GENERAL: These Terms and Conditions of Sale (this “Agreement”) constitute the entire agreement between Schmidt Marking Systems, LLC, a.k.a. SMS (as set forth on the document referencing this agreement) (“SMS”) and you, your subsidiaries, and affiliates (“Buyer”). SMS will not be bound by any terms of Buyer’s order. No forms of acceptance, except SMS’s written acknowledgment sent to Buyer or SMS’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 SMS, 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 SMS.
PRODUCTS: “Standard” goods sold by SMS refers to any items held in stock that are not in any way altered, changed, or specifically made or purchased by SMS 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 SMS, or any items that are altered, changed, or specifically made or purchased by SMS for the Buyer. Non-standard items are non-refundable and one-third of the total payment is due upon order acknowledgment.
ENGINEERING DESIGN: SMS will not release mechanical or electrical design details, or any form of source code for standard or custom machines, regardless of any previous or future requests verbal or written.
SHIPPING: Each SMS Product purchased hereunder will be shipped in SMS standard shipping cartons marked for shipment to Buyer's address on the reverse or to such other address as Buyer may specify in writing. SMS Product(s) will be delivered FOB Niles, IL SMS factory unless otherwise stated by SMS in writing. Buyer shall pay all taxes, freight, insurance, brokerage, handling, shipping, and other expenses, as well as any special packing expenses, whether stated on the order. Buyer shall pay all handling and packaging fees even if supplying their own freight company or freight account number, whether stated on the quote, order, or order acknowledgment. Handling fees cannot be waived by Buyer for any reason. All items sold by SMS are subject to handling fees. Unless given written instructions, SMS shall select the carrier. SMS 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 SMS.
PERFORMANCE AND SHIPPING: SMS 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 SMS, and SMS shall not be liable for any loss or damages (consequential or otherwise) due to delay in performance or shipment. Buyer acknowledges that SMS’s obligations are limited to shipment or delivery of Products in accordance with this Agreement. UNDER NO CIRCUMSTANCES SHALL SMS BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM DELAYS, PARTIAL SHIPMENTS, OR FAILURE TO MEET ESTIMATED DELIVERY DATES, INCLUDING LOSS OF PROFITS, REVENUE, OR BUSINESS OPPORTUNITIES. SMS’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 SMS, 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. SMS is entitled to make partial shipments under any order without compromising SMS’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 SMS sales order confirmation, each Product or Service shall be deemed accepted by Buyer upon delivery, subject to SMS’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 SMS sales confirmation. Progress or Down Payments made on custom orders are non-refundable. All sales are final.
INSTALLATION REQUIREMENTS: All installations of Products and Services shall be performed by an SMS service technician, an individual who has successfully completed SMS training, or an otherwise qualified individual as determined by SMS. Any damage 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 SMS installation requirements outlined in the operator’s manual. Installation delays not caused by SMS, such as inadequate site preparation or delayed or interrupted site access, may be charged to Buyer at SMS 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.
SUBSTITUTIONS AND MODIFICATIONS: SMS 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.
CANCELLATIONS: Orders may not be canceled, terminated, or suspended without the consent of SMS. A cancellation charge of 25% of the price of the Products will be applied for standard stocked items. Cancellation fees for non-standard items, custom items, or services, will be based on any sunk cost incurred by SMS for work already started on the order plus 50% of the selling price.
PAYMENT TERMS: The price of all Products and Services is FOB SMS’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 SMS 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 SMS in US dollars within 30 calendar days from the 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 SMS, SMS 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 SMS for all costs SMS incurs collecting past due amounts, including reasonable attorneys’ fees and expenses. A compounding 2% monthly late fee will be incurred to all Buyers for every month a payment is late beyond the original due date of the invoice. Buyer shall be liable to SMS for all late fees, including any additional collection agency and legal fees. SMS reserves the right to require alternative payment terms including, without limitation, a letter of credit or payment in advance. Payment terms and credit limits are subject to periodic review. SMS reserves the right to modify existing payment terms from those previously granted or as stated on any valid quotation. Buyer hereby grants and SMS 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. SMS’s security interest shall commence upon delivery of the Product(s) and Services and terminate upon full payment, therefore. Buyer hereby irrevocably authorizes SMS 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 SMS, SMS will have the right to repossess the goods sold hereunder without liability to Buyer. Buyer shall make the goods available to SMS so that SMS can repossess them without breach of the peace and shall cooperate fully with SMS to execute such documents and accomplish any appropriate filings as IPG may deem necessary for the protection of SMS’s interests in the Products and Services. Buyer shall have no set-off or counterclaim rights whatsoever.
TERMINATION: SMS reserves the right to terminate the order without liability to SMS 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.
TITLE; RISK OF LOSS; INSURANCE: Unless otherwise agreed to in writing by SMS, all transportation shall be at the expense of Buyer, SMS 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, SMS 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 the supervision of SMS. SMS shall retain title to all software delivered by SMS, 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
REPAIRS AND REPAIR SERVICE ORDER (RSO) INSTRUCTIONS: SMS will only accept products for repair that have been approved through our Repair Service Order (RSO) process. Products under warranty will be inspected prior to repair. Any products that have been tampered with, repaired by the customer, reprogrammed, disassembled, misused, or mishandled will void the warranty. For out-of-warranty items or those with voided warranties, repair fees will apply. Fees vary by technology and may change based on the complexity of the repair. Customers must obtain an RSO number from SMS before shipping any products for repair. Items returned without an RSO number will be refused. For customers on credit hold or without extended payment terms, all repair, freight, and handling fees must be paid in advance before the items are returned.
RETURNS AND RETURN MATERIAL AUTHORIZATION (RMA) INSTRUCTIONS: All product return requests are at the discretion of SMS. Custom products are non-refundable. Standard stock items may be returned within thirty (30) days of the original shipment date, provided they are unused, undamaged, and in original condition. Standard stock items approved for return will be inspected and any products showing signs of use, damage, or tampering will not be accepted. All returns require RMA numbers from SMS before shipping, and any returns sent without an RMA number will be refused. Customer is responsible for all return shipping and product insurance. All approved returns are subject to a minimum 25% restocking fee.
LIMITED EXPRESS PRODUCT WARRANTIES: SMS warrants to Buyer or, if Buyer is an authorized SMS reseller or distributor, to Buyer’s original customer of the Product or Service, that Products delivered hereunder which are standard products of SMS will conform to their applicable specifications and be free from defects in materials and workmanship, and that Services provided by SMS will be performed in a workmanlike manner. For goods which are not standard products of SMS, such as developmental or custom-designed goods, SMS 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 SMS (or other date specifically referencing the warranty start date in SMS’s sales order/order acknowledgment), and continue until the end of the warranty period listed in SMS’s sales order/order acknowledgment. If there is no warranty period listed, then the warranty period is one year. Products or major components manufactured by parties other than SMS bear the original manufacturer’s warranty and warranty period. Buyer’s sole and exclusive remedy, and SMS’s exclusive obligation and liability, with respect to SMS’s warranties is, at SMS’s sole option, (i) for Product, to repair or replace the affected Product and correct the deficiencies and (ii) for Services, for SMS to re-perform the affected Services. SMS warrants repaired or replaced Products under warranty only for the remaining un-expired period of time in the original warranty. SMS 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 SMS 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 SMS, 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 SMS 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 SMS Product specifications for newly manufactured Products. The Buyer must give prompt notification to SMS of any claim under the warranty in writing. SMS 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 SMS to prevent voiding SMS’s warranty. SMS’s warranty shall not be enlarged, diminished, or affected by, and no obligation or liability shall arise or grow out of, SMS’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. SMS does not warrant uninterrupted or error-free operation of the product and specifically disclaims any warranties relating to production rate and/or output. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, SMS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. SMS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE PRODUCTS OR SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BUYER’S SOLE REMEDY FOR BREACH OF WARRANTY SHALL BE LIMITED TO THE REPAIR OR REPLACEMENT OF PRODUCTS OR RE-PERFORMANCE OF SERVICES IN ACCORDANCE WITH THIS SECTION.
INDEMNIFICATION Buyer shall indemnify, defend, and hold harmless Schmidt Marking Systems, LLC. a.k.a., SMS, its affiliates, officers, directors, employees, and agents (collectively, the “Indemnified Parties”) from and against any and all claims, demands, losses, liabilities, damages, costs, and expenses, including reasonable attorneys’ fees, arising out of or relating to:
Buyer’s use, resale, or modification of Products or Services; b. Any breach of these Terms and Conditions by Buyer; or c. Any claim that the Products or Services, as used or modified by Buyer, infringe any third-party intellectual property rights or cause injury to persons or property. This indemnification obligation shall survive any termination or expiration of this Agreement.
GOVERNING LAW AND JURISDICTION This Agreement, and any disputes arising out of or relating to it, shall be governed by and construed in accordance with the laws of the State of Illinois, without regard to its conflict of law principles. The parties agree that any action or proceeding arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located in Cook County, Illinois, and the parties hereby submit to the exclusive jurisdiction of such courts.
LIMITATION OF LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY LAW, SMS SHALL NOT BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUE, OR BUSINESS OPPORTUNITIES, ARISING OUT OF OR RELATING TO THE PRODUCTS, SERVICES, OR THIS AGREEMENT, EVEN IF SMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SMS’S AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY BUYER TO SMS FOR THE SPECIFIC PRODUCT OR SERVICE GIVING RISE TO THE CLAIM. This limitation of liability applies regardless of the cause of action, whether in contract, tort (including negligence), strict liability, or otherwise, and survives any termination or expiration of this Agreement.
