This Agreement is made between the Seller (“Seller”) and the Buyer (“Buyer”) identified on the cover page accompanying this Agreement. This Agreement shall not be binding unless and until the order is accepted by Seller and the various manufacturers from whom the non-MacNeil equipment will be purchased for resale to Buyer.
1. GENERAL. This Agreement (along with any associated written specification, quotation and/or supplemental terms and conditions provided by Seller) exclusively will govern the sale or licensing by Seller of all goods and services (including without limitation, equipment, hardware, firmware and software products, installation, integration, training, programming, maintenance, engineering, parts, repair and remanufacturing services – hereinafter, “Products”) furnished to Buyer hereunder, and represents the entire agreement between Buyer and Seller with respect thereto. No addition or modification to these terms and conditions will be binding on Seller unless agreed to in writing signed by an authorized representative at Seller’s headquarters. Seller objects to and rejects other terms and conditions that may be proposed by Buyer or that appear on or are referenced in Buyer’s purchase order or requisition that are in addition to or otherwise not consistent with the terms and conditions set forth or referenced herein.
2. PRICE. Buyer agrees to purchase the Products identified on the Sales Contract and Supplements hereto for the prices indicated. Prices and other information shown in any Seller publication (including product catalogs and brochures) are subject to CHANGE WITHOUT NOTICE and are not to be construed as a definite quotation or offer to sell by Seller. Such publications are not offers to sell and are maintained only as a source of general information, and any prices shown therein are subject to confirmation with a specific quotation. Specific quotations expire thirty (30) days from the date of quotation, unless otherwise stipulated in the Sales Contract, and are valid only when signed by an officer of Seller at its corporate headquarters. All prices are quoted exclusive of all freight delivery charges and all city, state and federal taxes and excises, direct or indirect, including without limitation, taxes on manufacture, sales, receipts, gross income, occupation, consumption, use and similar taxes. Wherever applicable, any tax or taxes will be added to the invoice as a separate charge to be paid by Buyer. Prices do not reflect any other fees for items including, but not limited to, inspections, licenses, permits, testing (UL or ETL, for example) union labor supervision, and insurance. Any and all such fees are the responsibility of Buyer. Time and material services will be provided in accordance with Seller’s published service rates (including applicable overtime and travel expenses) in effect as of the date such services are provided, unless otherwise confirmed by Seller’s written quotation or order acknowledgment. Billable service time includes travel time to and from the job site and all time Seller’s representatives are available for work and waiting (whether on or off the job site) to perform the services. Price discrepancies must be submitted for review and approval in writing no more than 30 days from the invoice date. Those received after 30 days will not be considered for review. Seller will provide written notification of the final credit adjustment or denial.
3. PAYMENT TERMS. Unless otherwise set forth in writing hereto, a 30% deposit is required upon execution of this Agreement, and Buyer shall, prior to shipment, pay the cash balance for the Products sold to Buyer under this Agreement. Seller reserves the rights not to ship the Products until payment in full is received and/or to ship the Products under reservation for payment against documents of title. Prices on the Sales Contract and other Supplements shall remain in effect for ninety (90) days after an order is accepted by Seller. Thereafter, any price increases for the Products sold by Seller from and after the date of this Agreement and prior to shipment shall be added to the total purchase price unless otherwise agreed.
4. PAYMENT SEQUENCE. i) Wholesale Customers: 30% deposit required to place order and balance due 21 days prior to agreed-upon delivery date. ii) Retail Customers Equipment Only: $10,000 deposit to lock in pricing (90 days unless otherwise agreed) and to begin development of site/project specific drawings, 30% required to place order, and balance due 21 calendar days prior to agreed upon delivery date. iii) Retail Customers Equipment and Installation: $10,000 deposit to lock in pricing (90 days unless otherwise agreed) and to begin development of site/project specific drawings, 30% deposit of total contract to place order, 45% of total contract due 21 days prior to agreed upon delivery date, 20% of total contract due upon substantial completion of installation, and balance due upon site turnover to begin installation warranty. Any unpaid amounts shall accrue interest at the lesser rate of 1.5% per month or the maximum allowed by law. Buyer shall reimburse Seller for any collection agency or attorneys’ fees related to Buyer’s failure to pay amounts when due.
5. DELIVERY DATES. Production slots are secured with a minimum of 30% order deposit and complete order information and drawing approval when applicable. Standard lead time is 8 weeks from factory Order Acknowledgement. Delivery dates must be locked in or changed 21 days prior to delivery date specified on Order Acknowledgement as follows: a) Lock-in original delivery date with receipt of balance due or progress payment as the case may be 21 days prior to agreed upon delivery date; b) Bill and hold for ship date of choice with receipt of balance due on equipment portion of contract 21 days prior to agreed upon delivery date and activate the pre-signed Bill and Hold Agreement – this will secure delivery date of choice within 60 days of original delivery date on Order Acknowledgement; c) Release agreed upon delivery date by failing to Pay Balance due 21 days prior to agreed upon delivery date on Order Acknowledgement and move to next available production slot in the production queue.
6. TAXES AND OTHER RIGHTS. Buyer shall be responsible for remitting to Seller, along with the purchase price, all sales tax or use tax (or any tax in lieu of such taxes) arising from this sale or Buyer’s purchase, ownership or use of the Products. Buyer indemnifies Seller from any action or collection arising from Buyer not paying sales tax or use tax (or any tax in lieu of such taxes) arising from this sale or Buyer’s purchase.
7. DELIVERY TERMS. Delivery terms are Ex Works (EXW) OEM factory (per current Incoterms) or as otherwise agreed to as evidenced by Seller’s order acknowledgment. Seller disclaims all liability for late delivery. Shipping will be prepaid and added to the invoice.
8. TITLE AND SECURITY INTERESTS. In all cases, title transfers to Buyer upon the earlier of Seller’s delivery to Buyer or receipt by the first carrier for transport to Buyer, except; 1) title to all intellectual property rights associated with the Products remains with Seller or its suppliers and licensors; and 2) title to the Products shipped on credit with “Balance due upon receipt of invoice” shall remain with the Seller until all payments are made. In the event title is determined to have transferred to Buyer prior to all payments being made, Buyer hereby grants Seller a security interest in the Products and agrees to execute all instruments in connection therewith. The Products shall at all times be deemed personal property, even after attachment or connection to realty. The Buyer shall keep the Products in good working condition, and physical appearance, and all Products free of liens. The Products shall not be removed from the Buyer’s premises without the written consent of the Seller. Until the purchase price is fully paid, the Buyer shall maintain comprehensive insurance on the Products for its full new retail value. Moreover, if Buyer does not make final, and full payment within 30 days of the substantial completion of the project, Buyer grants Seller the right, unannounced, to enter the property and remove any of the equipment Seller sold/installed without any liability for damage caused thereby to Buyer’s property. If Buyer subsequently pays Seller, Seller will charge Buyer, and Buyer will pay in advance, the cost to reinstall the equipment. In addition, Seller reserves all its legal rights to collect any outstanding balance.
9. INSPECTION AND RISK OF LOSS. Buyer agrees to inspect all Products upon arrival. Buyer hereby assumes the risk of loss from any hazards occurring after delivery by Seller to a carrier for shipment to Buyer and agrees to assert all claims for damages or losses in traffic directly against such carrier. Claims for shortages must be made to Seller at its home office within ten (10) days after start up of Products, but in no event later than three (3) months after the date of original shipment. Buyer agrees to provide Seller a reasonable opportunity for inspection after receipt of any claim.
10. DISCLAIMER OF WARRANTY. SELLER MAKES NO WARRANTIES AS TO PRODUCTS SOLD HEREUNDER EXCEPT AS PROVIDED IN THIS AGREEMENT. SELLER MAKES NO WARRANTY THAT PRODUCTS SOLD UNDER THIS AGREEMENT WILL BE MERCHANTABLE OR THAT SUCH PRODUCTS WILL BE FIT FOR ANY PARTICULAR PURPOSE. SELLER EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, EXCEPT AS FOLLOWS:
(a). Equipment and Hardware: Seller makes no representation or warranty, express or implied, with respect to any equipment, parts, components or hardware Products provided hereunder and only the manufacturer’s warranty shall apply. Buyer must consult the applicable manufacturer’s warranty for details. All Products subject to such manufacturer’s warranty must be returned to the manufacturer for inspection and are subject to approval from the applicable manufacturer. Seller will administer the manufacturers’ warranty for Buyer but all warranty claims rejected by the manufacturer, and any corresponding costs, are the Buyer’s responsibility.
(b). Software and Firmware: Seller makes no representation or warranty, express or implied, that the operation of the software or firmware Products will be uninterrupted or error free, or that the functions contained therein will meet or satisfy Buyer’s intended use or requirements. For the Products provided hereunder, only the manufacturer’s warranty shall apply. Customer must consult the applicable manufacturer’s warranty for specific details. Seller will administer the manufacturers’ warranty for Buyer but all warranty claims rejected by the manufacturer, and any corresponding costs, are the Buyer’s responsibility.
(c). Services: Seller warrants that Services performed by Seller will be free from defects in material and workmanship for a period of ninety (90) days from the date of substantial completion of the scope of work. Seller warrants that Products comprised solely of services (e.g., installation, training, on-site repair, engineering and custom application programming services) will be performed by appropriately skilled personnel employed or retained by Seller and will only be performed during normal business hours. Worked performed outside of normal business hours will be billed per normal overtime or holiday rates.
d). Remedies: 1) Remedies under the above warranties for hardware, software and firmware will be limited, in accordance with the manufacturer’s warranty. 2) Remedies under the above warranty for services performed will be limited to 90 days, unless otherwise agreed upon in writing, for Buyer requested on-site warranty service (consisting of time, travel and expenses related to such services) excluding nuisance calls. In the event of repair or replacement, this limited warranty is noncumulative. The foregoing will be the exclusive remedies for any breach of warranty or breach of contract arising there from.
(e). General: Warranty satisfaction is available only if (a) Seller is provided prompt written notice of the warranty claim and (b) Seller’s examination confirms that any alleged defect has not been caused by misuse; neglect; improper installation, operation, maintenance, repair, alteration or modification by other than Seller; accident; or unusual deterioration or degradation of the Products or parts thereof due to physical environment, acidic or alkaline chemicals, or electrical or electromagnetic noise environment and (c) Buyer is the original purchaser.
(f).THE ABOVE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, OR PERFORMANCE OR APPLICATION WARRANTIES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
11. DISCLAIMER AND LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SELLER WILL NOT BE LIABLE FOR ANY BUSINESS INTERRUPTION OR LOSS OF PROFIT, REVENUE, MATERIALS, ANTICIPATED SAVINGS, DATA, CONTRACT, GOODWILL OR THE LIKE (WHETHER DIRECT OR INDIRECT IN NATURE) OR FOR ANY OTHER FORM OF INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND. SELLER’S MAXIMUM CUMULATIVE LIABILITY RELATIVE TO ALL OTHER CLAIMS AND LIABILITIES, INCLUDING OBLIGATIONS UNDER ANY INDEMNITY, WHETHER OR NOT INSURED, WILL NOT EXCEED THE COST OF THE SERVICES PROVIDED BY SELLER. FOR HARDWARE, SOFTWARE AND FIRMWARE WHICH GIVE RISE TO ANY CLAIM OR LIABILITY, BUYER AGREES TO SEEK REDRESS WITH THE MANUFACTURER OF THE HARDWARE, SOFTWARE OR FIRMWARE EXCLUSIVELY. SELLER DISCLAIMS ALL LIABILITY RELATIVE TO GRATUITOUS INFORMATION OR ASSISTANCE PROVIDED BY, BUT NOT REQUIRED OF SELLER HEREUNDER. ANY ACTION AGAINST SELLER MUST BE BROUGHT WITHIN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF ANY OTHER CONTRARY PROVISION HEREOF AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE. EACH PROVISION HEREOF WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY OR CONDITION OR EXCLUSION OF DAMAGES IS SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND IS TO BE ENFORCED AS SUCH.
12. SPECIFICATIONS, PLANS, WEIGHTS AND DIMENSIONS. Seller makes no representation or warranty, express or implied, with respect to any Product Specifications (including without limitation, performance data, engineering data, drawings, weights or dimensions – hereinafter, “Technical Data”) provided hereunder. Published or advertised Technical Data regarding the Products are estimates or approximations only and are not warranted.
13. CHANGES AND SUBSTITUTIONS. Buyer-requested order changes, including those affecting the identity, scope and delivery of the Products, must be documented in writing and are subject to Seller’s prior approval and adjustments in price, scheduling and other affected terms and conditions.
14. RETURNS. All returns of Products will be pursuant to Seller’s instructions. Non-warranty returns of unused and resalable Products for credit will be subject to Seller’s return policies in effect at the time, including applicable restocking charges and other conditions of return. Products returned under warranty must be properly packed and shipped to Seller-specified locations. Shipping containers must be clearly marked per Seller’s instructions and shipped freight prepaid by Buyer.
15. ORDER CANCELLATION. Cancellation by Buyer prior to shipment is permitted only by written notice and upon payment to Seller of reasonable cancellation and restocking charges as set in Seller’s discretion, including reimbursement for direct costs. Cancellation charges associated with orders for custom Products or Products specifically manufactured to Buyer’s specification may equal the actual selling price of the Products. Seller has the right to cancel an order for cause at any time by written notice, and Seller will be entitled to cancellation and restocking charges as identified above. No termination by Buyer for cause will be effective unless and until Seller has failed to correct such alleged cause within forty five (45) days after receipt of Buyer’s written notice specifying such cause.
16. FORCE MAJEURE. Seller will not be liable for any loss, damage or delay arising out of its failure (or that of its subcontractors) to perform hereunder due to causes beyond its reasonable control, including without limitation, acts of God, acts or omissions of Buyer, acts of civil or military authority, fires, strikes, floods, epidemics, quarantine restrictions, war, riots, acts of terrorism, delays in transportation, or transportation embargoes. In the event of such delay, Seller’s performance date(s) will be extended for such length of time as may be reasonably necessary to compensate for the delay.
17. DISPUTES. The parties will attempt in good faith promptly to resolve any dispute arising hereunder by negotiations between representatives of the parties who have authority to settle the dispute. If unsuccessful, the parties further will attempt in good faith to settle the dispute by non-binding third-party mediation in Polk County, Iowa under the auspices of the American Arbitration Association or as otherwise agreed by the parties, with mediator fees and expenses apportioned equally to each side. Any dispute not so resolved by negotiation or mediation may then be submitted to a court of competent jurisdiction in accordance with the terms hereof. These procedures are the exclusive procedures for the resolution of all such disputes between the parties.
18. INDEMNIFICATION. Buyer agrees at all times to indemnify, defend, and hold harmless Seller, manufacturers of equipment, and their affiliates, agents, and employees, from and against all loss, cost, damage, expense, construction delays, claims, demands, suits and causes of action whatsoever, including costs of defense and any attorneys’ fees, alleged or asserted by any person, firm or corporation for, on account of, or in connection with, the installation, condition, maintenance, use, or operation of the Products sold in conjunction with this Agreement. Purchaser may not settle any claims in a manner that interferes with Seller’s rights without Seller’s advance written permission, such permission not to be unreasonably withheld
19. GOVERNING LAW AND FORUM. The validity, construction, interpretation and performance of this Agreement will be governed by and construed in accordance with the laws of the state of Iowa without regard to any conflict of law principles that would require the application of the substantive laws of any other jurisdiction. Each party irrevocably submits to the exclusive jurisdiction of the United States District Court for the Southern District of Iowa for the purposes of any action arising out of this Agreement or any transaction contemplated hereby, or, if such action may not be brought in such court for jurisdictional reasons, in the Iowa District Court for Polk County. Each party irrevocably and unconditionally waives any objection to the laying of venue in such courts including that such venue is an inconvenient forum.
20. RELATIONSHIP OF THE PARTIES. The relationship of Seller and Buyer established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to (i) give either party the power to direct and control the day-to-day activities of the other, (ii) constitute the parties as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking.
21. ASSIGNMENT. The agreement evidenced hereby may not be assigned by either party without the written consent of the other (which consent will not be unreasonably withheld). However, consent will not be required for internal transfers and assignments as between Seller and its parent company, subsidiaries or Affiliates.