General Sales and Delivery Terms of IPP Solutions, LLC
1- Scope of Terms
1.1 These terms apply to all estimates, offers, Sales Orders, and Change Orders by IPP Solutions, LLC. These terms supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, both written and oral, with respect to any completed or potential sales, unless a separate overriding written contract has been entered into and signed by the parties. Any contrary or deviating terms by a customer will not be recognized regardless of when IPP Solutions, LLC became aware of them. Any deviations from these terms will only be valid if they are confirmed by IPP Solutions, LLC in writing by an authorized agent. Amendments, addenda or ancillary agreements must likewise be confirmed in writing by IPP Solutions, LLC
1.2 These terms will apply without further agreement to all future transactions with the same customer.
2 - Offers or Estimates
2.1 All offers, estimates or price listings (either oral or in writing) by IPP Solutions, LLC are subject to change unless otherwise stated by IPP Solutions, LLC in writing.
2.2 An offer by IPP Solutions, LLC shall only become an “Agreement” upon acceptance by the Customer. Customer shall be deemed to have accepted this offer by forwarding a completed IPP Solutions, LLC Sales Order, commencement of performance called for in the Sales Order, by IPP Solutions, LLC's receipt of payment by or on behalf of Customer referencing a specific Sales Order provided to IPP Solutions, LLC, or by any other act or communication constituting acceptance, whether or not any such acceptance or confirmation purports to state terms additional or different from these stated herein. IPP Solutions, LLC hereby expressly objects to and rejects any such additional or different provisions, and none of such provisions shall be deemed to be a part of the Agreement unless specifically agreed to in writing by IPP Solutions, LLC.
2.3 Any appurtenant documents to an offer, such as: illustrations, drawings, or weights and measurements, are only approximate unless specified explicitly as binding in writing by IPP SOLUTIONS, LLC. IPP SOLUTIONS, LLC reserves all ownership and copyrights to such illustrations, drawings, cost estimates, calculations or other documents. They may not be made accessible to third parties without the written consent of IPP SOLUTIONS, LLC. They must be returned immediately to IPP SOLUTIONS, LLC when the order falls through or as soon as the order has been completed.
3 - Purchase Price and Terms
3.1 IPP SOLUTIONS, LLC's prices exclude packaging, shipping, assembly and tax, which will be charged separately. Costs for inspections, reports or certificates by any governmental entity or inspection authorities will likewise be charged separately.
3.2 Unless otherwise agreed in writing, payments are due in full as follows: 50% of the purchase price upon placement of the order, and the reminder shall be paid in full upon shipment.
3.3 If any amount due is not paid when due, interest will be added to and payable on all overdue amounts at 0.5% per month,
compounded monthly, or the maximum percentage allowed under applicable law, whichever is less. Customer shall pay all costs of collection, including without limitation, incurred attorney fees.
4 - Delivery and Acceptance
4.1 Dates for delivery and services (e.g. warranty inspections or repairs) will only be approximate unless IPP SOLUTIONS, LLC explicitly confirms them in writing to the Customer as binding. Acceptance of the goods occurs 48 hours after delivery of the goods to the Customer when Customer fails to notify IPP SOLUTIONS, LLC of any deficiency of the goods based on an initial inspection. Unless otherwise specified in writing, IPP SOLUTIONS, LLC will not provide any assembly, installation, or testing of the delivered equipment, or issue any certifications that the equipment is operating in conformance with any particular specifications.
4.2 In the case of a delivery deadline specified as binding, the delivery period will commence upon IPP SOLUTIONS, LLC’s receipt of the order confirmation by the Customer but not before all technical and business details have been settled and all documents, permits or approvals to be obtained by the Customer have been submitted and the down payment received.
4.3 Any changes requested by the Customer to the products to be delivered within the delivery period will extend the delivery period.
4.5 The delivery deadline will have been complied with where the delivery item left the IPP SOLUTIONS, LLC facility or IPP SOLUTIONS, LLC's supplier facility before the deadline.
4.6 IPP SOLUTIONS, LLC has the right to make partial deliveries or render only a partial range of services at any time.
4.7 Even where there are agreed binding deadlines and delivery periods IPP SOLUTIONS, LLC will not be liable for delivery and performance delays where it is in arrears with delivery due to force majeure or events significantly impairing or impeding delivery by IPP SOLUTIONS, LLC. This includes but is not limited to, strikes, lock-outs or official orders, even where they occur to the suppliers of IPP SOLUTIONS, LLC. IPP SOLUTIONS, LLC will have the right to postpone its delivery or service for the period of delay plus an adequate run-up time or to rescind the contract wholly or partially on the basis of the non-performed part. IPP SOLUTIONS, LLC will use it s best efforts to notify the Customer of the start, end and anticipated duration of the aforementioned circumstances.
4.8 IPP SOLUTIONS, LLC will not be in arrears with delivery where IPP SOLUTIONS, LLC has provided the Customer with a replacement for the period until delivery of the actual item which meets the technical and functional requirements of the Customer. Under such circumstances, IPP SOLUTIONS, LLC will assume all costs incurred for provision of the replacement item. The same will apply in the case where the replacement item fails.
4.9 In the case of delay by IPP SOLUTIONS, LLC the Customer will stipulate to an adequate period of grace for performance of the contract by IPP SOLUTIONS, LLC.
4.10 Where IPP SOLUTIONS, LLC is in arrears and damage is thereby incurred, Customer will only have the right to demand flat-rate default compensation which will be limited to 0.5 % for each full week of delay, but at maximum 5% of the value of the part of the total purchase which was unable to be used on time or in accordance with the contract due to the delay. Where in the case of delay the Customer concedes to IPP SOLUTIONS, LLC an adequate period for performance, taking into account the exceptions stipulated by law, and the period is not met by IPP SOLUTIONS, LLC, the Customer will have the right to rescission within the framework of the statutory provisions. All claims arising from delayed delivery are covered by the flat-rate default compensation.
5 - Risk of Loss during Transport
5.1 Unless otherwise agreed in writing, the transport of the delivery items will be at the expense and risk of the Customer. Risk of loss will pass to the Customer when the product leaves the IPP SOLUTIONS, LLC facilities or the facilities of IPP SOLUTIONS, LLC’s supplier even where partial deliveries are made or IPP SOLUTIONS, LLC assumed payments such as shipping costs or delivery or assembly.
5.2 Where an inspection of the goods and final acceptance is agreed to by IPP SOLUTIONS, LLC in writing, risk of loss will pass at that time. Such an inspection must be carried out immediately at the inspection date or alternately after IPP SOLUTIONS, LLC notifies Customer of the readiness for inspection. The Customer may not reject the goods solely on the basis of a minor defect.
5.3 Where shipping or inspection and acceptance of goods is delayed or is not carried out due to circumstances not attributable to IPP SOLUTIONS, LLC, the risk will pass to the Customer from the date of notification of readiness for shipping and inspection and acceptance.
5.3 Only at Customer's specific request and at its expense, IPP SOLUTIONS, LLC will acquire theft, breakage, transport, fire and water damage insurance or insurance for other insurable risks.
5.4 Where the Customer is in arrears with acceptance or breaches any other cooperation duties, IPP SOLUTIONS, LLC will have the right to demand compensation for the damage incurred, including any additional expenditure, in particular due to delayed acceptance. This includes but is not limited to storage fees.
6 - Returns
6.1 No non-warranty returns will be accepted after Acceptance for any used or special order products. Special order products include any custom designed or color application to any equipment.
6.2 The Customer shall retain the right for ninety (90) days after acceptance to return new – non customized products if: (i) Customer has fully complied with all terms of this agreement including timely payment of the purchase price, and (ii) upon inspection by IPP SOLUTIONS, LLC. IPP SOLUTIONS, LLC determines that the product’s use has been limited and in its’ sole discretion is eligible for return. A refund will be forwarded to Customer after deduction for all expenses incurred by IPP SOLUTIONS, LLC (including but not limited to all shipping, handling, packaging, training and staffing expenses) and a restocking fee of 25% of the original purchase price.
7 - Retention of Title
7.1 IPP SOLUTIONS, LLC will retain legal title to the delivered products until all payments for the products have been tendered to IPP SOLUTIONS, LLC in full. In the case of any delayed payment due to IPP SOLUTIONS, LLC, IPP SOLUTIONS, LLC will have the right to take back the delivered product. Upon demand the Customer is obligated to return the item to IPP SOLUTIONS, LLC at Customer’s expense.
7.2 Until such time as Customer obtains legal title to the delivered products, Customer shall refrain from causing any damage or encumbrance being placed on the delivered products, or transfer possession or any ownership interest. Customer will obtain insurance covering the delivered products against theft, breakage, fire, water and other customary insurable risks, and provide that IPP SOLUTIONS, LLC is to be named as an insured. IPP SOLUTIONS, LLC may demand proof that an adequate insurance policy exists covering these products.
7.3 In the event Customer seeks bankruptcy protection, IPP SOLUTIONS, LLC will possess the right to rescind the agreement and Customer agrees to immediately return the delivered products to IPP SOLUTIONS, LLC at Customer’s expense.
8 - Warranty
8.1 The following Warranty applies to the sale of new equipment,( excluding all consumable products) for one (1) year from the date of Delivery (the Warranty Period), in addition to any warranty offered by any manufacturer, IPP SOLUTIONS, LLC warrants that the equipment sold to Customer shall be free from defects in material or manufacturing workmanship. Further, IPP SOLUTIONS, LLC warrants that any equipment sold by IPP SOLUTIONS, LLC under these terms shall operate in conformance with the marketing and advertising material provided to Buyer by IPP SOLUTIONS, LLC. Further, IPP SOLUTIONS, LLC warrants that all service repairs shall be free from defects in material and workmanship for the balance of the Warranty Period or ninety (90) days after the repair is completed (whichever is longer). Items sold by IPP SOLUTIONS, LLC that constitute consumable products, including but not limited to brushes, liners, spot repair kits, T liner materials, resin, etc.
8.2 IPP SOLUTIONS, LLC warrants that used equipment sold to Customer shall be free from defects in material or manufacturing workmanship for a period of ninety (90) days from the date of delivery.
8.3 IPP SOLUTIONS, LLC equipment is used on job sites in the most demanding applications and environments. Under these conditions, and over time, IPP SOLUTIONS, LLC products may experience normal ware and tear. Wear and tear is not considered a defect and is not covered by the IPP SOLUTIONS, LLC Warranty This Warranty shall become null and void in the event the equipment is not maintained or serviced or used in strict compliance with the manufacturer’s or IPP SOLUTIONS, LLC’s use and maintenance requirements and recommendations.
8.4 Customer waives any and all rights under this Warranty unless Customer (i) provides written notification to IPP SOLUTIONS, LLC of any claim under the Warranty within five (5) days of discovering the basis for the warranty claim, and (ii) provides IPP SOLUTIONS, LLC with the opportunity to inspect and test parts claimed by Customer to be defective. If IPP SOLUTIONS, LLC confirms that the equipment is defective, IPP SOLUTIONS, LLC will use reasonable means to have a “loner” piece of replacement equipment shipped to Customer, and IPP SOLUTIONS, LLC will pay for the defective equipment to be either repaired or shipped to an IPP SOLUTIONS, LLC repair facility, at IPP SOLUTIONS, LLC’s discretion. Customer will have full use of the loner equipment until the defective equipment has been repaired or replaced.
8.5 This Warranty does not extend liability of IPP SOLUTIONS, LLC for any consequential costs or damages that are attributable to any defective equipment.
8.6 This Warranty does not cover any claims relating to: natural wear and tear; unsuitable or improper use; defective assembly or operation by the Customer or third parties; use of improper component parts or equipment; use of improper replacement or consumable materials and parts; or impact damage to the equipment. This list is not exhaustive.
Limited Warranty. Company warrants its goods to be free of manufacturing defects. Goods manufactured by Company will comply with all applicable federal, state and local laws and regulations. Company makes no warranty as to any parts or equipment manufactured by others. Customer shall look solely and only to the manufacturer of such parts or equipment with respect to any warranty claims. Company hereby assigns to Customer the original manufacturer’s warranties to all such equipment and parts, to the full extent permitted. THE AFORESAID IS THE EXCLUSIVE WARRANTY AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. SPECIFICALLY, THERE ARE NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
Limitation of Liability. COMPANY’S LIABILITY FOR DEFECTIVE OR NON-CONFORMING GOODS SHALL BE LIMITED TO, AND SHALL IN NO EVENT EXCEED, THE AMOUNT PAID BY CUSTOMER FOR SUCH DEFECTIVE OR NON-CONFORMING GOODS. UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE FOR ANY SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR LOST PROFITS. In no event may any claim by Customer arising from or relating to any sale of any goods or services referenced herein be brought more than one year after the date of delivery of such Goods
9 - Indemnification
9.1 Customer shall indemnify and hold IPP SOLUTIONS, LLC, its trustees, officers, employees, and agents harmless from any loss, lawsuit, liability, damage, cost and expense (including incurred attorney fees) which may arise out of or result from: (i) claims by third parties against IPP SOLUTIONS, LLC that the products Customer acquired from IPP SOLUTIONS, LLC caused damage to property or bodily injury (including death); or (ii) the acts or omissions of the Customer, its agents or employees; or (iii) any defects in any product supplied by IPP SOLUTIONS, LLC other than warrantee claims as asserted herein above.
9.2 The invalidity in part of any of the foregoing paragraph will not affect the remainder of such paragraph.
10 - Software Use
10.1 Where software going beyond the operating manual is included with the delivered product, the Customer is provided with a nonexclusive limited license to use this software. It is being provided for use on the intended delivery item only. Use of the software with or on anything other than the one system that was delivered is prohibited.
10.2 All other rights to the software and the documentation, including the copies will remain with IPP SOLUTIONS, LLC or the software supplier. No sub-licenses are permitted.
11 - Construction and Jurisdiction
11.1 It is agreed that this agreement shall be governed by the laws of the State of California (excepting any conflict of laws or provisions which would serve to defeat application of California substantive law) regardless of the local of the Customer. The parties hereto irrevocably and unconditionally: (i) consent to submit to the exclusive jurisdiction of the courts of San Diego County, California for any proceeding arising in connection with this agreement and each such party agrees not to commence any such proceeding except in such courts; and (ii) waives any objection to the laying of venue of any such proceeding in the courts of San Diego County, California. If for any reason venue is not accepted in San Diego County, the parties irrevocably consent as provided in this Section to the exclusive jurisdiction of the Courts of Orange County, California.
12 - Attorney Fees
12.1 In the event any legal action is commenced that in any way relates to this agreement or the relations of Customer and IPP SOLUTIONS, LLC, the party that prevails in that action shall be entitled to incurred attorney fees in addition to all of damages they are entitled to.
13 - Headings
13.1 The paragraph titles of this agreement are for convenience only and shall not define or limit any of these provisions.
14 - Entire Agreement
14.1 These Terms, and the documents referenced, are intended as the complete and exclusive statement of the agreement with respect to the subject matter hereof, and supersede all prior discussions, agreements and negotiations whether written or oral, related to this matter.
15 - Binding Effect
15.1 The provisions of these Terms shall inure to the benefit of and be binding upon the parties, their respective successors and permitted assigns, or with or into which the party may be consolidated, merged, or otherwise reorganized, and this provision shall apply in the event of any subsequent merger, consolidation, reorganization or transfer of either party.
16 - No-Waivers
16.1 Any waiver by any party of any breach of any provision of these Terms shall not operate nor be construed as a waiver of any subsequent breach, and the waiver by any party to exercise any right or remedy shall not operate nor be construed as a waiver or bar to the exercise of such right or remedy upon the occurrence of any subsequent breach.
17 - Modifications
17.1 No change, modification or waiver of these Terms shall be valid unless it is in writing and signed by the parties who are to be bound by the modification.
18 - Severability
18.1 If any provision, or part of any provision, of these Terms is held invalid, unenforceable, or void by a court of competent jurisdiction, these Terms shall be considered divisible as to such provision or part thereof, and the remainder of the Terms shall be valid and binding as though such provision or part thereof was not included.