COMPLETE AGREEMENT: Acceptance of purchaser's order is subject to the terms and conditions contained herein. This document constitutes the full and final agreement of the parties and is not to be modified or amended by any prior or contemporaneous agreement, whether written or oral. No modification of this agreement shall be in effect unless in writing signed by the parties, and no modification shall be effected by the acknowledgment or acceptance of purchase order forms containing different terms or conditions.
TERMS OF PAYMENT: Subject to your acceptance of this proposal within ten (10) days from the date hereof, the purchase price for the goods sold shall be as shown herein, F.O.B., our plant, unless otherwise agreed to in writing by the parties. Purchaser's acceptance of this proposal, however, shall not result in a contract of sale until approved by a duly authorized representative of the Seller. The purchase price shall be payable in United States currency in accordance with the terms outlined in this proposal. All invoices rendered in accordance with the agreed terms which are not paid within 30 days shall be subject to interest at the rate of 1.5% per month from the date of the invoice until it is paid. Installation and field service, not specifically covered in the purchase price, will be furnished at our scheduled daily rate, plus an additional charge for living expenses on the job site, and for transportation to and from the installation; all such charges shall be payable within 30 days after the services are rendered.
Subject to the conditions in § 3.F. below, seller warrants to Purchaser that the products sold hereunder conform to Seller’s written specifications for the products and will be free from defects in material, design and workmanship, under normal use and service when correctly stored, installed, used and maintained by Purchaser, for a period of twelve (12) months from date of the product’s initial installation, or eighteen (18) months from date of shipment by Seller, whichever comes first.
Components which are subject to normal wear and tear are excluded from this limited warranty.
Any component of a product sold to Purchaser that was supplied to Seller by a third-party vendor is excluded from this limited warranty. Seller shall use its best efforts to secure for Purchaser the benefit of the warranties to such components as are available to Seller. Seller does not provide any additional warranties for components manufactured by third-party vendors
No waiver, alteration or modification of the foregoing warranty shall be valid, unless made in writing and signed by a duly authorized employee of the Seller.
Apart from the warranties set forth in this § 3, which extend only to the Purchaser, THE SELLER MAKES NO OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER MATTER WITH RESPECT TO THE GOODS SOLD. IN NO EVENT SHALL THE SELLER BE RESPONSIBLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, SHIPPING COSTS, OR LOST PROFITS, RELATING TO THE GOODS, WHETHER ALLEGED IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
The warranties set forth in part A above are subject to the following conditions:
The goods must have been transported, installed, operated, and maintained properly. Failure to do so will void the warranty.
The product has not been altered in any way.
The defects were not, in the Seller's opinion, caused by accident, misuse, abuse, neglect, deterioration due to erosion, corrosion or by chemical action.
The product is taken out of service by the Purchaser immediately upon discovery or appearance of any defect or operational difficulty.
The Purchaser notifies the Seller of the alleged defect in writing, promptly after the Purchaser learns, or should learn, of such defect.
The warranty is limited to repair or replacement of the defective part at Seller's sole option and discretion.
The goods in question must be returned intact to the Seller's plant, freight prepaid and securely packed to avoid damage, for repair or replacement of the defective part(s).
The warranty provided herein is null and void if Buyer does not pay the contract price in full.
Any description and/or specifications with respect to items offered for sale are not warranted by the Seller to be accurate or complete. The description is solely for the purpose of offering the item for sale. The Seller shall not be responsible for the consequences of the Purchaser's failure to inspect the goods for any inaccuracies, insufficiencies or omissions in such descriptions and/or specifications.
The employees or representatives of the Seller are not authorized to make any statements or representations as to the quality, character, size, condition, quantity, etc., of the items offered for sale inconsistent with these conditions of sale or the terms on the front hereof. Any such statements made will not be binding on the Seller or be grounds for any subsequent claim.
Delivery: Based on past experience, the Seller expects to make final shipment in a reasonable amount of time after the contract approval date or after receipt at the Seller's office of approved drawings where required, whichever shall be later. In the event delivery of the equipment is extended at your request, (a) we may, at our option, require a progress payment payable within thirty (30) days of invoice on the basis of the above purchase price and the percentage of completion of the equipment at the date of such extension, (b) any equipment held for you shall be at your risk, and (c) The purchase price shall be adjusted to our prices in effect at the time shipment of the equipment is made.
Cancellation: The Purchaser's acceptance of this proposal creates a contract with the Seller which thereafter can be terminated or cancelled only upon the Purchaser's written request and the Seller's written consent thereto, subject to such conditions as the Seller may reasonably require. Normally, and in the absence of special circumstances, the Seller's consent to such a cancellation will be contingent upon the Purchaser's agreement to pay a cancellation charge equal to the cost of the percentage of completion of the order (as estimated by the Seller) or 25% of the list price of the equipment included in the order, whichever is greater, plus any cancellation charges which may be charged back to the Seller on items which the Seller may have ordered to complete the Purchaser's order.
Returned Material: Materials or equipment are not to be returned to the Seller without first obtaining the written permission of the Seller. All such returned material must be in the same condition as it was when delivered. Materials and/or equipment accepted by the Seller for credit are subject to a minimum service charge of 25% plus all transportation charges. Materials or equipment built to order are not subject to return for credit under any circumstances. Any materials or equipment authorized for return must be securely packed to reach the Seller without damage.
The Purchaser expressly agrees as a condition of its purchase of the goods that it will indemnify and hold harmless the Seller, its agents, servants and employees, from any and all claims that may hereafter at any time be asserted by any subsequent owner, purchaser or user of the goods or by any third party arising from any purported defect(s) in the goods or by reason of the use of the goods. Such indemnification shall include, but not be limited to, attorneys' fees and/or legal expenses relating to such claims. The Purchaser agrees to assume all responsibility in connection with the goods upon delivery thereof to the Purchaser or to a common carrier, whichever occurs first.
Except for claims covered by the express warranty set forth above, the Purchaser shall indemnify and hold harmless the Seller, its agents, servants and its employees, from and against any and all losses, expenses, demands, and claims made against the Seller, its agents, servants and its employees by the Purchaser, any agent, servant or employee of the Purchaser, any subsequent Purchaser, any agent, servant or employee of a subsequent Purchaser, any lessor or lessee, or any other person because of injury or illness or alleged injury or illness (including death) or damage, actual or alleged, whether by the sole negligence of the Seller, the concurrent negligence of the Seller with the Purchaser, any agent, servant, or employee of the Purchaser, any subsequent purchaser, any agent, servant or employee of any subsequent purchaser, any lessor or lessee, any agent, servant or employee of any lessor or lessee, or any other person, arising out of, resulting from, or in any way connected with, the operation, maintenance, possession, use, transportation or disposition of the goods, including that caused by hazardous chemicals or other hazardous materials on or in them, or of the possession, operation, maintenance, transportation, use or disposition of the goods by subsequent purchasers, lessors, owners, lessees or any other person, including that caused by hazardous chemicals or other hazardous materials on or in the goods. Such indemnification includes, but is not limited to, all attorney's fees and legal expenses relating to such claims. The Purchaser agrees to defend at its own expense any suit, action or cause of action brought against the Seller, its agents, servants or employees based on any such alleged injury, illness or damage, and to pay all damages awarded therein.
Force Majeure: Deliveries may be suspended in case of act of God, war, sabotage, accidents, riots, fire, explosion, flood, strike, lockout, injunction, inability to obtain fuel, power, raw materials, labor, containers or transportation facilities, breakage of machinery or apparatus, national defense requirements, or any cause beyond the control of the Purchaser preventing the shipment, acceptance, or consumption of a shipment of goods. Such deliveries so suspended shall be cancelled without liability, but the contract shall otherwise remain unaffected.
Assignment: The Purchaser may not assign its rights or delegate its performance in whole or in part hereunder without the prior written consent of the Seller, and any attempted assignment or delegation without such consent shall be void.
Governing Law: The agreement between the parties and all causes of action relating to it are governed and construed by the law of the State of Illinois. The parties agree that venue for any claim or controversy arising from or relating to this agreement or performance or breach thereof shall be exclusively laid and limited to the State Circuit of the Eighteenth Judicial Circuit of Du Page County, Illinois.
Taxes: All taxes relating to the goods and their sale are the responsibility of the Purchaser, including but not limited to sales taxes and personal property taxes. The Purchaser shall indemnify the Seller against any and all claims relating to the payment of such taxes. Such indemnification shall include, but not be limited to, attorney's fees and other legal expenses relating to such claims.
DAMAGES: Seller's liability with respect to Goods sold to Purchaser shall be limited to refunding payment made or cancelling the invoice - whichever shall apply. In no event shall Seller be liable for: incidental, special or consequential damages, lost profits, or any expenses, including but not limited to shipping cost.
Severability: If any one or more of the terms and conditions set forth herein is determined to be invalid or unenforceable, such determination shall not affect the validity or enforceability of the remaining terms and conditions. Waiver by the Seller of a breach of any one of the terms and conditions shall not be construed as a waiver of any other breach.
In the event any party institutes legal proceedings to enforce their respective rights arising out of this agreement, the prevailing party shall be entitled to the award of attorney’s fees and court costs, plus cost of executing, enforcing and/or collecting any judgments at trial and appellate levels.