Acceptance. Stockade USA, a division of Illinois Tool Works Inc. is herein referred to as “STOCKADE” and the customer purchasing products (“Products”) or services (“Services”) from STOCKADE is referred to as “Purchaser” These terms and conditions of sale (“Terms”), any STOCKADE quotation, acknowledgment or invoice and all documents incorporated by specific reference herein or therein (“STOCKADE Documents” and together with these Terms, the “Agreement”), constitute the complete terms governing the sale of Products and Services. STOCKADE 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 applicability or binding effect whether or not STOCKADE clicks on an “ok,” “I accept,” or similar acknowledgment. Commencement of any work by STOCKADE or Purchaser’s acceptance of delivery of any of the Products or Services will manifest Purchaser’s assent to the Agreement. Additional or different terms applicable to a particular sale may only be specified in the body of a STOCKADE Document or expressly 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 STOCKADE; (b) STOCKADE Document terms; (c) these Terms. Notwithstanding anything contained in the foregoing to the contrary, if a reference to these Terms is contained in any STOCKADE Document or writing executed by an authorized officer of STOCKADE, these Terms shall take precedence over any conflicting or contrary terms.
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. STOCKADE may refuse orders and has no obligation to supply Products or Services unless STOCKADE issues an order acknowledgement or upon the shipment of Products or commencement of Services.
Prices and Payment Terms. Prices are in U.S. Dollars and are subject to change without notice. All orders are accepted subject to STOCKADE’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 STOCKADE is subsequently required to pay any Fees, Purchaser shall fully defend and indemnify STOCKADE therefor. In addition, if a raw material, component, or service provider raises its prices, or imposes a surcharge on STOCKADE, or if the cost of any of STOCKADE’s inputs into the Products or Services increase, STOCKADE reserves the right to increase prices and/or surcharge Purchaser, and Purchaser agrees to accept such price increase or surcharge until the term of such cost increase or surcharge or until the termination of the contract to which these terms and conditions apply. If Purchaser objects to any price increase (regardless of the amount or cause of such increase), or if Purchaser refuses to provide a new purchase order reflecting such price increase, STOCKADE may, at its option, stop any or all future shipments of Products (regardless of whether such price increase affects or implicates such Products). Unless otherwise set forth in STOCKADE’s invoice, terms of payment are Net 30 (EOM). If Purchaser fails to make payment within 30 days after the end of the month in which STOCKADE’s invoice was sent, STOCKADE may: (a) take any actions allowable under law; (b) withhold shipment of any Products or performance of any Services; (c) demand the return of previously shipped goods; (d) institute new payment terms; and/or (e) cancel any purchase orders. In addition, Purchaser agrees to pay interest on overdue invoices at the rate of 1.5% per month, but not higher than the highest rate permitted by 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, including Fees, Purchaser agrees to indemnify STOCKADE for all associated costs and expenses incurred by STOCKADE, including reasonable attorney fees and court costs.
Orders. If a 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 purchase order purports to be a “Requirements Contract” (or something similar) but STOCKADE has not expressly agreed in writing to such requirements obligations, STOCKADE is not obligated to ship any Products beyond the quantity contained in any firm release that has been accepted by STOCKADE, and STOCKADE is not obligated to accept any future orders, purchase 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 STOCKADE shall be deemed an exclusive contract between STOCKADE and Purchaser. All orders are subject to minimum order quantities (“MOQ”) in effect at the time of shipment. STOCKADE reserves the right to refuse to process any purchase order or bill freight or other shipping charges for any order that does not meet current MOQ.
Credit Approval. All shipments are subject to approval by STOCKADE’s credit department. STOCKADE may invoice Purchaser and recover for each shipment as a separate transaction. If, in STOCKADE’s sole judgment, Purchaser’s financial condition is or becomes unsatisfactory, then STOCKADE 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.
Cancellation or Modification. STOCKADE may cancel any purchase order or release thereunder, or terminate any agreement relating to the purchase of STOCKADE’s Products or Services upon reasonable prior written notice to Purchaser. Once STOCKADE has accepted a purchase order or begun taking actions with respect to a purchase order, Purchaser cannot terminate, cancel, or modify such purchase order except with STOCKADE’s written consent and subject to the STOCKADE’s policies in effect at the time of such termination, cancellation, or modification 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. If Purchaser nonetheless repudiates the contract or notifies STOCKADE to proceed no further therewith, STOCKADE shall have the right to deliver all finished goods and goods in process, and Purchaser agrees to accept same and pay to STOCKADE the contract price for all finished goods plus reimbursement for STOCKADE’s cost of unfinished goods.
Inspection / Non-Conforming Shipments. Purchaser may inspect Products for a period of 15 business days immediately following delivery (“Inspection Period”). During the Inspection Period, Purchaser must notify STOCKADE in writing of any Products that do not conform to the specifications applicable to their sale within the Inspection Period and afford STOCKADE a reasonable opportunity to inspect such Products and cure any nonconformity. If Purchaser fails to provide STOCKADE such written notice of non-conformity within the Inspection Period, Purchaser will be deemed to have accepted the Products. Purchaser may not return any Product without STOCKADE’s prior written authorization. Any return authorized by STOCKADE must be made in accordance with STOCKADE’s return policies. Purchaser will be responsible for all costs associated with returns of Products and will bear the risk of loss or damage to such Products, unless STOCKADE 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.
Delivery. STOCKADE anticipates use of common carriers for shipment of Products. The carrier or STOCKADE may bill freight rates, and other shipping charges. Payments for such charges shall be paid by Purchaser directly to the carrier or to STOCKADE. All Products will be shipped ExWorks STOCKADE’s facility (Incoterms 2020). Shipping dates are approximate and are based upon prompt receipt of all necessary information from Purchaser. STOCKADE 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 STOCKADE and the delivering carrier within 15 business days from date of receipt of Products, of any damage or shortage, and afford STOCKADE 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.
Limited Warranty. STOCKADE provides certain limited warranties solely to, and for the benefit of, the end user of the Products as contained either: (a) on the written warranty statement provided with the Product; and/or (b) on STOCKADE’s website https://www.stockade.com/support/warranty-repair-servicing/. No warranty is extended to any distributor pursuant to these Terms. A distributor shall not provide any warranty to an end user other than the limited warranty contained in this Section 9. EXCEPT AS SET FORTH HEREIN, STOCKADE MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE).
Service Warranty. STOCKADE 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 STOCKADE’s sole liability, for a breach of the foregoing warranty is for STOCKADE, at its option, to re-perform the Services or credit Purchaser’s account for such Services.
Limitation of Liability and Remedies. STOCKADE WILL NOT BE LIABLE, AND PURCHASER WAIVES ALL CLAIMS AGAINST STOCKADE, FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, DOWN TIME, LOST PROFITS OR COMMERCIAL LOSSES, WHETHER OR NOT BASED UPON STOCKADE’S NEGLIGENCE OR BREACH OF WARRANTY OR STRICT LIABILITY IN TORT OR ANY OTHER CAUSE OF ACTION. IN NO EVENT WILL STOCKADE’S LIABILITY IN CONNECTION WITH THE AGREEMENT OR SALE OF STOCKADE’S PRODUCTS OR SERVICES EXCEED THE PURCHASE PRICE OF THE SPECIFIC PRODUCTS OR SERVICES AS TO WHICH THE CLAIM IS MADE.
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 STOCKADE’s Products, STOCKADE 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 STOCKADE believes to be reliable, but they are not guaranteed.
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 STOCKADE and all rights therein (collectively, “Intellectual Property”) will remain the property of STOCKADE 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 STOCKADE upon request from STOCKADE. 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 STOCKADE’s Products or receive the Services purchased from STOCKADE.
Use of Trademarks and Trade Names. Purchaser shall not use, directly or indirectly, in whole or in part, STOCKADE’s name, or any other trademark or trade name that is now or may hereafter be owned by STOCKADE (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 STOCKADE in writing. Purchaser hereby acknowledges STOCKADE’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 STOCKADE. 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 STOCKADE with respect to any efforts of STOCKADE to protect, defend or enforce its rights to the Trademarks. Should Purchaser cease being an authorized customer of STOCKADE for any reason, Purchaser shall immediately discontinue any formerly permitted use of STOCKADE’s name or the Trademarks.
Confidential Information. All information furnished or made available by STOCKADE 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 STOCKADE’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 STOCKADE; or (c) is legally made available to Purchaser by or through a third party having no direct or indirect confidentiality obligation to STOCKADE with respect to such information.
Audit. Unless agreed to in writing by an officer of STOCKADE, neither Purchaser nor any Purchaser representative, may examine or audit STOCKADE’s cost accounts, books or records of any kind or any matter, or any other data that STOCKADE, in its sole discretion, considers confidential or proprietary.
Infringement and Indemnification. Except as set forth below, STOCKADE 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 STOCKADE’s proprietary Product to Purchaser as such pertains to the subject matter of the Agreement (each, a “Claim”); provided, however, (a) Purchaser supplies STOCKADE written notice of such Claim immediately after the Purchaser has notice of such Claim, (b) Purchaser cooperates with STOCKADE in the defense and settlement of such Claim; and (c) Purchaser allows STOCKADE the right to defend and settle such Claim at STOCKADE’s expense If a suit or claim results in any injunction or order that would prevent STOCKADE 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 STOCKADE, otherwise cause STOCKADE to be unable to supply such parts or Products, STOCKADE may do one or more of the following: (i) secure an appropriate license to permit STOCKADE 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 STOCKADE cannot reasonably accomplish the actions specified in subsections (i) – (iii), then in STOCKADE’s sole discretion, STOCKADE may discontinue selling the part or Product without any further liability to Purchaser. Notwithstanding the foregoing, STOCKADE 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 STOCKADE, or (3) any part or Product or process that is designed or specified by Purchaser.
STOCKADE Employees. STOCKADE 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 STOCKADE or such STOCKADE employees.
Service Terms. The following terms and conditions apply to any on-site Services provided by STOCKADE:
Services will be provided at STOCKADE’s then current service rates or as otherwise agreed to by STOCKADE.
Purchaser shall prepare the site for the Services. If the site is not prepared for the Services upon STOCKADE service personnel’s arrival at the agreed upon time and date for Services, STOCKADE may charge Purchaser for any delay and/or travel time at STOCKADE’s regular service rates.
Purchaser shall provide STOCKADE 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.
STOCKADE may refuse, without any liability, to provide Services and to allow STOCKADE service personnel to suspend Services or vacate any site where, in STOCKADE’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 STOCKADE’s regular service rates.
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 STOCKADE service personnel.
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 STOCKADE caused by such cancellation.
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.
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.
Force Majeure. STOCKADE 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 STOCKADE’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 STOCKADE to perform.
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 STOCKADE’s prior written consent. Any attempted assignment will be void. STOCKADE 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.
Waiver. In the event of any default by Purchaser, STOCKADE may decline to ship Products or provide Services. If STOCKADE elects to continue shipping or otherwise fails to insist upon strict compliance with the Agreement, STOCKADE’s actions will not constitute a waiver of Purchaser’s default or any other existing or future default, or affect STOCKADE’s legal remedies.
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.
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.
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.
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 STOCKADE 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.