STANDARD TERMS AND CONDITIONS OF SALE
All orders are subject to acceptance by Seller. Any acceptance by Seller of Buyer's order is expressly made conditional on Buyer's assent to any additional or different terms and conditions contained herein, and all sales and charges of the products listed herein shall be in the case of conflict between the terms and conditions of Buyer and Seller interpreted and governed exclusively by the terms and conditions contained herein. Seller shall not be bound by any terms and conditions proposed by Buyer, whether in its purchase order or otherwise, which are additional to or different from the terms and conditions set forth herein, unless and only if accepted in writing by a principal officer of the Seller or his designated representative.
2.QUOTATIONS AND PUBLISHED PRICES
Quotations automatically expire forty-five (45) calendar days from the date issued unless otherwise stated in the quotation and are subject to withdrawal by notice within that period. Seller reserves the right to unilaterally extend such quotation up to 6 months from the date of issuance. Prices shown on the published price lists and other published literature issued by the Seller are not unconditional offers to sell, and are subject to change without notice. The Seller's prices for equipment unless otherwise specified, does not include an allowance for installation and/or final on-site adjustment. Prices shall be subject to adjustment to those in effect at time of shipment.
The Seller's prices do not include any applicable federal, state or local sales, use, excise or similar taxes; and the amount of any such tax which the Seller may be required to pay or collect will be added to each invoice unless the Buyer has furnished the Seller with a valid tax exemption certificate acceptable to the taxing authorities.
Where a Buyer fails to furnish the required documentation, the previously unpaid sales, use, excise, or similar tax will be billed to the Buyer. If, upon subsequent sales, use, excise, or similar tax audit, an exemption certificate provided to the Seller by Buyer is, through no fault of the Seller, determined to be invalid, the Seller will attempt to acquire a valid exemption certificate, notarized affidavit of exempt use or other necessary documentation from Buyer. If Buyer fails to timely furnish a valid exemption certificate, notarized affidavit or other necessary documentation, the previously unpaid sales, use or similar excise tax will be billed to Buyer.
4.TERMS OF PAYMENT
Except as otherwise provided herein, terms are cash net 30 days from date of invoice. Amounts past due are subject to a service charge of 1.5% per month (or fraction thereof) or maximum contract rate permitted by law. If the Seller deems that by reason of the financial condition of the Buyer or otherwise, the continuance or production or shipment on the terms specified herein is not justified, the Seller may require full or partial payment in advance.
On orders of $100,000 or more, the standard method of payment will be progressive deposits.
Delivery dates indicated in the contract documents are approximate and are based on prompt receipt of all necessary information regarding the equipment covered by the contract. The Seller will use reasonable efforts to meet the indicated delivery dates, but cannot be held responsible for its failure to do so. In the event of any delay in delivery caused by the Buyer, or Force Majeure or causes beyond its reasonable control, the Seller will store and handle all items ordered at the Buyer's risk and will invoice the Buyer for the unpaid portion of the contract price, plus storage, insurance and handling charges, on or after the date on which the equipment is ready for delivery, payable in full within 30 days from invoice date. Title to the equipment and risk of loss or damage shall pass to Buyer upon delivery to a carrier.
Shipments are F.O.B. point of shipment. Shipping/handling will be prepaid and billed as a separate item on the equipment invoice on the basis of Seller's current shipping/handling policies.
7.ELECTRONIC DATA INTERCHANGE/FACSIMILE (FAX)
Orders placed hereunder by Buyer may be transmitted electronically or via FAX and in such event, such orders shall be subject to the terms and conditions contained in Seller's Electronic Data Interchange Trading Partner Agreement, or FAX Agreement, in addition to the terms and conditions contained herein.
Unless specifically restricted on a purchase order, the Seller reserves the right to substitute the latest superseding design and manufactured equivalent product where the interchangeability of the product is based on form, fit, and function, in place of the product ordered.
Buyer may with the express written consent of the Seller make changes in the specifications for equipment or work covered by the contract. In such event the contract price and delivery dates may be adjusted. The Seller shall be entitled to payment for reasonable profit plus costs and expenses incurred by it for work and materials rendered unnecessary as a result of such changes and for work and materials required to effect said changes.
Undelivered parts of any order may be canceled by the Buyer only with the written approval of the Seller. If the Buyer makes an assignment for the benefit of creditors, or in the event that the Seller for any reason feels insecure about the Buyer's willingness or ability to perform, then Seller shall have the unconditional right to cancel this sales transaction.
In the event of any cancellation of this order by either party, the Buyer shall pay to the Seller the reasonable costs and expenses (including engineering expenses and all commitments to its suppliers and subcontractors) incurred by the Seller prior to receipt of notice of such cancellations plus the Seller's usual rate of profit for similar work.
Seller acknowledges that the parties hereby expressly exclude the application of the Convention on Contracts for the International Sale of Goods to this Agreement or any Purchase Order issued in connection with this Agreement.
Upon default and placing of this instrument with an attorney for collection or repossession of equipment, Buyer agrees to reimburse attorney fees and court costs incurred by the Seller in connection therewith.
SELLER EXPRESSLY WARRANTS THE EQUIPMENT MANUFACTURED BY IT AS SET FORTH IN THIS SECTION ONLY. SELLER MAKES NO OTHER WARRANTIES, EITHER EXPRESS, IMPLIED, OR STATUTORY AND DISCLAIMS ALL SUCH WARRANTIES (INCLUDING WITHOUT LIMITATION, WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE). IN ADDITION, THE FOLLOWING SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDIES OF BUYER FOR ANY BREACH BY SELLER OF ITS WARRANTIES HEREUNDER.
a.MOTORS/DODGE/MASTER REEVES PRODUCTS
The Seller warrants that the equipment covered by this warranty will be free from defects in workmanship and material (if properly installed, operated and maintained in accordance with specifications) for a period of one year from date of installation, or 18 months from date of shipment to the Buyer, whichever is shorter.
If within this period the Seller receives from the Buyer written notice of any defects in any such apparatus and if the apparatus is not found to be in conformity with this warranty (the Buyer having provided the Seller a reason able opportunity to perform any appropriate tests thereon) the Seller will at its option, either repair the same or supply a replacement therefor.
The Seller under either option shall have the right to require Buyer to deliver the apparatus for the purpose to its designated service center and the Buyer shall pay all charges in-bound and out-bound transportation and for services of any kind, diagnostic or otherwise, excepting only the direct and actual costs of apparatus repair or replacement as provided above.
Seller warrants that the equipment covered by this warranty will be free of defects in workmanship and materials, (if properly installed, operated and maintained in accordance with the Seller's specifications) for a period of one year in service or 18 months from date of manufacture or date code which ever occurs first subject to the limitations hereunder set forth. Seller's liability under this warranty shall be solely limited to supplying necessary replacement parts and material.
The Seller warrants that the equipment covered by this warranty will be free from defects in workmanship and materials for a period of one year from date of installation or 18 months from date of shipment, whichever occurs first. Should any such defects be found and reported during the warranty period, the Seller shall supply a replacement and assume the shipping cost of the replacement unit. These undertakings on the Seller's part are conditioned upon return of the defective unit, freight prepaid and absorbed by the Buyer.
The Seller warrants that for a period of one year from Start-up or 18 months from date of shipment to the Buyer, whichever occurs first, the Engineered System covered by this warranty will perform in accordance with specifications if final adjustments and start-up operations are approved by qualified Seller personnel. The Seller does not warrant that the Engineered System covered by this warranty will perform in accordance with specifications to the extent that equipment forming a part of the Engineered System is not supplied by or approved for incorporation into the System by the Seller. The Seller will correct during the warranty period any deficiency in meeting specifications. If, after reasonable effort the Seller cannot correct said deficiencies, the Seller will make an equitable price adjustment based on the performance actually provided, not to exceed the purchase price. The Seller further warrants that the equipment, parts and components supplied by it and forming a part of the Engineered System covered by this warranty to be free from defects in material and workmanship for a period of one year from start-up or 18 months from date of shipment to the Buyer whichever period occurs first. The Seller's liability shall be solely limited to the supplying of replacement parts and materials. For purposes of this warranty, start-up will have been deemed to be completed when either the Engineered System is partially or completely put into use or when the Seller has met the specifications, whichever is sooner.
The Seller warrants that software will be free from errors in clerical program preparation and transcription. The warranty period shall be the same as the warranty period for the Seller equipment with which the software is supplied. If the software does not meet the above warranty, and if the Buyer promptly notifies the Seller and provides the description of the error and complete information about the manner of its discovery, the Seller shall thereupon correct any defect (at its option);(a)by modifying or making available to the Buyer instructions for modifying such program; or (b) by making available at the Seller's Plant necessary corrected or replacement programs. Certain programs supplied by Seller are copyrighted, and if so, are marked with the copyright notice. Buyer is granted a license to make copies of such programs for use only with the system for which such programs were acquired. All programs supplied by Seller are trade secrets. Buyer agrees to use its best efforts to maintain such programs confidential and to not disclose such programs to third parties unless such programs enter the public domain though no fault of Buyer. Buyer agrees to use those programs marked confidential only with the system for which they were acquired. The foregoing warranty shall not apply to defects resulting from:
2.Buyer - supplied software or interfacing.
f.REPAIRED PRODUCTS WARRANTY
On repaired equipment the warranty shall be that so noted at time of repair as determined by type of repair required, however - it shall only apply to parts repaired or replaced by the Seller. No separate warranty shall apply to repaired equipment as a whole or to parts not repaired or replaced by the Seller.
The foregoing warranties do not apply to all equipment sold by the Seller. In certain cases the warranty period is less than or more than one year or provides for a payment of money or replacement to the Buyer based on the age or extent of usage of the equipment in lieu of repair or replacement by the Seller. Such warranties may be obtained from the Seller sales office.
Equipment sold but not manufactured by the Seller is warranted solely by the original manufacturer of the equipment under original manufacturer's warranties, if any.
The foregoing warranties are further subject to the following general conditions:
1.If the Buyer requests the performance of warranty work provided for under the foregoing warranties during other than normal Seller work periods, the Buyer shall be required to pay for all premium time.
2.If the Buyer requests the performance of warranty work provided for under the foregoing warranties outside of the contiguous United States, the Buyer shall be required to pay for the travel time, living and travel expenses of any Seller personnel required to perform such warranty work.
3.These warranties shall not apply where equipment is operated above rated load capacity or subjected to accident, alteration, misuse, abuse, or failure on the part of a party other than Seller to ensure proper storage, packaging, installation, operation and maintenance of the equipment. Use of equipment in improper or non- recommended applications or parts or components used in assemblies not meeting the Seller's specifications or quality standard, (eg., non- Dodge or non-Taper-Lock parts or components) which cause damage to the equipment will not be covered by these warranties.
The Seller agrees to indemnify the Buyer and hold it harmless from and against any direct loss suffered and any liability to third parties whenever such loss or liability is directly due to bodily injury (including death) to any person or direct damage to any property , in either case, caused directly by the sole negligent act or omission of the Seller in the performance of any work on the premises of Buyer; provided that Buyer shall promptly (1) notify Seller in writing of any such claim and (2) tender the defense of any such claim to Seller.
The Seller shall defend any suit or proceeding brought against the Buyer so far as the same is based on a claim that any equipment of the Seller's design furnished hereunder or any part thereof, constitutes an infringement of any United States patents. If notified promptly in writing and given authority, information and assistance (at the Seller's expense) for the defense of the same and if such alleged infringement is not the result of a design or other special requirements specified by the Buyer or the result of the application or the use to which such equipment is put by the Buyer or other. The Seller will pay all damages and costs awarded in such suit or proceeding against the Buyer, provide that the Seller shall have the sole and exclusive right to defend, settle or compromise any suit or proceedings and the Buyer takes no action which would materially detract from the Seller's ability to conduct an effective defense, settlement or compromise in case such equipment or part is in such suit held to infringe any such patent and the use thereof enjoined, the Seller shall at its expense either, at its option (a) obtain for the Buyer the right to continue using such equipment or part, or (b) replace the same with non-infringing equipment, or, (c) modify the same so that it becomes nonfringing, or, (d) remove said equipment and refund the purchase price and the transportation and installation costs thereof. The foregoing states the entire liability of the Seller to the Buyer for patent infringement.
16.REGULATORY LAWS AND/OR STANDARDS
The Seller takes reasonable steps to keep its products in conformity with various nationally recognized standards and such regulations which may affect its products; however, the Seller recognizes that its products are utilized in many regulated applications and that from time to time standards and regulations are in conflict with each other. The Seller makes no promise or representation that its product will conform to any federal, state or local laws, ordinances, regulation, codes or standards, except as particularly specified and agreed upon for compliance in writing as a part of the contract between Buyer and the Seller. The Seller prices do not include the cost of any related inspections or permits or inspection fees.
17.NUCLEAR LIMITATION OF USE
The equipment is not for use in or with any nuclear facility unless specifically so stated in the Seller's Quotation. If Seller's Quotation does expressly acknowledge that the Seller's equipment is to be used in or with a nuclear facility, Seller's Special Nuclear Conditions will be attached hereto and shall control. Buyer accepts the responsibility for insuring that the equipment is not used in violation of this limitation and Buyer shall indemnify and hold Seller harmless from any and all liability (including such liability resulting from Seller's negligence) arising out of said improper use.
18.DISCLAIMER OF DAMAGES
IN NO EVENT SHALL SELLER BE LIABLE FOR ANY TYPE OF SPECIAL CONSEQUENTIAL, INCIDENTAL OR PENAL DAMAGES, WHETHER SUCH DAMAGES ARISE OUT OF OR ARE A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE; such damages shall include but not be limited to loss of profits or revenues, loss of use of the equipment or associated equipment, cost of substitute equipment, facilities, down time costs, increased construction costs or claims of Buyer's customers or contractors for such damages. Buyer agrees that in the event of a transfer, assignment, or lease of the equipment sold hereunder that Buyer shall secure for the Seller the protection afforded to it in this paragraph.
19.LIMITATION OF LIABILITY
The Seller shall not be liable for any loss, claim, expense or damage caused by, contributed to by or arising out of the acts or omissions of Buyer or third parties, whether negligent or otherwise. In no event shall the Seller's liability for any cause of action whatsoever exceed the cost of the item giving rise to the claim, whether based in contract, warranty, indemnity, or tort (including negligence). Any suit arising hereunder must be commenced within one (1) year from the date the cause of action accrues. Except as provided in Article "Indemnity", the Seller shall not indemnify any party.
20.NO RESPONSIBILITY FOR GRATUITOUS INFORMATION OR ASSISTANCE
If Seller provides Buyer with assistance or advice which concerns any parts/products/service supplied hereunder or any system or equipment in which any such part/product/service may be installed and which is not required pursuant hereto, the furnishing of such assistance or advice shall not subject Seller to any liability, whether based in contract, warranty, tort (including negligence) or otherwise.
Should any term or provision contained in the contract contravene or be invalid under applicable law, the contract shall not fail by reason thereof but shall be construed in the same manner as if such term or provision had not appeared therein. All transactions covered by these terms and conditions shall be governed by the laws of the State of Ohio.
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