Terms and Conditions of Service
Made To Measure, LLC (“M2M”) does business with Customers under the legally binding terms and conditions set forth herein:
- APPROVAL OF ORDERS: All orders must be in writing or sent via EDI. No verbal orders will be accepted. All Customer purchase orders for services are subject to acceptance by M2M. Any statement in an order document that is not expressly approved or acknowledged in writing by M2M will not be considered a part of the agreement between the parties.
- TERMS OF SALE: Invoices will be issued and dated as of the date of service. Customers may not make deductions or offsets of any kind from payments due M2M unless Customer has received expressed written permission to do so. Requests for Order changes and cancellations must be in writing and received by M2M within 24 hours of placement of Order. Customers will be responsible for paying M2M costs plus 10% of the Order price at the time of cancellation. M2M provides independent consulting services and, therefore, all services are made to Customers on a non-exclusive basis.
- PRICES AND PAYMENT: Payments should be remitted to the payment address noted on the M2M invoice. M2M shall have the right to change prices on services at any time without prior notice, except with respect to orders which have been accepted by M2M prior to such price modifications. Prices exclude all taxes. Customer shall pay all taxes imposed on either party by virtue of the Order. Customer shall provide M2M with exemption certificates for all re-sales. M2M will invoice Customer for any of the taxes that M2M is legally obligated to collect from Customer.
- DELIVERY: Regardless of the actual service or shipment date, Customer will not be excused from its obligation to pay for Services or for any of its other obligations. M2M SHALL NOT BE LIABLE FOR ANY DAMAGES, WHETHER INCIDENTAL, CONSEQUENTIAL OR OTHERWISE, FOR FAILURE TO FILL ORDERS, DELAYS IN DELIVERY OR ANY ERROR IN THE FILLING OF ORDERS. If work product is shipped, M2M’s responsibility for delivery will cease when carrier signs for shipment to destination as specified. M2M may make partial shipments on Customer orders, which shipments may be separately invoiced and shall be paid for when due, without regards to subsequent shipments. Delay on shipment or delivery of any particular installment shall not relieve Customer of its obligation to accept the remaining installments. Regardless of the party paying freight charges, all risk of loss or damage in transit will be borne by Customer. All claims for damage to, or loss of, Products must be made by Customer directly to the carrier or its insurance company (as the case may be).
- TRANSPORTATION COSTS: Unless otherwise agreed to in writing on the front of this Order, Customer bears all transportation costs.
- APPROVAL and CLAIMS for ADJUSTMENT: The Customer acknowledges that it has inspected, examined and studied all plans, specifications, prints, drawings, and material lists furnished by M2M and that it has approved all of the same. Claims for adjustments on unsatisfactory services or work product due to the alleged fault of M2M must be made to M2M within three (3) days of receipt of work product. All such claims for adjustments shall be made in writing and provide a detailed explanation as to the unsatisfactory condition of the services provided or work product. Requests for adjustments must be made to M2M directly. EXCEPT FOR THE FOREGOING, M2M HEREBY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY WITH REGARD TO ANY CLAIM OF INFRINGEMENT THAT MAY BE PROVIDED IN SECTION 2-312 (3) OF THE UNIFORM COMMERCIAL CODE AND/OR IN ANY OTHER COMPARABLE STATE STATUTE RESPECTING PRODUCTS IS EXPRESSLY EXCLUDED. M2M HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT PRODUCTS ARE COMPATIBLE WITH ANY COMBINATION OF NON-M2M PRODUCTS USED IN CONNECTION WITH THE PRODUCTS.
- DEFAULTS & ATTORNEYS FEES & COSTS: If Customer becomes delinquent in payment obligations or other credit or financial requirements, or if in the opinion of M2M, Customer’s credit becomes impaired, M2M may (a) declare all sums immediately due and payable, notwithstanding any credit terms previously in effect, (b) refuse any order placed by Customer, (c) cancel any accepted orders or delay shipment of any order, (d) require Customer execute a promissory note(s), security agreement(s), financial statement(s) and such other instruments as M2M, in its sole discretion, deems necessary for M2M’s protection, and (e) require all payments be on a cash-in-advance basis even if credit was already extended to Client. In the event Customer fails to make payment in full or becomes delinquent in its payment obligations or other credit or financial requirements, Customer agrees to pay M2M all reasonable collection costs and all reasonable attorney’s fees and costs incurred by M2M in any demand for payment, collection, claim, action, lawsuit or appellate proceeding and in executing on any judgment.
- LIMITATION OF LIABILITY: THE LIABILITY OF M2M, IF ANY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIM OF ANY KIND WHATSOEVER, REGARDLESS OF LEGAL THEORY, WILL NOT BE GREATER THAN THE ACTUAL PRICE PAID UNDER THIS ORDER FOR THOSE SERVICES WITH RESPECT TO WHICH SUCH CLAIM IS MADE. UNDER NO CIRCUMSTANCES WILL M2M BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES RELATIVE TO THE SERVICE, PRODUCT OR ANY ORDER OF SERVICES OR PRODUCTS INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR COMPENSATION, REIMBURSEMENT OR LOSS OF PRESENT OR PROSPECTIVE PROFITS, EXPENDITURES, INVESTMENTS OR COMMITMENTS, WHETHER MADE IN THE ESTABLISHMENT, DEVELOPMENT OR MAINTENANCE OF BUSINESS REPUTATION OR GOODWILL, COST OF CAPITAL, OR FOR ANY OTHER REASON WHATSOEVER, INCLUDING BUT NOT LIMITED TO, THE CLAIMS OF ANY THIRD PARTY. M2M will be excused from any default in its obligations hereunder, resulting from any act or event beyond their reasonable control or responsibility, including, but not limited, acts of God. BUYER’S REMEDY FOR ANY AND ALL ECONOMIC DAMAGES SHALL BE STRICTLY LIMITED AS STATED HEREIN.
- MISCELLANEOUS: These Terms and Conditions contain the entire agreement between M2M and Customer and supersede all prior negotiations and agreements, whether oral or in writing, as to the subject matter hereof. If any provision hereof is determined to be invalid, illegal or unenforceable, in whole or in part, the remaining provisions will remain in full force and effect. This Order shall be governed by and interpreted in accordance with the laws of the State of Illinois. Any action or proceeding brought in relation to this Order shall be brought in the appropriate court sitting in DuPage County, Illinois. Each of the parties hereby submits itself to the exclusive jurisdiction and venue of such courts for purposes of any such action and agrees that any service of process may be affected anywhere in the world. This Order shall inure to the benefit of M2M and its legal representatives, successors and assigns.
Terms and Conditions of Equipment
- OFFER OF SALE. The terms and conditions found on the quotation and those provided below constitute an offer for sale of Products. Unless otherwise provided herein, offers are available for acceptance for a period of 60 days from the date of this offer. An order by Customer shall constitute an acceptance of these terms and conditions of sale.
- PURCHASE ORDERS. Purchase orders may be placed by Customer by facsimile or electronic transmission. The purchase order must specify the Products, specifications related therein, quantity, price, total purchase price, shipping instructions, requested delivery dates, “bill to” and “ship to” addresses, tax exempt certifications, if applicable, and any other special instructions. Any contingencies contained on such order are not binding upon Seller until Seller gives express written acceptance of such contingencies. All purchase orders must be accepted by Seller. Seller reserves the right to correct clerical errors in any quotation or Purchaser Order referencing a quotation containing such errors. The Purchase Order, quotation and these Terms shall constitute the contract between the parties for the purchase of Products and/or services identified in the accepted Purchase Order or quotation.
- PRICE, TAXES AND OTHER CHARGES. All prices are in US dollars. Sales Tax will be charged on all products if a tax exemption certificate is not submitted with the purchase order. In addition to payment of the price of the Products, the Buyer agrees to pay Seller, either as included on the original invoice for the Products or as may be subsequently invoiced, for use, excise or any other taxes or assessments paid or required to be paid by Seller with respect to the order.
- RISK OF LOSS, INSURANCE. Risk of loss or damage and insurance responsibilities pass to Buyer upon delivery to carrier.
- SHIPMENT AND DELIVERY. Unless otherwise indicated on Seller’s quotation, shipments are FCA, with Seller’s delivery to carrier at its factory or such premises as indicated in the quotation. FCA is in accordance with International Chamber of Commerce Incoterms 2000. In the absence of specific instructions from Buyer, Seller may select the carrier and shipping route. Seller will invoice buyer for applicable freight and handling charges. If installation is included in the accepted quotation or Purchase Order, Seller shall be obligated only to provide such equipment as is specified in the quotation. Buyer is responsible for preparing the site for installation according to Seller’s instructions, including, among other things, providing electric power hookup, air supply, if required, or other special equipment as instructed by Seller.
- CANCELLATION AND RETURN. Cancellations are subject to a 20% cancellation fee that Buyer and Seller agree represents a reasonable estimate of the damages suffered by Seller for cancellation occurring prior to shipment. Cancellations must be accepted by Seller. Under no circumstances will cancellations be accepted after shipment, or after commencement of work on custom products.
- PAYMENT TERMS. a) Unless otherwise noted in quotation, terms are 50% upon acceptance of order, 40% upon shipment of products and 10% Net 30 from installation date or shipment. b) Past-due accounts will be charged interest at the rate of the lesser of 1 ½ % per month or the maximum amount permitted by applicable law on the amount due until fully paid. c) If installation is delayed at customer request, full payment is due thirty (30) days from date Product is shipped. d) Approved credit may be revoked at any time. e) Seller reserves the right to suspend manufacture and delivery upon failure of Buyer to make payments when due, which suspension shall not satisfy Buyer’s obligation to pay and may adversely affect delivery date. f) Buyer shall schedule installation, training or part programming services sold with the Product to take place within 12 months from the date of shipment. Title shall pass to Buyer only upon full payment by Buyer for the Products and services and following payment of any other outstanding debt by Buyer to Seller. Upon failure of Buyer to pay any amounts due to Seller, or in the event of any breach or anticipated breach by Buyer of any Contract with Seller, or if Buyer shall either (i) become insolvent, (ii) call a meeting of its creditors, or (iii) make any assignment for the benefit of creditors, or if (iv) a bankruptcy, insolvency, reorganization, receivership or reorganization proceeding shall be commenced by or against Buyer, then, in each such occasion, Seller may, at its sole discretion, opt to (1) cancel this and any other Contract with Buyer (without waiving any of Seller’s rights to pursue any remedy against Buyer); (2) claim return of any Products in the possession of Buyer, the title of which has not passed to Buyer, and enter Buyer’s premises (or the premises of any associated company or agent where such Products are located), without liability for trespass or any alleged damage, to retake possession of such Goods; (3) defer any shipment hereunder; (4) declare forthwith due and payable all outstanding bills of Buyer under this or any Contract; and/or (5) sell all or part of the undelivered Products, without notice at public and/or on private sale, while Buyer shall be responsible for all costs and expenses of such sale and be liable to Seller for any shortfall in the discharge of the amounts due to Seller. If Seller undertakes collection or enforcement efforts, Buyer shall be liable for all costs thereof, including attorneys’ fees and costs.
- WARRANTY. a) The warranty period for New Products installed by Seller in the USA, Canada and Mexico is thirty-six (36) months from the date of calibration/installation, not to exceed thirty-seven (37) months from date of shipment. The warranty period for Used Products installed by Seller in the USA, Canada and Mexico is twelve (12) months from the date of calibration/installation, not to exceed thirteen (13) months from date of shipment. All warranties are non-transferable and non-assignable. b) Seller warrants service parts and accessories for ninety (90) days from date of shipment. Seller warrants service labor for thirty (30) days from date of completion. c) Training, programming or other software services (including software crashes) carry no warranty. d) Seller will replace or repair, free of charge, any part or parts, which upon examination Seller finds defective in workmanship or material, provided that the part or parts of the machine are repaired by trained Made to Measure Equipment technicians. Seller shall not be liable or responsible for any expense or liability resulting from repairs, additions or modifications made upon the product without Seller’s written consent. e) Seller and its suppliers shall not be liable for any loss of use or downtime or lost production, revenue or profit, or for any special, consequential, incidental or indirect damages with respect to the purchase, sale, use or non-use of products, caused by defective material or unsatisfactory performance of products or services, whether such liability is based upon contract (including breach of a representation or warranty), tort (including negligence or strict liability), or other legal theory whatsoever, even if seller had notice of the possibility of such damages and even if any warranty or remedy is held to have failed in its essential purpose. SELLER DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES AND ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR PARTICULAR OR SPECIAL PURPOSES. SELLER’S SOLE WARRANTY LIABILITY SHALL BE DISCHARGED BY REPLACING OR REPAIRING ANY DEFECTIVE PART OR PARTS WITHIN THE WARRANTY PERIOD. ) Any and all warranties shall be void, unless Buyer maintains the equipment in accordance with Made to Measure Equipment CMM Start-up Work Instructions and Periodic Maintenance Schedule provide at time of installation. Unless otherwise specifically restricted by mandatory applicable law, Seller’s liability under any claim and in connection with any possible allegation, Product failure, repair, or otherwise, whether based on negligence, contract, or any other cause of action, shall be limited to either (i) the replacement of the Products or the supply of equivalent products; (ii) the repair, or payment of the cost of repair, of the Products; or (iii) credit in an amount equal to the purchase price specified in Seller’s pertinent invoice, or in an amount of equivalent products, all at Seller’s sole option.
- PRODUCT ACCEPTANCE. Machine acceptance tests are agreed to only by express written agreement of the parties. Products are deemed accepted no later than first commercial use.
- HARMLESS / INDEMNITY. Buyer hereby releases and agrees to defend, indemnify and hold Seller harmless from and against all claims, demands, suits and causes of action (“liability”) for property damage, personal injury or death, and all loss, costs, damages, expenses and attorneys’ fees and costs relating to the Products purchased and services rendered.
- SEVERABILITY. If any of these Terms & Conditions or any provision of the contract between Seller and Buyer is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such shall be deemed reformed or deleted, but only to the extent necessary to comply with such statute, regulation, ordinance, order or rule, and the remaining provisions shall remain in full force and effect.
- GOVERNING LAWS. Any contract arising out of the placing of an order by the Buyer and the acceptance by Seller shall be governed by the Laws of the State of Illinois. Any disputes hereunder will be heard in the appropriate federal and state courts located in DuPage County, State of Illinois.
- MISCELLANEOUS. This agreement merges the entire terms and conditions for sale of the Products and services. In the event of any conflict between the terms herein and any provisions included in the Approval of Order, the latter shall govern and prevail. Any and all intellectual property rights in connection with the Products, which are and shall always remain in the Seller’s exclusive and complete ownership under all circumstances whatsoever. The Buyer shall refrain at all times and for whatever purpose from infringing, contesting, disputing or questioning such rights, patents, trademarks, titles or interests, nor shall it aid or allow others to do so, regardless of whether directly or indirectly. No modification or waiver of any provision hereof shall become valid and effective except upon a written instrument duly signed beforehand by Seller. No waiver by either party of any default of the other party shall be deemed a waiver of any subsequent or other default. This agreement shall be binding upon the parties and their respective heirs, executors, administrators, successors, assigns and personal representatives. Seller may, without liability, delay performance or cancel this agreement on account of force majeure events or other circumstances beyond its control, including, but not limited to, strikes, acts of God, political unrest, embargo, failure of source of supply, or casualty.