CONDITIONS AND TERMS OF SALE
1. APPLICABLE TERMS
The terms and conditions (these “Terms”, and together with the front page hereof and any addendums, the “Agreement”) set forth below the complete and entire agreement between Seller (as identified on the front page hereof, and the purchaser of the Seller equipment and/or services as identified on the front hereof (the “Buyer”). No prior agreements, negotiations or representations made by Seller or any authorized representative of Seller shall be deemed to affect, alter, modify, amend or supplement the terms and conditions herein. None of the Terms may be amended, supplemented, modified, superseded or otherwise altered without the prior written consent of Seller (or an authorized representative of Seller). This Agreement and Seller’s liability hereunder are expressly conditioned upon Buyer’s assent to the Terms. Seller hereby objects to and rejects any and all additional or different terms proposed by Buyer, whether contained in Buyer’s request for quotation, purchase order, purchasing or shipping release forms.
2. QUOTATION AND ORDER
Seller’s quotation is not an offer to sell the goods or services noted but an invitation to the Buyer to purchase such goods and services on these Terms. Quotations do not include taxes, excises or levies which may be payable as described in Section 12 herein. Quotations shall be effective for thirty (30) days from the date of the quotation, subject to Buyer’s agreement to these Terms. Orders must be in writing on a purchase order form acceptable to Seller, be accompanied by the plans and specifications used for the quotations if submitted by Seller, specify a shipping address, and be subject in all respects to these Terms. The preparation and submission of submittal documents by Seller does not constitute acceptance of Buyer’s order by Seller. Orders become binding only upon Seller’s written acceptance as evidenced by Buyer’s receipt of an executed order confirmation (“Seller’s Acceptance”) of the purchase price (“Purchase Price”).
Unless Seller’s quotation contains different payment terms (which different payment terms shall then apply), payment terms are net thirty (30) days from date of Seller’s invoice to Buyer. No retention or discounts shall be permitted. Buyer shall make payment of Seller’s invoices directly to Seller or to Seller’s designee as indicated on the invoice. Payment not received by the due date, and unauthorized retentions and discounts shall be subject to an interest charge of one and one-half percent (11/2%) per month, or the highest rate permitted by law applicable to this transaction, if less.
Seller shall deliver the equipment ordered herein (the “Order”) FCA Origin per INCOTERMS 2010 to named US location. Buyer shall be responsible for all brokerage fees, insurance, customs and inbound freight cost. In addition to the Purchase Price, Seller may charge Buyer a fee for noncontinuous shipment of an Order. Seller shall not be responsible for spotting, switching or drayage charges at destination. Shipment date of Order is to be calculated from the date of Seller’s Acceptance. Buyer shall be responsible for unloading of all machinery and equipment delivered to the Seller. Unless otherwise specified in Seller’s quotation, installation of the machinery and equipment is Buyer’s responsibility. If buyer fails to take delivery of any Product on any scheduled delivery date, Seller shall store such Product until otherwise instructed by Buyer and Buyer shall be invoiced on the first day of each month following such scheduled delivery for reasonable administration and storage costs.
5. PRODUCT DESIGN
Seller does not assume responsibility for nor warrant the performance or accuracy of Buyer’s furnished design, design criteria, or specifications.
EXCEPT AS EXPRESSLY SET FORTH ON ADDENDUM A, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE MACHINERY, EQUIPMENT OR SERVICES, AND DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE MACHINERY, EQUIPMENT AND SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, USAGE OF TRADE OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The Buyer is responsible for any additional costs associated with special rigging or access platforms required to perform the warranty work and/or any additional labor cost associated with delays caused by the Buyer which prevent the Seller’s service technician from performing their repair work in a proper timely manner. In no event shall Seller’s liability exceed the Purchase Price. Return of Defective Equipment or components thereof, shall be prepaid. Replacement shall be FCA Seller’s plant or at such point as Seller designates. IN NO EVENT SHALL SELLER BE LIABLE AS A RESULT OF THIS TRANSACTION FOR ANY DAMAGES UNDER ANY THEORY, DOCTRINE, OR CAUSE OF ACTION SOUNDING IN TORT INCLUDING, BUT NOT LIMITED TO, STRICT LIABILITY, NEGLIGENCE OR PRODUCT LIABILITY. IN NO EVENT, WHETHER BECAUSE OF A BREACH OF WARRANTY OR REPRESENTATION OR ANY OTHER CAUSE, WHETHER BASED UPON CONTRACT, TORT, WARRANTY OR OTHERWISE, ARISING OUT OF THE PERFORMANCE OR NON-PERFORMANCE BY SELLER OF ITS OBLIGATIONS HEREUNDER, SHALL SELLER BE LIABLE FOR LOST EARNINGS, INCOME OR PROFITS, OR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR ANY OTHER DAMAGES.
7. MODIFICATIONS TO THE PROJECT
Buyer is not authorized to modify, repair or alter its Order except at its own risk, and no back charges shall be allowed for any such modification, repair, or alteration without Seller’s prior consent. Seller shall not be responsible for any time delays or additional charges incurred by reason of Buyer’s desire to modify, repair or alter the Order.
8. FORCE MAJEURE
In the event that Seller’s performance of any provision under this Agreement is delayed, interfered with, or prevented by war, fire, flood, earthquake, acts of God, strike, material shortages, disputes with employees, pandemic, epidemic, accident, law, order regulation, requisition of the government of the United States of America or any agency thereof, or any other cause beyond the reasonable control of Seller, the Seller, at its option, will be relieved from further performance under this Agreement, whether or not such cause is operative at the time the Agreement is made. In the event Seller elects to complete its performance, the time of performance on the part of Seller shall be extended for such period as may be necessary to enable it to complete the Order after such cause has been removed.
All federal, state, and local excises, levies, duties, taxes, and charges of any kind which Seller may be required to pay or collect under any existing or future law upon or with respect to the sale, purchase, delivery, storage, processing, use, consumption or transportation of the Order, or any portion of the Order (“Taxes”), shall be on behalf of Buyer, and Buyer agrees to reimburse Seller for said Taxes in accordance with the payment terms specified herein and in addition to the Purchase Price. Buyer shall be responsible for obtaining all required permits from, paying all required fees to, and for all operational compliance with, all applicable local, state, and federal laws, rules and regulations.
Upon Seller’s Acceptance, Seller shall commence design, purchase of materials, and manufacture of equipment (the “Work”). Seller or Buyer may terminate this Agreement for any reason upon seven (7) days written notice to the other party. Buyer and Seller agree that Seller would incur expenses from termination by Buyer or by Seller for cause and agrees to liquidate Seller as follows: Seller shall be entitled to a termination fee equal to fifteen percent (15%) of the Purchase Price in the event Seller is less than fifty percent (50%) complete with the Work, including all Changes to the Work; and to a termination fee equal to twenty-five percent (25%) of the Purchase Price if Seller is more than fifty percent (50%) completed with the Work. This termination fee is in addition to all monies due and owed to Seller for Work performed and materials purchased prior to the date of termination, even though not invoiced, and all other legal and equitable remedies resulting from Buyer’s termination. Buyer shall not be entitled to compensation for Seller’s termination.
The occurrence of any of the following without prior written consent of Seller shall constitute an event of default by the Buyer: a) failure by Buyer to make payment due to Seller within thirty (30) days after date of invoice; b) Buyer’s filing of a voluntary petition or having an involuntary petition filed against Buyer for any bankruptcy or insolvency proceedings; c) Buyer’s refusal to sign a change order for a change in the Work as defined herein; d) Buyer’s refusal to remove asbestos or other hazardous material required by the Work; e) Buyer’s failure to pay a termination fee as defined herein; or f) any other breach of the terms and conditions of this Agreement. Seller shall be entitled to collect its reasonable attorney’s fees and costs resulting from Buyer’s breach of any of the terms of this Agreement or Seller’s enforcement of the terms of this Agreement including, but not limited to, fees incurred from settlement discussions, inspections, fact gathering, arbitration proceedings, and litigation proceedings.
Upon the occurrence of an event of a default by Buyer or at any time thereafter, Seller may, without waiving its rights to assert any other legal or equitable remedy, refuse to furnish service to Buyer, including, but not limited to, any warranty service; termination of this Agreement by seven (7) calendar days’ written notice to Buyer; and/or pursue all legal or equitable remedies including, but not limited to, a filing of an arbitration demand, lawsuits, mechanic’s lien claim, or foreclosure of mechanic’s lien lawsuit. The failure of Seller to exercise any or all of these rights does not waive in any way Seller’s available legal or equitable remedies at any time.
Any claim or controversy arising out of or related to this Agreement or the breach thereof, except for mechanic’s lien claims brought by Seller, shall be brought only in the United States District Court for the Western District of Pennsylvania or the state courts of the Commonwealth of Pennsylvania, located in Allegheny County or Butler County. Each party hereby irrevocably consents and submits to the exclusive jurisdiction of such courts.
14. APPLICABLE LAW
This agreement (including these Terms), any affiliated obligations and any action arising thereunder will be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania.
This Agreement contains the entire understanding of Buyer and Seller and supersedes all prior negotiations, agreements and proposals. A modification, amendment, release or waiver of any provision of this Agreement shall be effective only if made in writing and signed by the party to be bound thereby. The terms in this Agreement shall supersede any terms and conditions of any other document which may apply to the transaction between the Buyer and Seller. Any term of this Agreement found to be unenforceable shall not invalidate the remainder of this Agreement. The person signing this Agreement on behalf of Buyer represents that he or she has the power and authority to enter into and bind Buyer with respect to this Agreement.
16. ADDITIONAL TERMS
See Addendum A. To the extent a provision of these Terms conflicts with Addendum A, Addendum A shall govern with respect to such provision.
A. EQUIPMENT GUARANTEE, WARRANTEES, AND REMEDIES
1) MACHINERY AND EQUIPMENT GUARANTEE: Conair Group (“Seller”) guarantees the machinery and equipment on this order for the period set forth in the quotation, or, if not set forth in the quotation, for a period of twelve months, from the date of shipment against material defects in material and workmanship under the normal use and service for which the machinery and equipment was recommended; provided, however, this equipment guarantee shall not apply to machinery and equipment parts that are typically replaced after normal usage, such as filters and liner plates. Buyer shall be responsible for the cost of transportation of the machinery and equipment to and from Seller’s factory. Seller will ship warranty machinery and equipment FCA unloaded per INCOTERMS 2020 to named US location. Buyer shall be responsible for all brokerage fees, customs and inbound freight cost. All returned items will be shipped back to Seller at Buyer’s expense.
2) PERFORMANCE WARRANTY: Seller warrants that the machinery and equipment will perform at or above the rating as stated in specific quotations covering the machinery and equipment, or as detailed in engineering specifications, provided the machinery and equipment is applied, installed, operated, and maintained in the recommended manner as outlined in the quotations or specifications. Seller may offer additional or supplemental warranties or guarantees on specific products or components under terms and conditions that may differ from Machinery and Equipment Guarantee and Performance Warranty. In the event of a conflict, the provisions of the additional or supplemental warranty or guarantee shall control. Copies of these additional or supplemental warranties or guarantees, if any, will accompany each specific product or component and are available at any time by contacting Seller. Any additional or supplemental warranties or guarantees provided by Seller are subject to and made a part of these Conditions of Sale.
3) REMEDY: Should machinery and equipment or performance not meet warranted levels, Seller in its sole discretion will either:
A) Inspect the machinery and equipment and perform repairs, alterations or adjustments to the machinery and equipment. Inspection and repairs, alterations or adjustments are subject to prior written notice by Buyer to Seller (as set forth below), after which time a Repair Authorization number will be issued by Seller’s Service Department.
B) Replace the original machinery and equipment with conforming machinery and equipment. Replacement is subject to prior written notice by Buyer to Seller (as set forth below), after which time a Replacement Authorization number will be issued by Seller’s Service Department. Original machinery and equipment, including all parts, must be returned to Seller, well crated and prepaid at Buyer’s Replacement of parts under warranty does not include labor.
C) Refund the invoiced cost of the machinery and equipment to Buyer. Refund credit is subject to prior written notice by Buyer to Seller (as set forth below), after which time a Return Goods Authorization number will be issued by Seller’s Service Department. Original machinery and equipment, including all parts, must be returned to Seller, well crated and prepaid at Buyer’s expense.
THE REMEDIES SET FORTH HEREIN SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE WARRANTIES SET FORTH HEREIN.
Seller shall not be liable for a breach of the warranties set forth in Sections A. 1) and A. 2) unless: (i) Buyer gives written notice of the defective machinery and equipment, described in detail, to Seller within thirty (30) days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given an opportunity to examine such machinery and equipment; and (iii) Seller verifies Buyer’s claim that the machinery and equipment is defective according to reasonable industry standards.
Seller shall not be liable for a breach of the warranties set forth in Sections A. 1) and A. 2) if: (i) Buyer makes any further use of such machinery and equipment after giving such notice; (ii) the defect arises because of misapplication, improper installation, poor maintenance practices, or improper operation of the machinery and equipment by Buyer or any third party; or (iii) Buyer repairs, alters or adjusts such machinery and equipment without the prior written consent of Seller.
4) WARRANTY LIMITATION AND DISCLAIMER: EXCEPT FOR THE WARRANTIES STATED IN SECTIONS A. 1) AND A. 2), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE MACHINERY AND EQUIPMENT, AND DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE MACHINERY AND EQUIPMENT, WHETHER EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, USAGE OF TRADE OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5) LIMITATIONS ON LIABILITY AND INDEMNIFICATION:
A) LIMITATION ON DAMAGES: IN NO EVENT SHALL EITHER PARTY BE LIABLE TO BUYER OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, ANCILLARY, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR REVENUE, PRODUCTIVE FACILITIES, DAMAGE TO OR LOSS OF THE USE OF THE MACHINERY AND EQUIPMENT, DAMAGE TO PROPERTY, PERSONAL INJURY CLAIMS, INCLUDING PERSONAL INJURY OR DEATH SUFFERED AS A RESULT OF THE MACHINERY EQUIPMENT, OR FAILURE OF SELLER TO WARN, OR TO ADEQUATELY WARN, AGAINST THE DANGERS OF THE MACHINERY AND EQUIPMENT, OR TO INSTRUCT, OR TO ADEQUATELY INSTRUCT, ABOUT THE SAFE AND PROPER USE OF THE MACHINERY AND EQUIPMENT, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
B) TIME LIMITATION: ANY CLAIM OR DISPUTE WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AGAINST SELLER MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE EVENT GIVING RISE TO THE CLAIM OR DISPUTE OR BE FOREVER BARRED, EXCEPT FOR APPLICABLE STATUTES REQUIRING A SHORTER PERIOD, IN WHICH CASE THE SHORTER LIMITATION PERIOD SHALL APPLY.
C) INDEMNIFICATION: Each party agrees to indemnify, save harmless and defend the other, at the indemnifying party’s expense, from and against any and all damages, claims or liabilities of any nature from any third party, including, but not limited to, costs, expenses and reasonable attorney’s fees, which are threatened or brought against or are incurred by the indemnified party arising out of or resulting from the erection, operation or use of the machinery and equipment by Buyer or any third party. the indemnifying party’s negligent acts or omissions or intentional misconduct.