Terms and Conditions

(updated 09-12-2024)

 

The following terms and conditions of sale (the “Terms and Conditions”) govern all sales of goods or services (collectively, “Goods”) from Industrial Municipal Supply Co., Inc. (“Seller”) to buyer (“Customer”).

Governing/Controlling Terms

These Terms and Conditions and the terms and conditions contained in Seller’s Credit Application shall govern and apply to all purchases of Goods by Customer from Seller, and except as expressly provided herein, shall supersede any terms and conditions contained in any purchase order submitted to Seller by Customer.  Customer shall have assented to and accepted these Terms and Conditions if it performs any or all of the following actions: by signing and returning Seller’s quotation; by sending a purchase order in response to the quotation; by submitting instructions to Seller to ship the Goods; or by accepting or paying for the Goods.

All other terms and conditions contained in any prior communication between Customer and Seller, oral or written, including, without limitation, Customer’s purchase order, other than the identity of and quantity of the item(s) being purchased, are null and void and are hereby rejected and shall not be binding upon Seller. Neither Seller’s subsequent lack of objection to any Customer terms, nor the delivery of the Goods, shall constitute an agreement by Seller to any such Customer terms. Trade custom, trade usage and past performance are superseded by these Terms and Conditions and shall not be used to interpret these Terms and Conditions.

Prices

Except for written job quotations that specifically allow price protection for a certain period of time, all prices are subject to change by Seller without notice.  If prices change, Customer agrees to accept the new prices.

Payment Terms

Unless set forth on Seller’s Credit Application or otherwise agreed to in writing, all accounts are due and payable based upon the terms stated on the applicable invoice of Seller, and the remittance address reflected on those invoices. Notwithstanding the foregoing, all orders and lines of credit are subject to Seller’s continuing approval of Customer’s credit. Seller, in its sole discretion, may suspend or cancel performance, or require different payment terms. Customer may not withhold payment of any amounts due and payable as a set-off of any claim or dispute with Seller, regardless of whether relating to Seller’s alleged breach of an agreement, bankruptcy, or otherwise.

As collateral security for the payment of the purchase price of the Goods, Customer hereby grants to Seller a security interest in and to all of the right, title and interest of Customer in, to and under the Goods, 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.  The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code.  Customer agrees to assist Seller in taking any action Seller deems necessary or appropriate to perfect and protect Seller’s security interest, including the filing of any financing statements, continuation statements and other documents under the Uniform Commercial Code (or other similar laws) in effect in any jurisdiction with respect to the security interest created hereby.

Late Payment

If Customer fails to make any payment to Seller when due, Customer’s shop account and/or job accounts with Seller shall become immediately due and payable without notice or demand.  Customer acknowledges and agrees that it will be charged a service charge equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, from the applicable due date until paid, plus Seller’s reasonable costs of collection, including attorneys’ fees, and Customer agrees to promptly pay said service charge and interest accrued thereon.  Any portion of a month shall be deemed a full month for the purpose of calculating any service charge and interest.  Waiver of any service charge or interest for any given month by Seller shall not be deemed a waiver of any future service charges or interest. Seller reserves all other rights granted to a seller under the Uniform Commercial Code (UCC) (or equivalent law in the applicable jurisdiction) for Customer’s failure to pay for the Goods or any other breach by Customer of these Terms and Conditions.

Taxes

Customer shall pay, in addition to the prices quoted, all taxes, including, without limitation, sales, use and excise, imposed by any present or future law on the sale or use of the Goods covered thereby, unless Customer provides Seller with an exemption certificate acceptable to the applicable taxing authorities.  Any taxes which Seller may be required to pay or collect under any existing or future law with respect to the sale, purchase, delivery, storage, processing, use or consumption of any of the Goods sold hereunder shall be for the account of Customer, who shall promptly pay the amount thereof to Seller upon demand. To the extent that Customer disputes any tax amounts invoiced hereunder, such dispute shall be made within five (5) business days of Customer’s receipt of such invoice, or such dispute shall be deemed waived.

Claims

No claim for damages, defects, shortages or otherwise shall be valid unless received in writing by Seller within ten (10) days of delivery of Goods to Customer.  Following such ten (10) day period, Customer shall be deemed to have irrevocably accepted the Goods if not accepted by Customer prior thereto.  If the Goods are damaged or defective and the manufacturer acknowledges responsibility under its warranty or otherwise, Seller may, but shall not be required to (i) replace the damaged or defective Goods from inventory, if available, or (ii) allow Customer a credit in an amount equal to the purchase price of the Goods.  Under no circumstances and in no event shall Seller be liable for personal injury, death or property damage, or any other loss, damage, labor, cost of replacement or repair, or special, exemplary, consequential, incidental, indirect, punitive or liquidated damages, losses, or expenses (whether or not based upon negligence), including lost profits, lost income, lost revenues, business interruption or lost business, even if Seller has been advised of the possibility of such damages. Notwithstanding anything contained herein to the contrary, in no event shall Seller’s liability to Customer and any third party exceed the price paid by Customer or such party for the specific Goods or portion of the Goods giving rise to the claim or cause of action. 

Special Orders

Orders for Goods which Seller does not regularly stock may not be cancelled or returned for any reason after Seller has placed the order with the manufacturer.  Notwithstanding the foregoing, if the manufacturer approves the return, Seller may, in its sole discretion, accept the return in exchange for a credit given to the Customer in an amount equal to the purchase price of the returned Goods (minus freight, handling and restocking charges).  Special packing or handling requests by Customer shall be at Customer’s expense.

Order Cancellation

Customer may not cancel, change or modify an order without the written consent of Seller and payment by Customer of all applicable cancellation or re-stocking fees.

Returned Goods

No Goods shall be returned without Seller’s prior written permission and Customer’s proof of purchase.  Returned Goods must be unused and in their original packaging.  All returns are subject to freight, handling, and restocking charges.  Special order and/or non-stock item returns are subject to manufacturers’ approval and credit for such returns is contingent upon that approval.  Customer’s sole and exclusive remedy for Goods alleged to be defective shall be limited to the manufacturer’s inspection and warranty, if any.

Credits; Set-off

Customer agrees that Seller will apply any credits issued to Customer against Customer’s outstanding invoices.  If Customer has no outstanding invoices, Seller will issue a refund upon Customer’s written request.  Customer shall not be permitted to set off any amounts or credits due Customer against any amount due Seller in connection with this transaction.

Shipment and Risk of Loss

Unless otherwise agreed by the parties in writing, all Goods are shipped F.O.B. point of shipment.  Risk of loss shall transfer to Customer upon tender of Goods to Customer or a common carrier.  Any claims for shortages or damages suffered in transit are the sole responsibility of Customer and shall be submitted by Customer directly to the carrier. Shortages or damages must be acknowledged and signed for at the time of delivery. Seller reserves the right to make partial shipments and to place certain orders on “back order.” Back orders will be shipped as received unless Customer and Seller agree to different terms. If Customer requires a more expensive routing and/or means of shipment, special packing, or special handling, Customer agrees that all additional costs and fees shall be added to the amount of the order of the applicable Goods. In addition, if the shipment of Goods is postponed or delayed by Customer for any reason, Customer agrees to reimburse Seller for any handling and storage costs, and other additional expenses resulting therefrom.

On shipments made directly to Customer from the manufacturer, the sale is complete, and Seller’s responsibility to Customer ends, upon delivery to the common carrier.  Claims for Goods damaged or lost in transit must be made by Customer directly to the carrier and Seller shall have no liability for such claims. In any event, Customer shall assume all risk and liability for all loss, damage or injury to any person or property resulting from the installation and/or use of the Goods.

Force Majeure

Seller shall be excused for the period of any delay in the performance of any of its obligations or failure to perform such obligations when prevented from so doing by causes beyond its control, including without limitation, acts of God (including fire, flood, earthquake, storm, hurricane or other natural disaster or casualty), civil commotion, government sanction, blockage, embargo, labor disputes, strike, lockout, inability to obtain any material or services, accidents, transportation delays, inability to secure Goods from Seller’s usual sources of supply, war (declared or undeclared) or acts of terrorism.

Warranty Disclaimer

Seller warrants that it has title to the Goods sold.  EXCEPT AS EXPRESSLY SET FORTH IN THIS PARAGRAPH, ALL GOODS AND/OR SERVICES PROVIDED BY SELLER AND ITS EMPLOYEES AND AGENTS ARE PROVIDED AS IS, WHERE IS, AND WITH ALL FAULTS.  SELLER MAKES NO, AND HEREBY DISCLAIMS, WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WHETHER IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY, SUITABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE WITH RESPECT TO THE GOODS REFERRED TO HEREIN. CUSTOMER’S SOLE AND EXCLUSIVE WARRANTY, IF ANY, IS THAT PROVIDED BY THE APPLICABLE THIRD-PARTY MANUFACTURER, THE TERMS OF WHICH WILL BE FURNISHED UPON REQUEST.

INDEMNIFICATION

CUSTOMER HEREBY ASSUMES AND AGREES TO INDEMNIFY, DEFEND, PROTECT, SAVE, KEEP, AND HOLD HARMLESS SELLER, ITS OWNERS, OFFICERS, DIRECTORS, AGENTS, ADVISORS, EMPLOYEES, AND INVITEES (COLLECTIVELY THE INDEMNITEES) FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, INJURIES, CLAIMS, CAUSES OF ACTION, LIABILITIES, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES AND OTHER LEGAL EXPENSES) OF WHATSOEVER KIND AND NATURE, WHETHER KNOWN OR UNKNOWN, FOR INJURY TO, OR ILLNESS OR DEATH OF ANY PERSON AND FOR ALL DAMAGE TO, LOSS OR DESTRUCTION OF PROPERTY OR VIOLATION OF ANY APPLICABLE LAWS OR REGULATIONS (COLLECTIVELY LOSSES), RELATING TO, CONNECTED WITH IN ANYWAY, ARISING OUT OF, OR ARISING OUT OF THE GOODS OR SERVICES PURCHASED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE FOREGOING OBLIGATIONS WILL APPLY EVEN IF AN INDEMNITEE’S CONDUCT HAS CONTRIBUTED TO THE LOSSES, BUT BUYER’S INDEMNIFICATION WILL NOT APPLY TO THE EXTENT THAT LOSSES WERE SOLELY AND DIRECTLY CAUSED BY AN INDEMNITEE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. BUYER’S OBLIGATION TO DEFEND AND INDEMNIFY HEREUNDER WILL ALSO APPLY REGARDLESS OF WHETHER THE CLAIM ARISES IN TORT, NEGLIGENCE, CONTRACT, WARRANTY, STRICT LIABILITY OR OTHERWISE. This paragraph shall survive the termination of the transaction between Buyer and Seller indefinitely.

Compliance

Each party will at all times and at its own expense: (i) strictly comply with all applicable laws, rules, regulations, ordinances and governmental orders, now or hereafter in effect, relating to its performance under these Terms and Conditions, including, without limitation, export and import laws and regulations; (ii) pay all fees and other charges required by such laws, rules, regulations and orders; and (iii) maintain in full force and effect all licenses, permits, authorizations, registrations and qualifications from all applicable governmental departments and agencies to the extent necessary to perform its obligations hereunder. If requested by Seller, Customer will sign written assurances and other export or import related documents, as may be required under applicable U.S. Export Control Laws.

Lead Free Goods

Some of the Goods sold by Seller may contain materials deemed potentially harmful under federal and state legislation.  Customer agrees it is solely responsible for specifying on each purchase order whether any Goods are for potable or non-potable use.  Seller shall not be responsible or liable for any losses or damages sustained by Customer or any other party as a result of misapplication of the Goods by Customer or such other party in violation of applicable law, including without limitation the Safe Drinking Water Act, Reduction of Lead in Drinking Water Act, California and other state and federal laws related to the limitation of lead in products used for the conveyance of drinking water. This paragraph shall survive the termination of this transaction indefinitely.

Intellectual Property

Customer acknowledges Seller is the owner or licensor of brands, trademarks, designs, patents, copyrights and other intellectual property relating to the Goods, and that no right or license is conveyed by Seller to Customer to manufacture, have manufactured, modify, reproduce, reverse engineer, import or copy such Goods.

Dispute Resolution/Venue/Governing Law

Any dispute arising out of this transaction shall be resolved by litigation or binding arbitration (Dispute Resolution) at Seller’s sole option.  Such Dispute Resolution shall be conducted at a location selected by Seller and in the event of binding arbitration, by an arbitration service selected by Seller.  A single arbitrator shall preside over the arbitration, and the decision of the arbitrator shall be final and binding upon the parties.  If the parties cannot agree upon a single arbitrator, the procedure of the arbitration service selected by Seller shall be used to select an arbitrator.  All actions arising out of or related to this transaction or the Goods sold hereunder, regardless of form or theory of liability, must be brought against Seller within the applicable statutory period, but in no event more than one (1) year after the date of invoice.  This agreement is governed by the laws of the State of Louisiana.

Costs of Collection

If Seller retains or employs attorneys or other agencies in order to secure payment of any sums due from Customer, or otherwise enforce the terms of this document, including, but not limited to, the filing of foreclosure actions on liens filed due to Customer’s failure to make payment, Customer agrees to pay attorney and/or collection fees, costs, and any and all other related expenses in addition to all sums due.

Authority; Personal Liability

The person(s) executing this document on behalf of Customer hereby represents he/she has authority to execute this document on behalf of Customer and acknowledges if no such authority exists that he/she by executing this document becomes personally liable under its terms.

Modification

The terms and conditions contained herein may not be amended, modified, supplemented, superseded or otherwise altered in any way except by a writing signed by an authorized representative of both Customer and Seller.

Non-waiver

Seller’s failure to insist upon the strict performance of any term or condition herein shall not be deemed a waiver of any of Seller’s rights or remedies hereunder, nor of its right to insist upon the strict performance of the same or any other term herein in the future.  No waiver of any term or condition hereunder shall be valid unless in writing and signed by an authorized representative of Seller.

Severability

If any term or provision hereof is held to be illegal, invalid or unenforceable under any present or future laws, regulations, or ordinances of any federal, state, or other government to which this transaction is subject, such term or provision shall be fully severable and the remaining terms and provisions herein shall remain in full force and effect and shall not be affected by such illegal, invalid or unenforceable term or provision.

Entire Agreement

These Terms and Conditions constitute the entire, complete, and exclusive agreement between Customer and Seller with respect to the subject matter hereof and contains all the agreements and conditions of sale.  No course of dealing or usage of the trade shall be applicable unless expressly incorporated herein.

(updated 09-12-2024)

Contract

This purchase order is a purchase and sale contract by and between Industrial Municipal Supply Co., Inc. (“IMSCO”) and Vendor (as hereinafter defined). This purchase order is the complete agreement of the parties and may not be modified except by writing signed by both parties. Vendor shall not assign this purchase order without the prior written consent of IMSCO. As used throughout this purchase order, “Vendor” means the person, firm or corporation to whom this purchase order is addressed.  The term “goods” includes personal property of every type, kind and description, as specifically described in this purchase order. To the extent this purchase order identifies more than one person, firm or corporation as the Vendor, each Vendor shall be jointly and severally and solidarily liable for the full performance of the purchase order.

Confidential Information

All information relative to this purchase order, including without limitation, all data and information supplied by IMSCO or learned by Vendor in connection with or in the course of the provision of goods shall be kept confidential and Vendor shall not use, reproduce or disclose any such information for any purpose other than the performance of this purchase order.  All designs, drawings, and information submitted to Vendor hereunder shall remain the property of IMSCO. Any templates made shall, upon the execution of this purchase order, be either delivered to IMSCO or destroyed at the direction of IMSCO.

 Notice

By shipping the goods ordered or by acknowledging receipt of this order, Vendor thereby accept and agree to the terms and conditions of sale set forth below as well as those set forth on the face of this purchase order. These terms and conditions constitute IMSCO’s offer to purchase and may only be accepted on the exact terms set forth and no other terms and conditions shall be controlling.  These terms and conditions supersede the terms of Vendor’s proposal or acknowledgement form, if any.

Price and Payment

Payment terms are net 30 days.  This order must not be filled at higher prices than last quoted or charged, without the prior written approval of IMSCO’s designated agent.  If any of the prices specified in this order have been reduced at the time of shipment, Vendor agrees to bill IMSCO at the reduced price.  If no price is specified on this order for an item, Vendor agrees to bill IMSCO for such item at the lower of Vendor’s price for such item on the date of this order or Vendor’s price at the date of shipment.  Payment shall be as specified on the face of this purchase order. IMSCO will not honor drafts drawn upon IMSCO for this order of any C.O.D. shipments.  No charge will be allowed for packing, freight or cartage without IMSCO’s prior written approval.  Prices charged by Vendor shall not be in excess of any ceilings established or those permitted by applicable law or governmental regulations, if any. IMSCO may set off against any amounts owing from IMSCO to Vendor any amounts owing from Vendor to IMSCO pursuant to this or any other agreement between IMSCO and Vendor.

Delivery and Risk of Loss

IMSCO may cancel or reject all or any part of this order which is not delivered within the time specified.  Time is of the essence.  Unless otherwise specified in writing, title to the goods shall pass to IMSCO at the F.O.B. destination point set forth on the face of this purchase order. Vendor warrants full, clear and unrestricted title to IMSCO for all goods furnished by Vendor in the performance of this purchase order, free and clear of any and all liens, restrictions, reservations, security interests, and encumbrances and claims of others.

Warranties and Claims

Goods delivered hereunder are subject to inspection, testing and approval by IMSCO, or if shipped directly to IMSCO’s customer, by its customer, and IMSCO expressly reserves the right to inspect goods delivered pursuant to this purchase order prior to payment.  For a period of one year from shipment, Vendor warrants that the goods purchased hereunder:  (a) are free from defects of title, labor, material, or fabrication; (b) conform to applicable specifications, drawings, samples or other descriptions given; (c) are suitable for the purposes intended; (d) are of merchantable quality; (e) were designed and manufactured in conformity with all applicable federal, state or local laws or regulations presently in effect in the United States and the laws of the other countries in which the goods are produced or delivered; (f) Seller warrants that all goods provided hereunder shall strictly adhere to all applicable federal, state or local laws or regulations presently in effect in the United States and all other countries in which the goods are produced or delivered with respect to the operation of their production facilities and labor practices including, without limitation, the Fair Labor Standards Act, and those pertaining to the manufacturer, labeling, invoicing and sale of such goods or services; (g) shall not violate or infringe the proprietary or intellectual property rights of any person or entity; and (h) if of Vendor’s or its subcontractor’s or supplier’s design, are free from defects in design.  These warranties shall be for IMSCO benefit as well as for IMSCO’s successors, assigns and customers and all users of the goods.  Vendor agrees to repair, replace, install and/or correct promptly without expense to IMSCO, any goods not conforming to Vendor’s above warranties when notified by IMSCO.  In the event of Vendor’s failure to repair, correct or replace goods as required, IMSCO may do so and charge Vendor for the expense IMSCO incurred in doing so.  Acceptance or any use of the goods shipped to IMSCO or its customer hereunder shall not affect Vendor’s obligation under the above warranties.  All rejected goods shall be charged back to Vendor at full invoice price, plus handling and transportation charges.  On shipments made direct to IMSCO’s customers, Vendor will, upon request, promptly present claim for loss, damage or over-charge to the carrier.  In the event of shortages, IMSCO’s count or that of its customer shall govern.  If goods have been rejected by IMSCO or its customer and Vendor has been notified of rejection, the goods shall thereafter be held at Vendor’s risk and expense.  Unless promptly notified to the contrary, IMSCO will redeliver said goods to the carrier which made delivery to IMSCO for return to Vendor at its expense.  The above remedies are not exclusive and shall not preclude seeking damages from Vendor for any breach of its representations and warranties.

Compliance with Laws

Unless this purchase order is exempted by rules, regulations, or orders of the Secretary of Labor and to the extent applicable, the provisions of the following are incorporated herein by reference and Vendor agrees to comply fully with and shall cause its suppliers and subcontractors to comply fully with required regulations relative to Affirmative Action and Equal Employment Opportunity, which are incorporated by specific reference to Executive Order 11246, as amended; 41 C.F.R. § 60-1.4; 41 C.F.R. § 60-300.5; 41 C.F.R. § 60-741.5, as amended; and Executive Order 13496, 29 C.F.R. Part 471 Appendix A. This contractor and subcontractor shall abide by the requirements of 41 CFR 60-741.5(a) and 41 CFR 60-300.5(a). These regulations prohibit discrimination against qualified individuals on the basis of disability and qualified protected veterans, and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities and qualified protected veterans.

Sellers located in the United States warrant that they shall at all times comply with applicable provisions relating to government contractors and subcontractors, which provisions, and any contract clauses required thereunder, are incorporated in this purchase order by reference as if set forth in full including Executive Order 13496, 29 C.F.R. Part 471, Appendix A, the Affirmative Action and Equal Employment Opportunity clause  of Executive Order 11246, as amended; 41 C.F.R. § 60-1.4; 41 C.F.R. § 60-250.5; 41 C.F.R. § 60-300; and 41 C.F.R. § 60-741.5.  Where legally required, Seller shall include these clauses in its purchase orders supporting this order and shall, at IMSCO’s request, certify to all of the foregoing.

Indemnification

Vendor hereby releases and shall indemnify, defend, protect and hold harmless IMSCO, and its subsidiaries and affiliates and the officers, agents, employees, successors and assigns and authorized representatives of all the foregoing from and against any and all suits, actions, legal or administrative proceedings, claims, demands, damages, liabilities, interest, attorney’s fees, costs, expenses, and losses of whatsoever kind or nature in connection with or incidental to the performance of this purchase order, whether arising before or after completion of the work hereunder and in any manner directly or indirectly caused, occasioned, or contributed to in whole or in part, or claimed to be caused, occasioned or contributed to in whole or in part, by reason of any act, omission, fault or negligence whether active or passive of Vendor, its lower-tier suppliers, subcontractors or of anyone acting under its direction or control or on its behalf. The foregoing shall include, but not limited to, indemnity for: (1) property damage and injury to or death of any person, including employees of IMSCO, Owner, or Vendor; and (2) the breach by Vendor of any representation, warranty, covenant, or performance obligation of this purchase order. Vendor’s aforesaid release, indemnity and hold harmless obligations, or portions or applications thereof, shall apply even in the event of fault or negligence, whether active or passive, or strict liability of the parties released, indemnified or held harmless to the fullest extent permitted by law, but in no event shall they apply to liability caused by the willful misconduct or gross negligence of the party released, indemnified or held harmless. Vendor specifically waives any immunity provided against this indemnity by an industrial insurance or workers’ compensation statute.

In no event shall IMSCO be liable for indirect, special, incidental, punitive or consequential damages OR lost profits arising out of, or in any way connected with THIS Purchase Order.

Taxes

Vendor accepts and assumes exclusive liability for timely compliance with and payment of all assessments and taxes under all valid federal and state laws which might impose any charge or liability on IMSCO in connection with the subject matter of this order, and Vendor hereby undertake to reimburse IMSCO on demand for all sums IMSCO may pay under any such law in event of Vendor’s failure to comply therewith.

Insurance

Vendor shall procure and maintain at its own expense Commercial General Liability, Product Liability and Operations Liability Insurance on an occurrence basis with policy limits of at least $1,000,000. This insurance must be written by an insurance company with a minimum rating of Best’s A- VII or its equivalent, duly incorporated in the United States of America.  Vendor shall evidence that such insurance is in force.  Vendor shall use reasonably commercial efforts to obtain a written obligation from the insurer to notify IMSCO in writing at least thirty (30) days prior to cancellation or refusal to renew.  Vendor shall, within 30 days prior to expiration of such insurance, deliver another certificate of the insurer evidencing renewal of such insurance.

Termination for Buyer’s Convenience

IMSCO may at any time terminate this purchase order in whole or in part for its convenience for any reason whatsoever.  If such termination occurs after partial deliveries shall have been made, or other partial performance hereunder has occurred, and same has been accepted by IMSCO, Vendor shall be paid therefore at applicable unit prices or on the basis of percentage completed which has been agreed upon at time of acceptance.  IMSCO shall have the right to take possession of any goods or materials in Vendor’s possession and IMSCO shall reimburse Vendor for the cost thereof, subject to its right of set-off.    IMSCO shall not be liable for any indirect, economic, incidental, punitive or consequential damages (including, without limitation, lost profits, loss of business revenue or earnings or the like) directly or indirectly arising out of, or in connection with, the transactions contemplated by this purchase order.

Assignment

This purchase order or any interest or claim thereunder shall not be assigned or subcontracted or transferred by Vendor without prior written approval from IMSCO.

Modification

These terms and conditions may only be amended or modified by a written instrument signed by both parties.

Choice of Law/Venue

The interpretation and enforcement of this purchase order shall be governed by the laws of the State of Louisiana.  Vendor hereby consents to the exclusive jurisdiction of the Federal and State courts situated in Louisiana with respect to any and all actions or proceedings arising hereunder and irrevocably submits to the general jurisdiction of such courts and waives any objection that it may have to the venue in any such courts. EACH PARTY FURTHER WAIVES TRIAL BY JURY IN ANY SUCH ACTION CLAIM, SUIT OR PROCEEDING.

Conflict

Notwithstanding any contrary provisions in these “Terms and Conditions of Purchase,” in the event the parties to this purchase order have previously executed any other agreement(s) now in effect and applicable to the goods addressed by this purchase order (each being an “Other Agreement”), then, in the event of a conflict between the terms of such Other Agreement and these “Terms and Conditions of Purchase” the terms of such Other Agreement shall prevail and shall govern without regard to any “Conflict” provision in the purchase order or any Other Agreement, with these “Terms and Conditions of Purchase” being merely supplemental thereto (except in the event of a conflict of terms, in which case the conflicting provision of the “General Terms and Conditions of Purchase” shall be disregarded). IMSCO’s receipt of Vendor’s conflicting form or any document related to the goods provided under this purchase order which contains terms and conditions different from those in this agreement shall be excluded from the contract resulting from this agreement and shall be of no effect unless IMSCO agrees to such changes in writing.