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Payment Terms: Unless
otherwise agreed in writing, terms of payment are United States
Dollars due in full 30 days from date of invoice. All past due
accounts will be charged interest at the rate of 1 1/2% per month or
the maximum allowed by law. All orders are subject to the
approval of Seller's credit department and Seller may require full or
partial payment in advance.
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Acceptance: All valid
orders will be deemed accepted by issuance of Seller's Confirmation
Letter. If any changes are made or if any other form or writing
is used, terms of the Confirmation Letter shall prevail.
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Shipping: All prices
are F.O.B. Milwaukee, Wisconsin, unless otherwise stated in writing by
Seller. Buyer is to supply explicit written shipping
directions. Seller will not be responsible for any loss, delay
or breakage after receipt of an executed bill of lading or other
shipping documents from the transportation carrier indicating the
goods have been shipped in "good order". Seller shall
incur no liability for damage, shortages, or any other cause alleged
to have occurred or existed at or prior to delivery of the equipment
to the carrier, unless full details are entered on Buyer's receipt
documentation to the carrier.
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Delivery: Except as
otherwise specified in this document, title will pass and delivery
will be F.O.B. point of shipment at seller's facility in Milwaukee,
Wisconsin. Risk of loss or damage will pass to Buyer upon
delivery to carrier.
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Delays: Seller shall
not be liable for loss or damage of any kind resulting from delay or
inability to deliver on account of fire, labor troubles, accidents,
acts of civil or military authorities, or from any other cause beyond
Seller's control.
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Taxes: The amount of
the present or future sales, revenue, excise, or other taxes
applicable to the products listed herein shall be added to the
purchase price and shall be paid by the Buyer, or in lieu thereof the
Buyer shall provide us with a tax exemption certificate or other
document acceptable to the taxing authorities.
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Warranty Policy:
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"AS IS": The
goods purchased by the Buyer have been purchased "AS IS"
and "With All Faults". The Buyer acknowledges that
no warranties or merchantability or fitness for any particular
purpose are to be implied in the transaction.
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E - OK: Electrically
OK: At the time of delivery, Seller guarantees the apparatus
electrically and certifies that it has withstood customary
electrical tests. The apparatus has not been disassembled, or
re-worked, or remanufactured by Seller. Any claim that the
apparatus is not E-OK must be made by buyer in writing to Seller
within 10 days of delivery to Buyer.
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R/M: Remanufactured:
The seller guarantees that the apparatus has been disassembled,
inspected, cleaned, lubricated, and plated or painted as necessary,
with electrical and mechanical tolerances checked. Seller
guarantees that the apparatus will operate satisfactorily with
competent supervision, under normal load usage and conditions, for a
period of one year from date of delivery to the carrier.
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UNUSED: The seller
guarantees that the apparatus is unused and will operate
satisfactorily with competent supervision, under normal load usage
and conditions. Such guarantee will extend for a period as
long as the original guarantee by the manufacturer, unless otherwise
stated by Seller, but in no event greater than one year from the
date of delivery to the carrier.
H. Rented Equipment: Sold
"As Is." All terms and conditions apply except payment
terms. Payments are due at the beginning of each rental month.
Partial months are billed as one month. Rental payments are due upon
invoice receipt. We request return of equipment if invoice is 30
days overdue.
GENERAL PROVISIONS OF WARRANTY
1.0 Any affirmation of fact or promise made
by Seller shall not be deemed to create an express warranty that the goods
will conform to the affirmation or promise. Any description or
sample of the goods is for the sole purpose of identifying them and shall
not be deemed to create an express warranty that other goods shall conform
to such description or sample.
2.0 The foregoing guarantees will not apply
to defects within the guarantee period resulting from accident,
negligence, abuse or misuse, improper storage or maintenance, improper
installation, damage in transit, alterations, or repairs performed by
third parties subsequent to the sale or service by Seller.
If the apparatus does not operate in accordance with the foregoing
guarantees, the Seller, at it's option will replace, or rework the
apparatus or parts causing it to not operate. All warranty work will
be performed at Seller's facility in Milwaukee, Wisconsin and will be
performed at no additional charge to Buyer. Seller may issue credit
in lieu of warranty repairs. The remedy provided herein is Buyer's
sole remedy for Seller to comply with it's warranty obligations. The
warranty does not include expenses for removal from and replacing back in
service, down time, lose of use, or expenses for returning goods to
Seller. Seller shall ship any reworked or replaced goods to Buyer
F.O.B. Seller's facility in Milwaukee, Wisconsin.
THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ANY AND ALL OTHER
WARRANTIES WHETHER STATUTORY, EXPRESSED OR IMPLIED, INCLUDING ALL
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PURPOSE AND, EXCEPT AS
PROVIDED ABOVE, ANY OTHER WARRANTIES ARE EXPRESSLY HEREBY DISCLAIMED.
3.0 Limitations of Liability:
SELLER SHALL NOT BE LIABLE IN CONTRACT OR IN TORT FOR SPECIAL, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, resulting from OPERATION OF OWNER'S
EQUIPMENT BY SELLER or from any breach of this contract by Seller,
including, but not limited to, loss of profits or revenue, loss of use,
cost of capital, cost of purchase or replacement power, down time costs,
or the claims of third parties for service interruptions. Buyer
further agrees to indemnify Seller and hold Seller harmless from and
against all losses, claims, demands, damages, obligations, liabilities,
suits and causes of action asserted against or incurred by Seller in
connection with any negligence of Buyer and the use, testing, operation,
replacement or repair of any products or services sold or furnished by
Seller to Buyer.In no event, whether as a result of breach of contract or
torts (including negligence) or otherwise, shall Seller's liability to
Buyer for any loss or damage arising in connection with this agreement, or
it's performance or breach, or from the products or services furnished
hereunder, exceed the difference between the contract price and the market
value of goods sold, or the costs of replacement or repair of the
apparatus, at Seller's option.
4.0 Cancellation: Orders
may be terminated by Buyer only upon written notice prior to shipment and
upon payment of reasonable and proper termination charges, plus 25% of the
contract price, or forfeiture of deposit at Seller's option. Such
reasonable and proper termination charges may include, but are not limited
to all cost associated with the order which have been incurred up to the
date of receipt of the written termination, plus costs of terminating
orders on Seller's suppliers. In the event of Buyer's
bankruptcy or insolvency or in the event any proceeding is brought against
Buyer, voluntarily or involuntarily, under the bankruptcy or any
insolvency law, Seller shall be entitled to cancel any order then
outstanding at any time.
5.0 Security Interest:
Upon acceptance of Buyer's order, Buyer hereby grants to Seller a security
interest in (i) all products sold to it by Seller and (ii) all proceeds of
resale therefrom, including, without limitation, all accounts receivable,
to secure full payment of the purchase price of such goods. Seller
shall at all times have the rights of a secured party with regards to such
products and proceeds thereunto, as are provided under the Uniform
Commercial Code or any similar statute, as enacted in the state or states
in which such products may at any time be located. Buyer hereby
agrees to execute any documents which may be required by Seller in order
to create and perfect the forgoing described security interest.
Rights of possession and title to all merchandise and goods remain with
Seller until purchase is paid in full.
6.0 Remedies: In addition
to the provisions above and herein, Seller shall have all remedies
afforded by the Uniform Commercial Code. All remedies of Seller
hereunder shall be cumulative.
7.0 Government Contracts:
Seller is not bound to honor quotations for equipment purchased by or for
governments of any kind unless Seller has been advised in writing at the
time of quotation that it is a government job.
8.0 Uniform Commercial Code:
This agreement shall be governed by the Uniform Commercial Code as adopted
by the State of Wisconsin, in effect and force on the date of this
agreement. The agreement shall be deemed entered in Milwaukee
County, Wisconsin, which shall be the sole venue of any action. If
any provisions of this agreement conflicts with any provisions of the
Uniform Commercial Code, or if the agreement is silent as to any
particular other agreement, this agreement shall be construed under and in
accordance with the Uniform Commercial Code.
9.0 Expenses: Buyer shall
pay all of Seller's expenses including reasonable attorney's fees,
incurred by Seller's in connection with any breach by Buyer of the terms
of this Agreement, whether or not a lawsuit is filed.
10.0 Disclaimer/Entire Agreement:
No agent, employee or representative of Seller has any authority to bind
Seller to any affirmation, representation, or warranty concerning the
goods sold under this agreement, unless an affirmation, representation, or
warranty made by an agent, an employee, or representative is specifically
made in writing. If not, such affirmation, representation or
warranty has not formed a part of the basis of this bargain, and shall not
in any way be enforceable or binding upon Seller or it's agents,
employees, or representatives. ANY SUCH AFFIRMATION,
REPRESENTATION, OR WARRANTY MADE BY ANY AGENT OF SELLER WHICH IS NOT MADE
EXPRESSLY AND IN WRITING AS A PART OF THIS AGREEMENT IS EXPRESSLY
DISCLAIMED.
This writing by the parties is the total agreement of the parties, and is
intended as the final expression of their agreement. This writing is
the complete and exclusive statement of the terms thereof and any and all
agreements entered into prior to or contemporaneously with the execution
of this agreement are excluded, whether oral or in writing.
11.0 Modification: This
agreement can be modified or rescinded only be a writing signed by both
parties or their duly authorized agents.
12.0 Nonwaiver: The failure of
Seller to enforce any of its rights shall not be construed a waiver of
such rights.
13.0 Choice of Law: All
agreements shall be governed by the provisions of the law of the State of
Wisconsin in effect as of the date of Confirmation Letter.
14.0 Miscellaneous: All
clerical errors are subject to correction. The invalidity, in whole
or in part, of any of the foregoing paragraphs will not affect the
remainder of such paragraph or any other paragraphs of this agreement.
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