For further information, please contact your representative in the Sales or Parts Department, Terramac at (630) 365-4800.

Terramac is referred to herein as “Seller” and the customer purchasing Goods and/or Services pursuant to the attached quotation (the “Order”) is referred to herein as “Buyer.” Buyer’s acceptance of Goods and/or Services sold by Seller pursuant to the attached Order, or agreement to the Order by Buyer via confirmation e-mail or otherwise, shall manifest Buyer’s assent to these terms and conditions, (the “Terms and Conditions”) including, but not limited to, SELLER’S DISCLAIMER OF WARRANTIES IN SECTION 3 AND THE LIMITATION OF LIABILITY IN SECTION 4. Notwithstanding any other provision in the Terms and Conditions or any purchase order or other document provided by Buyer, any proposal by Buyer for additional or different terms or attempt by Buyer to vary any of the terms set forth herein shall not operate as a rejection of these Terms and Conditions but shall be deemed to be a material alteration thereof, and these Terms and Conditions shall be deemed accepted by Buyer without said additional or different terms. Purchase orders and invoices exchanged between the parties will be for administrative purposes only and shall not supersede or supplement these Terms and Conditions.

1. Excuse of Performance:
   1. Seller’s performance of the services purchased via this Order (the “Services”) or delivery of the goods purchased via this Order (the “Goods”) under these Terms and Conditions may be suspended by Seller in the event of: Act of God, war, terrorist attack, riot, fire, explosion, accident, flood or sabotage; lack of adequate fuel, power, raw materials, labor, containers or transportation facilities; compliance with governmental requests, laws, regulations, orders or actions; breakage or failure of machinery or apparatus; national defense requirements or any other event, whether or not of the class or kind enumerated herein, beyond the reasonable control of Seller; or in the event of labor trouble, strike, lockout or injunction; which event makes impracticable the performance of such Services or the manufacture, transportation, acceptance or use of a shipment of the Goods or material upon which the manufacture of the Goods is dependent. In such event, Seller shall not be deemed to be in breach of this Order or otherwise liable for any costs, charges or losses sustained or incurred by Buyer to the extent arising directly or indirectly from such prevention or delay.
   2. If Seller determines that its ability to supply the total demand for the Goods, or obtain any or a sufficient quantity of any material used directly or indirectly in the manufacture of the Goods is hindered, limited or made impracticable, Seller may allocate its available supply of the Goods or such material (without obligation to acquire other supplies of any such Goods or material) among itself and its purchasers (including Buyer) on such basis as Seller determines without liability for any failure of performance which may result therefrom.
2. Shipments and Delivery:
   1. No purchase order shall be binding upon Seller unless Seller has accepted the purchase order in writing, which may be done via confirmation e-mail. Once accepted by Seller, the purchaser order shall be non-cancelable by Buyer. The quantity shipped in any month may be limited by Seller to either: (a) the average of the monthly quantities ordered by Buyer for the preceding months or (b) the maximum quantity covered by this Order divided by the number of months in the Order. Seller shall not be bound to tender delivery of any quantities for which Buyer has not given shipping instructions. Any shipment or delivery date provided, in an Order or otherwise, is an estimate only and Seller shall use reasonable efforts to meet such date.
3. Limited Warranty:
   1. Seller warrants that (i) all Goods sold are free of any security interest, (ii) Seller shall use the same care and skill that a similarly situated provider of like Services would exercise following commonly accepted industry practices in the performance of the Services, and (iii) that all Goods sold hereunder shall conform to Seller’s standard specifications or to the attached specifications, if any. Subject to the limitations of Section 4 and unless otherwise provided herein, in the event of a breach of such warranty, Buyer’s sole remedy, and Seller’s sole liability, shall be repair or replacement of the defective Goods (at Seller’s option) or reperformance of the defective Services.Subject to the preceding paragraph, SELLER MAKES NO (AND EXPRESSLY DISCLAIMS ANY) REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND (INCLUDING WITH RESPECT TO DESIGN OR ANY OTHER MATTER WITH RESPECT TO THE GOODS AND/OR SERVICES), EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WHETHER USED ALONE OR IN COMBINATION WITH OTHER PRODUCTS OR SUBSTANCES, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PURPOSE AND NON-INFRINGEMENT. BUYER IS SOLELY RESPONSIBLE FOR DETERMINING WHETHER GOODS AND/OR SERVICES SOLD HEREUNDER ARE SUITABLE FOR THE PURPOSE FOR WHICH BUYER INTENDS TO USE THEM.
4. Limitation of Liability:
   1. Within thirty (30) days after receipt of each shipment of the Goods or deliver of the Services, Buyer shall examine such Goods and/or Services for any damage, defect or shortage. All claims for any cause whatsoever (whether such cause is based in contract, negligence, strict liability, other tort or otherwise) shall be deemed waived unless made in writing and received by Seller within thirty (30) days after Buyer’s receipt of the Goods and/or Services, in respect to which such claim is made, or, if such claim is for non- delivery of such Goods and/or Services, within thirty (30) days after the date upon which such Goods and/or Services were to be delivered, provided that as to any such cause not reasonably discoverable within such thirty (30) day period (including that discoverable only in processing, further manufacture, other use or resale) any claim shall be made in writing and received by Seller within one hundred eighty (180) days after Buyer’s receipt of the Goods and/or Services, in respect to which such claim is made, or within thirty (30) days after Buyer learns of the facts giving rise to such claim, whichever shall first occur. Failure of Buyer to deliver to Seller written notice of any such claim within the applicable time period shall be deemed an absolute and unconditional waiver by Buyer of such claim irrespective of whether the facts giving rise to such claim shall have then been discovered or of whether processing, further manufacture, other use or resale of the Goods and/or Services shall have then taken place.
   2. NOTWITHSTANDING ANY OTHER PROVISION IN THESE TERMS AND CONDITIONS, (I) SELLER’S TOTAL LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES ARISING OUT OF ANY CAUSE WHATSOEVER (WHETHER SUCH CAUSE IS BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE) SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE GOODS AND/OR SERVICES IN RESPECT TO WHICH SUCH CAUSE ARISES, AND (II) IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, INDIRECT OR PUNITIVE DAMAGES OR FOR ANY LOST PROFITS OR LOST SALES, ALL REGARDLESS OF WHETHER SELLER KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH LOSSES.
   3. If Seller furnishes technical or other advice to Buyer, whether or not at Buyer’s request, with respect to the Goods and/or Services, Seller shall not be liable for, and Buyer assumes all risk of, such advice and the results thereof.
   4. Buyer expressly agrees that the foregoing exclusive and limited remedies are reasonable and do not cause the remedies available to Buyer to fail of their essential purpose.
5. Indemnity:
   1. Seller shall not be liable for, and Buyer assumes liability for and shall defend, indemnify and hold harmless Seller from any claims, suits, actions, expenses, costs (including attorneys’ fees), damages and liabilities (collectively, “Losses”) resulting from or relating to the Goods and/or Services (including personal injury and property damage) irrespective of whether the Goods and/or Services are used alone or in combination with any other substance or material, except to the extent such Losses are covered by Section 5(b) below. Transportation charges for the return of the Goods shall not be paid by Seller unless authorized in writing in advance by Seller.
   2. Seller shall indemnify and defend Buyer from any Losses to the extent resulting from a third-party claim that the Goods and/or Services infringe any U.S. patent, copyright, trademark, trade secret or other intellectual property right of a third party. Seller’s obligation under this Section shall not extend to Losses based on any alleged infringement to the extent arising from any: (a) additions, changes, or modifications to the Goods and/or Services made by or on behalf of Buyer without Seller’s written authorization, (b) incorporation by Buyer or any third-party acting on Buyer’s behalf of the Goods and/or Services or any component thereof into any other product or process not provided by Seller, or (c) use of the Goods and/or Services by Buyer in breach of these Terms and Conditions. Should the Goods and/or Services become, or in Seller’s reasonable opinion be likely to become, the subject of any such suit or action for infringement for which Seller is defending or indemnifying Buyer, or if Buyer is enjoined from using the Goods and/or Services, Seller shall, at Seller’s sole option and expense (in good faith consultation with Buyer), procure the right to continue providing the Goods and/or Services, or replace or modify such Goods and/or Services so that they become non-infringing, or refund the fees paid by Buyer that are attributable to the infringing portion of the Goods and/or Services. This Section states Seller’s exclusive remedy for infringement claims relating to the Goods and/or Services.
6. Freight and Taxes:
   1. All prices quoted to Buyer are exclusive of all sales, use, value-added and similar taxes (collectively, “Sales Taxes”), and all such Sales Taxes are the responsibility and for the account of Buyer. If Seller is required to collect Sales Taxes from Buyer, then Buyer agrees to pay such Sales Taxes concurrently with the payment of the purchase price. Any increase in freight rates paid by Seller on shipments covered by this agreement and hereafter becoming effective and any tax or governmental charge or increase in same (excluding any franchise or income tax or other tax or charge based on income) (i) increasing the cost to Seller of producing, selling or delivering the Goods and/or Services or of procuring materials used therein or (ii) payable by Seller because of the production, sale or delivery of the Goods and/or Services, may, at Seller’s option, be added to the price herein specified.
   2. Unless otherwise set forth in the Order, shipping terms shall be F.O.B. Seller’s facility. Risk of breakage, loss or delay in delivery of the Goods shall pass to Buyer upon delivery of the Goods to a carrier for shipment to Buyer. Title to the Goods shall pass to Buyer upon payment in full of the applicable purchase price for such Goods.
7. Changes and Cancellations:
   1. Once a purchase order has been issued for Goods or Services and accepted by Seller pursuant to Section 2 above, Buyer may not change or cancel the Order. All changes to the Order requested by Buyer are subject to Seller’s prior written approval, in its sole discretion. In the event any Seller approved changes to the Order include a reduction in the quantity of any Goods and/or Services or a material alteration in the Goods and/or Services, Buyer shall remain responsible for any out-of-pocket expenses incurred by Seller due to such reduction or alteration, and the Order will be revised to reflect agreed upon changes in prices and delivery dates resulting from such change.
8. Payment Terms:
   1. In consideration of the provision of Goods and/or Services by Seller, Buyer shall pay the fees set forth in this Order. Seller will provide a written invoice to Buyer for such amounts, and unless otherwise set forth in this Order, payment is due net 30 days from the date of such invoice. In the event payments are not received by Seller when due, Seller may (a) charge interest on any such unpaid amounts at a rate of 1.5% per month from the date such payment was due until the date paid; and (b) suspend performance of any Services and/or future shipments of Goods until payment (including interest) has been made in full. Buyer shall pay all costs of collection of past due amounts, including costs and reasonable attorneys’ fees. Seller shall retain title to and remain the legal owner of the Goods until paid in full.
9. Packing:
   1. The packing instructions for each shipment of Goods shall be in accordance with Seller’s schedules and instructions for such Goods in effect at the time of each such shipment. Such schedules and instructions may be revised from time to time by Seller, at its sole discretion.
10. Assignment:
    1. Buyer shall not (by operation of law or otherwise) assign its rights or delegate its performance hereunder without the prior written consent of Seller, which consent Seller may withhold in its absolute discretion, and any attempted assignment or delegation without such consent shall be void.
11. Warehouse Charges:
    1. If Seller delays the shipment of Goods as a result of any action, inaction or instruction of Buyer for more than thirty (30) days beyond Seller’s acknowledged shipment date, the availability date requested by Buyer, or Buyer’s release date, whichever occurs first, Buyer shall pay Seller a warehouse charge equal to two and one half percent (2.5%) of the price of such Goods for each month, or portion thereof, beyond such 30-day period. Additionally, after sixty (60) days, Buyer will be invoiced for all Goods remaining in inventory and at the end of one hundred eighty (180) days, any such Goods remaining in inventory shall be shipped to the destination specified by Buyer or if no destination is so specified, Seller may cancel all subsequent deliveries under this Order and destroy such Goods without thereby restricting, limiting or waiving any of Seller’s other remedies at law or equity.
12. Work Product:
    1. All intellectual property, including, but not limited to, inventions, concepts, techniques, processes, improvements, discoveries and ideas, whether patentable or not, conceived by Seller, its officers, employees, agents or subcontractors in connection with the Goods and/or Services, shall remain the sole property of Seller.
13. Anti-Corruption:
    1. THIS ORDER (INCLUDING THESE TERMS AND CONDITIONS) SHALL BE CONSTRUED UNDER THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REFERENCE TO THE STATE’S CHOICE OF LAW PROVISIONS, AND SHALL BE DEEMED TO HAVE BEEN EXECUTED AND PERFORMED IN THE STATE OF ILLINOIS. THE CONVENTION FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY TO THE SALE AND PURCHASE OF GOODS HEREUNDER. ANY SUIT, ACTION, OR OTHER PROCEEDING ARISING FROM OR RELATING TO THIS AGREEMENT, THE GOODS, AND/OR THE SERVICES SHALL BE BROUGHT EXCLUSIVELY IN THE JURISDICTION OF (A) THE CIRCUIT COURT OF KANE COUNTY, ILLINOIS OR (B) THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, AND THE PARTIES IRREVOCABLY SUBMIT THEMSELVES TO SUCH JURISDICTION. EACH PARTY HEREBY EXPRESSLY WAIVES ALL RIGHTS OF ANY OTHER JURISDICTION WHICH IT MAY NOW OR HEREAFTER HAVE BY REASON OF ITS PRESENT OR SUBSEQUENT RESIDENCE OR DOMICILE. EACH PARTY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY, TO THE EXTENT PERMITTED BY LAW, OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION ARISING FROM OR RELATING TO THE AGREEMENT, GOODS, AND/OR SERVICES, WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY THE COURT WITHOUT A JURY.
14. Law/Venue/Jury Waiver:
    1. Buyer must conduct its business in a legal and ethical manner and must comply with all applicable laws relating to bribery, money laundering, terrorist financing, corruption, or any type of fraudulent business practices, including but not limited to, the U.S. Foreign Corrupt Practice Act (FCPA). Buyer agrees that (i) it will not directly or indirectly give or receive money, gifts, invitations, benefits or anything that could be perceived as a bribe, and (ii) it will not engage in any interactions that present a risk, or perception of risk, of corruption with government officials.
15. Miscellaneous:
    1. This Order along with these Terms and Conditions constitutes the full understanding of the parties, a complete allocation of risks between them and a complete and exclusive statement of the terms and conditions of their agreement. No conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain or supplement these Terms and Conditions shall be binding unless hereafter made in writing and signed by both parties, and no modification shall be effected by the acknowledgement or acceptance of purchase order, shipping instruction forms, or other documents containing terms or conditions at variance with or in addition to those set forth herein. No waiver by a party with respect to any breach or default or of any right or remedy and no course of dealing shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver shall be expressed in a writing signed by such waiving party. Notwithstanding any statute of limitations that might otherwise be applicable, to the extent permitted by applicable law, any suit or action relating to the Goods or otherwise based upon or relating to this agreement or any alleged breach thereof must be brought no later than one (1) year after the action accrues or be forever barred (except suits or actions for recovery of the Goods or payment for the Goods and/or Services). If any provision herein becomes invalid or illegal in whole or in part, such provision shall be deemed amended, as nearly as possible, to be consistent with the intent expressed herein, and if such amendment is impossible, that provision shall fall by itself without invalidating any of the remaining provisions not otherwise invalid or illegal.

For further information, please contact your representative in the Sales or Parts Department, Terramac at (630) 365-4800.