TERMS AND CONDITIONS CONTROL. The following terms and conditions (these “Terms and Conditions”), are agreed to by Arkin Sales Inc. (“Seller”) and the purchaser (“Purchaser”). Seller’s acceptance of any order is subject to these Terms and Conditions. No contrary, additional or different terms, provisions or conditions shall be binding on Seller unless accepted by Seller in writing.
COMPLETE AGREEMENT. This document represents the full and final agreement of the parties regarding these Terms and Conditions.
MODIFICATION. Purchaser understands and agrees that (a) no modification or waiver of these Terms and Conditions shall be effective unless made by an authorized representative of Seller in writing addressed to Purchaser and specifically referring to these Terms and Conditions; (b) no course of action on the part of Seller shall be deemed to modify these Terms and Conditions; and (c) Seller’s acknowledgment or acceptance of anything in writing from Purchaser which is in conflict with these Terms and Conditions (including any purchase order forms containing different terms or conditions) and any subsequent delivery of Goods shall not constitute a modification or waiver of these Terms and Conditions.
GOODS SOLD. The final invoice shall cover the specific quantities of items listed on the face thereof (the “Goods”).
ACCEPTANCE BY PURCHASER. Purchaser shall accept or reject Seller’s sales proposal within ten (10) days from the date thereof. Purchaser’s acceptance of any proposal, however, shall not result in a contract of sale, and Seller shall not be bound by any invoice, until such invoice has been approved by a duly authorized representative of Seller.
TERMS OF PAYMENT. The purchase price for the goods sold shall be as shown on the face of the invoice, F.O.B. Seller’s place of business, unless otherwise agreed to in writing by the parties. The purchase price shall be payable in United States currency in accordance with the terms outlined in the invoice. All invoices rendered in accordance with the agreed terms which are not paid within 30 days shall be subject to interest at the rate of 1.5% per month from the date of the invoice until it is paid.
DELIVERY. Seller shall deliver all Goods to a carrier for transport to Purchaser’s place of business or as directed in writing, with all costs of transport borne by Purchaser. Purchaser shall bear all risk of loss with respect to the Goods from the moment the Goods are delivered to the carrier.
DISCLAIMER OF WARRANTIES
ALL GOODS ARE PURCHASED BY THE PURCHASER “AS IS” AND “WITH ALL FAULTS”, AND 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.
Any affirmation of fact or promises made by Seller shall not be deemed to create an express warranty that the Goods shall conform to such affirmation or promise. Any descriptions, samples and specifications with respect to goods offered for sale herein are not warranted by Seller to be accurate or complete. If a model or sample was shown to Purchaser, such model or sample was used merely to illustrate the general type and quality of goods sold by Seller and not to represent that the Goods would necessarily conform to such model or sample. Any description is for the sole purpose of identifying the Goods and no affirmation, promise, description, sample or model shall be deemed part of the basis of the bargain. SELLER STRONGLY RECOMMENDS THAT PURCHASER CONDUCT AN ON-SITE INSPECTION OF THE GOODS SOLD HEREUNDER. SELLER SHALL NOT BE RESPONSIBLE FOR THE CONSEQUENCES OF PURCHASER’S FAILURE TO INSPECT THE GOODS OR FOR ANY INACCURACIES, INSUFFICIENCIES, OR OMISSIONS IN SUCH DESCRIPTIONS, SAMPLES AND/OR SPECIFICATIONS. C. The employees or representatives of Seller are not authorized to make any statement or representation as to the quality, character, size, condition, quantity, etc. of the goods offered for sale inconsistent with these Terms and Conditions. Any such statements made will not be binding on Seller or be grounds for any subsequent claim.
SALES – USED EQUIPMENT. Purchaser understands that the Goods described herein have been used by persons other than Seller. Purchaser is warned and acknowledges that such Goods may bear or contain hazardous chemicals or other hazardous materials which 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 or for other similar or different reasons during use, handling, cleaning, reconditioning, disposal or at any other time after the article leaves the possession and control of Seller). Purchaser does hereby discharge Seller from any and all liability directly or indirectly resulting from the presence of the aforesaid chemicals or materials, including and not limited to any and all liability directly or indirectly resulting from the failure of Seller to give more specific warning with respect to individual articles or substances or from the inadequacy of any warning.
DISCLAIMER OF LIABILITY. Purchaser acknowledges that the Goods sold herein may be dangerous if improperly used. Purchaser acknowledges that it must contact the original manufacturer to obtain up-to-date installation and operation manuals and other information to insure the safe operation of Goods. Seller will not be responsible for any loss or injury resulting from defects or alleged defects in the Goods sold or from the subsequent use of the items. Purchaser agrees to defend any suit, action or cause of action brought against Seller, its directors, officers, employees and other agents and representatives by any person based on any such alleged injury, illness, or damage and to pay all damages, costs and expenses including, but not limited to, attorney’s fees or legal expenses in connection therewith or resulting therefrom.
INDEMNIFICATION. Purchaser hereby agrees to defend, indemnify and hold harmless Seller its directors, officers, employees and other agents and representatives from and against any and all liabilities, judgments, claims, settlements, losses, damages, penalties, obligations and expenses, including attorney’s fees and expenses and other professional fees and expenses, incurred or suffered by such person arising from, by reason of, or in connection with any loss, damage or injury to person or property arising from, by reason of or in connection with the Goods sold hereunder. This indemnification shall survive delivery of the Goods to Purchaser and any subsequent sale or other transfer of the Goods to a third party.
INSURANCE AND SAFETY RULES. Purchaser shall not move, load, transport or otherwise handle the Goods on Seller’s premises without first having obtained insurance coverage satisfactory to Seller. Such insurance shall include “Workers Compensation”, employer’s liability, public liability (bodily injury, property damage and contractual liability) and automobile liability (bodily injury and property damage) insurance. Certificates of insurance evidencing the aforementioned insurance coverages shall be furnished to and shall be approved by Seller. Purchaser shall comply with Seller’s plant safety rules and regulations.
FORCE MAJEURE. Seller’s ability to ship the Goods may be affected in case of an act of force majeure, such as an 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 other cause beyond the control of Seller. Seller shall have no liability for the failure to ship or deliver goods in the event of such force majeure and Seller’s obligation to complete the delivery of Goods shall be suspended during such force majeure event and for a reasonable period of time thereafter; provided, however, that these Terms and Conditions shall otherwise remain in effect.
PURCHASERS’ CREDIT. In the event Purchaser fails to remit payment for any one shipment when same becomes due, Seller reserves the right, among other remedies, either to terminate the contract or to suspend further deliveries. Should Purchaser’s financial responsibility become unsatisfactory to Seller, in Seller’s sole and absolute discretion, cash payments or security satisfactory to Seller, in its sole and absolute discretion, may be required by Seller before future deliveries of Goods are made by Seller.
INSPECTION. Purchaser has inspected the Goods or hereby acknowledges that Seller invited, urged and cautioned Purchaser to inspect the Goods and Purchaser declined to examine the same.
LIMITATION OF DAMAGES. Seller’s liability with respect to Goods sold to Purchaser shall be limited to refunding any payments made by Purchaser (i) with respect to Goods returned to and accepted by Seller or (ii) with respect to Goods ordered but not shipped by Seller upon Seller’s cancellation of the invoice. In no event shall Seller be liable for incidental, special, or consequential damages, lost profits, or any expenses of Purchaser, including, but not limited to, shipping costs.
ASSIGNMENT. Purchaser may not assign its rights or delegate its performance in whole or in part under any invoice without the prior written consent of Seller and any attempted assignment or delegation without such consent shall be void.
GOVERNING LAW. All invoices and these Terms and Conditions shall be construed according to the laws of the State of Illinois. The parties agree that venue for any claim or controversy arising from or relating to invoices, these Terms and Conditions or the performance or breach thereof shall be exclusively laid and limited to the state circuit court of the Eighteenth Judicial District of Du Page County, Illinois.
TAXES. All taxes assessed to any order are the responsibility of Purchaser, including, but not limited to, local and regional sales taxes and personal property tax, or if applicable, Purchaser is to provide Seller with a valid tax exemption certificate. In the event that Purchaser either fails to pay the tax or other charges as agreed above or fails to provide a valid exemption certificate, Purchaser agrees to indemnify and hold Seller harmless from any liability and expense by reason of Purchaser’s failure. Such indemnification shall include, but not be limited to, attorneys’ fees and/or other legal expenses relating to such failure.
REPAIR. Seller is not obligated to do any repair work or modifications upon the Goods prior to sale or delivery. Any repair work or modifications performed by Seller on the Goods prior to sale shall be performed as a result of the sole request of Purchaser using designs and instructions provided by Purchaser. Accordingly, Seller shall not be liable for any alleged damages caused by or resulting from the repairs or modifications. SELLER GIVES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE QUALITY, MERCHANTABILITY, WORKMANSHIP OR ANY OTHER MATTER WITH RESPECT TO ANY SUCH REPAIRS OR MODIFICATIONS.
SEVERABILITY. If any provision of the invoice or these Terms and Conditions is determined illegal or unenforceable, it shall not affect the enforceability of any other provision or paragraph of the invoice or these Terms and Conditions.
FEES AND COSTS. In the event any party institutes legal proceedings to enforce its respective rights arising out of the invoice and these Terms and Conditions, the prevailing party shall be entitled to the award of attorneys’ fees and court costs, plus cost of executing, enforcing and/or collecting any judgment at all trial and appellate levels.
Used Equipment Terms & Conditions
COMPLETE AGREEMENT: Acceptance of purchaser’s order is subject to the terms and conditions contained herein. This document constitutes the full and final agreement of the parties and is not to be modified or amended by any prior or contemporaneous agreement, whether written or oral. No modification of this agreement shall be in effect unless in writing signed by the parties, and no modification shall be effected by the acknowledgment or acceptance of purchase order forms containing different terms or conditions.
TERMS OF PAYMENT: Subject to your acceptance of this proposal within ten (10) days from the date hereof, the purchase price for the goods sold shall be as shown herein, F.O.B., our plant, unless otherwise agreed to in writing by the parties. Purchaser’s acceptance of this proposal, however, shall not result in a contract of sale until approved by a duly authorized representative of the Seller. The purchase price shall be payable in United States currency in accordance with the terms outlined in this proposal. All invoices rendered in accordance with the agreed terms which are not paid within 30 days shall be subject to interest at the rate of 1.5% per month from the date of the invoice until it is paid. Installation and field service, not specifically covered in the purchase price, will be furnished at our scheduled daily rate, plus an additional charge for living expenses on the job site, and for transportation to and from the installation; all such charges shall be payable within 30 days after the services are rendered.
Warranties:
Subject to the conditions in § 3.D. below, Seller warrants to buyer that goods sold hereunder are free from defects in design, material or workmanship for the period indicated on the Seller’s final, written offer.
With respect to the parts sold separately under this contract, the Seller hereby warrants such parts against any and all mechanical defects for a period of 90 days from the date of sale. No waiver, alteration or modification of the foregoing warranty shall be valid, unless made in writing and signed by a duly authorized employee of the Seller.
Apart from the warranties set forth in this § 3, which extend only to the Purchaser, THE SELLER MAKES NO OTHER 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 SOLD. IN NO EVENT SHALL THE SELLER BE RESPONSIBLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, SHIPPING COSTS, OR LOST PROFITS, RELATING TO THE GOODS, WHETHER ALLEGED IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
The warranties set forth in part A above are subject to the following conditions:
The goods must have been transported, installed, operated, and maintained properly. Failure to do so will void the warranty.
The defects were not, in the Seller’s opinion, caused by accident, misuse, abuse, neglect, deterioration due to erosion, corrosion or by chemical action.
The Purchaser notifies the Seller of the alleged defect in writing, promptly after the Purchaser learns, or should learn, of such defect.
The warranty is limited to repair or replacement of the defective part at Seller’s sole option and discretion.
The goods in question must be returned intact to the Seller’s plant, freight prepaid and securely packed to avoid damage, for repair or replacement of the defective part(s).
Notwithstanding any other provision of these terms and conditions, components or parts not manufactured by the Seller are warranted only to the extent of the manufacturer’s original warranty.
The warranty provided herein excludes wear parts.
The warranty provided herein is null and void if Buyer does not pay the contract price in full.
Any description and/or specifications with respect to items offered for sale are not warranted by the Seller to be accurate or complete. The description is solely for the purpose of offering the item for sale. The Seller shall not be responsible for the consequences of the Purchaser’s failure to inspect the goods for any inaccuracies, insufficiencies or omissions in such descriptions and/or specifications.
The employees or representatives of the Seller are not authorized to make any statements or representations as to the quality, character, size, condition, quantity, etc., of the items offered for sale inconsistent with these conditions of sale or the terms on the front hereof. Any such statements made will not be binding on the Seller or be grounds for any subsequent claim.
Delivery: Based on past experience, the Seller expects to make final shipment in a reasonable amount of time after the contract approval date or after receipt at the Seller’s office of approved drawings where required, whichever shall be later. In the event delivery of the equipment is extended at your request, (a) we may, at our option, require a progress payment payable within thirty (30) days of invoice on the basis of the above purchase price and the percentage of completion of the equipment at the date of such extension, (b) any equipment held for you shall be at your risk, and (c) The purchase price shall be adjusted to our prices in effect at the time shipment of the equipment is made.
Cancellation: The Purchaser’s acceptance of this proposal creates a contract with the Seller which thereafter can be terminated or cancelled only upon the Purchaser’s written request and the Seller’s written consent thereto, subject to such conditions as the Seller may reasonably require. Normally, and in the absence of special circumstances, the Seller’s consent to such a cancellation will be contingent upon the Purchaser’s agreement to pay a cancellation charge equal to the cost of the percentage of completion of the order (as estimated by the Seller) or 25% of the list price of the equipment included in the order, whichever is greater, plus any cancellation charges which may be charged back to the Seller on items which the Seller may have ordered to complete the Purchaser’s order.
Returned Material: Materials or equipment are not to be returned to the Seller without first obtaining the written permission of the Seller. All such returned material must be in the same condition as it was when delivered. Materials and/or equipment accepted by the Seller for credit are subject to a minimum service charge of 25% plus all transportation charges. Materials or equipment built to order are not subject to return for credit under any circumstances. Any materials or equipment authorized for return must be securely packed to reach the Seller without damage.
Indemnification:
The Purchaser 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, attorneys’ fees and/or legal expenses relating to such claims. The Purchaser 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 agent, servant or employee of a 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, the concurrent negligence of the Seller with the Purchaser, any agent, servant, or employee of 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 chemicals or other 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 or any other person, including that caused by hazardous chemicals or other 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 therein.
Force Majeure: Deliveries 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, breakage of machinery or apparatus, national defense requirements, or any cause beyond the control of the Purchaser preventing the shipment, acceptance, or consumption of a shipment of goods. Such deliveries so suspended shall be cancelled without liability, but the contract shall otherwise remain unaffected.
Assignment: The Purchaser may not assign its rights or delegate its performance in whole or in part hereunder without the prior written consent of the Seller, and any attempted assignment or delegation without such consent shall be void.
Governing Law: The agreement between the parties and all causes of action relating to it are governed and construed by the law of the State of Illinois. The parties agree that venue for any claim or controversy arising from or relating to this agreement or performance or breach thereof shall be exclusively laid and limited to the State Circuit of the Eighteenth Judicial Circuit of Du Page County, Illinois.
Taxes: All taxes relating to the goods and their sale are the responsibility of the Purchaser, including but not limited to sales taxes and personal property taxes. The Purchaser shall indemnify the Seller against any and all claims relating to the payment of such taxes. Such indemnification shall include, but not be limited to, attorney’s fees and other legal expenses relating to such claims.
DAMAGES: Seller’s liability with respect to Goods sold to Purchaser shall be limited to refunding payment made or cancelling the invoice – whichever shall apply. In no event shall Seller be liable for: incidental, special or consequential damages, lost profits, or any expenses, including but not limited to shipping cost.
Severability: If any one or more of the terms and conditions set forth herein is determined to be invalid or unenforceable, such determination shall not affect the validity or enforceability of the remaining terms and conditions. Waiver by the Seller of a breach of any one of the terms and conditions shall not be construed as a waiver of any other breach.
In the event any party institutes legal proceedings to enforce their respective rights arising out of this agreement, the prevailing party shall be entitled to the award of attorneys fees and court costs, plus cost of executing, enforcing and/or collecting any judgments at trial and appellate levels.
