STANDARD TERMS OF SALE
01. QUOTATION: The prices indicated in this proposal are valid for a period of fifteen (15) Days
02. PAYMENT TERMS: Payment is to be made in the currency of the United States of America and as specified in the section of this quotation entitled “Terms of Payment”. If the Buyer does not comply with the Terms of Payment, then the order will be suspended until payment of the remaining balance due on the order is paid in full to the Seller. After a reasonable time the Seller will give notice to the Buyer that the order will be terminated unless the balance due is paid within sixty (60) days of the date of the notice. All notices shall be sent to the addresses designated in the order.
03. ORDERS: Orders resulting from this quotation are subject to written acceptance and approval at the Seller’s home office, Orlando, Florida, U.S.A., and approved by the seller’s credit department.
04. TAXES AND DUTIES: Prices are subject to the addition of applicable sales, use and excise taxes; customs duties or tariffs; or any other taxes, duties or tariffs imposed by a government or political subdivision. Payment of all such taxes, duties and/or tariffs are the responsibility of the Buyer.
05. TITLE AND RISK OF LOSS: Title to and risk of loss of the equipment covered by this quotation shall pass from the Seller to the Buyer in accordance with the terms F.O.B., F.A.S., C.& F., C.I.F., or otherwise specified in the text of this quotation. On shipments within the continental United States of America, these terms shall be interpreted in accordance with the Uniform Commercial Code, as enacted and applied in the State of Florida, U.S.A. With respect to shipments outside the continental United States of America, these terms shall be interpreted according to the Revised American Foreign Trade Definitions of 1941.
06. SHIPMENTS: All freight and insurance charges are the responsibility of the Buyer unless otherwise agreed in writing between Seller and Buyer. Unless otherwise stated on the front of this form, the price in this quotation is F.O.B. place of shipment and excludes shipping or crating for shipment, which are the responsibility of the Buyer. Shipping dates are not guaranteed, but are the Seller’s best estimate. The Seller shall not be liable for delays due to acts of God, labor disputes, fire, flood, material shortages breakdown of equipment, or any other causes beyond the Seller’s reasonable control.
In no event shall the Seller be liable for incidental or consequential damages, labor or material expense, and/or loss profits allegedly resulting from failure(s) or delay(s) in shipment. In the event production is curtailed or ceased at the request of the Buyer, any resulting delay will extend the shipping date and may increase the Buyer’s cost. If the Buyer requests that shipment be deferred beyond the date of completion, the order will be subject to invoicing and payment by the buyer. Possible storage charges will be payable by the buyer, as incurred.
07. SHORTAGES: Claims for shortages will not be considered valid unless reported in writing to the Seller within ten (10) days after receipt of equipment.
08. CANCELLATION: Orders are non-cancelable, unless approved in writing by the Seller. If approved by the Seller, the amount to be returned to the Buyer will be calculated as follows: The funds paid by the Buyer to the Seller less: (a). Seller’s payment made to acquire goods sold to Buyer, (b). expense costs incurred by Seller in connection with the sale, including but not limited to presale matters and charges by Buyer and order processing, (c). transaction cancellation fee of twenty percent (20%) of the sale price.
09. FLORIDA CONTRACT: Buyer and Seller agree that all litigation arising in connection with the quotation and the order must be conducted in the State or County courts located in Orange County, Florida and appoint the Secretary of State for Florida to accept service of process on behalf of the Buyer and Seller. The contract resulting from the agreement between the Seller and the Buyer is a Florida contract, and all issues and matters relating to the making, performance, breach, construction or interpretation thereof shall be governed by the law of the State of Florida, U.S.A., regardless of the jurisdiction in which any legal proceeding relating to such issues or matters is initiated or pending.
A. GENERAL PROVISIONS: The Seller warrants to the original Buyer that all equipment or machinery sold shall be free from defects in material workman-
ship, under normal use and service, for a period of three hundred sixty five(365) days from the date of original shipment. The remedy in the event of such a defect shall be limited to repair or replacement of the machinery, equipment or part in question. This warranty will not apply to any equipment or machinery which has been subjected to accident, alteration, abuse or misuse. This warranty will not remain in effect in the event that the equipment or machinery is not operated or maintained in accordance with the applicable manual(s) and/or instructions.
B. NEW MACHINERY AND/OR EQUIPMENT: Machinery and/or equipment not manufactured, reconditioned or rebuilt by the Seller, but furnished by the Seller, will be warranted by the Seller only to the extent covered by the original manufacturer’s warranty.
C. REPAIR OF EQUIPMENT INSTALLED IN THE CONTINENTAL UNITED STATES: In the event of a defect in material or workmanship which is covered by this warranty, and it is, in the judgment of the Seller, impractical to return the machinery, equipment or part(s) in question to the Seller’s location for repairs, the Seller will arrange for the necessary repairs to be made by it’s personnel or, at it’s option, hire a qualified third party for the performance of the work in question. Regardless of the method chosen by the Seller for the repair or replacement of the item(s) in question, the Buyer will cooperate by making such item(s) available and accessible when the work is scheduled and by providing the utilities required for such work. If local conditions prohibit the performance of the work by the Seller’s personnel under conditions and at the compensation prescribed by the Seller’s contracts with it’s personnel, to the extent practical, the Seller’s obligation shall be limited to supervision of the work performed and payment of the amount which represents the reasonable number of hours required to accomplish the repair or replacement of the defective item(s), at the rates which would be payable to the Seller’s personnel for the performance of such work under the terms of their current contracts with the Seller. In such event, all labor costs shall be paid by the Buyer and the Seller will reimburse the Buyer to the extent set forth herein.
D. REPAIR OF EQUIPMENT INSTALLED OUTSIDE THE CONTINENTAL UNITED STATES: In the event of a defect in material or workmanship which is covered by this warranty, and it is, in the judgment of the Seller, impractical to return the machinery, equipment or part(s) in question to the Seller’s location for repairs, the Seller’s obligation shall be limited to either: (1) sending a service representative to repair (or supervise the repair of) the item(s) in question ; or (2) granting a reasonable allowance to have the repair made locally by a party chosen by the Seller. The Seller shall have the sole and complete discretion to choose between the foregoing alternatives.
E. UNSUCCESSFUL OR IMPRACTICAL REPAIR OF EQUIPMENT: If the repair or replacement of the item(s)in question is unsuccessful or impractical in the judgment of the Seller, the Buyer shall have the right to return such defective item(s) and will be entitled to a refund of that portion of the purchase price attributable to the defective item(s).
11. EXCLUSION OF WARRANTIES: THE WARRANTY SET FORTH ABOVE IS THE ONLY WARRANTY PROVIDED BY THE SELLER, AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE SET FORTH HEREIN. If the machinery or equipment is being sold “used”, “as is”, or “with all faults”, there is NO WARRANTY in effect. This provision is intended to call the Buyer’s attention to the exclusion of warranties and to make clear that there is no implied warranty whether of merchantability, fitness for a particular purpose, or otherwise whatsoever.
12. ENTIRE CONTRACT: The provisions hereof are the only terms and conditions of sale and are intended by the parties as a complete and exclusive statement of the terms of their agreement, which superseded all prior agreements, written or oral, and upon issuance of the Seller’s invoice or acknowledgment. Any variation from the terms hereof contained in the Buyer’s acceptance or purchase order is hereby rejected. Acceptance of the Buyer’s order is expressly conditioned on acceptance of the terms herein. The agreement of which these terms are a part can be modified or rescinded only in writing signed by both parties or their duly authorized agents. If any provision herein is determined to be invalid or unenforceable, such determination shall not affect the validity or enforceability of the remaining provisions herein.
13. SHIPPING INSTRUCTIONS: The Buyer will furnish the Seller with written shipping instructions, noting to whom merchandise is to be consigned. If the merchandise is to be shipped outside the United States of America, the Buyer will provide the name and address of it’s custom broker/freight forwarder at the port of exit shipping point. If the Buyer does not forward the name of it’s customs broker/freight forwarder, the Seller will utilize a customs broker/freight forwarder of it’s choosing.
14. ENFORCEMENT: In the Buyer defaults in the payment of amounts due, or in the event of litigation between the Buyer and the Seller, the Buyer agrees that the Seller shall be entitled to recover it’s costs, expenses and attorneys’ fees relating to such litigation, including post-judgment collection efforts and any appellate proceedings.
15. LIMITATION OF LIABILITY: IN NO EVENT SHALL THE SELLER BE LIABLE FOR A LOSS OF PROFITS OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR OTHER SIMILAR DAMAGES ARISING, OR ALLEGEDLY ARISING, OUT OF ANY BREACH OF THIS AGREEMENT OR DEFECTS IN THE ITEM(S) SOLD. THE SELLER SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY ANY DELAY IN DELIVERY, INSTALLATION OR THE FURNISHING OF GOODS, AND SHALL NOT BE LIABLE FOR ANY LOSS BY REASON OF PLANT SHUTDOWN, NON-OPERATION, OR INCREASED COST OF OPERATION, LOSS OF PRODUCT OR MATERIALS, OR COST OF REPAIRS BY A THIRD PARTY.
16. EXCLUSIVE REMEDY: The exclusive remedy to the Buyer for a defect in any item(s) sold, or for a breach of contract or warranty by the Seller, is as follows. The Buyer must return the defective item(s) to the Seller, F.O.B. Seller’s designated location, and receive, at the option of the Seller: (a) a refund of the price paid for the item(s) in question; or (b) repair or replacement of the defective item(s). In order for the Buyer to pursue this sole remedy, the Buyer must strictly adhere to the provisions and requirements of the provisions above relating to the “Warranty”. It is expressly agreed that the Buyer has no remedies in connection with the sale of goods under this Agreement besides those specifically set forth in these Standard Terms of Sale, that such sole remedies are available only if the Buyer provides written notice of the defect to the Seller subject to the terms of section 10. Any claim against the Seller arising out of transporting the goods to the Buyer must be made within sixty (60) days of the shipment date. Any claim against the Seller arising out of the goods being not in compliance with the order must be made within sixty (60) days of the shipment date. The shipment date will be stated in a notice to the Buyer from the Seller.
A. The Buyer has the full responsibility for the safe and proper installation, startup and operation of the machinery and/or equipment which are the subject of this Order. Buyer also acknowledges that it may have to install or change guards, safeties, warnings or other components to insure that the machinery and/or equipment will conform to all applicable laws, insurance requirements and/or industry standards. The Buyer agrees to defend, indemnify and hold the Seller harmless from any and all suits, claims, costs, expenses, including but not limited to attorney’s fees and legal expenses, for personal injury, death, property damage, or product liability arising from or relating to the purchase, ownership or use by the Buyer, the Buyer’s agents, employees, independent contractors, lessors, lessees. invitees or bailees of the machinery and/or equipment purchased.
B. The Seller has available qualified technicians, who can provide technical and engineering services relating to the supervision of installation, startup and training of personnel in the operation of machinery and/or equipment sold by the Seller. These services are available, if practical and permitted by local law under the following terms and conditions:
- A fee of $1,350.00 (one thousand three hundred and fifty dollars) per day will be charged for each technician. Such fee will be charged for each day traveling to or from the job site and for each day at the job site, including non-working days such as Sundays and holidays.
- The Buyer will pay: all international round trip airfare to the country of installation of the machinery and/or equipment; all domestic round trip air fare within the country of installation; all local travel expenses within the country of installation; all lodging (hotel/motel) expenses while in route to, or at, the job site; and all food and living expenses while in route to, or at, the job site.
- The Seller and the Buyer will estimate the time and expenses required for the completion of the technical/engineering services to be provided by the Seller. The resulting amount will be deposited by the Buyer with the Seller before technicians and/or engineers travel to the job site or begin performance of the work in question.
18. ASSIGNMENT: The Buyer may not assign it’s rights or delegate it’s performance in whole or in part hereunder without the prior written consent of the Seller and any attempted assignment or delegation without such consent will be void.
19. NON WAIVER: In the event, the company does not terminate the offer or agreement or otherwise does not enforce a term, condition or provision of these Standard Terms of Sale, the same will not be considered a waiver of its right to terminate or otherwise enforce a term, condition or provision of these Standard Terms of Sale of the same, similar or other matter subsequently.