IMPORTANT WARRANTY INFORMATION & TERMS AND CONDITIONS OF SALE
As used herein, the term “Seller” shall mean Alan Ross Machinery, an Illinois corporation, who for the purposes of this agreement may also be referred to as the “Broker” in those instances where it does not hold title to the equipment at the time of quotation and/or invoicing and without limitation or exclusion of any terms and conditions stated herein. The term “Buyer” shall mean the person or business executing the order for purchase of the equipment identified or described in the Invoice (the “equipment”). Subject to the terms of section 10, this document constitutes the full and final agreement of the parties for the purchase and sale of the goods and services described on this quotation or invoice, and are not to be modified or amended by any prior agreement, whether written or oral. Modifications to this agreement shall be in effect only if signed by the parties in writing, and no modification shall be affected by acknowledgment, acceptance or receipt of purchase order forms containing different terms or conditions. This sale is expressly made conditional on Buyer’s assent to, and Seller agrees to furnish goods and services only upon the terms and conditions herein, or any agreed to modification. No other representations or warranties shall be binding against Seller other than those stated herein.
(1) PRICE. All prices quoted and invoiced are exclusive of federal, state, municipal and foreign sales, use or similar taxes and/or duties Seller may be required to collect or pay and that Buyer shall be responsible to pay. Pricing on Brokered machinery may change without notice at any time, including after inspection.
(2) TERMS AND DELIVERY. Quotes and invoices are for immediate acceptance, subject to prior sale or other disposition and change without notice. Buyer shall pay a non-refundable deposit and balance of the purchase price prior to removal of equipment. Invoices not paid in full on the date equipment is ready for removal shall be subject to liquidation, with Buyer’s deposit retained as liquidated damages. Acceptance, constituted by receipt of cleared funds, is made with the mutual understand that Buyer’s order is not subject to cancellation. Shipping dates where provided are approximate only, and are contingent upon delay or force majeure. Buyer agrees to, and is responsible for, removal of equipment within 5 days of notice of its availability for removal, contingent upon force majeure, unless otherwise stated herein or equipment shall be considered abandoned and Buyer shall be responsible for associated costs of removal, including all collection expenses, which may include reasonable attorney’s fees, costs and expenses, incurred by Seller as a result of abandoned equipment or cancellation.
(3) INSPECTION. Buyer is encouraged to inspect the equipment prior to shipment, The Buyer acknowledges they are a sophisticated purchaser of machinery and hereby accepts responsibility for equipment application suitability, or defects or faults in equipment that is purchased “as-is”.
(4) IMPORTANT: EQUIPMENT USE AND SAFETY. BUYER ACKNOWLEDGES THE EQUIPMENT MAY CONTAIN CERTAIN UNAVOIDABLE RISKS, WHICH MAY ARISE DURING USE, OPERATIONS OR AFTER SALE, AND THAT THE EQUIPMENT MAY BE INHERENTLY DANGEROUS. BUYER ACKNOWLEDGES SUCH RISKS AND DANGERS, AND EXPRESSLY REPRESENTS AND WARRANTS THAT BUYER WILL ASSUME ALL RESPONSIBILITY FOR PERSONAL INJURIES ARISING FROM THE USE, OPERATION AND SALE OF THE EQUIPMENT. BUYER ACKNOWLEDGES THAT THE EQUIPMENT WAS NEITHER DESIGNED NOR MANUFACTURED BY SELLER AND THAT SELLER DOES NOT KNOW OF BUYER’S SPECIFIC APPLICATION. BUYER REPRESENTS AND WARRANTS THAT IT IS BUYER’S SOLE RESPONSIBILITY TO PROVIDE PROPER SAFETY PRECAUTIONS (E.G., EMPLOYEE TRAINING, USER INSTRUCTIONS, WARNINGS, LABELS, SCREENING, SAFETY GUARDS, EMERGENCY STOP SWITCHES AND OTHER SAFETY DEVICES) TO SAFEGUARD BUYER AND OTHERS FROM HARM ARISING FROM THE USE, OPERATION OR SALE OF EQUIPMENT. BUYER REPRESENTS AND WARRANTS THAT IT WILL CONFORM THE EQUIPMENT TO FEDERAL, STATE AND INDUSTRY SAFETY STANDARDS AND CONFORM THE EQUIPMENT TO MANUFACTURER’S WARNINGS AND INSTRUCTIONS PRIOR TO USE, OPERATION OR RESALE.
(5) ALL WARRANTIES DISCLAIMED SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING NO WARRANTIES OF QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND BUYER EXPRESSLY AGREES TO ASSUME ALL RISKS AND LIABILITY FOR THE USE, OPERATION AND SALE OF THE EQUIPMENT, WHETHER USED, OPERATED OR SOLD SINGLY OR IN COMBINATION WITH OTHER EQUIPMENT, GOODS OR PRODUCTS. THE DESCRIPTION OF THE EQUIPMENT PROVIDED IN THE INVOICE IS FOR THE SOLE PURPOSE OF IDENTIFYING THE SAME AND DOES NOT CONSTITUTE A REPRESENTATION OR WARRANTY THAT THE EQUIPMENT CONFORMS TO SUCH DESCRIPTION, CONDITION OR SPECIFICATION. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY OTHER PERSON FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO PROPERTY DAMAGE, PERSONAL INJURY, REVENUE LOSS OR LOSS OF PROFITS OR CLAIMS OF CUSTOMERS OR BUYER FOR ANY SUCH LOSS OR DAMAGE, AND NOTWITHSTANDING THE PROVISIONS OF ANY STATUTE OR LAW. THE TERMS OF THIS CLAUSE SHALL CONSTITUTE THE EXCLUSIVE REMEDY OF BUYER AND THE EXCLUSIVE REMEDY OF SELLER. EQUIPMENT SOLD “GUARANTEED” IS IN ALL RESPECTS OFFERED “AS-IS,” BUT IS SOLD WITH A 30-DAY RETURN OR REPAIR PRIVILEGE (“LIMITED WARRANTY”) AT THE SOLE DISCRETION OF SELLER, WHICH WILL HAVE NO OBLIGATION WITH RESPECT TO SUCH EQUIPMENT AFTER 30 DAYS FROM DATE OF SHIPMENT, REGARDLESS OF ANY NOTIFICATION OF DEFECT, OR ANY REMEDIAL ACTIONS ON THE PART OF THE SELLER. EQUIPMENT SOLD “AS-IS” CARRIES NO RETURN PRIVILEGE UNDER ANY CIRCUMSTANCES. IN THE EVENT OF IMPROPER INSTALLATION, ALTERATION, ABUSE, MISUSE, ACCIDENT, FIRE, FLOOD OR ACTS OF GOD, ANY WARRANTIES WHICH MAY BE GIVEN BY SELLER TO BUYER ARE HEREBY REVOKED AND CANCELED.
(6) INDEMNITY. Buyer acknowledges hereby that Buyer is a sophisticated purchaser. Buyer expressly agrees as a condition of its purchase of the goods that it will indemnify and hold harmless the Seller, its agents, servants and employees, from any and all claims that may hereafter at any time be asserted by any subsequent owner, purchaser or user of the goods or by any third party arising from any purported defect(s) in the goods or by reason of the use of the goods. Such indemnification shall include, but not be limited to, attorney's’ fees and/or legal expenses relating to such claims. The Buyer agrees to assume all responsibility in connection with the goods upon delivery thereof to the Purchaser or to a common carrier, whichever occurs first. Except for claims covered by the express warranty set forth above, the Purchaser shall indemnify and hold harmless the Seller, its agents, servants and its employees, from and against any and all losses, expenses, demands, and claims made against the Seller, its agents, servants and its employees by the Purchaser, any agent, servant or employee of the Purchaser, any subsequent Purchaser, any lessor or lessee, or any other person because of injury or illness or alleged injury or illness (including death) or damage, actual or alleged, whether by the sole negligence of the Seller, alleged infringement of or litigation concerning any trade name, trademark, patent, design, copyright, right of privacy or similar right in connection with the equipment, the current negligence of the Seller with the Purchaser, any subsequent purchaser, any agent, servant or employee of any subsequent purchaser, any lessor or lessee, any agent, servant or employee of any lessor or lessee, or any other person, arising out of, resulting from, or in any way connected with, the operation, maintenance, possession, use, transportation, or disposition of the goods, including that caused by hazardous materials on or in them, or of the possession, operation, maintenance, transportation, use or disposition of the goods by subsequent purchasers, lessors, owners, lessees of any other person, including that caused by hazardous materials on or in the goods. Such indemnification includes, but is not limited to, all attorney’s fees and legal expenses relating to such claims. The Purchaser agrees to defend at its own expense any suit, action or cause of action brought against the Seller, its agents, servants or employees based on any such alleged injury, illness or damage, and to pay all damages awarded them.
(7) FORCE MAJEURE. Seller shall not be liable for any damages or penalty for delay in delivery or for failure to give notice of delay when such delay is due to the elements, acts of God, acts of Buyer, acts of civil or military authority, fires, floods, war, riots, strikes, differences with workmen, accidents to machinery, truck/container shortages, delays in transportation, delays in delivery by Sellers’ vendors, or any other causes beyond the reasonable control of the Seller.
(8) LIMITATIONS OF REMEDIES. In no event shall seller be liable for: incidental, special or consequential damages, lost profits, or any expenses. Buyer’s claims for damages must be made within 30 business days of removal or such claims are forever barred.
(9) GOVERNING LAW AND DISPUTES. This agreement shall be construed in accordance with the laws of the State of Illinois, without regard to choice of law or conflicts of law principles. The parties consent to the exclusive jurisdiction and venue of the courts of Cook County, Illinois or the United States District Court for the Northern District of Illinois, USA in any action or judicial proceeding brought to enforce, construe, or interpret this contract.
(10) SEVERABILITY. If any one or more of the terms and conditions set forth herein is determined to be invalid or unenforceable all other provisions of the terms and conditions shall remain in full force and effect.
(11) ASSIGNMENT. Buyer may not assign, pledge or encumber its interest in its contract, nor delegate its duties hereunder. Seller may freely assign its rights and obligations under this contract without Buyer’s prior consent.