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Offering
and Governing Provisions.
Equipment
Solutions ("Seller") has contracted with certain manufacturers (each,
a "Manufacturer") to provide equipment to Seller for inclusion in the
Seller's Catalog (the "Catalog") and for resale. For each item of Equipment,
the Manufacturer thereof is identified in the Catalog. Seller's offer
to sell the equipment listed in the catalog (the "Equipment") is subject
to the following terms and conditions. This offer is expressly conditioned upon Buyer's assent to these terms and conditions,
and Buyer's placement of any order for Equipment shall constitute Buyer's
unconditional acceptance of these terms and conditions. Except as set
forth in this Paragraph 1, Seller hereby objects to any additional and/or different terms which may be contained in any of Buyer's forms or other correspondence. No such additional different terms will be of any force or effect.
The terms and conditions set forth herein, and any contract for the sale of Equipment by Seller, shall be governed by and construed in accordance with the laws of the State of Wisconsin, without reference to principles of conflicts of laws.
Prices.
Prices of Equipment shall be the prices published in the-then current
Catalog, as amended or supplemented from time to time by Seller. For all
payments made directly to Seller, payment terms are net thirty (30) days
from the date on the invoice; any payments not made directly to Seller
shall be according to the payment terms then established by Seller. Seller
reserves the right to charge interest of up to 1 ½ % per month (but not
more than the highest rate permitted by law) on all overdue accounts.
Sales
and Similar Taxes.
Any Manufacturer's tax, occupation tax,
use tax, sales tax, excise tax, duty, custom, inspection and testing fee,
or any other tax, fee, interest, or a charge of any nature whatsoever
imposed by any governmental authority, on or measured by the sale by Seller
to Buyer, shall be paid by Buyer in addition to the prices quoted or invoiced.
If Buyer is exempt from any such tax or charge, Buyer shall provide Seller
the applicable exemption certificate. If Seller is required to pay any
such tax, fee, interest or charge, Buyer promptly shall reimburse Seller
therefore.
Errors.
Stenographic and/or clerical errors may occur from time to time in the
catalog, price schedules, program bulletins and announcements, order paperwork,
and other documents developed and distributed by Seller in connection
with the marketing of Equipment. All such errors are subject to correction
by Seller.
Orders.
Orders for Equipment must be placed either by phone or by using one of
the order forms supplied to Buyer. All internet orders are subject to these Terms
and Conditions as amended or revised from time to time by Seller. At Seller's
discretion, Seller may require Buyer to confirm in writing any order placed
by phone or fax. Buyer may not alter or withdraw its order except upon
payment to Seller of an appropriate cancellation charge or restocking
charge.
Delivery.
Except as otherwise specified in the Catalog, or except as otherwise agreed
by Buyer and Seller in writing, Equipment shall be sold F.O.B. Manufacture's
shipping point, commercial carrier freight prepaid. Seller has the right
to select the carrier and mode of transportation. Seller reserves the
right to make delivery in installments and all such installments shall
be separately invoiced and paid for when due, without regard to subsequent
deliveries. Title of Equipment and risk of loss or damage shall pass to
Buyer at the F.O.B. point. In the event of intransit damage to the Equipment,
Buyer shall accept the shipment and file its claim with the delivering
carrier within ten (10) days after receipt of the damaged shipment (with
a copy submitted to Seller) within ten (10) days after receipt of shipment.
Failure to give any notices required under this Paragraph 6 shall constitute
unqualified acceptance and a waiver of all such claims by Buyer.
Security
Interest.
To Buyer hereby grants Seller a security interest in all Equipment ordered
or delivered, until such time as Buyer shall execute and deliver any financing
statements or other documents as may be requested by Seller in order for
Seller to establish an maintain a perfected security interest in the Equipment.
Unloading
and Installation.
Buyer shall be solely responsible for providing
such unloading devices (e.g. fork lift, tow truck) as may be required
to unload Equipment from the carrier. Seller shall cause the Manufacturer
to furnish Buyer with all written installation manuals, directions, and
instructions that the Manufacturer ordinarily supplies with the Equipment.
Seller shall not be responsible for installation, on-site testing, or
start-up of Equipment at Buyer's destination; however, with certain types
of Equipment, some Manufacturers may offer such service to Buyer. The
terms and conditions under which such services are available to Buyer
shall be determined between Buyer and Manufacturer without the involvement
of the Seller.
Right
of Set-Off.
In addition to any right of set-off provided by law to Seller, all monies
and accounts owed Buyer hereunder shall be considered net of indebtedness
of Buyer to Seller (including all its divisions, operating units and subsidiary
corporations) arising from whatever cause; in addition, Seller has the
right to deduct any amounts due to or that become due hereunder to Seller
from any amounts due or to become due to Buyer from Seller
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Notice
of Defect
. In the Event Equipment supplied hereunder is claimed
to be defective, any claims must be made within 30 days after Buyer's
receipt. Seller shall be given ample opportunity to inspect the Equipment,
and Buyer acknowledges and agrees that Seller shall not be liable for
any transportation, fabrication, installation, or other expenses incurred
by Buyer in connection with defective Equipment.
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Pass-Through
Warranty.
Seller
makes no warranty to Buyer regarding the Equipment (other than a warranty
of title) and Seller authorizes no third person or party to assume any
warranty obligation or liability on Seller's behalf. The only warranties
applicable to the Equipment are those, if any, extended by the respective
Manufacturer. The Manufacturer shall furnish to Buyer any and all applicable
warranty documents. Seller hereby assigns to Buyer, without recourse,
any applicable warranties extended to Seller. Such assignment shall constitute
Seller's sole obligation and Buyer's sole and exclusive remedy from Seller
with regard to defective Equipment.
SELLER SHALL HAVE NO OBLIGATION OR LIABILITY TO BUYER UNDER ANY PROVISION OF THIS AGREEMENT, AND HEREBY DISCLAIMS,
ANY EXPRESS OR IMPLIED WARRANTY RELATED TO THE EQUIPMENT, INCLUDING, BUT
NOT LIMITED TO, ANY WARRANTY AGAINST INFRINGEMENT OR ANY IMPLIED WARRANTY
OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Liability.
Seller's liability with respect to the Equipment sold hereunder shall
be limited to the obligation to assign the Manufacturer's warranty as
provided above, and with respect to other performance of the contract
shall be limited to the contract price.
SELLER
SHALL NOT BE SUBJECT TO AND HEREBY DISCLAIMS (1) ANY OTHER OBLIGATIONS
OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT, (2) ANY OBLIGATIONS
WHATSOEVER ARISING FROM TORT CLAIMS (INCLUDING NEGLIGENCE AND STRICT LIABILITY)
OR ARISING UNDER OTHER THEORIES OF LAW WITH RESPECT TO PRODUCT SOLD BY
SELLER, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO, AND (3)
ALL CONSEQUENTIAL, INCIDENTAL AND CONTIGENT DAMAGES WHATSOEVER.
Without
limiting the generality of the foregoing, Seller specifically disclaiming
any liability for penalties (including administrative penalties), special
or punitive damages, damages, damages for lost profits or revenues, costs
of any equipment recall, loss of use of equipment or any associated parts,
costs of capital, costs of substitute equipment, facilitates or services,
downtime, shutdown, or slowdown costs, or for any other types of economic
loss, or claims of Buyer's customers or any third party for any such damages.
Returns.
Equipment may be returns only when Buyer obtains Seller's advance
written permission. Such requests should be made on a return goods authorization
form available from Seller. Returned Equipment must be new, unused, and
in the original carton, must be securely packaged to reach the location
designated by Seller without damage, and must be shipped F.O.B. designated
location, freight prepaid. Seller will issue credit to Buyer only to the
extent that the Manufacturer issues credit to Seller for the return such
Equipment.
Cancellation.
No order may be canceled or altered by Buyer except upon Seller's written
consent.
Aftermarket
Service.
Seller shall cause the Manufacturer to furnish Buyer with
all applicable service manuals, operating manuals, and other like information,
that the Manufacturer ordinarily supplies with the Equipment. Without
assuming responsibility therefore, Seller shall cooperate with and assist
Buyer in obtaining such warranty and after-warranty service as the Equipment
requires.
Failure
or Delay of Performance.
All delivery dates are approximate;
time is not of the essence as regards delivery of the Equipment to Buyer.
Seller shall not be liable for any damage as a result of any failure to
deliver or for any delay in the event and to the extent such failure or
delay results from events beyond Seller's reasonable control including
but not limited to any of the following: acts of God, acts of Manufacturer,
acts of Buyer, fire, flood, war, any transportation or utility shortage
or curtailment, governmental regulations, policies, or action, accident,
slowdown, riot, or labor strike.
No
Agents.
From time to time sales representatives of various
Manufacturers may visit Buyer to promote the sale of Equipment. Buyer
understands and acknowledges that all such representatives act for an
on behalf of their respective Manufacturers only, and that no statements
or representations made by such sales representatives are to be attributed
to Seller or any of its divisions or other operating units.
Equipment
Changes.
Seller has the right to discontinue or suspend the
sale of any Equipment and to make or permit changes in design or specifications
of any Equipment at any time without incurring any obligation or liability
to Buyer with respect thereto; provided, however, that if any pending
orders placed by Buyer would be affected by such a design or specification
change, Seller shall give Buyer advance notice thereof and an opportunity
to cancel.
Waivers.
Except
as otherwise provided herein, no omission or delay by either the Seller
or Buyer at any time to enforce any right or remedy reserved to it, or
to require performance of any of the terms and conditions herein, shall
be a waiver of any such right or remedy to which either party is entitled,
nor shall it in any way affect the right of either party to enforce such
provision(s) thereafter.
General.
When confirmed by Seller, Buyer's order including these Terms
and Conditions shall become the entire agreement between Seller and Buyer
and a complete allocation of risks between Seller and Buyer relating to
Buyer's acquisition of the Equipment. This agreement supersedes all prior
understanding and agreements between the parties relating to the subject
matter hereof and may not be supplemented or amended except expressly
in writing signed by the party to be charged therewith. Buyer may not
assign any of its rights or delegate any of its duties hereunder without
the prior written consent of Seller.
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