1. GENERAL AGREEMENT.
These terms and Conditions and the information set forth on the face hereof shall constitute the entire contract between Absolute Machinery Corporation (hereinafter the “Company”) and the purchaser named on the face hereof (hereinafter the “Goods”) specified on the face hereof. Unless Buyer shall notify the Company in writing to the contrary as soon as practicable after Buyer’s receipt hereof, acceptance of these Terms and Conditions by Buyer shall be indicated and, in the absence of such notification, the sale and shipment by Absolute Machinery Corporation of the Goods shall be deemed conclusively to be subject to these Terms and Conditions. Any of the provisions, terms, or conditions of Buyer’s order which are inconsistent with the Terms and Conditions hereof shall not be binding on the Company, and shall not be considered applicable to the sale shipment of the Goods. No modification of, or addition to, or waiver of any of these Terms and Conditions will be effective unless agreed to in writing by an officer of Company, and in no event shall such modification, addition, or waiver affect any rights of the Company accrued prior thereto. No course or prior dealings between the parties or usage of the trade shall be relevant to give particular meaning to or to supplement or to qualify any of these Terms and Conditions.
All shipments shall be F.O.B. shipping point unless otherwise stated on the face hereof. The company assumes no responsibility for damage for any cause whatsoever while the shipment is in transit. Unless otherwise specified on the face of this invoice, payment in collected funds must be made by Buyer before title to any goods is transferred and before any goods are shipped.
Except as otherwise stated on the face hereof, Buyer shall be liable for and shall pay all sales, use, excise, and other taxes (other than income taxes) imposed by law upon the Goods and their sales.
4. FAILURE TO DELIVER/PERFORM.
Company shall not be responsible for delays in delivery or performance or failure to deliver or perform due to causes beyond its control or which might render performance by Company commercially impractical including without limitation, acts of God, acts of Buyer, government action (civil or military) taking or preempting Company’s production facilities, legal interferences, or prohibitions, fires, strikes, or other labor difficulties, wars or hostilities, insurrections or riots, embargoes, equipment breakdown, wrecks or delays in transportation, unusually severe weather, inability to obtain necessary labor, material or manufacturing facilities due to causes beyond its control, or any like or dissimilar cause beyond its control. Delay in delivery shall not entitle the Buyer to cancel this order or to refuse delivery. Before Company commences work on the day specified for such commencement, Company must be in receipt of an order executed by the Buyer, or Buyer must have submitted any or all drawings requested by Company or to promptly respond to inquiries of Company shall cause an automatic extension of the delivery installation and/or completion date equal to the number of business days caused to be lost n the performance of such agreement. Company shall have the right to furnish suitable substitutes for material which cannot be obtained because of such causes and to apportion its shipments among its customers in such a manner as it shall deem equitable. If material, apparatus or equipment is or therefore becomes subject to government control, allocation, regulation or restriction, the necessary and proper preferences rating certificate shall be supplied by the Buyer.
5. INSTALLATION, STARTUP.
Unless otherwise stated on the face hereof, Buyer understands that title to and all risk concerning the equipment shall pass to the buyer at Company’s warehouse. Installation and start-up equipment are the sole obligations of Buyer. Buyer shall bear all costs and expenses for transportation, rigging, drayage, insurance, site preparation, installation and startup, including without limitation the providing or arranging of all necessary permits, clearances, licenses, utility hookups, consultants, contractors, labor, supervisory licensed and engineering personnel, tools and equipment and all other related costs and expenses, without limitation. In the event that the Company contracts to provide personnel to observe, guide or assist in the installation or start-up of equipment, this shall in no way limit Buyer’s responsibility as set forth above. The scope of the services rendered by Company’s personnel shall be strictly limited to those specified on the face thereof.
6. WARRANTIES AND DISCLAIMERS.
EXCEPT AS OTHERWISE STATED, COMPANY MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, IN RESPECT TO THE GOODS, REBUILT AND, IN PARTICULAR MAKES NO WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR AY PARTICULAR PURPOSE. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION OF THE FACE HEREOF. All material is sold and Buyer accepts same “as is with all faults” and that no representations made by Seller are relied upon by the Buyer in connection with the quality or condition of the goods except in the case of rebuild goods or as specifically noted on the face of this invoice. If any sample or model was shown to or provided by Buyer, such sample or model was used merely to illustrate the general type and quality of the Goods and such use is not to be construed as a warranty that the Goods will conform to the sample or model. Any descriptions or illustrations contained in Company’s catalogues, price list or other advertising matter are intended merely to present a general description of the Goods and shall not form a part of this order. Nor shall any such descriptions or illustrations be construed as a warranty that the goods will conform to the description or illustration. Company makes no warranty that Buyer holds or will hold the Goods free of the claim of any third person that may arise from alleged patent or trademark infringement.
7. GOVERNMENTAL REGULATIONS.
The company makes no representation or warranty, either express or implied, that the Goods, in the form in which they are being sold hereunder comply with OSHA or any other law or regulation. In the event that OSHA or any government agency, law or regulation requires additions or modifications, Buyer shall indemnify Company and hold it harmless of and from any and all liability, including reasonable counsel fees and costs, resulting from any claim made upon Company based upon or resulting from non-compliance or alleged non-compliance of the Goods with OSHA or any other law or regulation. 8. INSPECTION. Buyer affirms that Buyer has had ample opportunity to inspect and examine the goods as fully as Buyer desires.
9. BUYER’S CLAIMS.
All claims by Buyer against Company must be made in writing within ten (10) days after the arrival of Goods at the shipping destination stated on the face hereof. Failure to comply with the terms of this paragraph shall constitute a waiver by Buyer of all claims in respect of any non-conformity of a shortage of the Goods and shall be conclusive evidence that Company has satisfactorily performed.
10. LIMITATION ON REMEDIES AND DAMAGES.
Company’s liability to Buyer or any claim of any kind for any loss or damage arising out of, connected with, or resulting from the Goods, whether such claim is based upon Company’s negligence, Company’s performance or breach hereunder or upon the manufacture, sale, delivery or non-delivery, operation or use of the Goods, or otherwise, shall in no case exceed the purchase price of the Goods. Buyer’s remedies for any aforementioned claim are limited to the repair and replacement of any defective part or parts. In no event, regardless of the nature or basis of the claim by Buyer, shall Company be liable for consequential, incidental, indirect or special damages of any nature whatsoever suffered by Buyer or anyone else.
Buyer shall indemnify Company and hold it harmless of, and from, any and all liability which may be asserted against insured or suffered by Company by virtue of any suit or claim of any kind arising out of, connected with or resulting from the Goods (including but not limited to claims or suits of breach of warranty , negligence or infringement of patent or trademark for Goods reduced and/or sold by Company in accordance with designs, materials, specifications or processes supplied, determined or requested by Buyer). Buyer shall pay and all judgments rendered against Company as a result of the foregoing and shall pay all costs and expenses incurred by the Company in defending any action brought against Company as a result of thereof, including attorney’s fees and expenses, expert witness fees and expenses and court costs. If requested by Company, Buyer will, at its own cost and expense, defend any and all such actions.
12. COMPANY’S RIGHTS AND REMEDIES.
The rights and remedies of Company herein shall be cumulative and in addition to any other or further rights and remedies provided in the law or equity. A waiver by Company of any right or remedy hereunder shall not affect any rights or remedies subsequently arising under the same or similar provisions hereof, nor shall it operate as a waiver of the provision or condition under which such rights or remedies arise.
If any provisions or paragraphs of these Terms and Conditions is determined to be illegal or unenforceable, it shall not affect the enforceability of any other provisions or paragraph hereof.
Equipment is subject to prior sale and all offers resulting from this quotation are not binding unless acknowledged and accepted by this Company at its home office. This quotation automatically expires thirty (30) days from this date and by the notice is subject to change within said period.
15. RIGHT TO CURE.
Where any tender or delivery of goods by Company is rejected because they are defective or when Buyer claims damages for any alleged breach of warranty, or for any reason whatsoever, Company reserves its right to notify Buyer of its intention to cure and may then, within a reasonable time thereafter, attempt to cure and remedy any alleged defects or breach.
16. CLERICAL ERROR.
The Company reserves the right to correct clerical, arithmetical or stenographic errors or omissions in quotations, orders, acknowledgements, invoices or other documents. Any such corrections may be made by Company upon giving Buyer written notice. These changes are to be effective immediately upon dispatch of this notice.
17. CANCELLATION, CHANGES OR DELAYS.
Once accepted by the Company an order is not subject to cancellations or changes, except on terms acceptable and satisfactory to the Company. Direction by Buyer to cancel may be treated as a repudiation making he Buyer immediately liable for loss, expense, and other damages and any deposits or other payments paid thereon may be forfeited. It is understood that a cancellation charge will be due from Buyer to Company computed on the basis of costs (direct or indirect) accumulated including, without limitation, labor, materials and engineering related to this quotation and the articles described herein, plus 10% of the quoted prices as liquidated damages, which amount is agreed to be reasonable, and not as a penalty for such cancellation and loss of bargain. The cancellation charge shall be payable at the time of receipt of Buyer’s written notice of cancellation at Company’s office. In the event that Buyer’s causes or requests (i) changes made which affect delivery, installation, specifications, completion dates or otherwise, or (ii) the work to be delayed, whether directly or by other contractors or because of the facilities including utilities, electrical hookup, site preparation, governmental permits, approvals or licenses, apparatus or other conditions to be provided or arranged by Buyer are lacking or insufficient, Buyer will reimburse Company for any expenses incurred by Company in respect of or resulting from each such change or delay upon presentation by Company of a simple invoice. Any additional services or equipment not specifically set forth herein shall be at the Buyer’s additional expense.
If shipment of any material is postponed by direction of the Buyer, the Company may at any time after original date of shipment, pack, hold and Invoice such materials as if then shipped, same being then held at Buyer’s risk. All payments shall be required, at which time the equipment shall become the property of Buyer.