Standard Terms and Conditions of Sale
These standard terms and conditions apply to all sales and deliveries of goods and/or services made by ProXES Inc. (“ProXES”) except those sales and deliveries for which additional or different terms and conditions have been expressly agreed to in a writing signed by ProXES 's authorized representative. In this document, “we” refers to ProXES, and “you” refers to the buyer or recipient of such goods and/or services. The terms “goods” or “equipment” in these terms and conditions refers to all goods or equipment provided by ProXES, including spare parts.
1. SPECIFICATIONS. If you provide us with specifications, they will be deemed suggestions for us to work with. Similarly, any specifications contained in our general product literature (including such things as weights, dimensions, capacities, drawings, illustrations, power consumption levels, and processing times) are approximate. Specifications contained in correspondence we compose specifically for you, or confirmed by us in response to correspondence from you, can be considered to be precise. We may change specifications of or otherwise modify, without notice, goods to be delivered to you, as long as such changes are not detrimental to you.
2. PRICES. Unless we include shipping charges as a separate line item, prices quoted for goods are EXW our facility in Mundelein, Illinois. Prices for services do not include expenses for travel, meals, and lodging, if any. You will reimburse us for such expenses upon presentation of receipts, as long as they are normal and reasonable expenses incurred in the normal course of providing such services.
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3. LIMITATION ON CANCELLATION RIGHTS. Once you have entered into a contract with us for the sale of goods, you may not cancel unless you pay us of our costs, if any, incurred in preparation for performance, and in performance, of the contract.
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4. DELIVERY. Delivery dates are approximate unless confirmed in writing to be exact; provided however, delivery dates are subject to Section 14 below. We will, of course, exercise commercially reasonable efforts to ensure a timely delivery of all goods and services, but time is not of the essence unless we acknowledge that in writing. With respect to delivery of services, you will give our technicians reasonable access to the equipment to be serviced, and you will make available (at your own cost), a reasonable number of your employees to assist on occasion if we so request.
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5. PAYMENT TERMS. Unless we agree otherwise in writing, The standard payment terms for goods are as follows: 40% Deposit with written purchase order upon order confirmation, balance due within Net 30 days, upon credit approval. Past due amounts will accrue an interest charge of 10 % per month.
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6. TITLE. Title to goods passes when we place the goods at your disposal, unless we have agreed to ship the goods, in which case title passes when we place the goods in the hands of the shipper.
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7. SECURITY INTEREST. For value received, you hereby grant ProXES a purchase money security interest in and lien on all of the goods and equipment sold to you pursuant to the proposal/quotation to which these terms and conditions are attached, wherever located, whether now owned or hereafter acquired and all identifiable proceeds thereof (the “Purchase Money Collateral”). The foregoing security interest in each item of Purchase Money Collateral shall secure the purchase price of that item and also secure any other obligations of you to ProXES related to the purchase price of the Purchase Money Collateral (the “Purchase Money Obligations”). You authorize ProXES to, at any time and from time to time, file financing statements, continuation statements, and amendments thereto in applicable jurisdictions that describe the Purchase Money Collateral, and which contain any other information required pursuant to the Uniform Commercial Code for the sufficiency of filing office acceptance of any financing statement, continuation statement, or amendment, and you agree to furnish any such information to ProXES promptly upon request. You agree to promptly execute all documents that may be necessary and appropriate to perfect our security interest. The Purchase Money Collateral shall not be converted into fixtures. At our request, you will affix appropriate notices to the Purchase Money Collateral to confirm our security interest, and you will not move such goods to an y other location without first notifying us. In the event you fail to pay all amounts of the Purchase Money Obligations when due and owing, an event of default shall be deemed to have occurred, and ProXES shall have the right as to any or all of the Purchase Money Collateral, by any available judicial procedure, or without judicial process (provided, however, that it is in compliance with the applicable law), to exercise any and all rights afforded to a secured party under the Uniform Commercial Code of the state of Illinois or other applicable law.
8. INSPECTIONS, CERTIFICATIONS, ETC., AND RELATED MODIFICATIONS TO EQUIPMENT. Unless otherwise specified, you are responsible for obtaining, at your own cost, whatever approvals, certifications, and inspections (including but not limited to those required by governmental authorities) of goods or services we supply.
9. LIMITED WARRANTIES. To the extent any goods sold by ProXES carry a manufacturer’s warranty, that warranty will apply. To the extent goods sold by ProXES do not carry a manufacturer’s warranty, ProXES warrants that such goods will be of merchantable quality, free of manufacturing defects, for a period of one (1) year from the date of delivery. ProXES further warrants that the services we perform will be done in a good and workmanlike manner. This warranty for services is valid for ninety (90) days after the services are performed. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, SELLER DOES NOT MAKE ANY WARRANTIES OR CONDITIONS (EXPRESS, IMPLIED, STATUTORY OR OTHERWISE) OF ANY KIND, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. The limited warranty provided for in this Section 9 is subject to the limitations set forth in Section 11 below. Our warranty for goods does not apply to “wear and tear” parts which require replacement, sharpening, or servicing in the course of normal use. Our warranties for goods and for services do not apply if the equipment sold or serviced fails to perform properly due to improper use by you (including such things as faulty assembly, improper handling, excessive loading, improper grounding, inappropriate materials processed, improper or faulty utility connections, improper maintenance, etc.). We have the right to determine in good faith whether any particular part was subject to improper use. ProXES cannot be held responsible for the cost of materials which become unusable as a result of processing by equipment sold by ProXES or as a result of test runs. Our warranties for goods and services are conditioned upon your fulfillment of your obligations under these terms and conditions (in particular your obligation to make timely payment). If you have not met your obligations hereunder, we reserve the right to decline service, to perform what would otherwise be warranty service, or to demand payment in advance, until you have met your obligations.
10. DEFAULT. In the event that (a) any payment due us remains unpaid for more than thirty days after it becomes due; (b) you make an assignment for the benefit of creditors or file (or there is filed against you) any proceeding in bankruptcy or for a wage earner's plan, or any other proceeding under any insolvency law, or (c) you admit or assert an inability to make payments pursuant to your obligations under the contract of sale, we may, immediately or at some later date, enter your premises during business hours to recover possession of goods already shipped, and as to goods which remain unshipped (if any), may treat the contract either as terminated or as being in full force and effect. Our failure to recover possession of goods is not a waiver of our rights relative to such goods. If we recover possession of such goods, we may resell them in any commercially reasonable manner and apply the proceeds to your debt to us, after we have first applied the proceeds to our expenses of recovering possession of and re-selling the goods (including reasonable attorney's fees). Your failure to comply with any material obligation you have under the contract of sale (including these terms and conditions) will constitute a breach for which ProXES may recover from you, in addition to remedies which may be available at law or in equity, all expenses (including reasonable attorney's fees) we incur in enforcing the contract.
11. LIMITATION OF LIABILITY. IN NO EVENT SHALL PROXES BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, OR FOR ANY LOST REVENUE OR LOST PROFITS (COLLECTIVELY, “SPECIAL DAMAGES”), EVEN IF ADVISED OF THE POSSIBILITY OF SPECIAL DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, WHETHER TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF PROXES FOR ANY CLAIMS OR LOSSES ARISING OUT OF OR CONNECTED WITH THESE TERMS AND CONDITIONS AND THE GOODS AND SERVICES PROVIDED BY PROXES SHALL NOT EXCEED TWENTY-FIVE PERCENT (25%) OF THE PURCHASE PRICE OF THE GOODS AND SERVICES SOLD TO YOU. THE DISCLAIMERS AND EXCLUSIONS CONTAINED HEREIN ARE INDEPENDENT OF ANY EXCLUSIVE REMEDY AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF SUCH EXCLUSIVE REMEDY. THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS AND CONDITIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN PROXES AND YOU, AND, ABSENT ANY OF SUCH DISCLAIMERS, EXCLUSIONS OR LIMITATIONS OF LIABILITY, THE PROVISIONS OF THESE TERMS AND CONDITIONS, INCLUDING THE ECONOMIC TERMS RELATED TO GOODS AND SERVICES PROVIDED BY PROXES, WOULD BE SUBSTANTIALLY DIFFERENT.
12. NO REVERSE ENGINEERING. You will not reverse engineer, decompile or disassemble, or create any other works based on, any equipment or software provided by or on behalf of ProXES.
13. APPLICABLE LAW; VENUE. Unless otherwise specified in a writing signed by the parties, Illinois Law governs our transactions with you. In the event a dispute arises between the parties arising out of transactions subject to these terms and conditions, the parties will attempt to resolve the dispute without litigation in a spirit of good faith. Should that attempt fail, Illinois courts will be the exclusive venue for any related litigation. In such event, you agree to submit to the jurisdiction of federal or state courts in Illinois and to accept, as if in-state, service of process related to such litigation. The UN Convention on the Sale of Goods does not apply.
14. FORCE MAJEURE. ProXES shall not be liable for any loss or damage of any nature whatsoever incurred or suffered as a result of any failures or delays in performance due to any cause or circumstance beyond its control, including, but not by way of limitation, any failures or delays in performance caused by strikes, lockouts or labor disputes, fires, acts of God or the public enemy, riots, incendiaries, interference by civil or military authorities, health pandemics (including COVID-19), compliance with applicable laws or with the orders or policies of any governmental authority, delays in transit or delivery on the part of transportation companies, or failures of sources of raw materials.
SPECIAL COVID-19 PANDEMIC NOTICE:
Current developments regarding the COVID-19 pandemic have led to global, national or local measures, such as but not limited to delivery / shipping restrictions, embargoes, travel bans / restrictions, quarantine instructions or other restrictions and / or limitations, such as governmental and / or administrative directives, instructions, orders, regulations, etc.
The effects of the COVID-19 pandemic have been causing ongoing bottlenecks in global supply chains, especially in the market for electrical / electronic components. ProXES is currently unable to foresee and state binding delivery dates and delivery times may be considerably longer than usual. Any delivery commitment is made on this basis until further notice. Therefore, any estimation or even agreement of delivery times is subject to the condition precedent that the manufacturing process as well as delivery, shipping and services (such as for instance commissioning) are not directly or indirectly affected by incidents related to the COVID-19 pandemic.
15. MISCELLANEOUS. These terms and conditions plus written documentation signed by us, or acknowledged by us in writing to be applicable, will constitute the exclusive agreement between the parties. Verbal agreements will have no validity unless reduced to writing. The failure of either party to make full use of its rights under any portion of these terms and conditions does not constitute a waiver thereof and does not constitute a course of dealing. The unenforceability of any provision of these terms and conditions does not render the remaining terms and conditions invalid.
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