PRODUCTIVITY INC. ("SELLER")
MACHINE TOOLS TERMS AND CONDITIONS OF SALE (TO "BUYER")
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- GENERAL: Buyer's Purchase Order for the listed items ("Equipment") is accepted at the prices indicated solely in such proposal and under the Terms and Conditions stated herein.
- DELIVERY: Responsibility for the Equipment shall transfer to Buyer at Seller's dock, Minneapolis, Minnesota for Equipment in the possession of Seller, at the port of entry for Equipment being sourced outside the United States, and at manufacturer's dock or such other point in the United States at which the Equipment is sourced by Seller for all other Equipment sourced within the United States. All Equipment shall be appropriately packed for shipment and storage in accordance with standard industry practices. Seller shall arrange and assist in the shipping of Products, and shall arrange for insurance on Equipment during shipment per Buyer's instructions, but in no event shall Seller be deemed to be Buyer's agent for shipping purposes. Delivery dates or shipping schedules are approximate and based upon the most recent information available to Seller from the manufacturer of the Equipment as of the date of Seller's acceptance of Buyer's order. Delivery date or shipping schedules may change due to changes in the manufacturer's schedule. Seller will not be responsible for any failure or delay to perform arising from causes beyond its control including, but not limited to, failure or delay due to fire, acts of God, explosions, accident, labor disputes of any character, labor shortages or failure or delays in transportation, shortage of raw materials or equipment for the manufacturer, acts of government or judicial actions.
- CHARGES; TAXES; PAYMENT: Buyer shall pay all freight, insurance and rigging charges from the port of entry for Equipment manufactured outside the United States and from the manufacturer's dock for all Equipment manufactured in the United States unless otherwise agreed upon. For Equipment manufactured outside the United States, Seller shall be responsible for international shipping, import, and related charges. All applicable sales, use or similar taxes shall be paid by Buyer. Unless terms of credit have been otherwise agreed upon, Buyer shall pay 10% of the total sales price of Equipment as a deposit at the time Buyer submits its order. Buyer shall pay 80% prior to delivery and the remaining balance of 10%, Net 30 days after installation of the Equipment by Seller at Buyer's facility. Buyer will be deemed to have accepted the Equipment unless Buyer objects or returns the Equipment intact within 30 days of the installation of the Equipment. For pre-owned Equipment, Buyer shall pay 10% of the total price as a deposit and the remaining balance of 90%, plus all applicable taxes prior to shipment. Buyer will be liable for the total cost of Equipment that Buyer orders.
- ELECTRICAL: Seller shall endeavor to verify that the Equipment complies with applicable regulations, codes, and standards. Any costs associated with an inspection or with changes necessary to achieve such a certification shall be paid by Buyer.
- DEFAULT: In the event of any default by Buyer, Seller may, in its discretion, decline to make further shipments of Equipment. If, despite a default by Buyer, Seller elects to continue to make shipments to Buyer, Seller's action shall not be construed as a waiver of the default by Buyer; nor shall Seller's election for such further shipment in any way prejudice Seller's rights or remedies for Buyer's default.
- SECURITY TITLE: Buyer hereby grants to Seller a purchase money security interest in and to all Equipment sold to Buyer for the purpose of collateralizing any and all sums owed by Buyer to Seller pursuant to its order. This Security Agreement between Seller and Buyer incorporates by reference the provisions of the Uniform Commercial Code, as adopted in the State of Minnesota, and Seller shall have all rights and remedies of a secured party set forth in those provisions. Upon request by Seller, Buyer shall execute a Financing Statement for all Equipment sold to Buyer. Title to all Equipment sold pursuant to Buyer's order shall be retained by Seller until such time as Buyer shall have performed all obligations required by its order.
- ASSIGNMENT: Buyer's Purchase Order shall be binding upon and inure to the benefit of the successors and assigns of the Seller, but shall not be otherwise assignable by Buyer without the prior written consent of Seller.
- LOSS OR DAMAGE IN TRANSIT: Seller's liability for loss or damage to the Equipment is limited to events which occur prior to its delivery. Risk of loss or damage after delivery is borne by Buyer.
- WARRANTY: Commencing on the date of installation, either the manufacturer's warranty is passed on to the Buyer when applicable or Seller will correct any malfunction or failure of the Equipment (exclusive of perishable tooling, motors, controls, pumps, valves, gauges, and similar accessories not manufactured by the manufacturer of the Equipment) if the Equipment fails to perform in the manner described by Seller or manufacturer, provided, however, that (i) the malfunction or failure is caused by a defect in material or workmanship in the manufacture of the Equipment; (ii) Buyer gives Seller a timely written notice of the malfunction or failure; and (iii) when requested by Seller, Buyer, at Buyer's expense and where practicable, promptly ships the defective part or equipment to Seller. The foregoing warranty will not apply if, in Seller's good faith judgment, the malfunction or failure of the Equipment is a direct or indirect result of Buyer's misuse, neglect, accident, alteration, or improper installation, use, repair or maintenance of the Equipment. This warranty is limited to the first purchaser of the Equipment and is not transferable to any subsequent purchaser.
- DISCLAIMER OF WARRANTIES:
- THE WARRANTIES PROVIDED IN SECTION 9 ABOVE ARE THE EXCLUSIVE WARRANTIES MADE BY THE SELLER. THERE ARE NO OTHER WARRANTIES – EXPRESS OR IMPLIED BY LAW OR USAGE – WHICH EXTEND BEYOND THOSE SET FORTH HEREIN. SELLER MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- SELLER'S LIABILITY SHALL BE LIMITED SOLELY TO REPAIR, REPLACEMENT, ISSUANCE OF CREDIT OR REFUND OR THE PURCHASE PRICE ACTUALLY PAID BY BUYER UPON THE RETURN OF THE EQUIPMENT TO SELLER OR OTHER AGREED DISPOSITION OF THE EQUIPMENT. SELLER WILL NOT REIMBURSE BUYER FOR ANY REPAIR OR REPLACEMENT COSTS INCURRED BY BUYER WITHOUT SELLER'S PRIOR WRITTEN AUTHORIZATION.
- NOTWITHSTANDING ANY OTHER PROVISION HEREIN, IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR LOSS OF PROFITS, LOSS OF USE, OR DAMAGES OF ANY KIND BASED UPON A CLAIM FOR BREACH OF WARRANTY OR FOR FAULTY WORKMANSHIP OR MATERIALS, INCLUDING WITHOUT LIMITATION CONSEQUENTIAL DAMAGES AND INCIDENTAL DAMAGES.
- COMMENCEMENT OF ACTION: Any action for the breach of warranty or other action arising out of Buyer's purchase of the Equipment covered by this order must be commenced within one year after such cause of action arises.
- LATE PAYMENT CHARGE AND COLLECTION COST: Buyer will be assessed a monthly late payment charge of .5% on any overdue balance that is not paid by Buyer. This charge will continue to accrue until Buyer pays all amounts that are overdue, including the accrued late payment charges. Buyer shall pay Seller all costs incurred by Seller, including reasonable attorneys fees, for collection of overdue payments or repossession of the Equipment.
- MODIFICATION OF TERMS AND CONDITIONS: No addition to or modification of any of these provisions shall be binding upon Seller unless made in writing and signed by a duly authorized representative of Seller. These provisions, together with our written proposal and Buyer's Purchase Order (excepting any terms and conditions attached to Buyer's Purchase Order), constitute the agreement of the parties and any terms, oral or written, not specified in this writing shall not be binding. The terms, conditions and warranties of sale contained herein shall take precedence in determining the legal relationship of the parties.
- GOVERNING LAWS: The Terms and Conditions herein and the relationship between the Buyer and the Seller shall be interpreted and construed in accordance with the laws of the State of Minnesota (without regard to its conflict of laws).
Note: These general terms of sale and delivery apply unless any other terms are specifically agreed.
Updated: ttanchin - 2013/1/15 10:38:00