1. The following terms and conditions apply to all sales of goods and services (collectively, “Products”) by ICM Controls Corp. (“ICM”, “we”, “us” or “our”), to you (the “Customer”), and constitutes the final, complete and exclusive agreement (“Agreement”) between you and ICM relating to the subject matter hereof and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, promises and other communications, whether oral or written, relating to such subject matter (including, without limitation, any “Terms and Conditions of Purchase” published by Customer), unless otherwise specifically agreed to in a writing signed by ICM’s authorized representative.  Any term or condition in any order, confirmation, or other document furnished by Customer at any time, which is in any way inconsistent with or in addition to the terms and conditions set forth herein, is hereby expressly rejected, and ICM’s acceptance of any order of Customer is expressly made in reliance of Customer’s assent to all terms and conditions hereof.  Customer’s acceptance of delivery of any Products constitutes Customer’s acceptance of these terms and conditions.


  1. The prices applicable to the Products shall be as quoted by ICM to Customer.  Unless otherwise specified, prices quoted for Products are in US Dollars.  Stenographic and clerical errors are subject to correction.  A quotation is not a contractual offer and any order resulting from a quotation is subject to approval and acceptance by ICM.   Prices listed or quoted do not include any present or future sales, use, excise or similar taxes, duties or other governmental charges, which will be added where applicable and paid for by Customer, unless you provide us with a tax exemption certificate acceptable to the appropriate taxing authorities and presented at or before the time of purchase.  No sales tax refunds will be given at any time for any reason.  Any taxes paid by ICM on Customer’s behalf shall be reimbursed by Customer upon demand.


  1. Customer shall place orders for the Products to be purchased hereunder by submitting one or more purchase orders to ICM. Each such purchase order is intended for convenience only and shall state the descriptions and quantities of Products being ordered and the requested shipments dates for such Products.  In no event shall any terms and conditions set forth on a purchase order submitted by Customer other than the terms and conditions set forth herein, including, without limitation, any preprinted terms and conditions of Customer, be binding on ICM.  In addition, no purchase order shall be binding on ICM until ICM has accepted such purchase order by written acknowledgement or by shipment of the Products applicable to such purchase order.  Orders for the purchase of Products when made by the Customer shall be considered irrevocable for such Customer following acceptance by ICM.


  1. Unless otherwise agreed to by ICM in writing, payment terms shall be net thirty (30) days from the date of invoice. If shipments are delayed by Customer, invoices may be rendered on the date(s) ICM is prepared to make shipment(s).  Any Product held as a result of Customer’s inability or refusal to accept delivery is at the risk and expense of Customer.  Interest at the rate of one and one-half percent (1 1/2%) per month (not to exceed the maximum interest allowable by law) shall be paid on the unpaid balance of any invoice not paid by Customer within thirty (30) days of the due date thereof.  Such interest shall be in addition to the purchase price hereunder.  In the event ICM engages a collection agency or commences a legal action or suit to collect the purchase price or any part thereof, Customer shall, in addition to the full purchase price including interest, be liable for all costs and expenses of such legal action or suit (including reasonable attorney’s fees).

ICM further reserves the right to require full prepayment for Products (including all costs associated with shipping and freight) from any customer whose account is overdue for a period of more than 45 days or who has an unsatisfactory credit or payment record. ICM may also refuse to sell to any person until overdue accounts are paid in full.


  1. Shipment/delivery dates are approximate and are determined from the date of ICM’s acceptance of an order. All Products will be shipped EXW ICM’s point of shipment. Title and risk of loss shall pass to Customer upon delivery of Product(s) by ICM to the carrier for shipment to the Customer, notwithstanding any prepayment of shipping charges by ICM, if so required by the carrier. All shipment costs shall be paid by Customer, and if prepaid by ICM, the amount thereof shall be reimbursed to ICM.


  1. ICM will make every effort to deliver the Products hereunder in accordance with the requested delivery date, provided that ICM shall not be liable for any delay in delivery due to causes beyond our reasonable control, including, but not limited to, any acts of God, acts of Customer, acts of the government, strikes, war, pandemics or epidemics, delays of carriers, or inability to obtain necessary raw materials, components, labor, fuel or supplies or other circumstances beyond the reasonable control of ICM. ICM shall not be liable for any damages or penalties whatsoever whether direct or indirect, special, incidental or consequential, resulting from our failure or the failure of our suppliers to perform or delay in performing unless otherwise agreed in writing by an authorized officer.  Customer agrees that any delay in delivery shall not affect the validity of any orders or these terms and conditions.  ICM reserves the right to deliver the Products in installments unless expressly prohibited in the applicable purchase order.  Installment deliveries will be invoiced by ICM at time of shipment unless otherwise agreed in writing by ICM.  Delay in any installment delivery shall not relieve Customer of its obligation to accept all remaining installment deliveries pursuant to a purchase order.


  1. Unless otherwise agreed to by ICM in writing, changes in materials, supplies, labor and/or changes made at the request of Customer and accepted in writing by ICM shall be at the expense of Customer. Changes or alterations made by Customer or made by ICM (over its recommendation against the same) shall be at Customer’s sole risk and responsibility. ICM reserves the right to make changes to the design and composition of its Products which in its judgment do not materially change the nature or quality of the Products.


  1. Due to the specialized nature of the Products, orders may be cancelled only with our written consent and upon payment of reasonable cancellation charges, including ICM’s actual out of pocket costs, overhead and anticipated profit (as determined by us). Partial cancellation of an order may result in adjustment of prices for the balance of the order.


  1. Customer’s right to reject any Products supplied hereunder is conditioned upon Customer giving ICM a written notice of rejection setting forth the basis thereof within ten (10) days after delivery of the Products to Customer. Failure to give such notice within such time constitutes acceptance of such Products. Products may be returned only when authorized by us in writing, and then only on such terms as ICM may specify. All returned Products shall be returned with shipping prepaid.

Limited Warranties; Disclaimers

  1. (a) ICM represents and warrants that the Products delivered by ICM to Customer shall: (i) conform to agreed-upon specifications for the Product(s), to the extent any specifications were made part of an order; and (ii) be free from faulty workmanship and defective materials. The foregoing warranties shall be limited to a one (1) year period commencing on the date of shipment of the applicable Product(s) or following notice to the Customer that the Product(s) is/are ready for shipment (the “Warranty Period”) provided (i) the Products have been properly cared for and used in accordance with ICM’s instructions, if any, and (ii) Customer promptly notifies ICM in writing of any warranty claim during the Warranty Period. The warranties provided by ICM in this Section 10(a) are the only warranties provided by ICM with respect to the Product(s) sold hereunder, and may be modified or amended only by a written instrument signed by ICM. Customer’s remedies and ICM’s aggregate liability with respect to the warranties provided by ICM in this Section 10(a) are set forth in and limited by this Section 10 and Section 11 below.

(b) In the event any Product fails to meet the warranties in Section 10(a) above during the Warranty Period, ICM’s sole obligation, in ICM’s sole discretion, shall be to either repair or replace the non-conforming Product.

(c) ICM shall not be liable for any repairs or other claim if alterations have been made to the Products by the Customer or others without ICM’s prior written consent. Components and accessories furnished by third parties are warranted only to the extent of the original manufacturer’s warranty to ICM and then only to the extent that such original manufacturer’s warranty is assignable by ICM to Customer.

(d) Notwithstanding anything herein to the contrary, ICM‘s warranties hereunder shall be considered void and shall not cover damages/defects to Products caused by: (i) normal wear and tear; (ii) Customer‘s negligence, abuse, accident, improper storage, user maintenance of the Products; changes to the Products carried out by the Customer without ICM’s prior written approval; (iii) the use of inadequate or unauthorized accessories on the Products; (iv) the use of the Products for purposes other than their intended use; (v) electrostatic discharges, electrical surges, improper electrical connections; or (vi) repairs to, alteration of, or work done on the Products without ICM’s prior written authorization.

(e) Prior to return of any Product to ICM, or any part or component of  such Product alleged to be defective, Customer shall first obtain a Repair Authorization Number from ICM staff who evaluated the problem. The Repair Authorization Number must be included on all shipping documents. Any Products, or parts or components of such Products, sent to ICM without an assigned Repair Authorization Number will be rejected.

(f) All transport charges to ship any Products to be repaired or replaced (including any applicable import duties claimed by governmental authorities as well as clearance fees) and the relevant return freights shall be the sole responsibility of the Customer.


Limitation of Liability

  1. Notwithstanding anything to the contrary contained in this Agreement, ICM’s aggregate liability in connection with the sale or use of Product(s) hereunder, regardless of the form of action giving rise to such liability (whether in contract, tort or otherwise), shall not exceed the aggregate purchase price for Products paid by Customer to ICM pursuant to an applicable order.  ICM shall not be liable for any extraordinary, exemplary, special, indirect, consequential or incidental damages of any kind, including without limitation, lost profits, even if ICM has been advised of the possibility of such damages.  Except as provided in Section 10(a) above, and subject to the limitations set forth in Sections 10 and 11 hereof, ICM shall not be liable for any claims of third parties relating to any use of the Products, and Customer will defend ICM and hold ICM harmless against all losses, liabilities, damages, claims and expenses, including, reasonable attorneys’ fees arising out of or in connection with the use or sale of Products by Customer or Customer’s employees, agents, customers, or contractors.   THE FOREGOING STATES THE ENTIRE LIABILITY OF ICM WITH REGARD TO THIS AGREEMENT AND ICM’S SALE OF PRODUCT(S) HEREUNDER.  THE LIMITATIONS CONTAINED IN SECTIONS 10 AND 11 ARE A FUNDAMENTAL PART OF THE BASIS OF ICM’S BARGAIN HEREUNDER, AND ICM WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH LIMITATIONS.

Retained Security Interest

  1. Until such time as the entire purchase price of the Products have been paid, Customer hereby grants to ICM a first priority purchase money security interest in the Products supplied pursuant to the terms hereof. The rights and remedies of ICM, as a secured party with respect to the Products shall be governed by the Uniform Commercial Code, or equivalent statute(s) of the State in which the Products are located. Customer authorizes ICM to execute and record on behalf of Customer such financing statements and other instruments as ICM may deem necessary to perfect or protect its security interest in the Products.


  1. Notices may be delivered by overnight courier or fax, with proof of delivery, or by United States mail, registered or certified mail, with postage prepaid, in each case addressed to the party being notified at such party’s address referred to on the face of this Agreement, or at such other address as such party shall have notified the other party in writing.

Not Transferable

  1. This Agreement is not transferable or assignable by Customer either directly or by operation of law without the prior written consent of ICM.


  1. Paragraph headings are for convenience only and shall not be construed to define or limit the operative provisions of this Agreement.


  1. No amendment, change to or modification of this Agreement, or any schedules or attachments hereto, shall be valid unless the same shall be in writing and signed by the party or parties to be charged therewith.

Applicable Law

  1. The rights and duties of the parties shall be governed by the laws of the State of New York. The federal and state courts located within Onondaga County, New York shall have exclusive jurisdiction to determine any and all actions and proceedings relating to or arising from this Agreement and the sale of Product(s) hereunder and each party hereby irrevocably consents to the personal and subject matter jurisdiction of such courts with respect thereto.


  1. In the event any provision or provisions herein, or parts thereof, shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired and shall remain in full force and effect.