Terms and Condition of Sale
1. DEFINITIONS: As used herein, the following terms have the following meanings: “Equipment” means all equipment or products of any kind described or referred to in this invoice. “Seller” means Machinery Network. “Buyer” means the person or entity purchasing the Equipment from Seller, and its successors.
2. CONTRACT; ASSIGNMENT: This invoice is an offer by Seller to sell the Equipment to Buyer on the terms and conditions indicated and is not an acceptance of any offer by Buyer. Buyer may accept this offer orally, in writing or by accepting delivery of any of the Equipment. No terms stated by Buyer in any purchase order, proposal or other document, or in accepting or acknowledging this invoice, shall be binding unless expressly included herein by Seller, and Buyer is hereby notified of Seller’s objection to and rejection of any additional or different terms in any document provided by Buyer. SELLER’S INVOICE IS EXPRESSLY LIMITED TO ACCEPTANCE ON THE TERMS HEREOF. Buyer may not assign this Invoice or any part of its interest here in whole or in part, without the prior written consent of Seller. Any attempted assignment without Seller’s consent will be void.
3. TITLE; RISK OF LOSS; TAXES: Unless otherwise expressly stated in this Invoice, Buyer is solely responsible for all loading, shipping, delivery and insurance costs and arrangements. Risk of loss shall pass to Buyer upon the earlier of payment in full of the purchase price or upon delivery, but title shall pass to Buyer only upon payment in full of the purchase price for the Equipment. Unless otherwise expressly stated in this Invoice, the purchase price indicated for Equipment does not include any relevant taxes, all of which shall be Buyer’s sole responsibility.
4. RETURN PRIVILEGE: If the Equipment is owned by Seller, is shipped on air-ride truck and trailer (and is tarped) and malfunctions or is otherwise in disrepair, Buyer may return it to Seller (freight prepaid by Buyer) within thirty (30) days from shipment and Seller, at its option, will either (i) refund Buyer’s money in full (provided that Buyer is responsible for all freight charges), or (ii) cause the Equipment to be repaired as soon as reasonably practicable and redelivered to Buyer. Such guarantee does not cover damage caused in shipment (vibration, water damage, mishandling, etc.).
5. WARRANTIES; DAMAGES: Except as otherwise provided in Paragraph 4 above or as otherwise specified on the face of the Invoice, Seller warrants only that it has good title to the Equipment. Buyer acknowledges that the Equipment consists of pre-owned, used equipment, which was neither designed nor manufactured by or on behalf of Seller. Seller does not know the specific application of the Equipment by Buyer. Buyer, acknowledges that it is Buyer’s responsibility to provide, and to require all employees to use, appropriate safety devices and equipment for the particular application or use intended by Buyer, so as to protect the operator and others from harm, and to comply with all federal, state and local government laws, rules and regulations related to safety standards and all industry safety standards. It shall be Buyer’s responsibility to provide all the means that may be necessary to effectively protect all employees from serious bodily injury, and to cause their employees to use all appropriate safety devices, guards and proper safe operating procedures. If the Buyer fails to comply with such provisions of this paragraph or the applicable standards or regulations aforementioned, Buyer shall indemnify, defend and save Seller harmless from and against any and all claims, losses or damages arising therefrom. All specifications and descriptions of the Equipment and the condition thereof are estimates only and Seller makes no representations of any kind as to their accuracy or completeness. Seller does not represent that any of the equipment complies with any EPA, OSHA or other governmental safety or environmental standards or regulations and Buyer represents to Seller that Buyer will be solely responsible for ensuring that the Equipment complies with any such safety or environmental standards or regulations. Buyer shall indemnify, defend and hold Seller harmless from any claim, liability or loss of any kind, including attorney’s fees (including any that may be incurred by Seller in a suit between the parties), resulting in whole or in part, from (i) any breach of any representation made by Buyer, or (ii)any claims of death or injury to persons or property arising out of any use or ownership of the equipment after delivery to Buyer, or (iii) any other act or omission of Buyer or any of Buyer’s agents, employees, representatives, parents or subsidiaries in respect to the use of the Equipment, or (iv) claims involving or alleging improper or negligent design, maintenance, construction, reconstruction, repair, alteration or modification of the Equipment by Seller, its agents, or employees, or (v) claims involving or alleging breach of any implied warranty of merchantability, fitness for purpose, or safety of the Equipment. SUBJECT TO THE TERMS OF PARAGRAPH 4 ABOVE AND ANY TERMS ON THE FACE OF THE INVOICE, ALL EQUIPMENT ARE SOLD “AS-IS” AND WITH ALL DEFECTS, SUBJECT TO THE TERMS OF PARAGRAPH 4 ABOVE AND ANY TERMS OF THE FACE OF THE INVOICE, SELLER DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE AND ALL SUCH OTHER WARRANTIES AS TO ANY PRODUCT OR SERVICE SUPPLIED HEREUNDER. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES, DOWN TIME, LOST PROFITS OR LOST SAVINGS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY THEREOF; AND NO PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY DIRECT OR COMPENSATORY DAMAGES IN EXCESS OF THE PURCHASE PRICE.
6. INSPECTION: Buyer has been given the opportunity to inspect all Equipment prior to delivery. Buyer’s pickup of the Equipment shall constitute its final acceptance of such Equipment and Buyer hereby waives all rights to revoke such acceptance, except as provided in paragraph 4 above.
7. NO RELIANCE: Buyer hereby acknowledges that Buyer has not relied on any representation outside these terms and conditions to induce Buyer to enter into this contract.
8. ATTORNEYS’ FEES: In the event either party hereto institutes any suit or action to enforce its rights hereunder, the prevailing party shall be entitled to reimbursement of its costs and expenses, including without limitation reasonable attorneys’ fees.
9. GOVERNING LAW AND VENUE: This Agreement shall be governed by the laws of the State of California regardless of its place of execution or performance.
10. DISPUTES: Any controversy or claim relating to this Agreement shall be settled by arbitration in accordance with the Rules of the American Arbitration Association, and judgment upon the award (which shall include attorneys’ fees to the prevailing party), rendered by the arbitrators may be entered in any court having jurisdiction thereof.
11. DELIVERY AND FORCE MAJEURE: Any delivery or shipping date given is an estimated date only. Seller’s obligations hereunder, including, but not limited to its obligations to deliver the Equipment, is subject to delays incident to labor difficulties, fires, casualties and accidents, acts of the elements, acts of God, transportation difficulties, delays by common carrier, inability to obtain equipment, materials or components or qualified labor sufficient to timely perform part or all of this Agreement; and governmental regulations or other like causes beyond the control of Seller. In the event of any such delays, the delivery of the Equipment shall be correspondingly extended.
12. MISCELLANEOUS: This Agreement constitutes the entire Agreement between Seller and Buyer and supersedes any and all prior agreements, correspondence, quotations or understandings heretofore in force between the parties. There are no agreements between Seller and Buyer with respect to the Equipment herein except those specifically set forth and made part of this Agreement. Waivers by Seller of a breach of any of the terms and conditions of this or any agreement with Buyer shall not be construed as a waiver of any other breach.
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