ICM, Inc. Sales Order Terms and Conditions for Sale of Aftermarket Goods

These Sales Order Terms and Conditions ("Terms") are incorporated by reference in each Sales Order for the sale of Aftermarket Goods issued by ICM, Inc. ("ICM") to the customer ("Customer") effective as of the issue date without necessity that these Terms be attached to the Sales Order.

1. General Terms and Conditions. TheThe following applies to all Sales Orders, regardless of Customer location.

1. Defined Terms.
• "Aftermarket Goods" or "Goods" are those parts, stock items, equipment, components, assemblies, specification books, manuals, and other tangible items manufactured or produced by ICM, or by a third party original equipment manufacturer ("OEM"), whether such Goods are sold individually by ICM in the original state as provided to ICM by the OEM or the OEM's supplier, or incorporated into an assembly by ICM or OEM prior to sale to Customer. Goods do not include items that are part of initial plant construction or part of a separate contract that includes Goods.
• "Purchase Order" is Customer's document submitted to indicate Customer's purchase of Goods. Any Purchase Order or other document submitted by Customer to document the purchase of Goods is subject to these Terms. Any pre-printed terms and conditions stated or referenced on the Purchase Order, or any terms and conditions in addition to or in conflict with these Terms, are null and void.
• "Sales Order" is ICM's document describing the Goods being sold to Customer. The Sales Order includes a description of the Goods, the price for the Goods, and the estimated delivery dates.

2. Sales Order Issue, Validity Period, and Acceptance. All Sales Orders are subject to change or withdrawal by ICM prior to written acceptance without prior notice to Customer unless otherwise specifically stated in the Sales Order. All Sales Orders and any payment terms specified therein are subject to approval by ICM of Customer's credit. A Sales Order may be accepted by Customer through issuance of a Purchase Order or other methods by which Customer normally purchases Goods, subject to the requirements of these Terms.
3. Types of Goods. Goods may include the following:
   • New Goods. Those Goods that are manufactured by an OEM and are new, unused, and not previously installed.
   • ICM-Specified Goods. Those Goods that are either specified by ICM in its specification books or regularly maintained in inventory by ICM.
   • Specialty Goods. Those Goods that are new and unused, but were originally ordered by or manufactured by ICM for a specific customer or application.
   • Refurbished Goods. Those Goods that are not new, are previously used, and have been repaired or cleaned or modified or rebuilt by ICM in preparation for resale and reuse. ICM has discounted the price of Refurbished Goods in consideration of the limited warranty offered for them. Refurbished Goods are specifically noted as such on the face of the Sales Order.
   • Used Goods. Those Goods that are used and have not been refurbished by ICM.
   • Other Goods. All Goods that are supplied by ICM at Customer's request that do not fall within any of the above categories.
4. Limited Warranty ICM makes this express limited warranty ("Warranty") to Customer as to the Goods identified on ICM's Sales Order. All other understandings, statements, and representations are specifically replaced and superseded by this Warranty, except and unless otherwise noted on the face of the Sales Order. Subject to the warranty exclusions below, ICM further warrants the following:
• For New Goods.

  For a period of thirty (30) days after shipment, ICM warrants that New Goods are new, unused, and not previously installed. ICM passes through to Customer the OEM warranty available for New Goods, if any.

• For ICM-Specified Goods and Specialty Goods.
  1. 30-Day Limited Warranty. ICM warrants that ICM-Specified and Specialty Goods, when shipped by ICM, are new, unused, in conformity with any applicable ICM specifications, and free from defects in material and workmanship for a period of thirty (30) days from the date the Goods are shipped to Customer (the "Warranty Period"). ICM passes through to Customer the OEM warranty for ICM-Specified and Specialty Goods, if any, to the extent the same provides Customer with benefits or rights greater than those provided in this subparagraph
  2. Sole Discretion to Repair/Replace. ICM, in its sole discretion, will either repair or replace nonconforming ICM-Specified and Specialty Goods only during the Warranty Period. ICM warrants any repaired or replaced ICM-Specified and Specialty Goods furnished as a result of a Customer warranty claim only for the duration of the original Warranty Period that remains following Customer's notification of defect to ICM. Beyond the Warranty Period, Customer must follow the claim procedure identified by the OEM for the additional warranty period available through the OEM, if any.
• For Refurbished Goods.
  1. Limited Warranty. ICM warrants that Refurbished Goods, when shipped by ICM, are free from defects in the workmanship involved in refurbishment for a period of thirty (30) days from the date the Refurbished Goods are installed at Customer's location or ninety (90) days from the date of the Sales Order, whichever comes first (the "Refurb Warranty Period"). ICM passes through to Customer the OEM warranty for Refurbished Goods, if any, to the extent the same provides Customer with benefits or rights greater than those provided in this subparagraph.
  2. Sole Discretion Repair, Return/Sale Cancellation, or Sale of New Goods. ICM, in its sole discretion will, but only if the Refurbished Goods fail or otherwise evidence a nonconformity within the Refurb Warranty Period, either (i) repair the Refurbished Goods, (ii) accept return of the Refurbished Goods and cancel the sale, or (iii) provided Customer has agreed, provide New Goods to replace the failed Refurbished Goods, at an incremental price equal to the difference between the New Goods list price and the Refurbished Goods price. ICM warrants any repaired Refurbished Goods only for the duration of the original Refurb Warranty Period that remains following Customer's notification of defect to ICM. Beyond the Refurb Warranty Period, Customer must follow the claim procedure identified by the OEM for the additional warranty period available through the OEM, if any.
• For Used Goods. Used Goods are sold as is, where is, with no warranty expressed or implied.
• For Other Goods. Other Goods have only that warranty as expressed by the OEM, if any, as stated in a package insert or on package labeling that accompanies the Other Goods, and Customer's sole recourse is to the OEM pursuant to that express warranty.
• For Software. ICM does not give any warranty, express or implied, of third party software and is not liable for any defects in such software, but will pass the manufacturer's warranty, if any, to the Customer. ICM's entire liability and Customer's exclusive remedy under this limited warranty will be, at ICM's option, either (y) the return of the price paid for the Software or (z) repair or replacement of the Software or the media that is returned to ICM. This limited warranty is void if the failure of the Software or media is due to accident, misapplication or unauthorized modification. Any replacement Software will be warranted for the remainder of the original warranty period or 30 days, whichever is longer. ICM does not warrant that the software will meet Customer's requirements, that the operation of the software will be uninterrupted or error-free, that the software will operate in combination with any other software that Customer selects for its use, or that defects or errors in the software will be corrected. ICM further does not warrant or make any representations regarding the use or the results of use of the software or accompanying written materials with respect to their correctness, accuracy, reliability, or otherwise. No oral or written information or advice given by ICM creates a warranty or in any way increase the scope of this limited software warranty.
5. Warranty Exclusions The warranties stated herein do not apply to damage or failure of the Goods caused in whole or in part by Customer's:
   • Improper maintenance, unauthorized modifications or alterations, defective installation, or improper operation.
   • Use in a manner not in accordance with OEM or ICM instructions or manuals.
   • Use of the Goods for purposes other than those for which they were designed.
   • Failure to provide prompt notice of a warranty claim during the applicable warranty period.
   • Other abuse or misuse.
6. Disclaimer of All Other Warranties. THE WARRANTIES, OBLIGATIONS, AND LIABILITIES OF ICM AND THE REMEDIES OF CUSTOMER DESCRIBED IN THIS SECTION ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND CUSTOMER HEREBY WAIVES, RELEASES, AND RENOUNCES, ALL OTHER WARRANTIES, OBLIGATIONS, AND LIABILITIES OF ICM AND ALL OTHER RIGHTS, CLAIMS, AND REMEDIES AGAINST ICM. ICM EXPRESSLY DISCLAIMS ALL WARRANTIES OF EVERY KIND AND NATURE EXCEPT THOSE ON THE FACE OF THIS DOCUMENT, WHETHER EXPRESS OR IMPLIED, AS TO ALL GOODS SOLD BY ICM. ICM EXPRESSLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE, AND ANY WARRANTY AS TO THE OWNERSHIP, PATENT, COPYRIGHT, DESIGN, TRADEMARK OR OTHER INDUSTRIAL OR INTELLECTUAL PROPERTY RIGHTS IN THE GOODS OR THE DESIGN THEREOF UNLESS THE GOODS OR THE DESIGN THEREOF HAVE BEEN PRODUCED BY ICM AND NOT PURCHASED FROM A THIRD PARTY.
7. Restocking Fee Applicable to Returned New Goods. Customer may be assessed a restocking fee on any New Goods returned to ICM within sixty (60) days after such Goods are shipped by ICM if such Goods are still new and not part of a valid warranty return. Customer must pay all shipping costs associated with any returned New Goods. ICM will not accept Used Goods, Refurbished Goods, or Specialty Goods for return.
8. Payment Terms and Interest. Payment for all Goods must be made in US Dollars and payments are due and payable within thirty (30) days of invoice receipt unless other payment terms are noted on the applicable Sales Order. ICM has no obligation to package or to ship Goods until the down payment or prepayment specified on a Sales Order is received by ICM.
   • If payment for Goods is not made in accordance with the payment terms on the applicable Sales Order, interest accrues and must be paid by Customer to ICM in addition to the unpaid purchase price at the rate of one and one-half percent (1.5%) per month on the unpaid amount, or the highest interest rate allowed by law, whichever rate is less.

   • Wire transfer account information is available upon request. Please contact [email protected] or call (316) 977-6500 for more information.

     Customer's wire transfer instructions must reference the invoice number(s) being paid; otherwise payments will be applied to Customer's unpaid invoices (including interest charges) at ICM's discretion.

   • If the financial condition of Customer results in the insecurity of ICM as to the ultimate collectability of the purchase price, then ICM may without advance notice to Customer, delay or postpone the delivery of Goods and/or change the terms of payment to payment in full or in part in advance of shipment of the undelivered balance of said Goods.
   • Customer grants ICM a security interest in all Goods as security for all of Customer's payment obligations under any Purchase Order or Sales Order. Customer agrees that the Goods secure a financial obligation incurred by Customer with respect to the Goods.
9. Taxes. Customer must pay any sales tax, manufacturer's tax, VAT, withholding tax, excise tax, use tax, duty, imposition, inspection or testing fee, or any other tax, fee, or charge imposed by any government authority. Customer will promptly reimburse ICM on demand for any such taxes, fees, or other charges that are imposed on and paid by ICM or for which ICM is responsible for collection in connection with the transaction, the Sales Order, or these Terms.
10. Shipment of Goods. All quoted shipment dates are approximate unless specified otherwise on the Sales Order. All costs of shipping will be solely Customer's responsibility unless otherwise agreed. Customer bears the risk of loss after ICM's delivery to ICM's dock (or in the case of a delivery direct from the manufacturer to Customer, then the manufacturer's dock). Notwithstanding the foregoing, title to any Goods or any part thereof supplied hereunder does not pass to Customer until all payments due have been fully made. If Customer defaults on any of the payments herein, ICM may retain any partial payments which have been made as liquidated damages, and ICM is entitled to the immediate possession of the Goods and may freely enter the premises where the Goods may be located and remove them all without prejudice to ICM's right to recover any further expenses or damages ICM may suffer by reason of such non-payment.
11. Claims for Omitted or Damaged Goods. Any claims by Customer that Goods were omitted, damaged, or otherwise not in conformity with the Sales Order are waived by Customer unless Customer provides written notice to ICM within seven (7) days after Customer's receipt of shipment. If Customer fails to notify ICM within seven days after the Goods have been received by Customer, such Goods are conclusively deemed to conform to these Terms and the terms in the Sales Order and the Goods will be considered irrevocably accepted by Customer.
12. Customer's Indemnification of ICM. Customer hereby releases and will defend, indemnify, and hold ICM, its affiliates, directors, officers, employees, and agents harmless from and against any and all demands, claims, actions, suits, administrative or judicial proceedings, investigations of any kind and all liabilities, damages, fines, judgments, expenses, and losses including, but not limited to, property damage, loss of profits or revenue, or personal or bodily injury or death arising out of, in connection, with, or incident to Customer's use or possession of any Goods purchased pursuant to a Sales Order, regardless of the negligence, active or passive, of ICM, its affiliates, directors, officers, employees, or agents. This Indemnification obligation requires Customer to pay any judgment against ICM and any legal and other professional fees and disbursements incurred by ICM in defense of such claims. The foregoing indemnification obligations and all other provisions hereunder which limit or protect against ICM's liability also apply to the full extent permitted by law and survive the termination, cancellation, or expiration of any agreements resulting from a Sales Order.
13. Ownership and Protection of Intellectual Property. All drawings, know-how, designs, specifications, inventions, devices, developments, processes, copyrights, trade secrets, and other information or intellectual property disclosed or otherwise provided to Customer by ICM and all rights therein (collectively, "Intellectual Property") will remain the sole property of ICM and will be kept confidential by Customer. Customer has no claim to, nor ownership interest in, any Intellectual Property, and such information in whatever form and any copies thereof, must be promptly returned to ICM upon written request from ICM. Customer acknowledges that no license or rights of any sort are granted to Customer hereunder in respect of any Intellectual Property. All information furnished or made available by ICM to Customer in connection with the subject matter of any Sales Order or of Customer's Purchase Order must be held in confidence by the parties. Customer agrees not to use such information or disclose such information to others without ICM's prior written consent.
14. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, ICM MAY NOT BE HELD LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, OR ANY OTHER LEGAL THEORY. SUCH DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOSS OF PROFITS, LOSS OF SAVINGS OR REVENUE, LOSS OF USE OF THE GOODS AND/OR THE SYSTEM TO WHICH GOODS ARE ATTACHED OR HAVE BEEN MADE A PART OF, COSTS OF ANY SUBSTITUTE GOODS, DOWNTIME, THE CLAIMS OF THIRD PARTIES, INCLUDING OWNERS, AND INJURY TO PROPERTY. ICM IS NOT LIABLE FOR ANY DAMAGES CLAIMED BY CUSTOMER BASED UPON A CLAIM BY ANY OTHER PARTY AGAINST CUSTOMER. ICM'S TOTAL LIABILITY HEREUNDER MAY NOT EXCEED THE PURCHASE PRICE PAID BY CUSTOMER FOR THE GOODS IN QUESTION.
15. Applicable Law and Disputes. This Sales Order must be interpreted and governed by the substantive and procedural laws of the State of Kansas, USA, without regard to its choice of law or conflict of law provisions. Customer irrevocably consents and submits itself exclusively to the jurisdiction of the applicable federal or state courts situated in the District of Kansas for the purpose of any suit, action, or other judicial proceeding arising out of or related to a Sales Order. The parties hereby expressly exclude in its entirety the application of the United Nations Convention on Contracts for the International Sale of Goods ("CISG") to the transactions contemplated by a Sales Order. The parties agree that a Sales Order, all correspondence, and any documentation arising out of or related to a Sales Order will be in the English language. Any translation of this Sales Order from such language will be at Customer's sole expense, and Customer bears all risk of any errors in such translation.
16. Attorneys' Fees. In any legal action or proceeding by ICM arising out of these Terms or any Sales Order, ICM will be entitled to recover its reasonable attorneys' fees from Customer if ICM is the prevailing party.
17. Clerical Errors. Any typographical, clerical, or other error or omission in any sales literature, Sales Quote, price list, invoice, or other document or information issued by ICM are subject to correction without any liability on the part of ICM.
18. No Third Party Benefit. These Terms and the content of any Sales Order are for the sole benefit of Customer and ICM only and confer no rights, benefits or claims upon any person or entity not a party hereto.
19. Entire Agreement. The Sales Order, together with any other related contract documents, constitute the entire agreement between the parties with respect to the transactions specified therein. The Sales Order supersedes all prior agreements and understandings between the parties, both written and oral, and there are no verbal understandings, agreements, representations, warranties, courses of performance, courses of dealing, or customs of usage and trade between the parties which are not expressly set forth herein.
20. Assignment. Customer may not assign the Sales Order without the prior written consent of ICM, which may be granted or withheld in ICM's sole and absolute discretion. Notwithstanding ICM's consent to any assignment, Customer remains fully responsible for all obligations of the Sales Order.
21. Severability. If any provision of the Sales Order or these Terms is found invalid, illegal, or unenforceable by law, the remainder of the Sales Order and these Terms will remain enforceable and in full force and effect, and the parties will negotiate in good faith to substitute a provision of like intent.
22. Order of Precedence. In the event of any inconsistency or conflict between or among the provisions of the Sales Order and these Terms, such inconsistency or conflict must be resolved by following the descending order of precedence: 1. Sales Order specific provisions provided on the face of the Sales Order that are not pre-printed or standard form wording; 2. ICM's specific International sales or other specialty terms contained herein; 3. These Terms.
23. ICM Name; Confidentiality. Customer will not use ICM's name for advertising or solicitation of business purposes without ICM's prior written consent, which may be withheld in ICM's sole and absolute discretion. Customer agrees to treat the Sales Order, these Terms, and any information contained therein as confidential and will not, without the prior written consent of ICM, which may be withheld in ICM's sole and absolute discretion, disclose these Terms, the Sales Order, or any information contained therein to any other person or entity.

2. International Terms; Import/Export and Compliance. In addition to the above General Terms and Conditions, the following Terms and Conditions apply if the sale of Goods is to an entity or a location outside the continental United States of America. In the event of any conflict between the General Terms and Conditions and these International Terms, these International Terms apply to the international sale of Goods.

1. In performing the obligations of the Sales Order, Customer will comply with the United States Foreign Corrupt Practices Act, 15 U.S.C. § 78 et seq. (the "FCPA"), and any other anti-bribery laws and regulations of any applicable jurisdiction. Customer will further comply with United States export control laws, sanctions, regulations, and orders, as they may be amended from time to time, applicable to the export and re-export of goods, software, technology, or technical data ("Items") or services, including without limitation the Export Administration Regulations ("EAR"), International Traffic in Arms Regulations ("ITAR"), and all regulations and orders administered by the U.S. Department of Commerce, U.S. Department of Treasury, and the Office of Foreign Assets Control (collectively, "Export Control Laws"). Customer is responsible for obtaining any licenses or other official authorizations that may be required by the country of importation and/or under the EAR, ITAR, Toxic Substances Control Act, or other applicable laws or regulations.
2. Each party must reasonably cooperate, and exercise reasonable efforts to support, the other party in obtaining any necessary licenses or authorizations required to perform its obligations under this Sales Order.
3. The Party providing any Items under this Sales Order must, upon request, notify the other Party of the Items' Export Control Classification Numbers ("ECCN's") as well as the ECCN's of any components or parts thereof if they are different from the ECCN of the Goods at issue.
4. Each Party represents that the Goods and the parts and components thereof are not "defense articles," as that term is defined in 22 C.F.R. §120.6 of the ITAR, and that any services provided are not "defense services," as that term is defined in 22 C.F.R. §120.9 of the ITAR. The parties acknowledge that this representation means that an official capable of binding the Party providing such Items knows or has otherwise determined that such Items, and the parts and components thereof, are not on the ITAR Munitions List at 22 C.F.R. §121.1. Each Party agrees to reasonably cooperate with the other in providing, upon request of the other Party, documentation or other information that supports or confirms this representation.
5. Customer must not, without the prior express written consent of ICM, use the Goods in any way involving military end-customers other than the U.S. government. This restriction applies to any use, sale, proposal, or offer to sell or provide parts to any military end-customers other than the U.S. government anywhere, and includes any national Army, Navy, Air Force, or other agency of national defense, as well as defense contractors where Customer knows or has reason to know that the part is likely to be used by, delivered to, or benefit a defense agency anywhere.
6. Customer represents and warrants that it is not designated on or associated with any party designated on any of the U.S. government restricted parties lists, including, without limitation, the U.S. Commerce Department Bureau of Industry and Security ("BIS") Denied Persons List; Entity List or Unverified List; the U.S. Treasury Department Office of Foreign Assets Control ("OFAC") Specially Designated National and Blocked Persons List; or the U.S. State Department Directorate of Defense Trade Controls ("DDTC") Debarred Parties List. Customer must comply with all applicable U.S. economic sanctions and export control laws and regulations, including without limitation, the regulations administered by OFAC, the Export Administration Regulations administered by BIS, and the International Traffic in Arms Regulations administered by DDTC. Customer agrees it will not offer the Goods for resale in any country or to any person or entity if Customer knows, or has reason to believe, that the sale to such person or entity is a violation of the obligations of this subparagraph 6 or that such person or entity intends to resell or convey the Goods to a person or entity in violation of the terms of this subparagraph 6.
7. It is specifically agreed that Customer is the foreign principal party in interest and/or that its freight forwarder acts as Customer's agent in such capacity for purposes of the Foreign Trade Regulations or other regulatory purposes, and Customer and its freight forwarder are responsible for all routed export transactions documentation, including but not limited to the filing of the required Electronic Export Information/Automated Export System records. At ICM's request, Customer or its freight forwarder must provide copies of any export, shipping or import documentation prepared by Customer or its freight forwarder related to sales to Customer by ICM, including end user certificates.

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