ACCEPTANCE AND ENTIRE CONTRACT.
THIS SALES ORDER, INCLUDING THESE TERMS AND CONDITIONS, CONSTITUTES THE ENTIRE AGREEMENT OF THE PARTIES FOR THE SALE AND/OR LEASE OF THE GOODS DESCRIBED IN THIS SALES ORDER. ANY INCONSISTENT OR ADDITIONAL TERMS CONTAINED IN BUYER’S FORMS OR DOCUMENTS PLACING OR CONFIRMING THE ORDER ARE EXPRESSLY REJECTED AND SHALL NOT BE BINDING ON SELLER, UNLESS, AND ONLY TO THE EXTENT THAT, SUCH INCONSISTENT OR ADDITIONAL TERMS ARE SPECIFICALLY ACCEPTED BY SELLER IN A WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED CORPORATE OFFICER OF SELLER. ABSENT SUCH WRITTEN AGREEMENT OF SELLER, SELLER ACCEPTS BUYER’S ORDER ONLY ON THE EXPRESS CONDITION THAT BUYER ASSENTS TO THESE TERMS AND CONDITIONS. BUYER’S ACCEPTANCE OF, RECEIPT OF OR PAYMENT FOR THE GOODS SHIPPED HEREUNDER SHALL CONSTITUTE ASSENT TO THESE TERMS AND CONDITIONS. NO OTHER UNDERSTANDING OR AGREEMENT PURPORTING TO MODIFY OR VARY ANY OF THE TERMS OF THIS DOCUMENT SHALL BE BINDING, UNLESS IT IS IN WRITING AND SIGNED BY AN AUTHORIZED CORPORATE OFFICER OF SELLER. THESE TERMS AND CONDITIONS APPLY FULLY TO BUYER REGARDLESS OF WHETHER TITLE TO THE GOODS DESCRIBED PASSES TO BUYER, WHETHER BUYER LEASES THE GOODS DESCRIBED FROM SELLER OR FROM SOME OTHER ENTITY OR WHETHER BUYER OBTAINS POSSESSION OF THE GOODS DESCRIBED BY SOME OTHER MEANS. IN THE EVENT OF ANY CONFLICT BETWEEN THESE TERMS AND CONDITIONS AND ANY PROVISIONS STATED ON THE FACE OF THIS SALES ORDER, THESE TERMS AND CONDITIONS SHALL CONTROL EXCEPT TO THE EXTENT THAT THEY ARE SPECIFICALLY MODIFIED ON THE FACE OF THIS SALES ORDER.
DISCLAIMER OF WARRANTIES.
NOTWITHSTANDING ANY CONTRARY PROVISION OF THIS SALES ORDER, THE GOODS ARE PURCHASED BY THE BUYER “AS IS,” “WHERE IS” AND “WITH ALL FAULTS.” THE SELLER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER MATTER WITH RESPECT TO THE GOODS, AND ALL SUCH REPRESENTATIONS AND WARRANTIES ARE EXPRESSLY DISCLAIMED.
Descriptions, models, samples and specifications for the Goods are not warranted by the Seller to be accurate or complete. Models or samples are used only to illustrate the general type and quality of the Goods. Descriptions of the Goods are for the sole purpose of identifying the Goods for sale. The Seller shall not be responsible for any inaccuracies, insufficiencies, or omissions in descriptions, samples, models and specifications. Buyer acknowledges that Buyer is not relying on any description, sample, model or specification from Seller. Buyer has conducted its own independent inspection and examination of the Goods. Buyer acknowledges it is satisfied with the Goods in every way.
The employees or representatives of the Seller are not authorized to make any statement or representation as to the quality, character, size, condition, quantity, etc. of the Goods, and any such statements or representations are expressly disclaimed by Seller.
In connection with new equipment, any warranties that exist (if any) will come directly from the manufacturer of the Goods and not from Seller.
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SALES.
USED EQUIPMENT. WARNING - Buyer understands that the Goods have been used by persons other than the Seller. Buyer understands that the Goods may bear or contain hazardous chemicals or other hazardous materials. Buyer understands that the Goods may be or may become, by chemical reaction or otherwise, directly or indirectly hazardous to life, to health or to property by reason of toxicity, flammability, explosiveness, electric shock, moving parts or for other reasons during use, handling, cleaning, reconditioning or disposal. Buyer acknowledges that the Seller did not design or manufacture the Goods and does not have specialized expertise in Goods. BUYER MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE SAFETY OF THE GOODS, AND EXPRESSLY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES.
Buyer understands that (i) Seller may have performed limited repair, part replacement, reconditioning or refurbishment work on the Goods or components thereof as described on the face of this Sales Order, and (ii) Seller may have performed limited testing of the Goods or components thereof to determine whether they are capable of operating, including videotaping of the Goods or components while operating. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE EFFECTIVENESS OR COMPLETENESS OF SUCH WORK OR TESTING, AND EXPRESSLY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES. BUYER EXPRESSLY AGREES THAT BUYER HAS NOT RELIED UPON ANY SUCH WORK OR TESTING PERFORMED BY SELLER, AND HAS RELIED SOLELY ON ITS OWN INDEPENDENT INSPECTION AND EXAMINATION OF THE GOODS, IN MAKING ITS DECISION TO PURCHASE OR LEASE THE GOODS.
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NEW EQUIPMENT. Buyer acknowledges that the seller did not design or manufacture the Goods and does not have specialized expertise in Goods. Buyer understands that Seller is merely acting as a reseller of the Goods and that any warranties that exist (if any) come directly from the manufacturer and not from Seller. Buyer acknowledges and agrees that any warranty or liability claims rest exclusively with the applicable manufacturer and not with Seller.
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BUYER'S INDEMNITY OF ARLINGTON.
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WARNING - The Goods may be dangerous if improperly used. The Buyer covenants that it will contact the original manufacturer to obtain installation and operation information to insure the safe and proper operation of Goods as well as appropriate and proper training for anyone using or operating the Goods. Buyer agrees that Seller is not responsible for any damage, loss or injury resulting from defects in the items sold or from subsequent installation and use of the Goods by Buyer or any other person. Buyer expressly agrees as a condition of its purchase that it will defend, indemnify and hold Seller harmless from any and all claims, actions, demands, damages, costs, liabilities and losses (including, without limitation, attorneys’ fees) arising from or related to any purported defect in the Goods or by reason of the use of these items regardless of who holds, brings or makes said claim, action or demand. Buyer agrees to assume all responsibility in connection with the Goods upon delivery to a common carrier.
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HAZARDS LIABILITY - Buyer shall defend, indemnify and hold Seller harmless from and against any and all claims, actions, demands, damages, costs, liabilities and losses (including, without limitation, attorneys’ fees), made against Seller, its agents, servants, employees, officers, directors and/or indemnitees due to death, injury or illness or property damage whether caused by the actions, inactions, fault, or negligence, (including sole negligence) of Seller or Buyer, of any subsequent buyer, of any lessor or lessee or of any other person, or otherwise arising out of, resulting from or in any way connected with the operation, maintenance, possession, use, transportation, repair or disposition of the Goods, including that caused by hazardous chemicals or other hazardous material on or in them. Buyers shall disclose these Terms and Conditions to any subsequent buyer or user of the Goods and that Seller is indemnified and held harmless by Buyer as described herein. Seller shall be named and shall become an additional insured on all of Buyer’s liability insurance policies.
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INSURANCE AND SAFETY RULES INSURANCE.
Buyer shall not move, load, transport, or otherwise handle the Goods on Seller’s premises without first having obtained insurance coverage satisfactory to Seller. Certificates of Insurance evidencing such insurance coverage shall be furnished to Seller. Purchaser shall comply with Seller’s plant safety rules and regulations.
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FORCE MAJEURE.
Delivery or other performance hereunder may be suspended in case of act of God, war, sabotage, accidents, riots, fire, explosion, flood, strike, lockout, injunction, inability to obtain fuel power, raw materials, labor containers or transportation facilities, accident, breakage of machinery or apparatus, national defense requirements, or any cause beyond the control of such party preventing the shipment, acceptance or consumption of a shipment of Goods. Suspended deliveries shall be cancelled without liability, but the Terms and Conditions shall otherwise remain unaffected.
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PURCHASER’S CREDIT.
Seller reserves the right, among its other remedies, to terminate this contract or to suspend further performance in the event Buyer fails to make any payment when same becomes due. Should Buyer’s financial condition become unsatisfactory to Seller, cash or satisfactory security may be required by the Seller for future deliveries of Goods.
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INSPECTION.
Buyer has inspected the Goods or hereby acknowledges that Seller invited, urged, and cautioned Buyer to inspect same because Seller has not made and does not make any representation or warranty in connection with their condition. Buyer assumes all risks from handling, storage, resale, disposal, or from use or disposition of the Goods. Buyer agrees to defend, indemnify and hold Seller harmless for any amounts Seller may pay pursuant to judgment or settlement (including, without limitation, attorneys’ fees) of any claims made against Seller by reason of damage to property or injury to or death of persons resulting from Buyer’s handling, storage, resale, disposal, or from other use or disposition of the Goods.
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DAMAGES.
Seller’s liability with respect to Goods sold to Buyer shall be limited to refunding payment made and canceling the sale. Buyer’s sole remedy, in the event of a default by Seller, is to cancel the contract and obtain a refund of any sums paid. In no event shall Seller be liable whether by contract, breach of warranty, negligence, strict tort liability or any other legal theory, for incidental, special or consequential damages, or any shipping costs, including without limitation loss of profits, loss of production, loss of sales and interruption of manufacturing or operations or any other damages or losses.
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ASSIGNMENT.
Purchaser may not assign its rights or delegate its performance in whole or in part hereunder without the prior written consent of the Seller. Any attempted assignment or delegation of Buyer’s rights and obligations hereunder without Seller’s written consent shall be void; however, Seller shall not unreasonably withhold such consent.
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MISCELLANEOUS.
Interpretation and enforcement of this Sales Order and the performance thereof and of all causes of action relating in any way to this Sales Order or to Goods shall be construed solely according to the laws of the State of Illinois exclusive of its rules regarding choice of law. The Buyer and Seller agree that the courts of the State of Illinois shall be the sole, exclusive and only forum in which disputes arising hereunder or as a consequence hereof shall be adjudicated. The Buyer and Seller agree that any and all claims arising hereunder or as a consequence hereof must be brought in the courts of the State of Illinois. The Buyer and Seller also agree that venue for all claims arising relating in any way to this Sales Order or to the Goods shall, at all times, be solely and exclusively in Cook County, Illinois, and Buyer waives any claims as to inconvenient forum.
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TERMS OF PAYMENT.
Payment due and payable on or before shipment, unless otherwise specifically agreed to in a writing signed by Seller. Full payment is required within 30 days of the Sales Order date and machinery must be removed within 60 days of the Sales Order date or deposit will be forfeited, unless otherwise specifically agreed to in a writing signed by Seller.
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TAXES.
All taxes assessed in connection with the sale or lease of Goods pursuant to this Sales Order are the responsibility of the Buyer including but not limited to local and regional sales tax and personal property tax or the Buyer is to provide Seller with valid exemption certificate. In the event that Buyer either fails to pay the tax or other charges or fails to provide a valid exemption certificate, Buyer agrees to indemnify and hold Seller harmless from any liability and expense by reason of such failure.
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MODIFICATION.
Purchaser understands and agrees that (a) no modification or waiver of these Terms and Conditions shall be effective unless made by an authorized officer of Seller in writing addressed to Buyer and specifically referring to this Sales Order and (b) Seller’s receipt of any writing from Buyer which is in conflict with these Terms and Conditions and any subsequent delivery of Goods shall not constitute a modification or waiver of these Terms and Conditions.
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DIRECTION.
BUYER ACKNOWLEDGES THAT ANY WORK DONE BY SELLER ON THE GOODS IS DONE AT THE SOLE REQUEST AND SOLE DIRECTION OF BUYER USING THE DESIGNS, INSTRUCTIONS, SPECIFICATIONS AND ENGINEERING PROVIDED BY THE BUYER.
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SEVERABILITY.
If any provision of this Sales Order or these Terms and Conditions is determined to be illegal or unenforceable: (a) It shall be reconstrued so as to be enforceable to the fullest extent permitted by law, and (b) It shall not affect the enforceability of any other provision or paragraph of this Sales Order or these Terms and Conditions.
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COUNTERPARTS.
This Agreement may be executed in one or more counterparts and by transmission of a facsimile or digital image containing the signature of the person so executing, each of which shall be deemed and accepted as an original, and all of which together shall constitute a single instrument.