Terms and Conditions

 

Table of Contents

  1. Terms and Conditions of Purchase - United States
  2. Terms and Conditions of Purchase - Australia
  3. Terms and Conditions of Purchase - Canada

Terms and Conditions of Purchase - UNITED STATES

1. Parties.
All orders for Goods, as defined below, submitted by ISCO Industries, Inc. or its related affiliates (“ISCO”) to the supplier of the Goods identified on ISCO’s purchase order (“Vendor”) are subject to these Terms and Conditions for Purchase of Goods (“Agreement”).

2. Acceptance.
Together with this Agreement, any purchase order for Goods that ISCO delivers to Vendor becomes a contract upon the earlier of (a) ISCO's receipt of Vendor's written acknowledgement of ISCO's purchase order; provided that, if Vendor's written acknowledgement (including, but not limited to, an invoice generated by Vendor) contains a different description, price, or delivery schedule (“Difference”), then no contract is formed unless and until ISCO provides written approval of such Difference; or (b) the act of Vendor shipping all or any portion of the Goods described in ISCO's purchase order. For purposes of this Agreement, "Goods" includes all products, articles, materials and work associated with the items identified on ISCO’s purchase order and the delivery of such items.

3. Price.
Except as provided in Section 2(a) above, prices will be as set out by ISCO on the face of the purchase order, and may not be modified unless the modification is in writing and signed by an authorized representative of ISCO. ISCO will also be entitled to all discounts and rebates allowed by Vendor's payment and other terms. No subsequent events or changed conditions will allow Vendor to change prices, or to make delivery of the Goods contingent upon ISCO accepting new prices. Unless otherwise agreed or prohibited by law, Vendor will pay all taxes, fees, and duties assessed against Vendor or otherwise relating to the Goods, except federal, provincial, state and local sales taxes.

4. Warranties.
Vendor expressly warrants as follows: (a) the Goods will conform to ISCO’s specifications, whether contained in the purchase order or any other document(s); (b) the Goods delivered will be of good quality, material and workmanship, and otherwise merchantable and free from defects, so as to comply with all implied and actual warranties under applicable law; (c) any pipe and/or fittings, will comply with the ASTM F2620 standard, the PPI TR33 standard, and other technical reports or documents generally accepted by the polyethylene pipe industry regarding the fusion of pipe and fittings; (d) the Goods delivered will be fit for the intended purpose; (e) Vendor has marketable title to the Goods; (f) the Goods will be delivered to ISCO free of any security interests, liens, or other encumbrances; (g) the Goods and the delivery of the Goods shall comply with all applicable federal, provincial, state, and local laws, rules, regulations, and other legal requirements; and (h) with respect to hiring and employee matters, Vendor has and will comply with all applicable employment standards codes and workers’ compensation legislation or equivalent legislation. These warranties will survive beyond the time of any inspection, delivery, acceptance or payment by ISCO for the Goods. ISCO EXPRESSLY REJECTS ANY LIMITATIONS ON ANY OF VENDOR'S WARRANTIES AS MAY RELATE TO THE GOODS.

5. Warranty against infringement.
Vendor warrants that the sale, offer of sale, or use of the Goods will not infringe, either directly, jointly, or indirectly by reason of contributory infringement of or inducement to infringe any patents, trademarks or copyrights. ISCO may reject any Goods that do not satisfy this warranty. Vendor shall defend and shall indemnify and hold harmless ISCO from any costs, claims, or damages arising out of or related to Vendor’s breach of this section.

6. Delivery.
Time is of the essence of this Agreement. Goods must be delivered within the time specified in the purchase order. If Goods are not delivered within such time, or if ISCO reasonably believes that the Goods will not be delivered within such time, then ISCO may reject such Goods, cancel the order, and/or charge Vendor with any excess costs or expenses arising out of or caused by such delay (including, but not limited to, liquidated damages), without penalty or payment for any Goods not actually delivered at the time of cancellation. ISCO's rights and remedies under the Agreement or under applicable law shall not be limited by ISCO’s exercise of any of the remedies described in this section.

7. Packing.
Unless otherwise specified, each shipment will (a) be numbered and labeled with ISCO's order number, stock number, contents and weight; (b) contain an itemized packing slip; and (c) be properly prepaid for shipment so as to secure lowest transportation and insurance rates and to meet the carrier's requirements. No charges will be allowed Vendor for packing, breaking, freight, express or cartage unless specified in the purchase order.

8. Risk of Loss.
Title and risk of loss or damage to the Goods shall not pass to ISCO until such time that ISCO or ISCO’s customer accepts the Goods, whichever occurs first. Any loss, injury or destruction of the Goods will not release Vendor from any obligation under the Agreement or the purchase order. For purposes of this section, "Vendor" includes any agents, employees, subsidiaries, affiliates, shippers, contractors, or suppliers of Vendor, as well as any entity acting on behalf of, under the direction of, or under the control of Vendor.

9. Nonconforming goods; nonconforming tender.
Goods delivered (whether paid for or not) are subject to inspection, testing and approval by ISCO or its customer before acceptance. If ISCO or its customer reasonably believes that any of the following have occurred, then ISCO may reject the Goods or any portion of the Goods, and may return the rejected Goods at Vendor's expense and risk: (a) the Goods do not fully comply with the warranties provided by Vendor; (b) the Goods do not fully comply with applicable specifications; (c) the Goods are shipped contrary to shipping instructions or specifications, or, in the absence of written shipping instructions or specifications, contrary to generally accepted packing and loading standards for such Goods; (d) the quantity of Goods shipped or delivered exceeds the quantity stated in ISCO's Purchase Order; or (e) except as provided in Section 2(a) above, the Goods are tendered conditional upon to Vendor's acknowledgment, invoice, form, contract, terms and conditions, or any other communication inconsistent with, or in addition to, or which purports to alter or limit this Agreement in any way.

10. Damages.
Vendor will be liable for all actual, direct, indirect, special, compensatory, and punitive damages, including but not limited to lost profits and consequential damages, which arise out of or are caused by (a) Vendor's failure to satisfy any of its obligations, warranties, representations, or requirements arising under the Agreement; (b) any defective product or service delivered by Vendor under the Agreement; or (c) Vendor's negligent or wrongful conduct, acts, errors, or omissions under the Agreement. ISCO EXPRESSLY REJECTS ANY LIMITATIONS ON VENDOR'S LIABILITY OR ISCO’S REMEDIES UNDER THIS AGREEMENT.

11. Indemnification.
Vendor shall defend and shall indemnify and hold harmless ISCO, its agents, employees, successors, assigns, affiliated entities, customers, and users of Goods, from and against, all claims, product recalls or withdrawals, losses, liabilities, damages, costs, and expenses (including attorney's fees) arising out of or related to (a) Vendor's failure or alleged failure to satisfy any of its obligations, warranties, representations, or requirements arising under this Agreement or the purchase order; (b) any alleged or actual defect in a Good or service, whether latent or patent; or (c) Vendor's alleged or actual negligent or wrongful conduct, acts, errors, or omissions under the Agreement.

12. Insurance.
Vendor shall obtain and maintain, at its own expense, the following insurance coverages: (a) commercial general liability insurance and product liability insurance, as is necessary to cover any claims, product recalls or withdrawals, losses, liabilities, damages, costs, and expenses (including attorney's fees) arising out of or related to bodily injury or property damage; and (b) automobile liability insurance. Vendor shall name ISCO as an additional named insured under such policies. The limits under these policies must be at least $1,000,000 per occurrence, $2,000,000 in the aggregate. Vendor may satisfy these limits by obtaining and maintaining primary insurance coverage, or by the aggregate of primary and excess or umbrella insurance coverage. Vendor must provide at least thirty (30) days written notice to ISCO in the event of any cancellation, termination, or modification of the insurance policies required herein.

13. Force Majeure.
The parties understand that causes reasonably beyond Vendor's control may render it unable to perform its obligations under the Agreement. Such causes may include natural catastrophe, war, or terroristic acts. If Vendor should declare that an event under this section has rendered it unable to perform: (a) Vendor must use commercially reasonable efforts to remove or mitigate the effects of any such condition and resume performance as soon as practical; (b) if Vendor's negligence was not a factor in rendering it unable to perform, then Vendor will be excused from performance for as long as the condition exists to a degree that it reasonably prevents Vendor’s performance; and (c) without incurring any liability to Vendor, at its sole discretion, ISCO may seek an alternative supplier for the Goods that Vendor declares it is unable to provide timely due to such cause(s). ISCO may terminate the Agreement without penalty or obligation to Vendor in the event any such delays continues for a period of more than thirty (30) consecutive days. When and if Vendor resumes performance, Vendor may not charge ISCO a price greater than what was set forth in ISCO’s purchase order or otherwise agreed upon in writing.

14. No delegation or assignment; offset.
Vendor may not delegate or assign any duties, rights, or claims under the purchase order or the Agreement without ISCO's prior written consent. All claims for monies which are due or may become due from ISCO will be subject to deduction by ISCO for any setoff or counterclaim, whether actual or potential, arising out of this or any other contract between ISCO and Vendor.

15. Confidentiality.
Vendor acknowledges that the information contained in a purchase order from ISCO, or which Vendor may otherwise obtain from ISCO, including the existence of business relationship between Vendor and ISCO itself, is confidential and is treated as such by ISCO. Such information includes, but is not limited to, customer lists, pricing, marketing plans and information, business plans, and financial information. Vendor may not, without ISCO's prior written consent, disclose to third parties any business, commercial, proprietary, or technical information obtained from ISCO.

16. Entire Agreement.
The Agreement, and the documents and descriptions referred to in Section 2 above, contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all other agreements between Vendor and ISCO, whether entered into prior or subsequent to the date of ISCO’s purchase order. UNLESS EXPRESSLY AGREED IN WRITING BY ISCO, NO OTHER TERMS AND CONDITIONS OTHER THAN THOSE SET OUT HEREIN SHALL FORM A PART OF ANY AGREEMENT BETWEEN THE PARTIES, AND ANY PROVISIONS CONTAINED IN ANY ACKNOWLEDGEMENT, INVOICE, FORM, CONTRACT, TERMS AND CONDITIONS, OR ANY OTHER COMMUNICATION FROM VENDOR THAT ARE INCONSISTENT WITH OR IN ADDITION TO THIS AGREEMENT WILL HAVE NO FORCE OR EFFECT.

17. No Waiver.
Failure of ISCO to insist upon strict performance of this Agreement or to enforce any of its rights will not constitute a waiver of such rights or of any other rights.

18. Severability.
The provisions of this Agreement are intended to be construed so as to be valid, binding, and enforceable to the fullest extent provided by law. However, if any provision of this Agreement is deemed to be invalid or unenforceable by a court of competent jurisdiction, the other provisions of this Agreement will remain valid, binding, and enforceable.

19. Changes.
ISCO shall have the right to make changes to the purchase order by a notice in writing to Vendor, and if such change causes an increase or decrease in the amount due under the purchase order or the time required for performance an equitable adjustment may be made and the purchase order modified in writing accordingly. Any claim for adjustment must be asserted by Vendor in writing within fifteen (15) days of the date the change is ordered. Nothing herein shall relieve Vendor from proceeding without delay in the performance of any such changes. THIS AGREEMENT MAY NOT BE MODIFIED OR AMENDED BY ANY COURSE OF DEALING OR PERFORMANCE.

20. Compliance with Law.
Vendor is in compliance with and shall comply with all applicable laws, regulation, and ordinances. Vendor has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that are required to perform Vendor’s obligations under this Agreement. Vendor shall comply with all export and import laws and regulations of all countries involved in the sale of Goods under this Agreement, and Vendor assumes all responsibility for shipments of Goods requiring any government import clearance. Vendor represents and warrants that it has not and covenants that it will not pay anything of value to any government official in connection with the purchase and sale of the Goods.

21. Applicable Law; Forum Selection.
The Agreement will be governed by and construed in accordance with the laws of the Province of Manitoba and the federal laws of Canada applicable therein without given effect to principles of conflicts of laws. Vendor and ISCO irrevocably attorn and submit to the exclusive jurisdiction of the Manitoba courts situated in the City of Winnipeg and waive objection to the venue of any proceeding in such court or that such court provides an inconvenient forum. The United Nations Convention on Contracts for the International Sale of Goods (the “Convention”) and any other legislation applying the terms of the Convention within a particular jurisdiction are hereby expressly disclaimed with respect to this agreement.

Terms and Conditions of Purchase (US) (0515) - 5/8/15
 

Terms and Conditions of Purchase - AUSTRALIA

1. Parties.
All orders for Goods, as defined below, submitted by ISCO Australia PTY Ltd. or its related affiliates (“ISCO”) to the supplier of the Goods identified on ISCO’s purchase order (“Vendor”) are subject to these Terms and Conditions for Purchase of Goods (“Agreement”).

2. Acceptance.
Together with this Agreement, any purchase order for Goods that ISCO delivers to Vendor becomes a contract upon the earlier of (a) ISCO's receipt of Vendor's written acknowledgement of ISCO's purchase order; provided that, if Vendor's written acknowledgement (including, but not limited to, an invoice generated by Vendor) contains a different description, price, or delivery schedule (“Difference”), then no contract is formed unless and until ISCO provides written approval of such Difference; or (b) the act of Vendor shipping all or any portion of the Goods described in ISCO's purchase order. For purposes of this Agreement, "Goods" includes all products, articles, materials and work associated with the items identified on ISCO’s purchase order and the delivery of such items.

3. Price.
Except as provided in Section 2(a) above, prices will be as set out by ISCO on the face of the purchase order, and may not be modified unless the modification is in writing and signed by an authorized representative of ISCO. ISCO will also be entitled to all discounts and rebates allowed by Vendor's payment and other terms. No subsequent events or changed conditions will allow Vendor to change prices, or to make delivery of the Goods contingent upon ISCO accepting new prices. Unless otherwise agreed or prohibited by law, Vendor will pay all taxes, fees, and duties assessed against Vendor or otherwise relating to the Goods, except state and local sales taxes.

4. Warranties.
Vendor expressly warrants as follows: (a) the Goods will conform to ISCO’s specifications, whether contained in the purchase order or any other document(s); (b) the Goods delivered will be of good quality, material and workmanship, and otherwise merchantable and free from defects, so as to comply with all implied and actual warranties under applicable law; (c) any pipe and/or fittings, will comply with the ASTM F2620 standard, the PPI TR33 standard, and other technical reports or documents generally accepted by the polyethylene pipe industry regarding the fusion of pipe and fittings; (d) the Goods delivered will be fit for the intended purpose; (e) Vendor has marketable title to the Goods; (f) the Goods will be delivered to ISCO free of any security interests, liens, or other encumbrances; and (g) the Goods and the delivery of the Goods shall comply with all applicable federal, state, and local laws, rules, regulations, and other legal requirements. These warranties will survive beyond the time of any inspection, delivery, acceptance or payment by ISCO for the Goods. ISCO EXPRESSLY REJECTS ANY LIMITATIONS ON ANY OF VENDOR'S WARRANTIES AS MAY RELATE TO THE GOODS.

5. Warranty against infringement.
Vendor warrants that the sale, offer of sale, or use of the Goods will not infringe, either directly, jointly, or indirectly by reason of contributory infringement of or inducement to infringe any patents, trademarks or copyrights. ISCO may reject any Goods that do not satisfy this warranty. Vendor shall defend and shall indemnify and hold harmless ISCO from any costs, claims, or damages arising out of or related to Vendor’s breach of this section.

6. Delivery.
Time is of the essence of this Agreement. Goods must be delivered within the time specified in the purchase order. If Goods are not delivered within such time, or if ISCO reasonably believes that the Goods will not be delivered within such time, then ISCO may reject such Goods, cancel the order, and/or charge Vendor with any excess costs or expenses arising out of or caused by such delay (including, but not limited to, liquidated damages), without penalty or payment for any Goods not actually delivered at the time of cancellation. ISCO's rights and remedies under the Agreement or under applicable law shall not be limited by ISCO’s exercise of any of the remedies described in this section.

7. Packing.
Unless otherwise specified, each shipment will (a) be numbered and labeled with ISCO's order number, stock number, contents and weight; (b) contain an itemized packing slip; and (c) be properly prepaid for shipment so as to secure lowest transportation and insurance rates and to meet the carrier's requirements. No charges will be allowed Vendor for packing, breaking, freight, express or cartage unless specified in the purchase order.

8. Risk of Loss.
Title and risk of loss or damage to the Goods shall not pass to ISCO until such time that ISCO or ISCO’s customer accepts the Goods, whichever occurs first. Any loss, injury or destruction of the Goods will not release Vendor from any obligation under the Agreement or the purchase order. For purposes of this section, "Vendor" includes any agents, employees, subsidiaries, affiliates, shippers, contractors, or suppliers of Vendor, as well as any entity acting on behalf of, under the direction of, or under the control of Vendor.

9. Nonconforming goods; nonconforming tender.
Goods delivered (whether paid for or not) are subject to inspection, testing and approval by ISCO or its customer before acceptance. If ISCO or its customer reasonably believes that any of the following have occurred, then ISCO may reject the Goods or any portion of the Goods, and may return the rejected Goods at Vendor's expense and risk: (a) the Goods do not fully comply with the warranties provided by Vendor; (b) the Goods do not fully comply with applicable specifications; (c) the Goods are shipped contrary to shipping instructions or specifications, or, in the absence of written shipping instructions or specifications, contrary to generally accepted packing and loading standards for such Goods; (d) the quantity of Goods shipped or delivered exceeds the quantity stated in ISCO's Purchase Order; or (e) except as provided in Section 2(a) above, the Goods are tendered pursuant to Vendor's acknowledgment, invoice, form, contract, terms and conditions, or any other communication inconsistent with, or in addition to, or which purports to alter or limit this Agreement in any way.

10. Damages.
Vendor will be liable for all actual, direct, indirect, special, compensatory, and punitive damages, including but not limited to lost profits and consequential damages, which arise out of or are caused by (a) Vendor's failure to satisfy any of its obligations, warranties, representations, or requirements arising under the Agreement; (b) any defective product or service delivered by Vendor under the Agreement; or (c) Vendor's negligent or wrongful conduct, acts, errors, or omissions under the Agreement. ISCO EXPRESSLY REJECTS ANY LIMITATIONS ON VENDOR'S LIABILITY OR ISCO’S REMEDIES UNDER THIS AGREEMENT.

11. Indemnification.
Vendor shall defend and shall indemnify and hold harmless ISCO, its agents, employees, successors, assigns, affiliated entities, customers, and users of Goods, from and against, all claims, product recalls or withdrawals, losses, liabilities, damages, costs, and expenses (including attorney's fees) arising out of or related to (a) Vendor's failure or alleged failure to satisfy any of its obligations, warranties, representations, or requirements arising under this Agreement or the purchase order; (b) any alleged or actual defect in a Good or service, whether latent or patent; or (c) Vendor's alleged or actual negligent or wrongful conduct, acts, errors, or omissions under the Agreement.

12. Insurance.
Vendor shall obtain and maintain, at its own expense, the following insurance coverages: (a) commercial general liability insurance and product liability insurance, as is necessary to cover any claims, product recalls or withdrawals, losses, liabilities, damages, costs, and expenses (including attorney's fees) arising out of or related to bodily injury or property damage; and (b) automobile liability insurance. Vendor shall name ISCO as an additional named insured under such policies. The limits under these policies must be at least $1,000,000 per occurrence, $2,000,000 in the aggregate. Vendor may satisfy these limits by obtaining and maintaining primary insurance coverage, or by the aggregate of primary and excess or umbrella insurance coverage. Vendor must provide at least thirty (30) days written notice to ISCO in the event of any cancellation, termination, or modification of the insurance policies required herein.

13. Force Majeure.
The parties understand that causes reasonably beyond Vendor's control may render it unable to perform its obligations under the Agreement. Such causes may include natural catastrophe, war, or terroristic acts. If Vendor should declare that an event under this section has rendered it unable to perform: (a) Vendor must use commercially reasonable efforts to remove or mitigate the effects of any such condition and resume performance as soon as practical; (b) if Vendor's negligence was not a factor in rendering it unable to perform, then Vendor will be excused from performance for as long as the condition exists to a degree that it reasonably prevents Vendor’s performance; and (c) without incurring any liability to Vendor, at its sole discretion, ISCO may seek an alternative supplier for the Goods that Vendor declares it is unable to provide timely due to such cause(s). ISCO may terminate the Agreement without penalty or obligation to Vendor in the event any such delays continues for a period of more than thirty (30) consecutive days. When and if Vendor resumes performance, Vendor may not charge ISCO a price greater than what was set forth in ISCO’s purchase order or otherwise agreed upon in writing.

14. No delegation or assignment; offset.
Vendor may not delegate or assign any duties, rights, or claims under the purchase order or the Agreement without ISCO's prior written consent. All claims for monies which are due or may become due from ISCO will be subject to deduction by ISCO for any setoff or counterclaim, whether actual or potential, arising out of this or any other contract between ISCO and Vendor.

15. Confidentiality.
Vendor acknowledges that the information contained in a purchase order from ISCO, or which Vendor may otherwise obtain from ISCO, is confidential and is treated as such by ISCO. Such information includes, but is not limited to, customer lists, pricing, marketing plans and information, business plans, and financial information. Vendor may not, without ISCO's prior written consent, disclose to third parties any business, commercial, proprietary, or technical information obtained from ISCO.

16. Entire Agreement.
The Agreement, and the documents and descriptions referred to in Section 2 above, contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all other agreements between Vendor and ISCO, whether entered into prior or subsequent to the date of ISCO’s purchase order. UNLESS EXPRESSLY AGREED IN WRITING BY ISCO, NO OTHER TERMS AND CONDITIONS OTHER THAN THOSE SET OUT HEREIN SHALL FORM A PART OF ANY AGREEMENT BETWEEN THE PARTIES, AND ANY PROVISIONS CONTAINED IN ANY ACKNOWLEDGEMENT, INVOICE, FORM, CONTRACT, TERMS AND CONDITIONS, OR ANY OTHER COMMUNICATION FROM VENDOR THAT ARE INCONSISTENT WITH OR IN ADDITION TO THIS AGREEMENT WILL HAVE NO FORCE OR EFFECT.

17. No Waiver.
Failure of ISCO to insist upon strict performance of this Agreement or to enforce any of its rights will not constitute a waiver of such rights or of any other rights.

18. Severability.
The provisions of this Agreement are intended to be construed so as to be valid, binding, and enforceable to the fullest extent provided by law. However, if any provision of this Agreement is deemed to be invalid or unenforceable by a court of competent jurisdiction, the other provisions of this Agreement will remain valid, binding, and enforceable.

19. Changes.
ISCO shall have the right to make changes to the purchase order by a notice in writing to Vendor, and if such change causes an increase or decrease in the amount due under the purchase order or the time required for performance an equitable adjustment may be made and the purchase order modified in writing accordingly. Any claim for adjustment must be asserted by Vendor in writing within fifteen (15) days of the date the change is ordered. Nothing herein shall relieve Vendor from proceeding without delay in the performance of any such changes. THIS AGREEMENT MAY NOT BE MODIFIED OR AMENDED BY ANY COURSE OF DEALING OR PERFORMANCE.

20. Compliance with Law.
Vendor is in compliance with and shall comply with all applicable laws, regulation, and ordinances. Vendor has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that are required to perform Vendor’s obligations under this Agreement. Vendor shall comply with all export and import laws and regulations of all countries involved in the sale of Goods under this Agreement, and Vendor assumes all responsibility for shipments of Goods requiring any government import clearance. Vendor represents and warrants that it has not and covenants that it will not pay anything of value to any government official in connection with the Goods.

21. Applicable Law; Forum Selection.
The Agreement will be governed by and construed in accordance with the laws of Queensland, Australia without regard to its choice of law rules. Any action with respect to the Agreement or the Goods sold must be brought in Queensland, Australia.

Terms and Conditions of Purchase (Australia) (0315) - 3/24/15
 

Terms and Conditions of Purchase - CANADA

1. Parties.
All orders for Goods, as defined below, submitted by ISCO Industries, Inc. or its related affiliates (“ISCO”) to the supplier of the Goods identified on ISCO’s purchase order (“Vendor”) are subject to these Terms and Conditions for Purchase of Goods (“Agreement”).

2. Acceptance.
Together with this Agreement, any purchase order for Goods that ISCO delivers to Vendor becomes a contract upon the earlier of (a) ISCO's receipt of Vendor's written acknowledgement of ISCO's purchase order; provided that, if Vendor's written acknowledgement (including, but not limited to, an invoice generated by Vendor) contains a different description, price, or delivery schedule (“Difference”), then no contract is formed unless and until ISCO provides written approval of such Difference; or (b) the act of Vendor shipping all or any portion of the Goods described in ISCO's purchase order. For purposes of this Agreement, "Goods" includes all products, articles, materials and work associated with the items identified on ISCO’s purchase order and the delivery of such items.

3. Price.
Except as provided in Section 2(a) above, prices will be as set out by ISCO on the face of the purchase order, and may not be modified unless the modification is in writing and signed by an authorized representative of ISCO. ISCO will also be entitled to all discounts and rebates allowed by Vendor's payment and other terms. No subsequent events or changed conditions will allow Vendor to change prices, or to make delivery of the Goods contingent upon ISCO accepting new prices. Unless otherwise agreed or prohibited by law, Vendor will pay all taxes, fees, and duties assessed against Vendor or otherwise relating to the Goods, except federal, provincial, state and local sales taxes.

4. Warranties.
Vendor expressly warrants as follows: (a) the Goods will conform to ISCO’s specifications, whether contained in the purchase order or any other document(s); (b) the Goods delivered will be of good quality, material and workmanship, and otherwise merchantable and free from defects, so as to comply with all implied and actual warranties under applicable law; (c) any pipe and/or fittings, will comply with the ASTM F2620 standard, the PPI TR33 standard, and other technical reports or documents generally accepted by the polyethylene pipe industry regarding the fusion of pipe and fittings; (d) the Goods delivered will be fit for the intended purpose; (e) Vendor has marketable title to the Goods; (f) the Goods will be delivered to ISCO free of any security interests, liens, or other encumbrances; (g) the Goods and the delivery of the Goods shall comply with all applicable federal, provincial, state, and local laws, rules, regulations, and other legal requirements; and (h) with respect to hiring and employee matters, Vendor has and will comply with all applicable employment standards codes and workers’ compensation legislation or equivalent legislation. These warranties will survive beyond the time of any inspection, delivery, acceptance or payment by ISCO for the Goods. ISCO EXPRESSLY REJECTS ANY LIMITATIONS ON ANY OF VENDOR'S WARRANTIES AS MAY RELATE TO THE GOODS.

5. Warranty against infringement.
Vendor warrants that the sale, offer of sale, or use of the Goods will not infringe, either directly, jointly, or indirectly by reason of contributory infringement of or inducement to infringe any patents, trademarks or copyrights. ISCO may reject any Goods that do not satisfy this warranty. Vendor shall defend and shall indemnify and hold harmless ISCO from any costs, claims, or damages arising out of or related to Vendor’s breach of this section.

6. Delivery.
Time is of the essence of this Agreement. Goods must be delivered within the time specified in the purchase order. If Goods are not delivered within such time, or if ISCO reasonably believes that the Goods will not be delivered within such time, then ISCO may reject such Goods, cancel the order, and/or charge Vendor with any excess costs or expenses arising out of or caused by such delay (including, but not limited to, liquidated damages), without penalty or payment for any Goods not actually delivered at the time of cancellation. ISCO's rights and remedies under the Agreement or under applicable law shall not be limited by ISCO’s exercise of any of the remedies described in this section.

7. Packing.
Unless otherwise specified, each shipment will (a) be numbered and labeled with ISCO's order number, stock number, contents and weight; (b) contain an itemized packing slip; and (c) be properly prepaid for shipment so as to secure lowest transportation and insurance rates and to meet the carrier's requirements. No charges will be allowed Vendor for packing, breaking, freight, express or cartage unless specified in the purchase order.

8. Risk of Loss.
Title and risk of loss or damage to the Goods shall not pass to ISCO until such time that ISCO or ISCO’s customer accepts the Goods, whichever occurs first. Any loss, injury or destruction of the Goods will not release Vendor from any obligation under the Agreement or the purchase order. For purposes of this section, "Vendor" includes any agents, employees, subsidiaries, affiliates, shippers, contractors, or suppliers of Vendor, as well as any entity acting on behalf of, under the direction of, or under the control of Vendor.

9. Nonconforming goods; nonconforming tender.
Goods delivered (whether paid for or not) are subject to inspection, testing and approval by ISCO or its customer before acceptance. If ISCO or its customer reasonably believes that any of the following have occurred, then ISCO may reject the Goods or any portion of the Goods, and may return the rejected Goods at Vendor's expense and risk: (a) the Goods do not fully comply with the warranties provided by Vendor; (b) the Goods do not fully comply with applicable specifications; (c) the Goods are shipped contrary to shipping instructions or specifications, or, in the absence of written shipping instructions or specifications, contrary to generally accepted packing and loading standards for such Goods; (d) the quantity of Goods shipped or delivered exceeds the quantity stated in ISCO's Purchase Order; or (e) except as provided in Section 2(a) above, the Goods are tendered conditional upon to Vendor's acknowledgment, invoice, form, contract, terms and conditions, or any other communication inconsistent with, or in addition to, or which purports to alter or limit this Agreement in any way.

10. Damages.
Vendor will be liable for all actual, direct, indirect, special, compensatory, and punitive damages, including but not limited to lost profits and consequential damages, which arise out of or are caused by (a) Vendor's failure to satisfy any of its obligations, warranties, representations, or requirements arising under the Agreement; (b) any defective product or service delivered by Vendor under the Agreement; or (c) Vendor's negligent or wrongful conduct, acts, errors, or omissions under the Agreement. ISCO EXPRESSLY REJECTS ANY LIMITATIONS ON VENDOR'S LIABILITY OR ISCO’S REMEDIES UNDER THIS AGREEMENT.

11. Indemnification.
Vendor shall defend and shall indemnify and hold harmless ISCO, its agents, employees, successors, assigns, affiliated entities, customers, and users of Goods, from and against, all claims, product recalls or withdrawals, losses, liabilities, damages, costs, and expenses (including attorney's fees) arising out of or related to (a) Vendor's failure or alleged failure to satisfy any of its obligations, warranties, representations, or requirements arising under this Agreement or the purchase order; (b) any alleged or actual defect in a Good or service, whether latent or patent; or (c) Vendor's alleged or actual negligent or wrongful conduct, acts, errors, or omissions under the Agreement.

12. Insurance.
Vendor shall obtain and maintain, at its own expense, the following insurance coverages: (a) commercial general liability insurance and product liability insurance, as is necessary to cover any claims, product recalls or withdrawals, losses, liabilities, damages, costs, and expenses (including attorney's fees) arising out of or related to bodily injury or property damage; and (b) automobile liability insurance. Vendor shall name ISCO as an additional named insured under such policies. The limits under these policies must be at least $1,000,000 per occurrence, $2,000,000 in the aggregate. Vendor may satisfy these limits by obtaining and maintaining primary insurance coverage, or by the aggregate of primary and excess or umbrella insurance coverage. Vendor must provide at least thirty (30) days written notice to ISCO in the event of any cancellation, termination, or modification of the insurance policies required herein.

13. Force Majeure.
The parties understand that causes reasonably beyond Vendor's control may render it unable to perform its obligations under the Agreement. Such causes may include natural catastrophe, war, or terroristic acts. If Vendor should declare that an event under this section has rendered it unable to perform: (a) Vendor must use commercially reasonable efforts to remove or mitigate the effects of any such condition and resume performance as soon as practical; (b) if Vendor's negligence was not a factor in rendering it unable to perform, then Vendor will be excused from performance for as long as the condition exists to a degree that it reasonably prevents Vendor’s performance; and (c) without incurring any liability to Vendor, at its sole discretion, ISCO may seek an alternative supplier for the Goods that Vendor declares it is unable to provide timely due to such cause(s). ISCO may terminate the Agreement without penalty or obligation to Vendor in the event any such delays continues for a period of more than thirty (30) consecutive days. When and if Vendor resumes performance, Vendor may not charge ISCO a price greater than what was set forth in ISCO’s purchase order or otherwise agreed upon in writing.

14. No delegation or assignment; offset.
Vendor may not delegate or assign any duties, rights, or claims under the purchase order or the Agreement without ISCO's prior written consent. All claims for monies which are due or may become due from ISCO will be subject to deduction by ISCO for any setoff or counterclaim, whether actual or potential, arising out of this or any other contract between ISCO and Vendor.

15. Confidentiality.
Vendor acknowledges that the information contained in a purchase order from ISCO, or which Vendor may otherwise obtain from ISCO, including the existence of business relationship between Vendor and ISCO itself, is confidential and is treated as such by ISCO. Such information includes, but is not limited to, customer lists, pricing, marketing plans and information, business plans, and financial information. Vendor may not, without ISCO's prior written consent, disclose to third parties any business, commercial, proprietary, or technical information obtained from ISCO.

16. Entire Agreement.
The Agreement, and the documents and descriptions referred to in Section 2 above, contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all other agreements between Vendor and ISCO, whether entered into prior or subsequent to the date of ISCO’s purchase order. UNLESS EXPRESSLY AGREED IN WRITING BY ISCO, NO OTHER TERMS AND CONDITIONS OTHER THAN THOSE SET OUT HEREIN SHALL FORM A PART OF ANY AGREEMENT BETWEEN THE PARTIES, AND ANY PROVISIONS CONTAINED IN ANY ACKNOWLEDGEMENT, INVOICE, FORM, CONTRACT, TERMS AND CONDITIONS, OR ANY OTHER COMMUNICATION FROM VENDOR THAT ARE INCONSISTENT WITH OR IN ADDITION TO THIS AGREEMENT WILL HAVE NO FORCE OR EFFECT.

17. No Waiver.
Failure of ISCO to insist upon strict performance of this Agreement or to enforce any of its rights will not constitute a waiver of such rights or of any other rights.

18. Severability.
The provisions of this Agreement are intended to be construed so as to be valid, binding, and enforceable to the fullest extent provided by law. However, if any provision of this Agreement is deemed to be invalid or unenforceable by a court of competent jurisdiction, the other provisions of this Agreement will remain valid, binding, and enforceable.

19. Changes.
. ISCO shall have the right to make changes to the purchase order by a notice in writing to Vendor, and if such change causes an increase or decrease in the amount due under the purchase order or the time required for performance an equitable adjustment may be made and the purchase order modified in writing accordingly. Any claim for adjustment must be asserted by Vendor in writing within fifteen (15) days of the date the change is ordered. Nothing herein shall relieve Vendor from proceeding without delay in the performance of any such changes. THIS AGREEMENT MAY NOT BE MODIFIED OR AMENDED BY ANY COURSE OF DEALING OR PERFORMANCE.

20. Compliance with Law.
Vendor is in compliance with and shall comply with all applicable laws, regulation, and ordinances. Vendor has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that are required to perform Vendor’s obligations under this Agreement. Vendor shall comply with all export and import laws and regulations of all countries involved in the sale of Goods under this Agreement, and Vendor assumes all responsibility for shipments of Goods requiring any government import clearance. Vendor represents and warrants that it has not and covenants that it will not pay anything of value to any government official in connection with the purchase and sale of the Goods.

21. Applicable Law; Forum Selection.
The Agreement will be governed by and construed in accordance with the laws of the Province of Manitoba and the federal laws of Canada applicable therein without given effect to principles of conflicts of laws. Vendor and ISCO irrevocably attorn and submit to the exclusive jurisdiction of the Manitoba courts situated in the City of Winnipeg and waive objection to the venue of any proceeding in such court or that such court provides an inconvenient forum. The United Nations Convention on Contracts for the International Sale of Goods (the “Convention”) and any other legislation applying the terms of the Convention within a particular jurisdiction are hereby expressly disclaimed with respect to this agreement.

Terms and Conditions of Purchase (CA) (0515) - 5/11/15
 

Table of Contents

  1. Terms and Conditions of Sale - United States
  2. Terms and Conditions of Sale - Australia
  3. Terms and Conditions of Sale - Canada

TERMS AND CONDITIONS OF SALE - UNITED STATES

All orders with ISCO Industries, Inc. (“Seller”) are subjected to the following terms and conditions.

Order Acceptance:
All orders are subject to the approval and acceptance by an authorized representative of Seller. Your order, when shipped by us, shall be the complete contract between us, subject to and incorporating therein, the terms and conditions set forth herein, and any provisions contained in your order that are inconsistent with or contrary to our terms and conditions shall be inapplicable and invalid and are hereby expressly rejected by us. In any event, your acceptance of the goods or service shall manifest your assent to Seller’s terms and conditions of sale.

Cancellation:
Any order that is in the process of production or shipment is not subject to cancellation, deferment of delivery, or change of specification without the written approval of an authorized representative of Seller.

Freight Conditions:
Unless specifically stated that freight is allowed, all orders shall be F.O.B shipping point. Title to the goods and risk of loss shall pass to the Buyer, Buyer’s representative, or common carrier at the F.O.B. shipping point and Seller shall have no responsibility for any damages or losses attributable to any carrier transporting the goods from the F.O.B point to final destination. When freight is allowed, the prices are F.O.B. from the shipment point, with freight allowed to specified destination. The point or origin of the shipment, the method of transportation, and the routing of shipments are at the discretion of Seller.

Payment Terms:
All invoices are due net 30 days, with all past due accounts subject to a service charge of 1.5% per month (18% annually).

Return Policy:
Buyer shall not return any goods without obtaining prior written authorization from Seller. Goods returned for credit must be in new condition and will be subjected to a minimum twenty-five percent (25%) restocking charge, F.O.B Seller shipping location. Only standard stocking items with a standard part number are eligible for return. Non-standard items, items shipped direct from a manufacturer, or specialty-made goods will not be accepted for return. Any items/structures/goods that require a Seller-furnished Work Order and/or a Computer Automated Drawing will not be accepted for return.

Performance:
All promises as to the date of shipment are made in good faith and as an estimate only, and therefore cannot be guaranteed. Accordingly, Seller shall not be liable to Buyer for any delay in delivery.

Limited Warranty:
Goods manufactured by Seller are warranted only to the extent that Seller will furnish replacement parts, free of charge, F.O.B. shipping location; or at the option of Seller, refund the purchase price of any product which, when properly stored, transported, installed and used as recommended by Seller and in accordance with the best installation and operating practices and techniques, is proven to be defective in material or workmanship within one (1) year from the date of shipment. Buyer shall provide Seller immediate notice of any defect and allow Seller the opportunity to inspect the same at the place of installation. Any defect caused by the custom specifications of Buyer is excluded from this warranty. In addition, goods sold by Seller which are manufactured by others are warranted only to the extent of, and are limited to, the warranty of the manufacturer.

In the event Seller performs any pipe joint fusing services for or on behalf of Buyer, Seller warrants, for a period of ninety (90) days following the date a fused pipe joint was made, that any such joint will not fail to the extent caused by the faulty workmanship of Seller. Buyer’s sole and exclusive remedy against Seller for a breach of this warranty shall be at Seller’s option, either to return to Buyer the amounts paid for such services, or for Seller to re-perform the allegedly defective services.

THE WARRANTIES SET FORTH ABOVE ARE MADE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND BUYER ACKNOWLEDGES THAT EXCEPT FOR SUCH LIMITED WARRANTIES, THE GOODS AND SERVICES ARE PROVIDED “AS IS.” SELLER DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, WITHOUT LIMITATION, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE WARRANTIES ALLEGEDLY ARISING FROM ANY TRADE USAGE OR FROM ANY COURSE OF DEALING OR PERFORMANCE.

Buyer Warranty and Representation:
Buyer warrants that it has not relied on any representation made by Seller which has not been stated expressly in writing or upon any descriptions, illustrations or specifications contained in any marketing or other publicity material produced by Seller. Further, Buyer acknowledges that to the extent Seller has made any representation which is not otherwise expressly stated in writing, the Buyer has been provided with an opportunity to independently verify the accuracy of any such representation.

Indemnification:
Buyer shall indemnify, defend and hold harmless Seller and its agents and employees from and against any cause of action, suit, claim, damage, loss and expense, including attorney’s fees, (including without limitation the personal injury, death or damage to property of any third person) arising out of or in connection with the sale, transportation, installation, application, use or repair of the goods by Buyer, whether caused in part by the concurrent and/or contributory negligence of Seller or its agents, employees or suppliers. The provisions of this paragraph shall survive the consummation of any sale or other transaction between Buyer and Seller.

Limitation of Liability:
IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY BODILY INJURY OR PROPERTY DAMAGE, OR ANY OTHER LOSS, DAMAGE, COST OF REPAIRS, OR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL OR LIQUIDATED DAMAGES INCURRED BY BUYER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS OR PROFITS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, CONTRIBUTION, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION, ARISING OUT OF OR IN CONNECTION WITH THE DESIGN, MANUFACTURE, SALE, TRANSPORTATION, INSTALLATION, USE OR REPAIR OF THE GOODS SOLD BY SELLER. SELLER’S TOTAL LIABILITY, IF ANY, ARISING OUT OF OR IN CONNECTION WITH ANY GOODS OR SERVICES SOLD UNDER THIS AGREEMENT, FOR CLAIM(S) OF ANY NATURE, SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE GOODS OR SERVICES RELATED TO THE CLAIM.

THE LIMITATION OR EXCLUSION OF WARRANTIES, REMEDIES, DAMAGES OR LIABILITY SET FORTH ABOVE ARE INTENDED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

Taxes:
Prices do not include any present or future federal, state, or local taxes unless specifically stated. It is the responsibility of Buyer to assume all taxes. When applicable, taxes may be added to the purchase price and be paid by Buyer unless Buyer furnishes a tax-exemption certificate in a form agreeable to the respective authority.

Export Restrictions:
Buyer agrees to comply with all applicable United States export control laws and regulations concerning the export and re-export of Seller’s goods, technology and documentation, including without limitation, the laws and regulations administered by the US Department of Commerce, US Treasury Department and the US Department of State.

Export and Import Licenses and Permits:
Buyer shall be responsible for obtaining and paying for any permits, licenses, or other governmental authorization(s) necessary for the importation of any goods into the designated country of importation, and it shall comply with all laws and regulations thereof.

Foreign Corrupt Practices Act:
Buyer acknowledges that it is not the agent of Seller and represents and warrants that it has not and covenants that it will not pay anything of value to any government official in connection with the resale of any goods.

Severability:
If any provision hereof is held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision hereof is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed and enforced as so limited.

Non-Waiver:
The waiver by Seller of any breach of any provision contained herein shall not be deemed to be a waiver of such provision on any subsequent breach of the same or any other provision contained herein.

Governing Law:
These terms and conditions, and any order subject thereto, shall be deemed to have been entered into in the Commonwealth of Kentucky, and all matters arising out of or relating to it shall be governed by and construed in accordance with the laws of the United States and the Commonwealth of Kentucky without giving effect to principles of conflicts of laws. The United Nations Convention on Contracts for the International Sale of Goods (the “Convention”) and any other legislation applying the terms of the Convention within a particular jurisdiction are hereby expressly disclaimed with respect to this agreement between Buyer and Seller. Any action with respect to the order or the Goods sold must be brought in a state or federal court situated in Louisville, Jefferson County, Kentucky, and the parties waive objection to the venue of any proceeding in such court or that such court provides an inconvenient forum.

Entire Agreement:
These terms and conditions shall constitute the complete agreement between Buyer and Seller, and no change in or modification of the same shall be binding upon Seller unless the change or modification shall be in writing, consented to and approved by a duly authorized representative of Seller.

Terms and Conditions of Sale (US) (0416) - 4/11/16
 

TERMS AND CONDITIONS OF SALE: ISCO Australia Pty Ltd PTY LTD (ACN 166 748 929)

All orders with ISCO Australia Pty Ltd (ACN 166 748 929) (“Seller”) are subjected to the following terms and conditions.

Order Acceptance:
All orders are subject to the approval and acceptance by an authorized representative of Seller. Your order, when shipped by us, shall be the complete contract between us, subject to and incorporating therein, the terms and conditions set forth herein, and any provisions contained in your order that are inconsistent with or contrary to our terms and conditions shall be inapplicable and invalid and are hereby expressly rejected by us. In any event, your acceptance of the goods or service shall manifest your assent to Seller’s terms and conditions of sale.

Cancellation:
Any order that is in the process of production or shipment is not subject to cancellation, deferment of delivery, or change of specification without the written approval of an authorized representative of Seller.

Freight Conditions:
Unless specifically stated that freight is allowed, all orders shall be F.O.B shipping point. Title to the goods and risk of loss shall pass to the Buyer, Buyer’s representative, or common carrier at the F.O.B. shipping point and Seller shall have no responsibility for any damages or losses attributable to any carrier transporting the goods from the F.O.B point to final destination. When freight is allowed, the prices are F.O.B. from the shipment point, with freight allowed to specified destination. The point or origin of the shipment, the method of transportation, and the routing of shipments are at the discretion of Seller.

Payment Terms:
All invoices are due net 30 days, with all past due accounts subject to a service charge of 1.5% per month (18% annually).

Return Policy:
Buyer shall not return any goods without obtaining prior written authorization from Seller. Goods returned for credit must be in new condition and will be subjected to a minimum twenty-five percent (25%) restocking charge, F.O.B Seller shipping location. Only standard stocking items with a standard part number are eligible for return. Non-standard items, items shipped direct from a manufacturer, or specialty-made goods will not be accepted for return. Any items/structures/goods that require a Seller-furnished Work Order and/or a Computer Automated Drawing will not be accepted for return.

Performance:
All promises as to the date of shipment are made in good faith and as an estimate only, and therefore cannot be guaranteed. Accordingly, Seller shall not be liable to Buyer for any delay in delivery.

Limited Warranty:
Goods manufactured by Seller are warranted only to the extent that Seller will furnish replacement parts, free of charge, F.O.B. shipping location; or at the option of Seller, refund the purchase price of any product which, when properly stored, transported, installed and used as recommended by Seller and in accordance with the best installation and operating practices and techniques, is proven to be defective in material or workmanship within one (1) year from the date of shipment. Buyer shall provide Seller immediate notice of any defect and allow Seller the opportunity to inspect the same at the place of installation. Any defect caused by the custom specifications of Buyer is excluded from this warranty. In addition, goods sold by Seller which are manufactured by others are warranted only to the extent of, and are limited to, the warranty of the manufacturer.

In the event Seller performs any pipe joint fusing services for or on behalf of Buyer, Seller warrants, for a period of ninety (90) days following the date a fused pipe joint was made, that any such joint will not fail to the extent caused by the faulty workmanship of Seller. Buyer’s sole and exclusive remedy against Seller for a breach of this warranty shall be at Seller’s option, either to return to Buyer the amounts paid for such services, or for Seller to re-perform the allegedly defective services.

THE WARRANTIES SET FORTH ABOVE ARE MADE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND BUYER ACKNOWLEDGES THAT EXCEPT FOR SUCH LIMITED WARRANTIES, THE GOODS AND SERVICES ARE PROVIDED “AS IS.” SELLER DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, WITHOUT LIMITATION, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE WARRANTIES ALLEGEDLY ARISING FROM ANY TRADE USAGE OR FROM ANY COURSE OF DEALING OR PERFORMANCE

PPS Act:
Non-defined terms in this clause should be interpreted by reference to the PPS Act. Other defined terms will be defined as follows:
(i) “PMSI” means Purchase Money Security Interest as defined in the PPS Act;
(ii) “PPS Act” means the Personal Property Securities Act 2009 (Cth);
(iii) “Register” means the Personal Property Securities Register provided for by the PPS Act; and
(iv) “Security Interest” has the meaning given to that term in section 12 of the PPS Act.

(b) The Customer consents to Seller affecting and maintaining a registration on the Register (in any manner Seller considers appropriate) in relation to any Security Interest contemplated or constituted by this Agreement in the Goods and the proceeds arising in respect of any dealing in the Goods and the Customer agrees to sign any documents and provide all assistance and information to Seller required to facilitate the registration and maintenance of any Security Interest. Seller may at any time register a financing statement or financing change statement in respect of a Security Interest (including any PMSI). The Customer waives the right to receive notice of a verification statement in relation to any registration on the Register of a Security Interest in respect of the Goods.

(c) The Customer undertakes to:

(i) do anything (in each case, including executing any new document or providing any information) that is required by Seller (A) so that Seller may acquire and maintain one or more perfected Security Interests under the PPS Act in respect of the Goods and the proceeds of the Goods, (B) to register a financing statement or financing change statement and (C) to ensure that Seller’s security position, and rights and obligations, are not adversely affected by the PPS Act;

(ii) not register a financing change statement in respect of a Security Interest contemplated or constituted by this Agreement without Seller’s prior written consent; and

(iii) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favor of a third party without Seller’s prior written consent.

(d) If Chapter 4 of the PPS Act would otherwise apply to the enforcement of a Security Interest arising under or in connection with this Agreement and section 115 of the PPS Act allows for the contracting out of provisions of the PPS Act, the following provisions of the PPS Act will not apply and the Customer will have no rights under them: section 95 (to the extent that it requires the secured party to give notices to the grantor); section 96; section 121(4); section 125; section 127; section 129(2) and (3); section 130; section 132; section 134(2); section 132(4); section 135; section 136(3), (4) and (5); section 137 and section 143.

(e) Unless otherwise agreed and to the extent permitted by the PPS Act, the parties agree not to disclose information of the kind referred to in section 275(1) of the PPS Act to an interested person, or any other person requested by an interested person. The Customer waives any right that the Customer may have, or but for this clause may have had, under section 275(7)(c) of the PPS Act to authorize the disclosure of the above information.

(f) For the purposes of section 20(2) of the PPS Act, the collateral is or includes any Goods provided by Seller to the Customer from time to time. This Agreement is a security agreement for the purposes of the PPS Act.

(g) Seller may apply amounts received in connection with this Agreement to satisfy obligations secured by a Security Interest contemplated or constituted by this Agreement in any way Seller determines at its sole and absolute discretion.

Buyer Warranty and Representation:
Buyer warrants that it has not relied on any representation made by Seller which has not been stated expressly in writing or upon any descriptions, illustrations or specifications contained in any marketing or other publicity material produced by Seller. Further, Buyer acknowledges that to the extent Seller has made any representation which is not otherwise expressly stated in writing, the Buyer has been provided with an opportunity to independently verify the accuracy of any such representation.

Indemnification:
Buyer shall indemnify, defend and hold harmless Seller and its agents and employees from and against any cause of action, suit, claim, damage, loss and expense, including attorney’s fees, (including without limitation the personal injury, death or damage to property of any third person) arising out of or in connection with the sale, transportation, installation, application, use or repair of the goods by Buyer, whether caused in part by the concurrent and/or contributory negligence of Seller or its agents, employees or suppliers. The provisions of this paragraph shall survive the consummation of any sale or other transaction between Buyer and Seller.

Limitation of Liability:
IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY BODILY INJURY OR PROPERTY DAMAGE, OR ANY OTHER LOSS, DAMAGE, COST OF REPAIRS, OR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL OR LIQUIDATED DAMAGES INCURRED BY BUYER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS OR PROFITS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, CONTRIBUTION, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION, ARISING OUT OF OR IN CONNECTION WITH THE DESIGN, MANUFACTURE, SALE, TRANSPORTATION, INSTALLATION, USE OR REPAIR OF THE GOODS SOLD BY SELLER. SELLER’S TOTAL LIABILITY, IF ANY, ARISING OUT OF OR IN CONNECTION WITH ANY GOODS OR SERVICES SOLD UNDER THIS AGREEMENT, FOR CLAIM(S) OF ANY NATURE, SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE GOODS OR SERVICES RELATED TO THE CLAIM.

Warranties and Limitation of Liability.
Subject to the clause entitled “Implied Warranties”, any condition or warranty which would otherwise be implied in this Agreement is hereby excluded.

Implied Warranties.
Where legislation implies in this Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in this Agreement. However, the liability of Seller for any breach of such condition or warranty shall be limited, at the option of Seller, to one or more of the following:

(i) the replacement of the Goods or the supply of equivalent Goods;
(ii) the repair of such Goods;
(iii) the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
(iv) the payment of the cost of having the Goods repaired; and

Further, if any provision of this Agreement is affected by the implied warranties described in this clause, that provision will apply to the fullest extent available under the law.

Liability of Seller.
To the fullest extent available under the law, Seller shall be under no liability to Customer in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of goods or services supplied pursuant to this Agreement or in respect of a failure or omission on the part of Seller to comply with its obligations under this Agreement.

Unforseen Event:
An act of war (whether declared or not) or terrorism, the mobilization of armed forces, civil commotion or riot, natural disaster, industrial action or labor disturbance, currency restriction, embargo, action or inaction by a government Provider, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a virus or other malicious code is an “Unforseen Event” (Unforseen Event). The obligations of Seller and Customer under this Agreement are suspended to the extent that an Unforeseen Event affects them, as long as the Unforeseen Event continues. The occurrence of an Unforeseen Event does not suspend the obligation of Customer to pay any money under the Terms. A party claiming an Unforeseen Event must use their best endeavors to remove, overcome or minimize the effects of that Unforeseen Event as quickly as possible. If an Unforeseen Event continues for more than thirty (30) days, either party may terminate this Agreement by notice in writing to the other party.

Taxes:
Prices do not include any present or future federal, state, or local taxes unless specifically stated. It is the responsibility of Buyer to assume all taxes. When applicable, taxes may be added to the purchase price and be paid by Buyer unless Buyer furnishes a tax-exemption certificate in a form agreeable to the respective authority.

Export Restrictions:
Buyer agrees to comply with all applicable United States export control laws and regulations concerning the export and re-export of Seller’s goods, technology and documentation, including without limitation, the laws and regulations administered by the US Department of Commerce, US Treasury Department and the US Department of State.

Export and Import Licenses and Permits:
Buyer shall be responsible for obtaining and paying for any permits, licenses, or other governmental authorization(s) necessary for the importation of any goods into the designated country of importation, and it shall comply with all laws and regulations thereof.

Foreign Corrupt Practices Act:
Buyer acknowledges that it is not the agent of Seller and represents and warrants that it has not and covenants that it will not pay anything of value to any government official in connection with the resale of any goods.

Severability:
If any provision hereof is held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision hereof is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed and enforced as so limited.

Non-Waiver:
The waiver by Seller of any breach of any provision contained herein shall not be deemed to be a waiver of such provision on any subsequent breach of the same or any other provision contained herein.

Governing Law:
The laws of the state of Queensland govern this Agreement and each party submits to the non-exclusive jurisdiction of the courts of Queensland.

Entire Agreement:
These terms and conditions shall constitute the complete agreement between Buyer and Seller, and no change in or modification of the same shall be binding upon Seller unless the change or modification shall be in writing, consented to and approved by a duly authorized representative of Seller.

Terms and Conditions of Sale (AUS) (0115) - 11/13/14
 

TERMS AND CONDITIONS OF SALE - CANADA

All orders with ISCO Canada, Inc. (“Seller”) are subject to the following terms and conditions.

Order Acceptance:
All orders are subject to the approval and acceptance by an authorized representative of Seller. Your order, when shipped by us, shall be the complete contract between us, subject to and incorporating therein, the terms and conditions set forth herein, and any provisions contained in your order that are inconsistent with or contrary to the terms and conditions set out herein shall be inapplicable and invalid and are hereby expressly rejected by us. In any event, your acceptance of the goods or service shall confirm your acknowledgement of and agreement to Seller’s terms and conditions of sale.

Cancellation:
Any order that is in the process of production or shipment is not subject to cancellation, deferment of delivery, or change of specification without the written approval of an authorized representative of Seller.

Freight Conditions:
Unless specifically stated that freight is allowed, all orders shall be F.O.B shipping point. Title to the goods and risk of loss shall pass to the Buyer, Buyer’s representative, or common carrier at the F.O.B. shipping point and Seller shall have no responsibility for any damages or losses attributable to any carrier transporting the goods from the F.O.B point to final destination. When freight is allowed, the prices are F.O.B. from the shipment point, with freight allowed to specified destination. The point or origin of the shipment, the method of transportation, and the routing of shipments are at the discretion of Seller.

Payment Terms:
All invoices are due net 30 days, with all past due accounts subject to a service charge of 1.5% per month (18% annually).

Return Policy:
Buyer shall not return any goods without obtaining prior written authorization from an authorized representative of the Seller. Goods returned for credit must be in new condition and will be subjected to a minimum twenty-five percent (25%) restocking charge, F.O.B Seller shipping location. Only standard stocking items with a standard part number are eligible for return. Non-standard items, items shipped direct from a manufacturer, or specialty-made goods will not be accepted for return. Any items/structures/goods that require a Seller-furnished Work Order and/or a Computer Automated Drawing will not be accepted for return.

Performance:
All promises as to the date of shipment are made in good faith and as an estimate only, and therefore cannot be guaranteed. Accordingly, Seller shall not be liable to Buyer for any delay in delivery.

Limited Warranty:
Goods manufactured by Seller are warranted only to the extent that Seller will furnish replacement parts, free of charge, F.O.B. shipping location; or at the option of Seller, refund the purchase price of any product which, when properly stored, transported, installed and used as recommended by Seller and in accordance with the best installation and operating practices and techniques, is proven to be defective in material or workmanship within one (1) year from the date of shipment. Buyer shall provide Seller immediate notice of any defect and allow Seller the opportunity to inspect the same at the place of installation. Any defect caused by or resulting from the custom specifications of Buyer is excluded from this warranty. In addition, goods sold by Seller which are manufactured by others are warranted only to the extent of, and are limited to, the warranty of the manufacturer.

In the event Seller performs any pipe joint fusing services for or on behalf of Buyer, Seller warrants, for a period of ninety (90) days following the date a fused pipe joint was made, that any such joint will not fail to the extent caused by the faulty workmanship of Seller. Buyer’s sole and exclusive remedy against Seller for a breach of this warranty shall be at Seller’s option, either to return to Buyer the amounts paid for such services, or for Seller to re-perform the allegedly defective services.

THE WARRANTIES SET FORTH ABOVE ARE MADE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND BUYER ACKNOWLEDGES THAT EXCEPT FOR SUCH LIMITED WARRANTIES, THE GOODS AND SERVICES ARE PROVIDED “AS IS.” SELLER DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, WITHOUT LIMITATION, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED UNDER ANY “SALE OF GOODS” LEGISLATION OR OTHERWISE, OF ANY KIND, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE WARRANTIES ALLEGEDLY ARISING FROM ANY TRADE USAGE OR FROM ANY COURSE OF DEALING OR PERFORMANCE.

Buyer Warranty and Representation:
Buyer warrants that it has not relied on any representation made by Seller which has not been stated expressly in writing or upon any descriptions, illustrations or specifications contained in any marketing or other publicity material produced by Seller. Further, Buyer acknowledges that to the extent Seller has made any representation which is not otherwise expressly stated in writing, the Buyer has been provided with an opportunity to independently verify the accuracy of any such representation.

Indemnification:
: Buyer shall indemnify, defend and hold harmless Seller and its agents and employees from and against any cause of action, suit, claim, damage, loss and expense, including attorney’s fees, (including without limitation the personal injury, death or damage to property of any third person) arising out of or in connection with the sale, transportation, installation, application, use or repair of the goods by Buyer, whether caused in part by the concurrent and/or contributory negligence of Seller or its agents, employees or suppliers. The provisions of this paragraph shall survive the consummation of any sale or other transaction between Buyer and Seller.

Limitation of Liability:
IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY BODILY INJURY OR PROPERTY DAMAGE, OR ANY OTHER LOSS, DAMAGE, COST OF REPAIRS, OR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL OR LIQUIDATED DAMAGES INCURRED BY BUYER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS OR PROFITS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, CONTRIBUTION, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION, ARISING OUT OF OR IN CONNECTION WITH THE DESIGN, MANUFACTURE, SALE, TRANSPORTATION, INSTALLATION, USE OR REPAIR OF THE GOODS SOLD BY SELLER. SELLER’S TOTAL LIABILITY, IF ANY, ARISING OUT OF OR IN CONNECTION WITH ANY GOODS OR SERVICES SOLD UNDER THIS AGREEMENT, FOR CLAIM(S) OF ANY NATURE, SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE GOODS OR SERVICES RELATED TO THE CLAIM.

THE LIMITATION OR EXCLUSION OF WARRANTIES, REMEDIES, DAMAGES OR LIABILITY SET FORTH ABOVE ARE INTENDED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

Taxes:
Prices do not include any present or future federal, provincial, state, local or foreign taxes unless specifically stated. It is the responsibility of Buyer to assume all taxes. When applicable, taxes may be added to the purchase price and be paid by Buyer unless Buyer furnishes a tax-exemption certificate in a form agreeable to the respective authority.

Export and Import Restrictions, Licenses and Permits:
As applicable, Buyer agrees to comply with all export and import control laws and regulations concerning the export, import, re-export and re-import of Seller’s goods, technology and documentation, including without limitation, the laws and regulations administered by the US Department of Commerce, US Treasury Department, US Department of State and the Canadian Department of Foreign Affairs, Trade and Development Canada. Buyer shall be responsible for obtaining and paying for any permits, licenses, or other governmental authorization(s) necessary for the importation of any goods into the designated country of importation, and it shall comply with all laws and regulations thereof.

Anti-Corruption.:
Buyer acknowledges that it is not the agent of Seller and represents and warrants that it has not and covenants that it will not pay anything of value to any government official in connection with the resale of any goods in contravention of the Foreign Corrupt Practices Act, Corruption of Foreign Public Officials Act, or any other anti-corruption legislation.

Severability:
If any provision hereof is held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision hereof is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed and enforced as so limited.

Non-Waiver:
The waiver by Seller of any breach of any provision contained herein shall not be deemed to be a waiver of such provision on any subsequent breach of the same or any other provision contained herein.

Governing Law:
These terms and conditions, and any order subject thereto, shall be deemed to have been entered into in the province of Manitoba, and all matters arising out of or relating to it shall be governed by and construed in accordance with the laws of Manitoba and the federal laws of Canada applicable therein without giving effect to principles of conflicts of laws. Buyer and Seller irrevocably attorn and submit to the exclusive jurisdiction of the Manitoba courts situated in the City of Winnipeg and waive objection to the venue of any proceeding in such court or that such court provides an inconvenient forum. The United Nations Convention on Contracts for the International Sale of Goods (the “Convention”) and any other legislation applying the terms of the Convention within a particular jurisdiction are hereby expressly disclaimed with respect to this agreement between Buyer and Seller.

English Language:
The parties confirm that it is their wish that this contract be drawn up in the English language only; les parties aux présentes confirment leur volonté que ce contrat soit rédigé en langue anglaise seulement.

Entire Agreement:
These terms and conditions shall constitute the complete agreement between Buyer and Seller, and no change in or modification of the same shall be binding upon Seller unless the change or modification shall be in writing, consented to and approved by a duly authorized representative of Seller. UNLESS EXPRESSLY AGREED IN WRITING BY ISCO, NO OTHER TERMS AND CONDITIONS OTHER THAN THOSE SET OUT HEREIN SHALL FORM A PART OF ANY AGREEMENT BETWEEN THE PARTIES, AND ANY PROVISIONS CONTAINED IN ANY ACKNOWLEDGEMENT, INVOICE, FORM, CONTRACT, TERMS AND CONDITIONS, OR ANY OTHER COMMUNICATION FROM VENDOR THAT ARE INCONSISTENT WITH OR IN ADDITION TO THIS AGREEMENT WILL HAVE NO FORCE OR EFFECT.

Terms and Conditions of Sale (CAN) (0515) - 5/8/15