Terms and Conditions of Sale

1. Terms and Conditions of Sale: If these Terms and Conditions of Sale (“Terms”) differ in any way from the terms and conditions of the purchase order placed by the buyer named on the face this invoice (“Buyer”) these Terms will be construed as a counter-offer.  Buyer’s authorization to ship or acceptance of the products sold pursuant to this invoice (“Products”) shall manifest Buyer’s agreement to these Terms, which together with the description of the Products, quantities ordered and delivery terms on the face of this invoice shall be the complete and exclusive statement of the agreement between the parties with respect to the Products.  No other terms or conditions shall be effective unless made in writing and signed by Allied.  Notwithstanding the foregoing,  if Allied and Buyer have previously executed  a separate agreement which by its terms supersedes any terms and conditions of any purchase order, confirmation, invoice or similar sale document between the parties, the provisions of such agreement will supersede the provisions of these Terms and these Terms will be of no effect.  Allied and Buyer are sometimes referred to herein as the “parties”, and individually as a “party.
2. Orders; Minimums; Credit: Every purchase order (“Order”) shall be billed for a minimum of $100.00 for equipment and $50.00 for replacement parts. No oral Order greater than $5,000 shall be binding on Allied unless it is confirmed, in writing, within five (5) working days after given orally.  All sales are subject to the approval of Allied’s Credit Dept., which approval may be withdrawn or modified by Allied at any time.  Allied may, without any liability therefor, refuse to deliver except for cash on delivery or prepayment of the total purchase price. Allied may demand immediate payment in full for all Products previously delivered to Buyer.
3. Title; Risk of Loss; Shipment; Freight: Title and risk of loss to the Products shall pass to Buyer upon delivery to carrier at Allied’s location. Buyer shall be responsible for obtaining insurance if desired. Unless otherwise agreed in writing by Allied, delivery will be made F.O.B. Allied’s shipping point; freight will be prepaid and invoiced to Buyer; and Allied will ship by a carrier selected by Allied unless specified by Buyer in its Order, if any. There is an additional freight charge on all drop shipments.  Allied shall not be liable to Buyer for any delays in fulfilling an Order, failure to deliver or delivery delay.
4. Taxes and Other Charges: Buyer will be responsible for and promptly pay or reimburse Allied upon invoice if Allied pays, (A) any taxes and/or charges imposed or required to be paid by any federal, state, local or foreign governmental authority in connection with any Product or the price, sale, transfer, transport or delivery thereof to Buyer or the use of any Product by Buyer, including any federal, state, local or foreign sales, use, excise, value-added and/or other tax or charge (except taxes on Allied’s income); any tariffs, duties, fees, licenses or other charges; and any charges or fees for any act performed or document of title or instrument used in connection with an Order; (collectively, “Taxes”); and (B) to the extent permitted by law, any transaction fees or charges required to be paid by Allied to an applicable credit card company or bank in connection with any payments for Products (whether deposits, progress payments or otherwise) to Allied by Buyer using credit cards, debit cards or similar services, but only to the extent actually charged to Allied (“Other Charges”). The foregoing applies whether the Taxes and/or Other Charges are included on the invoice for the applicable Products or separately invoiced to Buyer.
5. Price and Payment: The purchase price for Products ordered by Buyer shall be as set forth on Allied’s quote or proposal provided to Buyer and not expired at the time of Order placement, or as otherwise agreed by the parties, provided that if the foregoing do not apply, the price for the Products so ordered shall be Allied’s published price then in effect on date of shipment or invoice, whichever occurs first. Terms of sale are net 30 days from date of invoice.  Payments shall be made timely whether or not the Products sold have been inspected by or for Buyer. The full amount shown on the invoice shall be payable in U.S. Dollars without any setoff by Buyer.  If Products sold pursuant to an Order are to be delivered in more than one lot, a separate invoice will be rendered for each lot and each invoice shall be paid as provided for in this Section 5.
   If Buyer fails to make payments in accordance with these Terms, Allied may, at its option and without any liability therefor (i) defer further shipments until such payments are made, and/or (ii) terminate the applicable Order.  Buyer shall pay interest on any overdue payments at the rate of 1.5% per month, or the highest interest rate then permitted by applicable law, if less.
6. Change Without Notice: Prices, quotations, specifications and all other terms and statements published by Allied or appearing in any catalog or advertisement of Allied are subject to change without notice. Allied reserves the right to make changes in Product design or specifications at any time without any obligation to change Products previously purchased or to supply discontinued or obsolete items.
7. Claims: Any claims for shortages of, or damaged or nonconforming Products in connection with any Order must be made in writing within fifteen (15) days after receipt of shipment, and Allied must be provided an opportunity to investigate. All such claims are subject to Section 10 below.  No reduction in price shall be taken or allowed without the prior written approval of Allied.
8. Returns: Products may not be returned to Allied without a Material Return Authorization (“MRA”) number. To obtain an MRA number please call Customer Service at 1-800-444-3940.  Products to be returned will be subject to the following restocking charges:  For Products purchased: (i) 0-3 months before date of request, the restocking fee is 20% or $50.00, whichever is greater; and (ii) 3-6 months before date of request, the restocking fee is 50% or $50.00, whichever is greater.
9. Cancellation: Cancellation or alteration of an Order or return of any Product by Buyer may not be made without advance written consent by Allied and at Allied’s option, shall be subject to Allied’s then current standard cancellation, alteration, return or restocking charge, as applicable.
10. Limited Product Warranty:

(a) Allied warrants, for a period of one (1) year from date of shipment (“Warranty Period”), that Products manufactured by Allied shall be free from material defects in material and workmanship at the time of shipment by Allied; provided that repair parts are so warranted only for ninety (90) days from date of shipment (“Warranty”).  The Warranty shall be void if repairs to an otherwise warranted Product have been made by any third party without Allied’s prior written consent.  Allied makes no warranty with respect to any Products manufactured by third parties and sold to Buyer hereunder, provided, however, Allied shall, to the extent permissible, pass-through to Buyer any warranties that were made to Allied with respect thereto. 

(b) Products that qualify for the Warranty are covered for parts and labor by Allied when returned prepaid to Allied’s Repair Department. Labor and travel will be charged to Buyer for repairs made outside Allied’s Repair Department. If a Product does not conform to the Warranty, Allied’s sole and exclusive liability, and Buyer’s sole and exclusive remedy, under the Warranty for any Products shall be, at Allied’s discretion, to repair or replace any non-conforming Products, or to accept return of such non-conforming Product and refund the purchase price therefor; provided in each case that: (i) written notice of such Warranty claim is given to Allied within the Warranty Period, (ii) the Product is found by Allied to have been non-conforming at the time of such shipment, (iii) the Product has been installed and/or operated in accordance with Allied’s instructions, (iv) no repairs, alterations or replacements have been made by others without Allied’s prior written approval and (v) Buyer notifies Allied in writing within forty-five (45) days after the non-conformance becomes apparent (but in any event during the Warranty Period), together with all details relating to such non-conformance.  In no event shall the aggregate liability of Allied in connection with breach of any warranty or warranties exceed the purchase price paid for the Product purchased hereunder.  Allied may, at its option, require the return of any Product, transportation and duties prepaid, to establish any claim of non-conformance made by Buyer.  Allied will not accept and shall have no responsibility for, and will not assume any expense or liability for repairs to, any Products returned without its prior written consent.  In the event Allied elects to replace a Product under the Warranty (regardless of whether non-conforming), costs of installation, labor, service and all other costs to replace the Product shall be the responsibility of Buyer. BUYER ACKNOWLEDGES AND AGREES THAT ALLIED MAKES NOWARRANTIES, EXPRESS OR IMPLIED, OTHER THAN THE WARRANTIES SPECIFICALLY SET FORTH HEREIN, AND ALLIED HEREBY DISCLAIMS ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.                              

11. Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, IN NO EVENT SHALL ALLIED OR ANY OF ITS PERSONNEL BE LIABLE TO BUYER, OR TO ANY PERSON WHO PURCHASES FROM BUYER OR WHO OTHERWISE USES ANY PRODUCT SUPPLIED HEREUNDER, FOR DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSS OF PRODUCTION OR LOSS OF PROFITS RESULTING FROM ANY CAUSE WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, ANY DELAY, ACT, ERROR OR OMISSION OF ALLIED, REGARDLESS OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  NO AGREEMENT OR UNDERSTANDING VARYING, ALTERING OR EXTENDING ALLIED’S LIABILITY WILL BE BINDING ON ALLIED UNLESS IN WRITING AND SIGNED BY A DULY AUTHORIZED OFFICER OF ALLIED.  TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE AGGREGATE LIABILITY OF ALLIED ARISING OUT OF OR RELATED TO ANY SALE OF PRODUCT TO BUYER HEREUNDER SHALL BE LIMITED TO THE PURCHASE PRICE PAID FOR THE PRODUCT PURCHASED.  THE EXISTENCE OF ONE OR MORE CLAIMS SHALL NOT ENLARGE THIS LIMIT.   Every claim from any cause shall be deemed waived by Buyer unless submitted, in writing, within the Warranty Period for the Product to which such claim relates.

12. Intellectual Property Infringement: Buyer agrees that as between Allied and Buyer all intellectual property of every kind embodied in the Products is owned solely and exclusively by Allied.  If the Products sold hereunder are prepared or manufactured, in whole or in part, according to Buyer’s specifications, Buyer shall indemnify and hold Allied harmless from and against any and all claims or liabilities, including reasonable attorney’s fees, relating to or arising out of any actual or alleged infringement, misappropriation or violation of any third party intellectual property rights in connection therewith and shall, at the option of Allied, assume the defense thereof.
13. Indemnification: Buyer shall indemnify, defend and hold Allied harmless from and against all claims, demands, obligations and liabilities (including reasonable attorney’s fees), for injuries to and/or death of any person, and loss of or damages to property by whosoever owned, arising directly or indirectly from the sale or use of the Products sold hereunder, except for such claims, demands, obligations and  liabilities resulting directly from the sole negligence of Allied.
14. Applicable Law: This agreement and all sales of Products to Buyer shall be governed by the laws of the State of Missouri, without giving effect to any conflict of laws principles that would require the application of the laws of a different jurisdiction.  Each party irrevocably consents to the jurisdiction and venue of the U.S. District Court of the Eastern District of Missouri and the Circuit Courts of the City of St. Louis, Missouri, and St. Louis County,  neither party shall object to venue on the basis of inconvenient forum and each party agrees to receive service of process by mail. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement, and is hereby specifically excluded.
15. Force Majeure: Allied shall not be liable for any delay in delivery, or failure to deliver, due to any cause beyond Allied’s reasonable control, including, without limitation, weather, labor strife, labor shortages, fire, flood, war, insurrection, governmental restrictions and supply chain interference. In the event of any such delay the time for performance hereunder otherwise granted to Allied shall be extended for the full duration of the delay and for a reasonable time thereafter in order to permit performance hereunder.
16. Notices: Any notice required hereunder shall be deemed given when mailed by U.S. Mail, certified, return receipt requested, postage prepaid, addressed to the applicable party at the address shown on the face of this invoice.
17. Business Conduct: Buyer shall comply fully with all applicable laws and regulations in connection with any Order and/or its sale of any Products sold to Buyer by Allied. Buyer and its employees, agents and representatives (“Representatives”) are familiar with, and for at least the two years prior to the date of this Agreement have been in compliance with, the U.S. Foreign Corrupt Practices Act of 1977, as amended (“FCPA“).  Buyer shall neither take nor refrain from taking any action that could result in liability for either Buyer or Allied under any applicable law, including without limitation, the FCPA, the OECD Anti-Bribery Convention or any other applicable anti-bribery law or treaty, or those regulations maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (31 C. F. R. Chapter V) or the U.S. Commerce Department’s Bureau of Industry and Security (15 C.F.R. Parts 730 et. seq.), as the foregoing may be amended from time to time (collectively, “Anti-Bribery Laws”).  In addition to and not in limitation of the foregoing,  Buyer represents to Allied that neither Buyer nor any of its Representatives has: (i) used or will use any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity or to influence official action; (ii) made or will make any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) made or will make any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; or (iv) failed or will fail to disclose fully any contribution or payment made by Buyer (or made by any person acting on its behalf of which Buyer is aware) that violates any Anti-Bribery Laws. Breach of the foregoing by Buyer shall constitute cause for immediate termination and/or cancellation of any Order.
18. Miscellaneous: These Terms and each Order are solely for the benefit of, and shall inure to the benefit of, Allied and Buyer, and shall not otherwise be deemed to confer upon or give any third party any right, claim, cause of action or other interest herein. Buyer may not assign or transfer this Agreement or any Order without the prior written consent of Allied. Any attempt at such an assignment shall be void from the beginning and of no effect. No change, amendment or modification of these Terms or any Order or other agreement between the parties shall be binding on Allied unless made in writing and signed by both Buyer and Allied. No legal proceedings may be brought for any breach of these Terms more than one year after the accrual of the cause of action. Nothing in these Terms or any Order will be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the parties.  Neither party has, and nor will it represent to any third party that it has, the power or authority to represent, act for, bind or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever. If any provision of these Terms or an Order is determined to be unenforceable under applicable law, such provision shall be amended by a court of competent jurisdiction to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions of these Terms shall continue in full force and effect.  The headings in this Agreement are for reference purposes only, and shall not affect the meaning or interpretation of these Terms.  The term “including” as used herein means “including without limitation.”  The terms “herein”, “hereunder”, “hereto,” “hereof,” and similar variations refer to these Terms and Orders subject to these Terms as a whole, rather than to any particular paragraph.
19. Entire Agreement: These Terms, together with the provisions set forth on the face of this invoice, set forth the entire agreement of the parties with regard to the subject matter of each Order, and supersedes all prior and contemporaneous negotiations and agreements, written or oral, in each instance. No course of prior dealings between the parties and no usage of trade shall be relevant or admissible to supplement, explain, or vary any provisions hereof.