Terms and Conditions
1. Agreement.
Unless otherwise agreed in a written document, these Terms and Conditions of Sales and Service (“Terms”) govern the purchase of goods (including, but not limited to, new and used equipment, software, components, technology and parts) (“Goods”) and services (“Services”) from In Balance IT Solutions LLC (IN BALANCE) by any individual or entity that purchases such Goods or Services from IN BALANCE. (“Client”). IN BALANCE thereby rejects the terms of any purchase order or other document submitted by Client, that conflicts with these Terms and Conditions. The placing of an order with IN BALANCE or the receipt or acceptance of Goods or Services by Client constitutes Client’s acceptance of these Terms exactly as written, unless modified in a writing signed by an authorized representative of IN BALANCE.
2. Order and Delivery of Goods or Services
All orders for Goods and/or Services are subject to credit approval and final acceptance by IN BALANCE in its sole discretion. Client shall have no right to cancel purchase orders for Goods once a purchase order is issued to IN BALANCE; provided, however, some goods may be returnable to IN BALANCE in accordance with IN BALANCE’s then current goods return policy. Client acknowledges that estimated delivery dates for Goods are estimates only; actual delivery dates depend on a variety of factors, including, but not limited to, the production schedules of manufacturers. IN BALANCE will use commercially reasonable efforts to meet estimated delivery dates and shall keep Client advised of the status of its delivery, but IN BALANCE shall have no liability for any loss associated with delay in the delivery of Goods. In addition, IN BALANCE shall have no liability for any delay in performance of Services or delivery of Goods caused by any circumstances beyond its reasonable control, including, but not limited to, delays caused by acts of God, acts of war or terrorism, fire or other casualty, storms or adverse weather, strikes, labor shortages or disturbances, shortages of materials, manufacturer delays, theft or vandalism, pandemic, epidemic, transport and handling accidents, or revisions to laws, regulations or governmental requirements.
3. Pricing.
The price for Goods shall be the price set forth on a written quote issued by IN BALANCE (“Quote”), for such Goods on the date such Goods are delivered to Client. Unless otherwise set forth on a Quote, the labor rates for Services shall be IN BALANCE’s standard labor rates for the applicable type of Service in effect at the time the Services are performed. Pricing for future orders is subject to change without notice. Pricing and risk of loss for purchased Goods is FOB IN BALANCE’s site, unless purchased Goods are shipped to Client directly from the manufacturer, in which case pricing and risk of loss is FOB factory. Any claims for shortages, damages, or delays in shipping must be made by Client directly to the carrier.
4. Taxes
Client will promptly pay to IN BALANCE any taxes that IN BALANCE is required to collect with respect to the purchase of Goods and/or Services, including, but not limited to, value added, personal property, sales, use and similar taxes (“Taxes”). For any Taxes from which Client claims exemption, Client shall provide IN BALANCE with properly completed exemption certificate/s and any documentation needed to validate the exemption prior to the purchase of the applicable Goods and/or Services. If Client fails to provide an appropriate exemption certificate and supporting documentation, as determined by IN BALANCE, Client will remain liable for all such Taxes and will indemnify IN BALANCE for any liability related to the same.
5. Payment Terms
For Clients with an open credit account with IN BALANCE, all payments are Net 30 days. IN BALANCE may, in its sole discretion, at any time: (a) revoke credit; (b) modify terms and conditions of credit; (c) require payment in advance; and/or (d) withhold Goods, completed Services or scheduled Services until receipt of payment. If Client fails to pay for Goods and/or Services as and when due, Client shall pay a late charge of 1% of the invoice balance each month until charges are paid in full, and Client shall pay IN BALANCE all reasonable attorneys’ fees and collection costs incurred by IN BALANCE. In addition to any other right of set-off or recoupment IN BALANCE has under applicable law, Client agrees that, with respect to any amounts due from Client or Client’s affiliates to IN BALANCE or IN BALANCE’s affiliates, IN BALANCE and its affiliates may set-off such amounts against any amounts owing to Client or Client’s affiliates. IN BALANCE reserves the right to partially invoice for goods and services; invoicing as products are shipped or Services are completed. Unless otherwise agreed to, invoicing for managed or professional services, for completed work, will occur monthly.
6. Warranties.
- a) New Goods. If Client is purchasing new Goods from IN BALANCE, Client acknowledges that (i) IN BALANCE is not the manufacturer of the Goods; (ii) if the Goods include a manufacturer’s warranty, IN BALANCE will pass through to Client the manufacturer’s warranty to the extent permitted by the terms of such warranty; and (iii) the manufacturer’s warranty will be subject to all conditions and exclusions set forth therein. In certain circumstances, Client may have the option of purchasing an equipment protection plan or extended service coverage (each, an “Extended Protection Product”); if such an Extended Protection Product is available and is purchased by Client at the time of sale, the Extended Protection Product will be subject to all conditions and exclusions included in such Extended Protection Product.
- b) Used Goods. If Client is purchasing used Goods from IN BALANCE, Client acknowledges that the only warranties with respect to such used Goods are those warranties, if any, expressly set forth in the bill of sale signed by IN BALANCE.
- c) Services. If Client is purchasing Services from IN BALANCE, IN BALANCE warrants that its Services will be completed in a good and workmanlike manner. IN BALANCE’s service warranty will be voided in the event of any of the following: misuse or abuse of Goods by Client, subsequent repairs performed by Client or vendors other than IN BALANCE, use beyond ordinary wear and tear, failure to maintain and operate Goods in accordance with the maintenance and operations manual of the manufacturer, or damage due to theft, vandalism or casualty.
- d) WARRANTY DISCLAIMER. IN BALANCE makes no warranty, express or implied, with respect to any Goods or Services other than the foregoing warranties including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose or any implied warranties that may arise from the course of dealing between the parties. To the maximum extent permitted by law, all such warranties are hereby disclaimed by IN BALANCE and waived by Client.
7. Indemnification.
Each party agrees to defend, indemnify and hold harmless the other party for, from and against any third-party claims related to the Goods or Services to the extent such third-party claims (including, but not limited to claims related to the death or injury of any person(s) or damage to or destruction of any real or personal property) are caused by the indemnifying party’s negligent acts or omissions, subject to the limitations set forth in Section 8 below. To the fullest extent permitted by law, Client agrees to defend, indemnify and hold harmless IN BALANCE, its affiliates and subsidiaries, and all of their respective owners, directors, officers, managers, employees, agents or representatives for, from and against any and all liabilities, claims, actions, suits, damages, losses and expenses (including, but not limited to, reasonable attorneys’ fees, expert witness fees, costs and expenses) that are caused by, arising from or related in any way to such third-party claims.
8. Liability Limitation.
In no event shall either party be liable, whether based in contract, warranty, indemnity, tort, strict liability or any other theory of law or equity, for any special, incidental, indirect, punitive, exemplary or consequential damages, including, but not limited to, lost profits, loss of use of property or equipment, downtime, loss of third-party contracts or lost production, regardless of whether or not such party was advised of the possibility of such damages. In addition, IN BALANCEs maximum aggregate liability (whether in contract, warranty, indemnity, tort, strict liability or any other theory of law or equity) for damages or loss, howsoever arising or caused, shall in no event exceed the amount Client paid to IN BALANCE for the Goods or Services to which the liability relates. The parties recognize that the pricing associated with Goods and Services reflects this allocation of risk and is the basis of the bargain between the parties. The foregoing limitations shall be valid and enforceable, notwithstanding any alleged failure of essential purpose of the limited remedies set forth herein. Any and all claims arising out of or relating to the Goods and/or Services will be barred unless a legal proceeding is commenced within one (1) year from completion of the Services or delivery of the Goods to Client.
9. Choice of Law
These Terms shall be governed by and construed in accordance with the laws of the State of Illinois without giving effect to conflict of law provisions. The parties agree that exclusive jurisdiction and venue for any proceeding at law or in equity will be in the state or federal courts located in DuPage County, Illinois
10. General Provisions.
Client may not assign Client’s rights or obligations hereunder without IN BALANCE’s prior written consent, and any such attempted assignment will be void. If any provision in these Terms is found to be invalid, unlawful or unenforceable, the remaining provisions in these Terms shall remain in full force and effect. A party’s waiver of any breach will not constitute a waiver of any different or subsequent breach. No employment, agency, joint venture, or similar arrangement is created or intended between Client and IN BALANCE. IN BALANCE retains ownership of all records relating to Goods and Services provided to Client (“Records”) and may disclose the Records pursuant to a court order or in the event disclosure of the Records becomes part of IN BALANCE’s defense in a legal matter. IN BALANCE is an equal opportunity Employer.
