ITW GLOBAL TIRE REPAIR TERMS & CONDITIONS OF SALE

1. Acceptance.
ITW Global Tire Repair Inc., or the division, affiliate or subsidiary thereof that references these Terms, is herein referred to as “Seller,” and the customer purchasing products (“Products”) or services (“Services”) from Seller is referred to as (“Purchaser”). These terms and conditions of sale (“Terms”), any Seller quotation, acknowledgment or invoice, all Product Documentation (as defined below) and all documents incorporated by specific reference herein or therein (“Seller Documents” and together with these Terms, the “Agreement”), constitute the complete terms governing the sale of Products and Services. All sales by Seller are governed by these Terms, to the exclusion of any additional or different terms. “Product Documentation” means the Technical Data Sheet, Product Data Sheet and Product Label associated with each Product. Seller may update these Terms at any time without notice. For the current version of these Terms, visit https://www.itwgtr.com/terms.html. The current version of these Terms shall apply to all shipments made after such website has been updated. SELLER HEREBY REJECTS ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED BY PURCHASER, WHETHER OR NOT CONTAINED IN ANY OF PURCHASER’S BUSINESS FORMS OR IN PURCHASER’S WEBSITE, AND SUCH ADDITIONAL OR DIFFERENT TERMS WILL BE OF NO EFFECT. No site usage agreement or any other click through agreement on a website will have any binding effect whether or not Seller clicks on an “ok,” “I accept,” or similar acknowledgment. Commencement of any work by Seller or Purchaser's acceptance of delivery of the Products or Services will manifest Purchaser's assent to the Agreement. Additional or different terms applicable to a particular sale may be specified in the body of a Seller Document or agreed to in writing by the parties. In the event of a conflict, the following order of precedence will apply: (a) terms agreed to in writing and executed by an authorized officer of Seller; (b) Product Documentation (as it applies to the specific Product referenced therein), (c) Seller Document terms; (d) these Terms.

2. Quotations.
Quotations are only valid in writing and for 30 days from the date of the quotation. All quotations are subject to change or withdrawal without prior notice to Purchaser. Quotations are made subject to approval of Purchaser’s credit. Seller may refuse orders and has no obligation to supply Products or Services unless Seller issues an order acknowledgement or upon the shipment of Products or commencement of Services.

3. Prices and Payment Terms.
Prices are in U.S. Dollars and are subject to change without notice. All orders are accepted subject to Seller’s price in effect at time of shipment. Additionally, if a raw material, component, or service provider raises its prices, or imposes a surcharge on Seller, Seller reserves the right to increase prices and/or surcharge Purchaser, and Purchaser agrees to accept such price increase or surcharge. Prices do not include any sales, use, value-added or other taxes, import duties, license fees or like charges (“Fees”) related to the sale, importation or use of Products or Services, and Purchaser is responsible for those Fees. If Seller is subsequently required to pay any Fees, Purchaser shall fully defend and indemnify Seller therefor. Unless otherwise specified y Seller, terms of payment are 30 days net from the date of Seller’s invoice. Overdue invoices will incur interest at the rate of 1.5% per month, or at the maximum rate allowable by governing law. Purchaser’s inspection rights herein will not affect the payment terms. Purchaser must notify Seller within 90 days of receiving any invoice of any errors, inaccuracies or mistakes included thereon, and Purchaser agrees that after 90 days, it waives any and all claims against Seller related to any such errors, inaccuracies or mistakes. Under no circumstances will Purchaser have a right of set-off. If Purchaser fails to make any payment as required, Purchaser agrees to indemnify Seller for all associated costs incurred by Seller, including reasonable attorney fees and court costs.

4. Credit Approval.
All shipments are subject to approval by Seller’s credit department. Seller may invoice Purchaser and recover for each shipment as a separate transaction. If, in Seller’s sole judgment, Purchaser’s financial condition is or becomes unsatisfactory, then Seller may, without prejudice to any of its other remedies: (a) defer or decline to make any shipments except upon receipt of satisfactory security or cash payments in advance; and/or (b) terminate any or all of Purchaser’s purchase orders.

5. Restrictions on Online Sales.
Through policies and agreements (collectively, the “Reseller Policies”) with Seller’s Authorized Distributors, Authorized Resellers, and Authorized Retailers (collectively, “Authorized Sellers”), Seller has restricted the manner in which Authorized Sellers may sell Products to end-user consumers online. Seller’s policies and agreements permit retailer partners to sell Products without needing our prior approval on their own proprietary websites in accordance with certain rules (“Permissible Public Websites”). These retailers may not sell Products on any publicly accessible website, mobile application, or online/digital sales platform other than a Permissible Public Website, including as third-party sellers on online marketplaces such as Amazon, eBay, Walmart Marketplace, or Jet, without our prior written approval. All other Authorized Sellers cannot sell Products online in any manner unless and until we provide written approval. Seller has implemented these restrictions to ensure that it can identify and monitor the websites and other online/digital sales platforms where Products are being sold by Seller’s Authorized Sellers. All sales hereunder are made subject to the Reseller Policies, which are incorporated by reference herein. Nothing in this Agreement shall override or restrict anything contained in any Reseller Policies, and a Purchaser’s violation of any Reseller Policy applicable to it shall constitute a material breach under this Agreement.

6. Cancellation or Modification.
Seller may cancel any purchase order or release thereunder, or terminate any agreement relating to the purchase of Seller’s Products or Services upon reasonable prior written notice to Purchaser. Once Seller has accepted a purchase order or begun taking actions with respect to a purchase order, Purchaser cannot cancel or modify that purchase order except with Seller’s written consent. In such event, Purchaser will be liable for cancellation or modification charges and all costs incurred and committed for the order or in connection with the cancellation or modification, as applicable, together with a reasonable allowance for prorated expenses and anticipated profits.

7. Inspection / Non-Conforming Shipments.
Purchaser may inspect Products for a period of 3 days after delivery (“Inspection Period”). Purchaser must notify Seller in writing of any Products that do not conform to the specifications applicable to their sale within the Inspection Period and afford Seller a reasonable opportunity to inspect such Products and cure any nonconformity. If Purchaser fails to provide Seller such written notice within the Inspection Period, Purchaser will be deemed to have accepted the Products. Purchaser may not return any Product without Seller’s prior written authorization. Any return authorized by Seller must be made in accordance with Seller’s return policies and must be accompanied by a Returned Goods Authorization (“RGA”) from Seller. Purchaser will be responsible for all costs associated with returns of Products and will bear the risk of loss, unless Seller agrees otherwise in writing or determines that the Products do not conform to the applicable terms of sale. Any variation in quantities shipped over or under those ordered (not to exceed 10%) will constitute compliance with Purchaser’s order, and the stated price per item will continue to apply. Notwithstanding the foregoing, for any defects visible at the time of delivery (including, without limitation, damaged packaging, broken crates, incorrect quantities, etc.), Purchaser must note such defect on the Bill of Delivery concurrently with its receipt of such delivery, and if Purchaser does not update the Bill of Delivery accordingly, Purchaser waives all claims arising from or related to such visible defects.

8. Delivery.
Seller anticipates use of common carriers for shipment of Products. The carrier, and not Seller, will bill for freight rates and other shipping charges. Payments for such charges shall be paid by Purchaser directly to the carrier. All Products will be shipped ExWorks Seller’s facility (Incoterms 2020). Shipping dates are approximate and are based upon prompt receipt of all necessary information from Purchaser. Seller may ship items in a single or multiple shipments. Title to the Products and risk of loss shall pass to Purchaser upon delivery in accordance with the applicable shipping term. Purchaser assumes all risk and liability for loss and use or misuse by third parties who acquire or use the Products illicitly after delivery. Purchaser must notify Seller and the delivering carrier within 3 days from date of receipt of Products, of any damage or shortage, and afford Seller a reasonable opportunity to inspect the Products. Any loss occasioned by damage or shrinkage in transit will be for Purchaser’s account, and claims for such loss must be made solely against the carrier.

9. Limited Warranty.
Seller warrants that it will convey the Products free and clear of all liens, security interests and encumbrances created by, through or under Seller. Seller further warrants that for a period of 6 months from the date of manufacture of the applicable Product (the “Warranty Period”), under normal use and given proper installation and maintenance as determined by Seller, the Products: (a) will conform to mutually agreed upon written specifications or other descriptions; and (b) will be free from substantial defects in material and workmanship. If any Product Documentation lists a Product “shelf life” or any similar designation, or if it specifies a different warranty period, such period shall constitute the Warranty Period for such Product.

In the event of a breach of the warranties set forth above (the “Warranties”), Seller will, at Seller’s option and as Seller’s sole liability and Purchaser’s sole remedy, repair, replace or credit Purchaser’s account for, any Product that fails to conform to the Warranties, provided that (i) during the Warranty Period Seller is promptly notified in writing upon discovery of such failure with a detailed explanation of any alleged deficiencies; (ii) Seller is given a reasonable opportunity to investigate all claims; and (iii) Seller’s examination of such Product confirms the alleged deficiencies and that the deficiencies were not caused by accident, misuse, use with any equipment or tools other than any “approved equipment” or “approved tools” specified on any Product Documentation, if applicable, neglect, improper installment, unauthorized alteration or repair, improper testing, or noncompliance with any instructions, warnings, requirements or specifications included on any Product Documentation. Any additional limitation or exclusion contained in any Product Documentation are incorporated herein. No Products may be returned to Seller until inspection and approval by Seller.

The Warranty against defects does not apply to: (1) consumable components or ordinary wear items; or (2) use of the Products with equipment, components or parts not specified or supplied by Seller or contemplated under the Product Documentation. EXCEPT AS SET FORTH HEREIN, Seller MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE).

10. Service Warranty.
Seller warrants that (a) it will perform Services in a timely, competent and professional manner and in accordance with industry standards; and (b) the Services shall conform to any mutually agreed upon specifications or statements of work. Purchaser’s sole remedy, and Seller’s sole liability, for a breach of the foregoing warranty is for Seller, at its option, to re-perform the Services or credit Purchaser’s account for such Services.

11. Limitation of Liability and Remedies.
SELLER WILL NOT BE LIABLE, AND PURCHASER WAIVES ALL CLAIMS AGAINST Seller, FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, DOWN TIME, LOST PROFITS OR COMMERCIAL LOSSES, WHETHER OR NOT BASED UPON SELLER’S NEGLIGENCE OR BREACH OF WARRANTY OR STRICT LIABILITY IN TORT OR ANY OTHER CAUSE OF ACTION. IN NO EVENT WILL SELLER’S LIABILITY IN CONNECTION WITH THE AGREEMENT OR SALE OF SELLER’S PRODUCTS OR SERVICES EXCEED THE PURCHASE PRICE OF THE SPECIFIC PRODUCTS OR SERVICES AS TO WHICH THE CLAIM IS MADE.

12. Product Use.
Purchaser is solely responsible for determining if a Product is fit for a particular purpose and suitable for Purchaser’s method of application. Accordingly, and due to the nature and manner of use of Seller’s Products, Seller is not responsible for the results or consequences of use, misuse or application of its Products. All physical properties, statements and recommendations are either based on the tests or experience that Seller believes to be reliable, but they are not guaranteed.

13. Tooling/Molds/Dies.
All material, equipment, facilities and special tooling (including tools, jigs, dies, fixtures, molds, patterns, special taps, special gauges, special test equipment and manufacturing aids and replacements thereof) used in the manufacture of the Products will remain the property of Seller. Any material, tooling or equipment furnished to Seller by Purchaser will remain the property of Purchaser with title to and right of possession remaining in Purchaser.

14. Consignment.
If Products are sold on a consignment basis, title in such Products will not pass to Purchaser until the earlier of: (a) the time the Product is removed from inventory for use; or (b) the date that is 90 days from the Product’s shipment date. Seller will have a purchase money security interest in consigned Products and may file a financing statement in accordance with the Uniform Commercial Code. Purchaser agrees to store consigned Products in a segregated area and will install and/or maintain any signs or other devices to clearly identify the Products as Seller Products. Purchaser assumes the risk of loss of all consigned Products. Purchaser shall insure consigned Products at Purchaser’s expense in amounts at least equal to the replacement value.

15. Ownership of Intellectual Property.
All drawings, know-how, designs, specifications, inventions, devices, developments, processes, copyrights and other information or intellectual property disclosed or otherwise provided to Purchaser by Seller and all rights therein (collectively, “Intellectual Property”) will remain the property of Seller and will be kept confidential by Purchaser in accordance with these Terms. Purchaser has no claim to, nor ownership interest in, any Intellectual Property, and such information, in whatever form and any copies thereof, shall be promptly returned to Seller upon request from Seller. Purchaser acknowledges that no license or rights of any sort are granted to Purchaser hereunder in respect of any Intellectual Property, other than the limited right to use Seller’s Products or receive the Services purchased from Seller.

16. Use of Trademarks and Trade Names.
Purchaser shall not use, directly or indirectly, in whole or in part, Seller’s name, or any other trademark or trade name that is now or may hereafter be owned by Seller (collectively the “Trademarks”), as part of Purchaser’s corporate or business name, or in any way in connection with Purchaser’s business, except in a manner and to the extent authorized herein or otherwise approved by Seller in writing. Purchaser hereby acknowledges Seller’s ownership of the Trademarks and the goodwill associated therewith. Purchaser shall not infringe upon, harm or contest the validity of any Trademarks. Purchaser shall be entitled to use the Trademarks only in connection with the promotion or sale of the Authorized Products pursuant to the terms of the Agreement. Purchaser shall reproduce the Trademarks exactly as specified by Seller. Purchaser shall not use the Trademarks in combination with any other trademarks or names. Purchaser agrees that it will not register or attempt to register any Trademark or any colorable imitation thereof (including any non-English language variation thereof), or use such Trademarks for any products or for any purposes other than those set forth in the Agreement. Purchaser shall not at any time during or after termination of the Agreement use in its business any other trademark that is similar to or in any way resembles the Trademarks so as to be likely to cause deception or confusion with the Trademarks. Purchaser shall provide reasonable cooperation to Seller with respect to any efforts of Seller to protect, defend or enforce its rights to the Trademarks. Should Purchaser cease being an authorized customer of Seller for any reason, Purchaser shall immediately discontinue any formerly permitted use of Seller’s name or the Trademarks.

17. Confidential Information.
All information furnished or made available by Seller to Purchaser in connection with the subject matter hereof shall be held in confidence by Purchaser. Purchaser agrees not to use (directly or indirectly), or disclose to others, such information without Seller’s prior written consent. The obligations in this section will not apply to any information that: (a) at the time of disclosure was or thereafter becomes generally available to the public by publication or otherwise through no breach by Purchaser of any obligation herein; (b) Purchaser can show by written records was in Purchaser’s possession prior to disclosure by Seller; or (c) is legally made available to Purchaser by or through a third party having no direct or indirect confidentiality obligation to Seller with respect to such information.

18. Audit.
Unless agreed to in writing by an officer of Seller, neither Purchaser nor any Purchaser representative, may examine or audit Seller’s cost accounts, books or records of any kind or any matter, or any other data that Seller, in its sole discretion, considers confidential or proprietary.

19. Infringement and Indemnification.
Except as set forth below, Seller agrees to defend and indemnify Purchaser against any claims, costs, damages, liability and expenses resulting from actual patent, trademark or copyright infringement, misappropriation of confidential information, or violation of any other Intellectual Property right, domestic or foreign that may arise from the sale of Seller’s proprietary Product to Purchaser as such pertains to the subject matter of the Agreement (each, a “Claim”); provided, however, (a) Purchaser supplies Seller written notice of such Claim immediately after the Purchaser has notice of such Claim, (b) Purchaser cooperates with Seller in the defense and settlement of such Claim; and (c) Purchaser allows Seller the right to defend and settle such Claim at Seller’s expense If a suit or claim results in any injunction or order that would prevent Seller from supplying any part or Product falling under the Agreement, or if the result of such a suit or claim would, in the reasonable opinion of Seller, otherwise cause Seller to be unable to supply such parts or Products, Seller may do one or more of the following: (i) secure an appropriate license to permit Seller to continue supplying those parts or Products; (ii) modify the appropriate part or Product so that it becomes non-infringing; (iii) replace the appropriate part or Product with a non-infringing but practically equivalent part or Product; or (iv) if Seller cannot reasonably accomplish the actions specified in subsections (i) – (iii), then in Seller’s sole discretion, Seller may discontinue selling the part or Product without any further liability to Purchaser. Notwithstanding the foregoing, Seller shall have no liability or duty to defend and indemnify Purchaser against any Claim relating to: (1) the use of any part or Product, (2) the combination of any part or Product with any other part or product not supplied by Seller, or (3) any part or Product or process that is designed or specified by Purchaser.

20. Seller Employees.
Seller sales and service employees do not have the training or authority to make legal representations or enter into any agreements or execute any Purchaser documents affecting legal responsibilities or waiving legal rights, including those regarding the transfer of intellectual property rights or related to privacy laws. Any such representations, agreements or documents will not be binding on Seller or such Seller employees.

21. Service Terms.
The following terms and conditions apply to any on-site Services provided by Seller:

A. Services will be provided at Seller’s then current service rates.

B. Purchaser shall prepare the site for the Services. If the site is not prepared for the Services upon Seller service personnel’s arrival at the agreed upon time and date for Services, Seller may charge Purchaser for any delay and/or travel time at Seller’s regular service rates.

C. Purchaser shall provide Seller with advance notice of any rules, regulations, statutes and requirements applicable to the Services, including any required permits and licenses, that are applicable to Purchaser’s local jurisdiction.

D. Seller may refuse, without any liability, to provide Services and to allow Seller service personnel to suspend Services or vacate any site where, in Seller’s opinion, performance of Services would pose a risk to the safety of any person. In such event, Purchaser is responsible for payment of any delay and/or travel time at Seller’s regular service rates.

E. Purchaser is solely liable for all damages or injuries caused or contributed to by Purchaser that may occur on the site, except to the extent damages or injuries are directly caused by the gross negligence or willful misconduct of Seller service personnel.

F. Purchaser must provide at least 24 hours’ notice of cancellation of any Service order. If Purchaser cancels with less than 24 hours’ notice, Purchaser is responsible for any costs incurred by Seller caused by such cancellation.

22. Compliance.
Purchaser agrees to comply with all federal, state, local and foreign rules, regulations, ordinances and laws applicable to Purchaser’s obligations hereunder and Purchaser’s use of the Products and Services, including import/export laws, labor laws and anti-corruption laws.

23. Relationship of the Parties.
Nothing in the Agreement or the course of dealing of the parties may be construed to constitute the parties hereto as partners, joint venturers or as agents for one another or as authorizing either party to obligate the other in any manner.

24. Force Majeure.
Seller will not be responsible for failure to perform in a timely manner under the Agreement when its failure results from events beyond its reasonable control (an event of “Force Majeure”), including acts of God, epidemics, pandemics, acts of war whether declared or undeclared, actions by any governmental agency or authority (whether valid or invalid), blockades, labor disputes (whether of Seller’s employees or the employees of others), raw material shortages and material increases in costs of raw materials. In the event of Force Majeure, the time for performance will extend for such time as reasonably necessary to enable Seller to perform.

25. Assignment; Binding Effect.
No assignment of any rights or interest or delegation of any obligation of Purchaser under the Agreement or Purchaser’s purchase order may be made without Seller’s prior written consent. Any attempted assignment will be void. Seller may assign the Agreement or otherwise transfer its rights and/or obligations under the Agreement. The Agreement will inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns.

26. Waiver.
In the event of any default by Purchaser, Seller may decline to ship Products or provide Services. If Seller elects to continue shipping or otherwise fails to insist upon strict compliance with the Agreement, Seller’s actions will not constitute a waiver of Purchaser’s default or any other existing or future default, or affect Seller’s legal remedies.

27. Bankruptcy.
If either party becomes insolvent, is unable to pay its debts when due, files for or is the subject of involuntary bankruptcy, has a receiver appointed or has its assets assigned, the other party may cancel any unfulfilled obligations hereunder.

28. Limitation of Actions/Choice of Law.
Any dispute arising out of or related to the Agreement will be governed by and construed according to the laws of the state of Illinois and litigated exclusively in a state or federal court located in Cook County, Illinois. The parties hereto expressly release and waive any and all rights to a jury trial and consent to have any dispute heard solely by a court of competent jurisdiction. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement. In any action concerning any provision of the Agreement, the prevailing party is entitled, in addition to the relief granted, to a reasonable sum for their reasonable and documented attorneys’ fees incurred, provided if each party prevails in part, such fees will be allocated in the manner as the court determines to be equitable in view of the relative merits and amounts of the parties’ claims.

29. Survival.
Any provisions in the Agreement which, by their nature, extend beyond the termination or expiration of any sale of Products or Services, will remain in effect until fulfilled.

30. Severability.
If any provision herein is held to be unlawful or unenforceable, the remaining provisions herein will remain in effect.

31. Integration and Modification.
The Agreement constitutes the entire agreement between Seller and Purchaser with respect to the Products and Services covered by the Agreement, and supersedes any prior agreements, understandings, representations and quotations with respect thereto. No modification hereof will be of any effect unless in writing and signed by the party to be bound thereby.