Acceptance. ITW Commercial
Construction North America, a division of Illinois Tool Works Inc. (formerly operating as the separate
divisions ITW Buildex, ITW Ramset and ITW Red Head) is herein referred to as “ITW”, and the
customer purchasing products (“Products”) or services, including the TruSpec software (the
“Software”, together with other services, the “Services”) from ITW is referred to as
“Purchaser.” These terms and conditions of sale (“Terms”), any ITW quotation,
acknowledgment or invoice and all documents incorporated by specific reference herein or therein (“ITW
Documents” and together with these Terms, the “Agreement”), constitute the complete terms
governing the sale of Products and Services. ITW 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 binding effect whether or not ITW
clicks on an “ok,” “I accept,” or similar acknowledgment. Commencement of any work
by ITW or Purchaser's acceptance of delivery of the Products or Services will manifest Purchaser's assent to
the Agreement. Additional or different terms applicable to a particular sale may be specified in the body of
an ITW Document or 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 ITW;
(b) ITW Document terms; (c) these Terms.
Quotations. ITW may refuse purchase orders
received from Purchaser and has no obligation to supply Products or Services unless ITW issues an order
acknowledgement or upon the shipment of Products or commencement of Services. Minimum order quantities may
be required. 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
Prices and Payment Terms. Prices are in
U.S. Dollars. Prices and units per package are subject to change without notice. All purchase orders,
including blanket purchase orders, are accepted subject to ITW’s price in effect at time of shipment,
provided that backorders will be billed at the prices that were in effect at the time of the original order.
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 ITW is subsequently required to pay any Fees, Purchaser shall fully defend
and indemnify ITW therefor. Terms of payment are 30 days net from the date of ITW’s invoice. Overdue
invoices will incur interest at the rate of 1.5% per month, or at the maximum rate allowable by governing
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, Purchaser agrees
to indemnify ITW for all associated costs incurred by ITW, including reasonable attorney fees and court
Credit Approval. All shipments are subject
to approval by ITW’s credit department. ITW may invoice Purchaser and recover for each shipment as a
separate transaction. If, in ITW’s sole judgment, Purchaser’s financial condition is or becomes
unsatisfactory, then ITW 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. ITW may
cancel any purchase order or release thereunder, or terminate any agreement relating to the purchase of
ITW’s Products or Services upon 30 days’ written notice to Purchaser. Once ITW has accepted a
purchase order or begun taking actions with respect to a purchase order, Purchaser cannot cancel or modify
that purchase order except with ITW’s written consent. 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.
Inspection / Non-Conforming Shipments.
Purchaser may inspect Products for a period of 30 business days after delivery (“Inspection
Period”). Purchaser must notify ITW in writing of any Products that do not conform to the
specifications applicable to their sale within the Inspection Period and afford ITW a reasonable opportunity
to inspect such Products and cure any nonconformity. If Purchaser fails to provide ITW such written notice
within the Inspection Period, Purchaser will be deemed to have accepted the Products. Purchaser may not
return any Product without ITW’s prior written authorization. Any return authorized by ITW must be
made in accordance with ITW’s return policies. Purchaser will be responsible for all costs associated
with returns of Products and will bear the risk of loss, unless ITW 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. Without limiting the foregoing:
Prior review and written approval for a Product return must be obtained from the authorized Sales
Manager. Additional approvals may be required, which is dependent on the original purchase amount.
Product must be returned within 45 days of the purchase date and be current cataloged product in
Adhesives must be received by ITW as returned product no later than 9 months prior to the expiration
Fuel cells or product containing fuel cells must be received by ITW as returned product no later than
3 months prior to the expiration date.
Transportation charges to the designated ITW warehouse must be prepaid by the Purchaser.
A standard 20% restocking fee will be charged on all returned Products.
Special orders and discontinued items are not eligible for return credit.
Shipment. ITW anticipates use of common
carriers for shipment of Products. The carrier, and not ITW, will bill for freight rates and other shipping
charges. Payments for such charges shall be paid by Purchaser directly to the carrier. All Products
will be shipped ExWorks ITW’s facility (Incoterms 2020). Drop shipments to locations other than
Purchaser’s facilities require prior approval from ITW. Shipping dates are approximate and are based
upon prompt receipt of all necessary information from Purchaser. ITW may ship items in single or multiple
Taxes. Purchaser shall pay ITW, in addition
to the purchase price, the amount of all fees, duties, licenses, tariffs, and sales, use, privilege,
occupation, excise or other taxes, federal, state, local or foreign, which ITW is required to pay or collect
in connection with the Products or Services sold to Purchaser. Purchaser must provide ITW, prior to
shipment, any documents or certificates that Purchaser claims relieves them if any obligation to the
above. ITW may at its own discretion, accept or reject said documents or certificates. Failure
by ITW to collect any such fees or taxes for any reason, shall not affect Purchaser’s obligation
hereunder and Purchaser shall fully defend, indemnify and hold harmless ITW with respect to such tax
Title/Risk of Loss. 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 to the carrier. Purchaser must notify ITW and the delivering carrier
within 15 business days from date of receipt of Products, of any damage or shortage, and afford ITW 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.
License to Access and Use the Software.
PURCHASER MAY ACCESS AND USE THE SOFTWARE ONLY FOR PURCHASER’S OWN INTERNAL USE. Any other access to
or use of the Software or the Content constitutes a violation of these Terms and may violate applicable
copyright, trademark or other laws. ITW makes no representation that the Software or Content is appropriate
or available for use in locations other than the United States. If Purchaser chooses to access the Software
from locations other than the United States, Purchaser does so at its own risk and is responsible for
complying with applicable local laws. ITW expressly reserves the right to make any changes that it deems
appropriate from time to time to the Software or to any information, text, data, databases, graphics,
images, sound recordings, video material, audio clips, logos, software features, services and other
materials within the software (all such materials, and any compilation, collection or arrangement thereof,
the “Content”). Purchaser may not access, use or copy any portion of the Software or the Content
through the use of bots, spiders, scrapers, webcrawlers, indexing agents, or other automated devices or
mechanisms. Purchaser agrees not to remove or modify any copyright notice or trademark legend, author
attribution or other notice placed on or contained within any of the Content. Except as expressly authorized
by ITW in writing, in no event will Purchaser reproduce, redistribute, duplicate, copy, sell, resell or
exploit for any commercial purpose any portion of the Software or the Content or any access to or use of the
Software or the Content. Purchaser represents and agrees that all information that Purchaser provides to ITW
in connection with Purchaser’s access to and use of the Software is true, accurate and complete to the
best of Purchaser’s knowledge and belief.
Warranty. ITW warrants that it will convey
the Products free and clear of all liens, security interests and encumbrances created by, through or under
ITW. ITW further warrants that for the applicable period (the “Warranty Period), as set forth in the
applicable warranty statement for particular Products (the “Warranty Statement”), under normal
use and given proper installation and maintenance as determined by ITW, such Products will be free from
substantial defects in material and workmanship, as further described in the applicable Warranty Statement
and subject to all exclusions and conditions stated therein and below. Warranty Statements may be found in
the operator’s manual or similar documentation for the applicable Product or via the ITW Commercial
Construction North America web site at http://itwccna.com, and upon request.
In the event of a breach of the warranties described above (the “Warranties”), ITW will,
at ITW’s option and as ITW’s sole liability and Purchaser’s sole remedy, repair,
replace or credit Purchaser’s account for, any Product that fails to conform to the
Warranties, provided that (a) during the Warranty Period ITW is promptly notified in writing upon
discovery of such failure with a detailed explanation of any alleged deficiencies; (b) ITW is given
a reasonable opportunity to investigate all claims; and (c) ITW’s examination of such Product
confirms the alleged deficiencies and that the deficiencies were not caused by accident, misuse,
neglect, improper installment, unauthorized alteration or repair or improper testing, as evidenced
by an ITW Return Goods Authorization Form. No Products may be returned to ITW until inspection and
approval by ITW. The Warranty Period for any replacement part or accessory provided in accordance
with this Warranty will equal the remainder of the Warranty Period for the original part or
The Warranty against defects does not apply to: (a) parts which are specifically covered by a written
extended warranty, (b) excluded items set forth in the applicable Warranty Statement, (c) consumable
components or ordinary wear items, including pistons, piston assemblies and rings, buffers, bumpers,
spring clips, piston return springs, pawls, and o-rings; (d) items furnished by ITW but manufactured
by others; or (e) use of the Products with equipment, components or parts not contemplated under the
Product documentation, including fasteners, fuel, powder loads, batteries or battery chargers.
An additional warranty may apply to Dektite Pip Flashing products. Dektite Pip Flashing products are
warranted by Deks Industries Pty Ltd. for a period of twenty (20) years, subject to certain
exceptions and exclusions. A copy of the Dektite Pipe Flashing Warranty is available upon request.
EXCEPT AS SET FORTH ABOVE AND AS EXPLICITLY SET FORTH IN THE APPLICABLE WARRANTY STATEMENT FOR
PARTICULAR PRODUCTS, ITW MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED
(INCLUDING NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE), WITH RESPECT TO
ITS PRODUCTS OR SERVICES. FOR AVOIDANCE OF DOUBT, THE SOFTWARE IS PROVIDED “AS IS” AND
“AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND.
Limitation of Liability and Remedies. ITW
WILL NOT BE LIABLE, AND PURCHASER WAIVES ALL CLAIMS AGAINST ITW, FOR INCIDENTAL, SPECIAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES, DOWN TIME, LOST PROFITS OR COMMERCIAL LOSSES, WHETHER OR NOT BASED UPON ITW’S
NEGLIGENCE OR BREACH OF WARRANTY OR STRICT LIABILITY IN TORT OR ANY OTHER CAUSE OF ACTION. ITW WILL NOT BE
LIABLE TO PURCHASER FOR ANY LOSS, DAMAGE OR INJURY TO PERSONS OR PROPERTY RESULTING FROM THE HANDLING,
STORAGE, TRANSPORTATION, RESALE OR USE OF ITS PRODUCTS IN MANUFACTURING PROCESSES, OR IN COMBINATION WITH
OTHER SUBSTANCES, OR OTHERWISE. IN NO EVENT WILL ITW’S LIABILITY UNDER THESE TERMS, ANY AGREEMENT OR
IN CONNECTION WITH THE SALE OF ITW’S PRODUCTS OR SERVICES EXCEED THE PURCHASE PRICE OF THE SPECIFIC
PRODUCTS OR SERVICES AS TO WHICH THE CLAIM IS MADE.
Training and Licencing Obligations.
Purchaser recognizes that Products, including but not limited to powder actuated tools, can be dangerous if
used by untrained personnel and may require qualification, certification and/or licensing to operate, in
accordance with OSHA regulations and ANSI standards. Purchaser agrees to provide access to authorized
instructors and testing required for training, qualification, certification and/or licensing of all
subcontractors, transferees and other persons, including employees who may operate or handle, or may be
required to train and qualify employees who operate or handle, any powder actuated tools sold hereunder.
Purchaser shall indemnify ITW for all costs incurred with respect to claims for personal injuries and
property damage in connection with the use of Products by any person without proper training and/or
certification and licensing. ITW may provide Purchaser with training upon request, provided, however, any
training provided by ITW will not affect Purchaser’s obligations set forth above.
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 ITW’s Products, ITW 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 ITW believes to
be reliable, but they are not guaranteed. ITW may change specifications, equipment or designs at any time
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 ITW and all
rights therein (collectively, “Intellectual Property”) will remain the property of ITW 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 ITW upon request from ITW. 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 ITW’s Products or receive the Services purchased from ITW.
Use of Trademarks and Trade Names.
Purchaser shall not use, directly or indirectly, in whole or in part, ITW’s name, or any other
trademark or trade name that is now or may hereafter be owned by ITW (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 ITW in writing. Purchaser hereby acknowledges ITW’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 ITW. 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 ITW with respect to any efforts of ITW to
protect, defend or enforce its rights to the Trademarks. Should Purchaser cease being an authorized customer
of ITW for any reason, Purchaser shall immediately discontinue any formerly permitted use of ITW’s
name or the Trademarks.
Confidential Information. All information
furnished or made available by ITW 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 ITW’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 ITW; or (c) is
legally made available to Purchaser by or through a third party having no direct or indirect confidentiality
obligation to ITW with respect to such information.
Audit Unless agreed to in writing by an
officer of ITW, neither Purchaser nor any Purchaser representative, may examine or audit ITW’s cost
accounts, books or records of any kind or any matter, or any other data that ITW, in its sole discretion,
considers confidential or proprietary.
Infringement and Indemnification. (a)
Except as set forth below, ITW agrees to defend and indemnify Purchaser against any third-party claims,
costs, damages, liability and expenses (“Claims”) resulting from actual patent, trademark or
copyright infringement, misappropriation of confidential information, or violation of any other Intellectual
Property right, domestic or foreign (“Infringement”) that may arise from the sale of ITW’s
proprietary Product to Purchaser (provided that (x) the Product is not modified in any way by Purchaser or
any other party, (y) that the Product is used in the manner intended by ITW, and (z) that Purchaser did not
design or provide specifications for the design of the Product). If a Claim results in any injunction or
order that would prevent ITW from supplying or Purchaser from using any Product, or if the result of such a
Claim would, in the reasonable opinion of ITW, otherwise cause ITW to be unable to supply or Purchaser to be
unable to use such Products, ITW, in its reasonable discretion, may do one or more of the following: (i)
secure an appropriate license to permit ITW to continue supplying or Purchaser to continue using those
Products; (ii) modify the appropriate Product so that it becomes non-infringing; (iii) replace the
appropriate Product with a non-infringing but practically equivalent Product; or (iv) if ITW cannot
reasonably accomplish the actions specified in subsections (i) – (iii), then in ITW’s sole
discretion, ITW may discontinue selling the Product without any further liability to Purchaser. (b)
Purchaser agrees to defend and indemnify ITW against any Claims resulting from actual or alleged
Infringement that may arise from the making, using or selling of any Product or using any process that is
designed or specified by Purchaser. (c) A party entitled to indemnification under this section (the
“Indemnified Party”) must give written notice of such Claim to the party liable for such
indemnification (the “Indemnifying Party”) promptly after the Indemnified Party has actual
notice of such claim. The Indemnifying Party may defend and/or settle such claim at its expense, provided
that it does so diligently and in good faith. The Indemnified Party shall cooperate with such defense and/or
settlement and may participate in (but not control) such defense and/or settlement at its expense. No
settlement may be entered into unless the Indemnified Party is released from all liability for such claim.
ITW Employees. ITW sales and service
employees do not have the training or authority to make any 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 ITW or such ITW employees.
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. ITW 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, earthquakes, fire,
flood, washouts, destruction of facilities, epidemics, acts of war whether declared or undeclared, actions
by any governmental agency or authority (whether valid or invalid), blockades, labor disputes (whether
ITW’s employees or the employees of others), raw material shortages and material increases in costs of
raw materials, insurrections, riots, strikes and lockouts. In the event of Force Majeure, the time for
performance will extend for such time as reasonably necessary to enable ITW 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 the prior written consent of ITW. Any attempted
assignment will be void. ITW 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 each of the parties
hereto and their respective permitted successors and assigns.
Integration Clause. The Agreement
constitutes the entire agreement between ITW 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.
Waiver. In the event of any default by
Purchaser, ITW may decline to ship Products or provide Services. If ITW elects to continue shipping or
otherwise fails to insist upon strict compliance of these Terms, ITW’s actions will not constitute a
waiver of Purchaser’s default or any other existing or future default or affect ITW’s legal
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
Limitation of Actions/Choice of Law/Litigation
Costs. Notwithstanding any contrary statute of limitations, any cause of action for
any alleged breach of the Agreement by ITW will be barred unless commenced by Purchaser within 1 year from
the accrual of such cause of action. 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 agree that the United Nations Convention on
Contracts for the International Sale of Goods will not apply to the Agreement. If either party commences
litigation concerning any provision of the Agreement, the prevailing party is entitled, in addition to the
relief granted, to a reasonable sum for their attorney’s fees in such litigation, provided that if
each party prevails in part, such fees will be allocated in the manner as the court determines to be
equitable in view of the relative merits and amounts of the parties’ claims.
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.
Jury Waiver. 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.
Severability. If any provision herein is
held to be unlawful or unenforceable, the remaining provisions herein will remain in effect.