These terms and conditions (this “Agreement”) apply to the equipment (including, without limitation, any plant or other mixer) (“Equipment”), component parts and accessories (collectively, “Parts” and together with Equipment, the “Products”) and/or services (“Services”), as applicable, for which i-MET International, LLC (“i-MET”) has given you (“Customer”) a quotation and/or sales order acknowledgment (each, the “Sales Confirmation”), and to which this Agreement is attached or with which this Agreement was provided, and which Sales Confirmation is incorporated herein and party of this Agreement by reference. All orders placed by Customer are subject to i-MET’s approval of credit and acceptance of the order at i-MET’s home office (such date of acceptance by i-MET, the “Acceptance Date”). No order shall be binding unless accepted by i-MET at the home office of i-MET, which shall be deemed to be the location of the making of the contract. Without limitation to any other rights and remedies, i-MET may terminate this Agreement if Customer fails to comply with this Agreement. 


Payments shall be made by Customer to i-MET per the final Sales Confirmation terms. Customer may not withhold payment of any amounts by reason of any set-off of any claim or dispute with MSI. If Customer gives notice of cancellation of this Agreement or fails to accept delivery, i-MET shall retain all sums previously paid by Customer. Customer shall also pay i-MET an additional amount equivalent to all costs incurred by i-MET to date in the fulfillment of this Agreement, including, without limitation, overhead expenses and profit on that portion of the Products manufactured and/or procured by i-MET up to the date of the cancellation. In no event shall i-MET be obligated to return any portion of the down payment or the progress payments to Customer. The foregoing is without limitation to any other rights or remedies of i-MET. Any payment not made when due shall bear interest at the rate of one and one-half (1 ½%) percent per month on the balance due until the full amount due has been paid. Customer shall pay all costs and expenses incurred by i-MET in connection with enforcement of this Agreement, including, without limitation, reasonable attorney’s fees. 


Customer agrees to indemnify and save harmless i-MET and its affiliates and their respective employees, officers, directors and agents (each, an “indemnified party”) from and against any and all loss and damage to property, both real and personal (including any indemnified party’s property) arising or growing out of or in connection with the performance or breach of this Agreement by Customer or its contractors, subcontractors, affiliates, employees or agents (each a “Customer Party”), and from and against any and all damages, losses, liabilities, claims, demands, judgments or proceedings of whatever kind or nature, and any cost or expense incidental thereto, which may be made, claimed, brought or incurred by any Customer Party or by any other person (including, without limitation, claims by employees or the representatives of any Customer Party for worker’s compensation) on account of property damage or personal injury sustained or suffered by, or the death of, any person arising or growing out of or in connection with the performance or breach of this Agreement, the design, installation, operation or repair of the Products by any Customer Party or any act or omission in connection therewith whether caused by the negligence of any indemnified party or otherwise howsoever. Customer shall reimburse the indemnified parties for all reasonable attorneys’ fees and costs incurred in connection with any of the foregoing. 


i-MET shall not be liable for (or be deemed to be in breach of this Agreement as a result of) any delay in delivery of the Products or performance of the Services due to any cause beyond its control, including, but not limited to: acts of God, war, fire, strike, flood, pandemic, epidemic, government law or order, delays in transportation, shortage of energy or default of a supplier or contractor. In the event of any such delay, the date of delivery and/or performance will be extended to a period not less than the period of such delay. Delivery time (EXW (Loading dock i-MET facility, Milwaukee, WI) Incoterms® 2020) shall be from the Acceptance Date, or receipt of accepted approval drawings, or the date upon which the parties hereto agree to the amount of the contract price, whichever is the last to occur. i-MET shall not be responsible for any delay, damage or loss in transit. All claims for delay, damage or loss in transit shall be made to the carrier by Customer and any unrecovered loss therefrom shall not relieve Customer from the obligations of this Agreement. Any change in design, or layout drawing changes after approval of design or layout drawing shall extend delivery date to a reasonable length of time not less than the period needed to make such change. Receipt of the Products by Customer will constitute waiver of all claims (if any) for loss or damage due to delay. If delivery as originally scheduled is delayed as the result of Customer’s acts or omissions, i-MET shall invoice Customer for payment due and shall store the Products at Customer’s cost, expense and risk. i-MET may suspend delivery if Customer fails to pay any amounts when due under this Agreement, without i-MET being deemed to be in breach of this Agreement. While i-MET may from time to time agree to assist Customer with coordinating carriage and loading of the Products, Customer is responsible for all risk of loss, cost and expense related thereto. 


i-MET’s Products are normally designed: (a) for use in seismic zone 1 areas; (b) to withstand peak winds of 90 miles per hour; and (c) to meet the structural requirements of the Uniform Building Code applicable to localities which are not subject to greater seismic and wind load risks. It is Customer’s responsibility to determine if any more stringent laws, rules, regulations or codes apply where Customer intends to use the Products. Any increased cost of engineering or labor as a result of more stringent laws, rules, regulations or codes shall be Customer’s responsibility. i-MET shall not be responsible to comply with, or have any liability with respect to, any such more stringent requirements unless they are specifically referred to and accepted by i-MET in i-MET’s written Sales Confirmation. i-MET reserves the right to make changes in each Product’s design from time to time without incurring the obligation to furnish them to Customer for Products previously sold or shipped to Customer. 


i-MET’s control and/or motor starter panels are furnished terminal block wired. Customer is responsible for all electrical wiring between all of i-MET furnished panels and devices. It is Customer’s responsibility to see that all electrical wiring is in compliance with applicable electrical codes. Customer acknowledges and agrees that scale, probe, moisture meter or computer control cables or wires are not to be installed underground and each is to be kept isolated from all other power and/or signal wires. 


Customer shall be responsible for obtaining all federal, state and municipal building and other permits and shall be responsible for any additional plans or specifications required to obtain said permits. 


The Products are provided with only those safety devices installed at the time of shipping. It is Customer’s responsibility to furnish other appropriate safety devices which are desired by Customer and/or required by OSHA standards and other laws, rules, regulations and/or codes. 


All manufacturing devices, designs, drawings, plans, data and other technical information relating to Customer’s order, the Sales Confirmation and/or the Products shall remain the property of i-MET. Customer shall comply with all product and safety manuals applicable to the Products. All non-public, confidential or proprietary information of i-MET (including, but not limited to, the foregoing technical information, this Agreement and any pricing information) disclosed or made available to Customer in any manner (whether or not marked “confidential”) is confidential, is solely for use in performing this Agreement and may not be disclosed, copied or otherwise used, directly or indirectly, by or on behalf of Customer unless expressly authorized in advance by i-MET in writing. Without limitation to any other rights or remedies, i-MET is entitled to injunctive relief for any violation hereof. 


All Products specified in the Sales Confirmation shall be assembled, installed and maintained by Customer at Customer’s expense. i-MET shall make a factory representative available to provide technical advice to assist Customer’s employees in the installation and/or first operation (the “startup”) of any Equipment and, as applicable, Parts on a per diem charge to Customer to the extent set forth in the final Sales Confirmation, provided that Customer shall cooperate with i-MET and provide such access to Customer’s premises as may reasonably be requested by i-MET in connection therewith. Customer shall be responsible and liable for: 1) installation and erection of the Products; 2) all required licenses and permits; 3) freight charges, insurance and risk of loss in transit; 4) engineering services and foundation designs; 5) site preparation; 6) concrete and other foundations and anchor bolts; 7) shims and grout; 8) erection and erection supervision; 9) electrical power source and wiring to power and/or control panels; 10) air and water piping to air and water systems; 11) balancing and calibration of scale systems; and 12) heating and/or hot water system controls. 


i-MET warrants that it will (at i-MET’s option) repair or replace at i-MET’s factory in Milwaukee, Wisconsin (or at such other place to be specified by i-MET) any portion of the Equipment manufactured by i-MET if such portion (under normal storage, use and service) is materially defective within the first to occur of the following (as applicable, the “Warranty Period”): (a) the expiration of the twelve (12) month period commencing with the date of startup of the Equipment, or (b) the expiration of the fifteen (15) month period commencing with the date of delivery (EXW (Loading dock i-MET facility, Milwaukeee, WI) Incoterms® 2020). i-MET warrants that it will (at i-MET’s option) repair or replace at i-MET’s faciliy in Milwaukee, Wisconsin (or at such other place to be specified by i-MET) any Part (excluding any consumable Part, for which i-MET makes no warranty whatsoever) manufactured by i-MET if such Part (under normal storage, use and service) is materially defective within the expiration of the twelve (12) month period commencing with the date of delivery (EXW Loading dock i-MET facility, Milwaukee, WI) Incoterms® 2020). The foregoing limited warranties are restricted to Products manufactured by i-MET that are used within the specified performance rating, speed or capacity in effect at the time of sale thereof and such limited warranties exclude any Products that have been misused, improperly repaired, controlled or maintained, altered without i-MET’s consent, fitted with parts other than genuine i-MET parts or damaged after delivery (EXW Loading dock i-MET facility, Milwaukee, WI) Incoterms® 2020). The foregoing limited warranties extend only to the first commercial buyer of the Products from i-MET and exclude (and i-MET makes no warranties with respect to) any consumable Parts and any Products or other goods not manufactured by i-MET, which are subject to the warranties (if any) made by the applicable manufacturers (to the extent capable of being passed along to Customer). “Commercial buyer” excludes dealers or distributors of iMET. As a condition of i-MET’s obligations and Customer’s rights under the foregoing limited warranties: (i) a field inspection and acceptance report with respect to the Products (as applicable) must have been returned to i-MET within ten (10) days after delivery (EXW (Loading dock i-MET facility, Milwaukee, WI) Incoterms® 2020); (ii) Customer must give written notice of the defect to i-MET within ten (10) days after the defect is discovered, specifying the nature of the defect, location of the Product, the date the defect was discovered, the date the Product was delivered by i-MET (EXW (Loading dock i-MET facility, Milwaukee, WI) Incoterms® 2020) and the date of startup; and (iii) Customer must permit i-MET or its authorized representative to inspect the Product and, if i-MET determines that the Product is subject to this limited warranty and defective, Customer must properly pack the Product to avoid future damage and ship it, transportation prepaid by Customer, to the place specified by i-MET. Subject to Customer’s compliance with the foregoing, i-MET shall (at its option) repair or replace such defective Product without charge (other than transportation and mileage charges, which are the responsibility of Customer). i-MET’s sole liability hereunder shall be limited to such replacement or repair. For purposes of clarification, (A) charges to i-MET for correcting defects or making additions, and returning Products for credit, are not permitted, and (B) no charge to i-MET will be permitted for delays or expenses incidental to the replacement of the defective Product. THE FOREGOING LIMITED WARRANTIES ARE MSI’S SOLE LIABILITY UNDER THIS AGREEMENT AND WITH RESPECT TO THE SUBJECT MATTER HEREOF, AND THE SAME ARE GIVEN IN LIEU OF (AND MSI HEREBY EXPRESSLY DISCLAIMS) ANY AND ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY SERVICE WARRANTY, ANY WARRANTY WITH RESPECT TO ANY CONSUMABLE PART AND ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NO OTHER WARRANTY IS MADE OR AUTHORIZED BY OR ON BEHALF OF MSI. IN ANY EVENT, ALL LIABILITY ON THE PART OF MSI SHALL TERMINATE UPON THE EXPIRATION OF THE WARRANTY PERIOD. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO ORAL OR WRITTEN STATEMENTS OR REPRESENTATIONS OR WARRANTIES SHALL BE BINDING UPON MSI. Without expanding the foregoing limitations on i-MET’s liability: (1) IN NO EVENT SHALL i-MET BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT i-MET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE; AND (2) IN NO EVENT SHALL i-MET’s AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO i-MET BY CUSTOMER FOR THE GOODS AND SERVICES SOLD HEREUNDER. 


Title to the Products sold hereunder and any and all replacements and additions thereto shall remain with i-MET I until delivery (EXW (Loading dock i-MET facility, Milwaukee, WI) Incoterms® 2020). As collateral security for Customer’s payment obligations under this Agreement, Customer hereby grants to i-MET a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance) of the foregoing. Such security interest constitutes a purchase money security interest under the Wisconsin Uniform Commercial Code. With respect to the purchase of Equipment, from the Acceptance Date until at least 24 months after startup of the Equipment, Customer shall, at its own cost and expense, maintain insurance in full force and effect which includes, without limitation, commercial general liability (including, without limitation, product liability) in a sum of no less than $2 million in the aggregate with reputable insurers. Upon i-MET’s request, Customer shall provide i-MET with a certificate of insurance from Customer’s insurer evidencing the insurance coverage specified herein and naming i-MET as an additional insured. Customer shall require its insurer to waive all rights of subrogation against i-MET’s insurer and i-MET. 


Customer agrees to comply with all government laws, rules and regulations affecting this Agreement and the Products and/or Services sold hereunder (including, without limitation, any applicable import and export laws) and to pay all license fees, customs duties, assessments, and sales, use, property, excise and other taxes now or hereafter imposed by any governmental body or agency with respect thereto. 


Customer acknowledges and agrees that i-MET’s relationship with its employees and independent contractors is a valuable asset to i-MET, which it has invested time and resources in growing and maintaining. The employees and/or independent contractors used by i-MET to render services under this Agreement have specialized skills and training that would be difficult for i-MET to replace. Accordingly, Customer shall not, from the Acceptance Date until one (1) year after the later of the startup of the Equipment (as applicable) or the last date of performance of any services in connection with this Agreement, directly or indirectly solicit or attempt to solicit for employment or engagement with Customer or any of its affiliates, any person who, at the time of solicitation, is (a) an employee or independent contractor of i-MET and (b) known to i-MET as a result of this Agreement and the provision of any services hereunder. Any violation of this provision constitutes a material breach of this Agreement. Without limitation to any other rights or remedies, i-MET is entitled to injunctive relief for any violation hereof. ASSIGNABILITY AND WAIVER Customer agrees not to (a) assign this Agreement (in whole or in part) at any time, or (b) sell, assign, lease, pledge, hypothecate or otherwise encumber or suffer a lien upon or against the Products sold hereunder during (in the case of (b)) the time i-MET has an interest therein. No waiver or consent by i-MET of any breach or default by Customer shall constitute a waiver of any other breach or default by Customer, nor shall it be considered a waiver of any of i-MET’s rights. The failure of i-MET to insist upon strict performance of any of the terms or conditions stated herein will not be considered a continuing waiver of any such term or condition or any of its rights, nor will it imply a course of performance between the parties.


This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin, without giving effect to any choice or conflict of law provision or rule. Any proceeding related to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Wisconsin, in each case located in Milwaukee County, Wisconsin, and each party irremovably submits to exclusive jurisdiction of such courts. 


This Agreement is the entire agreement between the parties hereto and no amendments or qualifications hereto or hereof shall be binding or of any force and effect against i-MET unless in writing and signed by i-MET. This Agreement prevails over any of Customer’s terms and conditions of purchase, regardless of whether or when Customer has submitted its order or such terms and conditions of Customer. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions (which i-MET expressly rejects). This Agreement is for the sole benefit of the parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended or shall confer upon any other person (other than the indemnified parties) any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. SURVIVAL Provisions of this Agreement which by their nature apply beyond their terms will remain in force after termination or expiration of this Agreement, including, but not limited to, indemnity, technical information and confidentiality, limitation on liability, insurance and non-solicitation provisions.


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