VAN METER INC. (“VMI”)

STANDARD TERMS AND CONDITIONS FOR ONLINE SALES

Last updated June 8, 2020

EEO/VETS/M/W/DISABILITY Employer- Federal contractors, please click on the link below to review new regulations: https://www.dol.gov/agencies/ofccp/section-503

Scope and Applicability

These Standard Terms and Conditions for Online Sales (these “Terms”), together with the Terms of Use, shall apply to and govern each transaction for the purchase and sale of goods, products and supplies (“Goods”) initiated by the submission of an order through VMI’s website or mobile application (an “Order”). You (“Customer”) agree that by submitting an Order, you have read, understood, and agreed to be bound by these Terms and the Terms of Use. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS AND THE TERMS OF USE, THEN YOU ARE EXPRESSLY PROHIBITED FROM SUBMITTING AN ORDER. ANY ADDITIONAL, DIFFERENT OR CONFLICTING TERMS AND CONDITIONS ON ANY DOCUMENT, PURCHASER ORDER, NOTICE OR COMMUNICATION ISSUED BY YOU TO VMI AT ANY TIME ARE HEREBY OBJECTED TO AND REJECTED BY VMI, SHALL BE WHOLLY INAPPLICABLE TO YOUR ORDER, AND SHALL NOT BE BINDING IN ANY WAY ON VMI.

Orders

Customer’s submission of an Order is subject to these Terms. VMI is not required to accept Customer’s Order. As further specified in the Terms of Use, VMI reserves the right to refuse or cancel any Order, even if VMI has already requested or received payment (provided, such payment received by VMI will be promptly returned). Any Customer Order shall not result in an agreement unless and until such Order is accepted by VMI and acknowledged by it or its authorized representative, and such acceptance shall be subject to these Terms. Any acceptance by VMI shall be deemed to have occurred in the State of Iowa. IN THE EVENT THAT THE CUSTOMER’S PURCHASE ORDER, ACCEPTANCE, OR OTHER WRITTEN COMMUNICATION STATES TERMS ADDITIONAL TO OR DIFFERENT FROM THESE TERMS, THESE TERMS SHALL PREVAIL, AND THE TERMS AND CONDITIONS OF THE CUSTOMER’S PURCHASE ORDER, ACCEPTANCE, OR OTHER WRITTEN COMMUNICATION SHALL BE OF NO FORCE OR EFFECT.

Payment Terms

Unless otherwise stated below, payment for all Goods purchased is due in full at the time Customer’s Order is submitted. If Customer has applied for and been provided with a VMI line of credit, then, subject to any limitations on such line of credit and except as otherwise provided below, Customer’s payment shall be due within thirty (30) days from the date of VMI’s invoice (or such other period of time as expressly agreed to by VMI in a writing signed by its authorized representative). Payment for the Goods must be made in U.S. Dollars. Any amount payable by the Customer and not paid when due shall bear interest, payable on demand, until such past-due amount is paid in full at the lower of 18.00% per annum or the highest rate allowed by law. Customer agrees to pay all fees, costs and expenses incurred by VMI in collecting amounts due, including but not limited to attorney fees and expenses (whether or not an action or other formal dispute resolution proceeding is commenced). VMI reserves the right to change credit and payment terms when, in VMI’s opinion, Customer’s financial condition does not justify the making of any shipment on the terms specified herein. In such event, VMI may elect to make a shipment C.O.D. or on a cash in advance basis, suspend performance, or revoke its acceptance of Customer’s Order. If a manufacturer requires a deposit or payment in full at the time of order placement, those same requirements will be passed on to the Customer, which requirements Customer hereby accepts. Payments by Customer shall be applied first to VMI’s accrued but unpaid costs of collection, then to accrued but unpaid interest, and then to principal and other fees, charges and costs. Any taxes or import duties imposed by the laws of any country, dominion, state, territory, province, municipality or other authority, which VMI may be required to pay or to reimburse or remit to others by reason of the ownership, use or sale of any Goods, will be added to the purchase price, either as a separate item or included in the online checkout or invoice price of the Goods, as the law may require or VMI may determine. The Terms of Use (see “Purchases and Payment”) set forth additional terms and conditions applicable to purchases and payments made through VMI’s website and mobile application.

Shipping, Title, Risk of Loss, and Delivery

All shipments from VMI are made F.O.B. VMI’s shipping point. Title and risk of loss shall pass to Customer upon delivery to the carrier at VMI’s shipping point or upon delivery to the carrier at the manufacturer’s shipping point if the Goods are shipped directly from the manufacturer to Customer. In the absence of shipping directions from Customer and without VMI incurring any responsibility or liability, Goods will be shipped by the method and via carrier that VMI believes dependable. The carrier shall not be an agent of VMI. VMI will not be liable for any damage to Goods while such Goods are in transit. VMI shall have no responsibility or liability for Goods shipped directly from the manufacturer.

Acceptance

Goods shall be inspected by Customer upon delivery and any use of the Goods for purposes other than inspection and testing during this period shall be considered a complete Acceptance by Customer. If the Goods fail to conform in any way, Customer shall notify VMI in writing within three (3) days of delivery, which notice must specify with particularity the nonconformity, and failing such notification the Goods shall be conclusively deemed to have been Accepted by Customer in all respects.

Delivery Dates

Stated delivery schedules or dates are good faith estimates only and not a commitment as to delivery on specific dates. Such delivery schedules or dates are approximate and are contingent on product availability, manufacturers’ estimated factory schedules, and certain other conditions prevailing at the time of receipt of an Order or fulfillment of an Order. VMI will attempt to ship the Goods within the estimated times reflected at checkout when the Order is submitted and on the tracking reports but will not be liable for any failure to do so. VMI SHALL NOT IN ANY EVENT BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR OTHERWISE, SUFFERED OR INCURRED BY CUSTOMER AS A RESULT OF ANY DELAY IN SHIPMENT, DELIVERY OR PERFORMANCE, EVEN IF VMI WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Delay in delivery of any Goods shall not relieve Customer of its obligations to accept and pay for such Goods or any other goods or any services. If VMI learns that VMI cannot ship within the estimated times, VMI will endeavor to notify Customer of the new estimated ship date. VMI reserves the right to make delivery in installments. Unless paid for upon submission of the Order, each such installment shall be separately invoiced and paid for when due, without regard to subsequent deliveries. For items on backorder, VMI may ship whenever the Goods become available without notice to the Customer.

Return Policy

All claims for shortages or errors must be made before Acceptance is deemed to have occurred (as provided above), must be in writing, and must specify with particularity the nonconformity. Returns require prior written authorization from VMI and are subject in all respects to the Van Meter Inc. Return Policy for Online Sales, as in effect at the time the Order was submitted.

Excused Performance

Performance by VMI is excused when there is any contingency beyond the reasonable control of VMI which interferes with VMI’s procurement or distribution of Goods or other performance hereunder. Without limiting the generality of the foregoing, Customer acknowledges and agrees that each of the following shall be deemed to be beyond VMI’s reasonable control: strikes, lock-outs or other labor disputes or difficulties (whether involving the workforce of VMI or any other person), failure of a utility service or transport or telecommunications network, inability to obtain materials or energy on terms considered practical by VMI, endemic, pandemic, acts of nature, fire, flood, tornado, storm, war, riot, civil commotion, malicious damage, any change in law or governmental order, rule, regulation or direction, accident, breakdown of machines or default of suppliers, carriers, sub-contractors or service providers. VMI’s contractual obligations may be modified by VMI as necessary to sustain business at a commercially practicable level, including but not limited to VMI’s use of alternate sources of supply and VMI’s cancellation or modification of existing Orders. VMI may impose surcharges due to sudden increases in VMI’s costs for obtaining transportation, fuel or Goods. Such surcharges will be added to the purchase price to be paid by Customer.

No Warranty

VMI (A) DOES NOT MANUFACTURE THE GOODS IT SELLS AND MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES THEREON OR WITH RESPECT THERETO AND SELLS THE GOODS AS-IS, WHERE-IS AND (B) MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES REGARDING ITS SERVICES OR THOSE OF ANY SUBCONTRACTOR AND PROVIDES ALL SUCH SERVICES AS-IS, WHERE-IS. VMI MAKES NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR CONDITION, AND HEREBY DISCLAIMS ANY AND ALL SUCH IMPLIED WARRANTIES THAT MAY ARISE BY OPERATION OF LAW OR OTHERWISE. If there is a manufacturer’s warranty with respect to Goods acquired by Customer from VMI, VMI is not a party to such warranty and such warranty is between the manufacturer and the Customer.

Limitation of Damages and Remedies

UNDER NO CIRCUMSTANCES WILL VMI OR ANY OF ITS AFFILIATES OR SUBSIDIARIES BE LIABLE FOR ANY PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS, REVENUE, BUSINESS OR OPPORTUNITY, OR ANY LOSS OCCASIONED BY DELAY IN DELIVERY OR PERFORMANCE) SUFFERED OR INCURRED BY CUSTOMER AS A RESULT OF OR IN CONNECTION WITH CUSTOMER’S ORDER, THE GOODS OR SERVICES PURCHASED THEREBY AND/OR ANY ACT OR FAILURE TO ACT BY VMI OR ITS EMPLOYEES, AGENTS OR CONTRACTORS (WHETHER SUCH DAMAGES ARISE FROM BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS FOR, OR LEGAL THEORY OF, LIABILITY), EVEN IF VMI WAS ADVISED AS TO, OR WAS OTHERWISE AWARE OF, THE POSSIBILITY OF SAME. Customer’s sole remedies from VMI with respect to Goods or services purchased hereunder shall be, to the extent applicable and qualifying (a) replacement of the Goods purchased hereunder in compliance with, and subject to, the terms of the paragraph entitled “Return Policy” above, or (b) if allowed in VMI’s sole discretion upon return of the Goods from Customer to VMI, return of so much of the purchase price as has been paid for the Goods or a credit (not to exceed the purchase price paid) against the unpaid purchase price of other Goods delivered or to be delivered to Customer. FURTHERMORE AND WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT SHALL VMI’S LIABILITY IN CONNECTION WITH A PARTICULAR ORDER EXCEED THE AMOUNT ACTUALLY PAID TO VMI BY THE CUSTOMER FOR THE GOODS AND SERVICES PURCHASED THEREBY. The foregoing is intended as a complete allocation of the risks between VMI and Customer, and Customer hereby agrees that this limitation upon remedies will not have failed of its essential purpose. The Customer’s remedies set out herein are exclusive.

Governing Law; Jurisdiction; No Jury Trial

All Orders and these Terms shall be deemed to have been performed, at least in part, in the State of Iowa. All Orders and these Terms shall be governed by, and construed in accordance with, the laws of the State of Iowa without regard to its conflict of law provisions that would lead to the application of the laws of a jurisdiction other than the State of Iowa. [Customer (1) agrees that any suit, action or other legal proceeding arising out of or related to the sale of Goods or other performance by VMI to Customer shall be brought only in the Linn County, Iowa District Court or the U.S. District Court for the Northern District of Iowa; (2) consents to the jurisdiction of each such court in any such suit, action or other legal proceeding; and (3) waives any objection which Customer may have to the venue of any suit, action or proceeding in any of such courts and any claim that any such suit, action or proceeding has been brought in an inconvenient forum. CUSTOMER WAIVES THE RIGHT TO A JURY TRIAL.]

Time Limit for Bringing any Suit

In addition to the other limitations contained herein, any suit, action or other legal proceeding arising out of or related to the sale of Goods or other performance by VMI to Customer must be filed and formally commenced (and if not, shall be deemed irrevocably waived) within one (1) year following the date on which the Order to which such proceeding relates was first submitted to VMI; provided, the foregoing time limit shall not apply to any suit, action or other legal proceeding brought by VMI to enforce Customer’s payment obligations hereunder or to collect any past-due amounts.

Customer Data

VMI shall be allowed to process and store Customer’s business data as well as the Customer’s contact persons’ personal data and share such data with the affiliated companies of Customer and/or VMI and any other company that may be retained by VMI for debt collection purposes.

Termination by VMI

If Customer fails to fulfill any of its payment obligations, VMI may suspend performance and delivery. Any cost incurred by VMI due to such suspension, including but not limited to storage costs, shall be payable by Customer upon submission of VMI’s invoices. Performance of VMI’s obligations shall be extended during Customer’s non-fulfillment of any part of the payment terms (whether or not VMI suspends performance) and such additional time as may be necessary. If the Customer does not correct such failure in a time and manner satisfactory to VMI, VMI may, at its option, terminate the transaction as to Goods not delivered and services not yet performed. If Customer becomes bankrupt or insolvent, or if any proceeding is brought against Customer, voluntarily or involuntarily, under the bankruptcy laws or any insolvency laws, VMI shall be entitled to terminate the transaction as to Goods not delivered and services not yet performed. Customer shall pay VMI its reasonable termination charges in the event of any such termination. VMI’s rights under this paragraph are in addition to, and not in lieu of, any additional rights provided to VMI hereunder or by law or in equity.

Canceled Orders

A Customer’s Order, once submitted through VMI’s website or mobile application, may only be canceled or altered by Customer with VMI’s express written consent. In the event that Customer cancels an Order for any reason, VMI shall be paid a reasonable cancellation charge consisting of a percentage of the purchase price reflecting the percentage of the work performed and material costs incurred by VMI prior to the notice of termination from Customer, plus actual direct costs incurred by VMI resulting from cancellation. Cancellation charges associated with Orders for custom goods or special orders specifically manufactured or sourced to Customer’s specification may equal the actual purchase price of the affected Goods.

Assignment by VMI

VMI may use subcontractors and/or third parties for services or Goods to be provided. No Order, quotation or any offer to sell may be assigned by Customer in whole or in part without VMI’s prior written consent. Any attempted assignment by Customer without such consent shall be void.

Third Party Contract Obligations of Customer

In the event that Customer has obligated itself with any third party for the completion of any portion of any project in which VMI’s Goods or services will be used, Customer and VMI agree that VMI is not a party to such obligation, and VMI does not assume and shall not have any liability or obligation under or arising from any such obligation of the Customer. Customer releases and agrees to defend, indemnify, and hold VMI harmless for any claims or demands of any nature whatsoever related to any obligation, risk, liability or responsibility which was or is Customer’s under any contract, or which was assumed by Customer, towards any third party involving the Goods or services supplied by VMI.

Amendment to these Terms

No alteration, variation, amendment, modification or waiver of any of these Terms shall be binding on VMI unless expressly stated in writing and signed by an authorized officer of VMI. VMI reserves the right to modify these Terms at any time and for any reason. VMI will alert customers to any such change by updating the “Last updated” date set forth above on these Terms. These Terms, as in effect at the time an Order is submitted, will govern the transaction initiated thereby.