranty. SCHMIDT reserves the right to issue a credit note for any defective Products that have proved defective through normal usage; Buyer debit memos are not allowed. This warranty governs over any conflicting terms in Buyer’s purchase order or other SCHMIDT documents except as expressly provided herein. This warranty excludes and does not cover defects or damage resulting from any of the following: contamination of external optical surfaces; unauthorized modification, misuse or mishandling, disassembly or opening, neglect, or damage from accident; operation outside environmental specifications or product ratings; user software or interfacing; components and accessories manufactured by companies other than SCHMIDT, which have separate warranties; improper or inadequate installation, site preparation or maintenance; or failure to follow information and precautions contained in the operating manual. Additional warranty exceptions, limitations and exclusions may apply for MARKING systems manufactured by SCHMIDT and its affiliates as set forth in the applicable quotation and sales order/acknowledgment. All products or components (including software) identified as experimental, prototypes or to be used in field trials are not warranted and are provided to the Buyer on an “as is” basis. IPG assumes no responsibility for Buyer or third-party supplied material, components, systems or equipment. Products and repaired Products may contain components that have been previously used in other products, however such Products meet SCHMIDT Product specifications for newly manufactured Products. The Buyer must give prompt notification to SCHMIDT of any claim under the warranty in writing. SCHMIDT has no responsibility for warranty claims more than 30 days after the Buyer discovers or becomes aware of the claimed defect. Any repairs to or alterations of the goods shipped hereunder must be authorized in writing by SCHMIDT to prevent voiding SCHMIDT’s warranty. SCHMIDT’s warranty shall not be enlarged, diminished, or affected by, and no obligation or liability shall arise or grow out of, SCHMIDT’s rendering of technical advice or services in connection with Buyer’s order of the goods hereunder. Buyer is responsible for providing appropriate utilities and operating environment as stated in the operating manual and the specifications. This warranty applies only to the original Buyer at the initial installation or delivery point. Buyer must make all claims under this warranty and no claim will be accepted from any third party. EXCEPT FOR THE LIMITED WARRANTIES EXPRESSLY SET FORTH ABOVE, SCHMIDT SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS TO BUYER, INCLUDING WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES, SUCH AS FREEDOM FROM INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SCHMIDT DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF THE PRODUCT, AND SPECIFICALLY DISCLAIMS ANY WARRANTIES RELATING TO PRODUCTION RATE AND/OR OUTPUT.