Terms & Conditions
By requesting a quote from or submitting an order to IM Supply, Buyer agrees that these Terms and Conditions govern all purchases of goods (and associated services) from IM Supply. No terms or conditions different from these Terms and Conditions (including government regulations, so-called “flowdown” provisions, and any other terms purported to be incorporated herein) will become part of any contract with IM Supply unless specifically approved in writing by an authorized IM Supply representative.
1. Title and Risk of Loss or Damage: As to goods delivered by Seller’s truck, title passes upon delivery at the place Buyer receives possession; and, thereafter, all risk of loss shall be on Buyer. All other sales are F.O.B., point of shipment, and Buyer takes title and assumes responsibility for risk of loss or damage at the point of shipment for such sales. Claims for goods damaged in transit are Buyer’s sole responsibility when not delivered by IM Supply distributor’s truck.
2. Taxes: Prices shown do not include sales tax or other taxes imposed on the sale of goods. Taxes now or hereafter imposed on sales or shipments will be added to the purchase price based on the rates imposed by the taxing authority having jurisdiction over the sale of the products to the Buyer. Buyer agrees to reimburse IM Supply for any such tax or provide IM Supply with acceptable tax exemption certificates.
3. Delivery: Shipping dates are approximate and are dependent upon prompt receipt of all necessary information by the Buyer. IM Supply shall not be liable for late delivery due to fire, strike, civil or military authority, war, insurrection or riot, unavailability of material or parts and for other causes beyond reasonable control of IM Supply. IM Supply shall not be liable for incidental or consequential damages arising from late delivery.
4. Installation: All equipment and supplies shall be installed by and at the expense of the Buyer unless otherwise stipulated in writing. IM Supply may furnish, at its option, engineers to supervise installation of the equipment. The expenses shall be borne by the Buyer. If performance of IM Supply under this contract is prevented, hindered, delayed or otherwise made impracticable by reason of strike, flood, riot, fire, explosion, war, unavailability of materials or parts, or any other casualty or cause beyond the control of IM Supply (hereafter called an “Event”), and which cannot be overcome by reasonable diligence and without unusual expense, IM Supply is excused from performance to the extent that it is necessarily prevented, hindered or delayed by an Event and for so long as the Event continues to prevent, hinder or delay the seller’s performance. Buyer accepts responsibility for all loss occurring during the installation of any and all products sold by IM Supply affected by an Event. IM Supply shall not be liable for incidental or consequential damages arising from late delivery.
5. Payment Terms: The parties hereto acknowledge and agree that the Buyer will pay the entire purchase price according to IM Supply’s terms of sale (10th PROX NET 30) or upon such other terms approved by IM Supply in writing or as previously agreed to in specific customer agreements. Retainage shall not apply, and Buyer shall not hold back any retainage from IM Supply even if retainage is part of any contract between Buyer and any other party, unless agreed to in writing by an IM Supply Officer. Payment is not contingent on Buyer’s ability to collect or obtain funds from any other party. Buyer expressly represents it is solvent at the time it places any purchase order with IM Supply. IM Supply, in its sole discretion, may determine that Buyer’s financial condition requires full or partial payment prior to manufacture or shipment. If Buyer fails to make any payment when due, IM Supply reserves the right to suspend or cancel performance. Buyer agrees to pay a finance charge on all amounts past due at the rate of 1.5% per month (18% per year) or the maximum lawful rate, whichever is more. In the event IM Supply retains legal counsel for the purposes of defending IM Supply against any claim asserted by Buyer against IM Supply, Buyer agrees to pay IM Supply’s reasonable attorney fees at the maximum allowed in the state which has or otherwise would have jurisdiction, whether suit was instituted or not, including all court costs or other expenses incurred as part of said legal representation. In the event the legal representation involves a claim of non-payment by Buyer, Buyer agrees to pay IM Supply its reasonable attorneys’ fee, being the greater of (a) those reasonable fees incurred, or (b) an amount not less than 15% of the total outstanding balance including, all accrued interest found due and owing, and court costs incurred to collect payment. IM Supply may apply payments to any outstanding invoices in its sole discretion unless Buyer provides specific payment direction contemporaneous with and as part of said payment. Notwithstanding any attempt by Buyer to limit its liability by noting on a check or voucher that the payment constitutes “payment in full”, same shall be considered a “request” for IM Supply’s approval, and shall be considered by IM Supply provided it is sent by certified mail, return receipt requested, to IM Supply at 9101 LBJ Freeway Suite 420, Dallas, TX. 75243, Attn: Accounts Receivable Manager, and thereafter Buyer either receives a written acknowledgement from the Accounts Receivable Manager acknowledging same, or obtains a written Release signed by the Accounts Receivable Manager or a corporate officer of IM Supply releasing Buyer from further liability based upon said payment. IM Supply will not be liable to honor checks marked “Payment in Full” if they are not sent and approved as instructed above.
6. Acceptance/Termination: Acceptance of any order is subject to credit approval by IM Supply, acceptance of the order by IM Supply and, when applicable, IM Supply’s Vendor (i.e. Manufacturers, vendors, or other third parties that provide goods to IM Supply for resale to Buyer). Buyer expressly represents it is solvent at the time it places any purchase order with IM Supply. Buyer agrees to furnish IM Supply Financial Statements upon request. IM Supply, in its sole discretion, may determine that Buyer’s financial condition requires full or partial payment prior to manufacture or shipment. If Buyer fails to make any payment when due, is otherwise in default under the terms of this Credit Application, or if IM Supply has reason to believe Buyer is insolvent, IM Supply reserves the right to suspend or terminate performance without any liability to IM Supply. Buyer acknowledges that no specifications, conditions, Purchase Orders, contracts, or other documents submitted by Buyer to IM Supply attempting to modify, revise or otherwise impose Terms of Sale or performance upon IM Supply other than as provided herein shall act to modify these Terms and Conditions of Sale or otherwise obligate IM Supply to perform pursuant to said document(s), unless and until same have been approved by IM Supply in a separate writing executed by a IM Supply Officer. No other IM Supply employee or agent has the authority to modify these Terms & Conditions of Sale, either verbally or in writing. Seller objects to and rejects any terms between Buyer and any other party, and no such terms, including but not limited to any government regulations or “flow-down” terms, shall be a part of or incorporated into any order from Buyer to IM Supply, unless agreed to in writing by an Officer of IM Supply.
7. Warranties: This general warranty policy supersedes any other warranties contained in plans or specifications or which a quotation or proposal for IM Supply may be based and cannot be expanded without the prior and specific written consent of IM Supply, signed by a corporate officer or manager. IM Supply shall have no obligation to perform under the terms of this warranty provision as long as there is a past due balance owed to IM Supply by Buyer or Buyer is otherwise in default under these Terms and Conditions of Sale. IM Supply will extend to Buyer all transferable warranties made to IM Supply by the manufacturers or suppliers of materials. IM SUPPLY MAKES AND GIVES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND IT IS EXPRESSLY UNDERSTOOD THAT IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY EXCLUDED WITH RESPECT TO ANY AND ALL GOODS, MATERIALS OR SERVICES FURNISHED BY IM SUPPLY. IM Supply does not guaranty that the goods it sells conform to any plans and specifications or intended use. When plans and specifications are involved, Buyer is solely responsible for verifying Seller’s interpretations of such plans and specifications, and its Buyer’s sole responsibility to assure that IM Supply’s Goods will be accepted on any specific job. When IM Supply offers substitute goods on any proposal, Buyer is solely responsible for confirming their acceptability. No repair of goods or other costs are assumed by IM Supply unless agreed to, in advance, in writing.
8. Limited Liability: IM Supply shall not under any circumstances and for any reason whatsoever, be liable for special or consequential damages to the Buyer, including, but not limited to damages or loss of other property or equipment, loss of profits or revenue, costs of purchase or replacement goods, delays or claims asserted by parties in contract with Buyer. Any warranty remedy of Buyer shall be with respect and limited to any warranty extended by the Manufacturer. The remedy of the Buyer set forth herein is exclusive, and the liability of IM Supply with respect to any contract, or anything done in connection therewith such as performance or breach thereof, or from the sale, delivery, resale, installation or use of any goods sold, whether arising out of any contract negligence, strict tort, or under any warranty or otherwise, shall not exceed the price of the goods upon which such liability is based.
9. Indemnification: Buyer shall indemnify, defend, and hold IM Supply and its officers, directors, employees and agents harmless from any and all costs (including attorneys’ and accountants’ fees and expenses), liabilities and damages resulting from or related to any third party (including Buyer’s employees) claim, complaint and/or judgment arising from Buyer’s use of any goods furnished hereunder, as well as any negligent, intentional, or tortious act or omission of Buyer or any material breach by Buyer of these terms.
10. Venue for Other States: IM Supply and Buyer agree that the location of the branch receiving any purchase order shall be a proper place of venue and the laws of that state will apply.
11. Assignment: IM Supply and Buyer agree that IM Supply may assign all its right, title and interest in the account created hereby including without limitation, its collection remedies; and, Buyer hereby consents to any such assignment.
12. Cancellation: An order may be cancelled by the Buyer only if agreed to by IM Supply and upon payment of reasonable charges based upon expenses already incurred and commitments made by IM Supply.
13. Returned Goods Policy: All material to be returned should be accompanied by documentation providing IM Supply with the invoice number and date, product identification number, quantity of items to be returned and the reason for the return, along with the Return Merchandise Authorization (RMA) email/number.
All items are subject to a minimum of a 15% restocking fee. Shipping is nonrefundable.
Stock items: IM Supply will issue credit for material returned that meets the following conditions:
I. Material being returned should be delivered to IM Supply fulfilling supplier within 30 days of invoice date. After the expiration of said 30 day period, at IM Supply’s sole and absolute discretion, it may accept said materials for return in conjunction with the assessment of a reasonable re-stocking charge.
II. Notwithstanding the date of return, IM Supply shall have the right to reject any returned materials which are not of sufficient and reasonable quantity and in resalable condition, in the sole and absolute discretion of IM Supply.
III. Materials are not special ordered or specially fabricated.
IV. Material accepted for return after 30 days may be assessed an additional restocking charge.
14. Entity Status Change: In the event of any change in the legal status of the person or entity submitting orders on behalf of buyer, or a transfer of a majority of the assets of the Buyer to a third party, the person or legal entity purchasing and all guarantors, shall remain liable, jointly and severally, for all purchases made and charged to the account subsequent to said change or transfer, including, but not limited to, the Terms and Conditions of Sale, until such time as IM Supply acknowledges in writing by a corporate officer of IM Supply that it has received written notice of such change or transfer, after which Buyer will remain liable until all amounts due on the account to the date of such notice having been received and the account has been paid in full.
15. Trust Funds: Buyer agrees that all funds owed to Buyer from anyone or received by Buyer to the extent those funds result from the materials supplied by IM Supply, shall be held in trust for the benefit of IM Supply (“Trust Funds”). Buyer agrees it has no interest in Trust Funds held by anyone and to promptly account for and pay to the IM Supply all Trust Funds.
16. Exporting: Buyer acknowledges that this order and the performance thereof are subject to compliance with all applicable United States laws, regulations, or orders. Buyer agrees to comply with all such laws, regulations, and orders, including, if applicable, all requirements of the International Traffic in Arms Regulations and/or the Export Administration Act, as may be amended. Buyer further agrees that if the export laws are applicable, it will not disclose or re-export any technical data received under this order to any countries for which the United States government requires an export license or other supporting documentation at the time of export or transfer, unless Buyer has obtained prior written authorization from the United States Office of Export Control or other authority responsible for such matters. Buyer NOT Seller is responsible for compliance with all United States export control rules and regulations. Buyer shall not name seller as shipper or exporter of record in connection with the export of any Goods purchased from Seller.
17. Certification: IM Supply hereby certifies that these goods were produced in compliance with all applicable requirements of Sections 6, 7, and 12 of the Fair Labor Standards Act, as amended, and of regulations and orders of the United States Department of Labor issued under Section 14 thereof. This agreement is subject to Executive Order 11246, as amended, the Rehabilitation Act of 1973, as amended, the Vietnam Veterans’ Readjustment Assistance Act of 1974, as amended, E.O. 13496, 29 CFR Part 471, Appendix A to Subpart A, and the corresponding regulations, to the extent required by law. 41 CFR 60-1.4, 60-741.5, and 60-250.5 are incorporated herein by reference, to the extent legally required.
18. Foreign Corrupt Practices Act: Buyer shall comply with applicable laws and regulations relating to anti-corruption, including, without limitation, (i) the United States Foreign Corrupt Practices Act (FCPA) (15 U.S.C. §§78dd-1, et. seq.) irrespective of the place of performance, and (ii) laws and regulations implementing the Organization for Economic Cooperation and Development’s Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the U.N. Convention Against Corruption, and the Inter-American Convention Against Corruption in Buyer’s country or any country where performance of this agreement or delivery of goods will occur.
19. Notices: Unless otherwise specifically provided herein, all notices to be given by Applicant or guarantor(s) shall be given in writing delivered to the attention of IM Supply’s Operations Manager, 9101 LBJ Freeway – Suite 420, Dallas, TX 75243.
THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES, AND MAY NOT BE ALTERED EXCEPT IN WRITING SIGNED BY A CORPORATE OFFICER OF IM SUPPLY AND THE BUYER, AND, SHALL BE CONSTRUED ACCORDING TO THE LAWS OF THE STATE IN WHICH VENUE IS PROPER AND AS PROVIDED HEREIN.