1. Unless Purchaser shall notify Seller in writing to the contrary prior thereto, the receipt by Purchaser of any of the merchandise, products or services (“Equipment”) specified above or Purchaser’s payment of any part of the purchase price therefor, shall be deemed conclusively to be acceptance by Purchaser of, and its agreement to be bound by, these Terms and Conditions. Any provision, term or condition contained in Purchaser’s order or confirmation form which are inconsistent with these Terms and Conditions shall not be binding on Seller, and shall not be considered applicable to the sale, shipment or use of the Equipment. No modification of, addition to or waiver of any of these Terms and Conditions will be effective unless agreed to in writing by an authorized signatory on behalf of Seller, and in no event shall such modification, addition or waiver affect any rights of Seller accruing prior thereto.
2. In case of any delay caused by the Purchaser’s failure to furnish and make available parts, specifications, or information required to be supplied by the Purchaser, or to deliver samples of product or packaging material or to furnish other information required to be supplied by Purchaser, or if there are any changes requested by Purchaser to be made to the Equipment as originally ordered. Seller may adjust the price and extend the date for shipment for a reasonable time, based upon the length of the delay, the extent of the change and the conditions then existing at Seller’s factory. Seller may also, at its option, invoice Purchaser for work already performed on its order, or for equipment then ready for shipment, and payment therefor shall be made within twenty (20) days of notification and request for payment. Any additional cost or expense to Seller caused by such delay shall be paid by Purchaser upon rendition of Seller’s invoice therefore.
3. All shipments shall be F.O.B. shipping point as stated in the foregoing order with crating, boxing or skidding, as necessary, additional. Seller assumes no responsibility for loss or damaged by reason of any cause whatsoever after the Equipment is delivered to Purchaser or carrier at the shipping point, whether or not freight has been prepaid.
4. Purchaser acknowledges that (i) the Equipment covered by this order is either used or new and was neither designed nor manufactured by Seller and (ii) Purchaser has had, or has been offered, every opportunity to inspect and examine the Equipment as completely as Purchaser desires. Seller does not warrant that the Equipment contains any particular safety features nor that it conforms to any particular insurance regulations or local codes. Purchaser assumes responsibility, at Purchaser’s sole cost and expense, and prior to placing the Equipment in operation, for providing and thereafter maintaining proper safety devices and other equipment as might be necessary to safeguard the operator(s) of the Equipment from harm or injury arising out of any particular use, operation or setup thereof by Purchaser, its agents, representatives or employees or any subsequent transferee, and to provide all safeguards so as to enable the Equipment to meet and comply with all safety standards required or imposed by OSHA or with codes, ordinances, laws or regulations of any other governmental authority, federal, state or local, asserting jurisdiction. Purchaser agrees to indemnify and hold Seller harmless with respect to any claim made against Seller arising out of any of the foregoing, including the costs, expenses and attorneys’ fees incurred by Seller in defending itself against any such claim.
5. In the event the Purchaser cancels this agreement or a petition under any of the provisions of the Bankruptcy Code is filed by or against the Purchaser, or the Purchaser becomes insolvent or makes an assignment for the benefit of creditors prior to the delivery of any Equipment, then this agreement shall be cancelled and the Seller shall be entitled to retain the deposit as liquidated damages, without the waiver of any of Seller’s other rights herein.
6. All claims by Purchaser against Seller, including, but not limited to, defects, negligence or non-conformance (“Defect”) must be made in writing within fourteen (14) days after arrival of the Equipment at the designated shipping destination, specifying in detail the nature of the claimed Defect, the particular part or parts of the Equipment involved, and the time of Purchaser’s discovery thereof. Equipment or parts thereof not specified therein shall not be affected by the claim and shall conclusively be deemed accepted without exception. Failure to comply with the requirements of this paragraph shall constitute a waiver by Purchaser of all claims in respect of any Defect and shall conclusively establish in any dispute between the parties hereto that Seller has satisfactorily performed its obligations hereunder.
7. If Seller shall determine that the claim so received is justified, Seller shall, at its option, have the right to repair, or replace, the Defect either at Purchaser’s premises, or at such other location as Seller may designate, in which event Purchaser shall deliver the defective Equipment or part thereof, covered by the claim to such designated location. If within a reasonable period of time Seller is unable to correct the Defect specified in the claim and has given Purchaser written notice to that effect, Purchaser’s sole and exclusive remedy will be to return to Seller said defective Equipment, or that part thereof referred to in the claim, upon Seller’s prior written authorization, and Seller, at its option, shall refund to Purchaser the purchase price of such defective Equipment, or part thereof returned, or replace same. Seller shall not, in any event and regardless of the nature or basis of the claim of Defect, be liable to Purchaser for direct, consequential, incidental, indirect or special damages of any nature whatsoever suffered by Purchaser or anyone else, including, but not limited to, (a) any repairs or alterations to any of the Equipment made without the prior specific written approval of Seller, (b) any installation not made by Seller or approved by it in writing, (c) any Equipment misused, neglected or damaged by accident or other casualty, (d) any operation of the Equipment other than in accordance with Seller’s instructions, (e) any material or supplies claimed to have been purchased by Purchaser for use in connection with the Equipment or any part thereof, or (f) any damaged products or loss of sales or profits resulting therefrom.
8. As an additional condition precedent to any recovery for any alleged loss or damage arising out of this sale of Equipment, any suit shall be instituted against Seller only in the courts of the State of New York in the City of New York, or in the United States District Court for the Southern District of New York and then only within one (1) year from the day when delivery of the Equipment is made to the carrier for transportation to Purchaser, or if a written claim of Defect is forwarded to Seller, only within one (1) year from the date said claim of Defect has been rejected. Where a claim of Defect has not been filed or suit has not been brought in accordance with the foregoing provisions, Seller shall not be liable and such claims will not be paid to Purchaser.
9. All property, sales, excise and use taxes now or in the future assessed on the Equipment sold hereunder is not included in the price and shall be paid by the Purchaser.
10. The purchase price does not include the cost of installation or supervision thereof.
11. Purchaser hereby agrees to indemnify and hold Seller harmless with respect to any action arising by reason of the design or use of the Equipment or any goods or products produced thereon or thereby and to defend any suit, action or claim that may be instituted by anyone against Seller, including, but not limited to, products liability suits involving personal injury or property damaged, and to pay all attorneys’ fees, costs, damages and awards incurred by or assessed against Seller in any such suit, action or claim.
12. This writing contains the entire agreement between Purchaser and Seller. THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTIBILITY, FITNESS OR OTHERWISE WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.
13. Seller shall not be liable for its failure to perform hereunder due to any contingency beyond its reasonable control, including, but not limited to, acts of God, fires, floods, war, sabotage, accidents, labor disputes or shortages, governmental laws, ordinances, rules and regulations, inability to obtain material, Equipment or transportation and any other similar or different contingency. Should, for any reason, the Seller is unable to deliver material or Equipment, the sole remedy for the Buyer is the return of their deposit and that, in no event, will the Seller be liable for incidental, consequential, exemplary or punitive damages or lost profits of the Buyer.
14. The rights and remedies of Seller herein shall be cumulative and in addition to any other or further rights and remedies provided in law or equity.
15. If any provision or paragraph of these Terms and Conditions is determined to be illegal or unenforceable, it shall not affect the enforceability of any other provision or paragraph hereof.
16. This agreement and the Terms and Conditions herein shall be governed by and interpreted in accordance with the laws of the State of New York.