HomeMy WebLinkAboutTermsFEB 12 22008 12;00 FR
MSA
TO 913054165453 P.03
TERMS AND CONDITIONS OF SALE
I. OPPBR Ann ACCUTANCE: This Quotation/Offer to Sell is an offer by Seller to Purchaser. This Quotaclon/Otfer ee sell le
not an acceptance 4e the kerma and condi tons of my prior oEEer 0: order DE Purchaser and any Auah offer er order ie
expressly rejected. Acoepdance of Chit after ie expreeety Belles co its terms. Notify Seiler imae4iaeely iE these eerme are
unacceptable ae failure, Co!objece tO the terms et chit efier Or acrcpcanee of Sellers product shall conclusively establish
Purcbapq;e acceptance of the terms and conditions of ebie offer. under no eircumekancee shell any terms and conditions at
Purchasers business forme, 'that are inMaataee% with she berme and eeaditioaa et this offer, became pert of any resulting
contract. Upon *cceptadee;by Purchase:, thia Quotation/Offer to Sell a all be the final written expeeseieii Of agreement
between seller and Purchaser, conetieuting the entire contract between Purchaser and Seiler and eupereeaing all previous
commamitat(iotttt, atthar .Verbal er written. Any resulting contract may be modified only by a waiting. Pigged by um seller.
2, tmAi1RA117'Y AND DISCLAIM -RBI Seiler warrants that the material furnished on Chie dede>: is free from s:eebenicel defaet.a or
vaulty edeltmenship for d period of one (I) year from installation or eighteen (le) months from data at ehipmgnr (or each
other warrency period diet may appees ea Sees m£ Ouemmeioe/OSEoe ee 9eli), whichever occurs Sisal, provided is has been
installed and maintained in accordance with Sellers inacructione and/or recommetiaatlone eentainea in she instruction book
delivered with the elpsijj#Nedt. ?Mir warranty deep net apply to expendable ar con/Amble parts whose normal life expectancy is
less than one (1) year.1 The Seller shall be released form all obligations under this warranty in the event repairs or
mo0121eatiene are made !y Wsons other than its own or authorised serviee personnel unl00e loch repair, by others are made
with the written consent of the Seller. No agent, employee or represebeative of the Seller boa any authority to bind chi
Seller to any affirmation, repreventecive or warranty concerniag the geode 'told under ditto embrace, and unlace an
affirmation, Yepresettaii0n or warranty mete by an agent, employee or aepreeeatative is specifically included within this
written agreement it abaiil tot be edforceabie by the 4'vrebaser. Seller makes no warranty eeneereice mompononee or
ac¢sseeries not manutacqured by the Seller, bun will pees on to the Purchaser all warranties of manufeeturere of such
components, THIS WARRAHT'Y'IB TH LIEU OP ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR *TR:UTdRY. AND fa OrniCTI.y LXNXT!9 70 THe
TERNS HEREOF. SELLER 8P0CZF10AT.i.7 DISCLA:II$R ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE.
1. ERCLTSIVE REMLMY) ie ie ompreseiy Agreed that PurCba9eCe Sole and exclusive remedy for breach of the warranty set torch
in paragraph 2, for any:toreioue conduct of Seller, or for any other Cave of action, *bail be the eepeir and/or replaceee09
(AT sellers option) of anY equipment or parte cheroot, which after examination by Seller is proven to be defective.
Replacement equipment add/or pares will he provided at no cost to Purchaser, F.0-9- Sellers Plane. failure of Sallee ee
ettenively :egair any aon7eonformitig produce ahall not cause the remedy ofteeelleb*d hereby to Lail oI its essential purpose.
4. STATUTE OF LtMITATIAN6, NOTIcs OF BREACH, A11 suite by Purchaser .tor breach of any weal i,ng eenegaet. alleged eortious
conduct or any other clie,ihall be Defied unites filed within one (1) year of the dace when the claim or cauee of action
stonier. seller red Pe ehdser agree that a reseenable time within which Purehaee1 musk mete), teller 4h wrieang after
discovery of any alleged breach by Seller is rithia forty-five (45) days of discovery. and chat failure of Purchaser co
provide UMW Mite :2 bseaab will bar puro7.aoer from any remedy for said breach.
5. GOVERNING LAW, Vim, 4'UEREENTIOIt: Any resulting contract shall be governed by and construed under the Jeiform
Commercial Code ae adopded'in she Commonwealth of Pennsylvania as effective end in farce en the date Of said Contract of
Sale. venue for any euat by Purchaser shall be is and only in the Pennsylvania etate court of proper juriediction in
Allegheny County, Pennsylvania, D.S.A. Purchaser hereby ',unease to the jvrie4ictior of seid court and appoints ape:sten of
the Commonwealth of Pennsylvania as its agent for the service of preo04P in CEO event Seller wiehee to eenmanee any Action
agaiaat Puro>aaeex,
e. EXCLUSION 01' CONASQUELNTTAL DAH ME9, PURCHASER PACIFICALLY UND2RSIAND! AND ACMES THAT .RIDER NO CYRCUMSTANCES RILL'ELEA
au LSAELe TO PURCgAStR o2!SOONOMIS, SpEC;AL, XNCXPENTAL OR CONSEQUENTIAL DAMAGES OR LOSSES OP ANY Men WHATSOR(►9R, INCLUDI9q
BUT NOT LIMITED T0, WOE or ANTICIPATED PEWITS, AND ANY OTMR L0# CAMSRD BY RUM OP 722 NONOPERATION OF THE G0003. THIS
arcbaer R dS APPLICA0LE )To 'CLAIMS P0R BREACH OF warmalY, 70RT10US CONDt7CT OR ANY OTHER CAUSE OP ACME AGAINST SRLLBR.
7. DISeteIN!R OF TORT VIABILITY, PURCHASER SPECLPICALLY 0NABRSTAND9 AND mans 1',ii1T SELLER Am ITS OFFICERS. AGENTS AND
XMPLOTSBNI S1/ALI, NOT MS !IABL! Pa TORT . M MTgso EASED OE NEGLIGENCE, STRICT LIABILITY OR ANY OTRER ?11300Y or TORT LIABILITY FOR ANY ACTION OR rertoes 'f0 ACT 1N RESPECT TO THE MANUTACTOR!k, PRBPAARATIO9 TOR SALE, SALE, DELIVERY OR SERVICING OF THE
PRODUCT. IT IS THE PARTX*0 =Tat 3 TO AMMO AND VROTOOr SELLER AND SELLERS OPTICERs, AGnets0 AND SHPLOYSS9 PAON ANY AND ALL
TORT LIABILITY.
1, gums AND PAYMENT:! The price of the geode. as queead sbeve, ie subject to change without notice, veleae otheeeiee noted
en the taco of the quata'tion, 'Tee actual seine pride shall be the price in effect et the date of delivery, The price quoted
above does not include tiroriepertation charges and said charges *hall be paid by Purchaser epee. delivery. In the event that
tranepoxtation charges areNpal,a by *slier, Purchaser will reimburse seller for the Beet ebsre0l, forthwith upon demand. The
amount of any and ail preoeot or future taxee sir other gove,pmentel charges upon the production, shipment, installation er
sale, or the equipment Covered hereby, including use ar occupation taxes, .hail be added t0 the purchase price paid by the
Purchaser, or in lieu tblereof, the Purchaser Muni fuknieh the Seller with tax exemption certificete(i) acceptable to the
taxing auteeeit&ea, op ocher basis ter exemption, If progress payment* ore sified On the front page hereof, payments are
co be made On account as p0ethe work prograseea; than Se no aby. ee the asch day or each month tar the propdreiob of the work
done the preceding celedddae month 1eme lit:ceen (151 percent, an additional payment of nett (la) percent of the contrast price
is to be made when elle equipment ie shipped, and the remaiaieg 91.ve 151 percent not later than sincy (60) dap after date of
ehipmene. A proportianate'ameuat of the 17.oal payment shall became due es above en the completion of each unit, If programs
payment or other paymenti teams AVE not set forth on the front page home*, payment in lull of the eontraat price, amounts due
lag additional worm er uhangoe, and escalation 'poll be due thirty. (30) days net after the date of sellers invoice. 2ntereet
at the race of one ii) pereent per month tram due date shall be charged on Overdue accounts, Oblese expressly cemented to
in wetted By an officer oe Seller, the Purchaser Shall have no right to withhold any 0oncra9t amount due Seller baeau** of
say Claim by purchaser agad,oet 2e11#X,
9. PROMISES OF SHIPMENT? ;Peemieee of abipment do not in any say conanitute a reservation as matoriaie are at all times
mubject to prior Mere.: Pu;omi9es of shipment of moeoriaie art baeed upon premiere received !rem suppliers thereof.
10. xavoleIH0 AH0 ■ILLINO:I For purpcaea of involeieq and billing, eseh ehip,ment hereunder shall bo treated ae a separate
and independent concrac0i.
FEB 12 2008 12:00 FR
MSA
TO 813054165453 P.04
TERMS AND CONDITIONS OF SALE
xi. T>;MISS of SSOMpJif', P►ONS WSW, AFSi OF host: Seller ,hall not be liable for any delay or failure co prhduoe.
proceed, ship or deliver occasioned by Force Majeure which term is hereby declared to Include all Circumstance and actions
whatsoever finoimding ieelelmene weather eE the ordinary teem:nal saws,) beyond she threw, and immediate eonerei of getter,
Wong Mulch: buC not exClueive of other,, are the fallowing: Acts of cod; ear between the tTaieed Sum and any Foreign
Coventry; Civil nor; ribtaor insurrection in the United no -tee: preperahinn for war; urgeney or intervention al civil,
naval nemilieary autheeienee or ocher agencies cc government, including agencies concerned with ebe preeervaoiaa of the
environeent; rules and ketitrainte of ruierc and people: block:Wee; enbaegeOei vandal£emt sabotage; epidemics: eerikee;
loekente: differeneeo 4tth workmen and other industrial disturbances; earthquakes; landelidssr ea4tdel(te; floods;
hurricanes and eyelonie ;aterms; shortages of fuel, pewee, raw materials, et eempeeele pares; delays in delivery of
materials; government dridritios; and dsleye of eaxris:s by land, sea or air. seller ie not relieved free making eh;pment
or Purchaser from accept: ad delivery at the agreed ?.rice when the eauee itaterl'efing with delivery hoe been removed. If
shipment ef coeplehed eg5(ipmeet or any completed part thereof is delay due co Purc1eeere request, payments will become due as
if ebe equipment had been shipped. In case of ouch delay of ohipment, ebe equipment will be stored by seller as Puenhaeere
risk and expense. Rink of;laas aboIX peas co the Purchaser Upon delivery to the carrier an abtpmanm/ made r.o.s. place of
$liifsenc, and upon cendOr on shipment made F.O.B. Point of Destination.
S2. CerC:r, ennnAxvent if Purchaser fella to fulfill the terms of payment in every reepea;, Seller i■ not obligated to make
delivery and may resort ac the remedies provided by law or herein. toiler rpaervee the right, previous to making delivery,
to esquire from Purchtmir satisfactory security for performance of Purchasers obligations. Credit shall be provided to
Purchaser only steer apl<roval by Seller,
13. cARCrLLAT Oat its Che:eve;t tnet (a1 Furchaaer files a voluntary petition initiating any proceeding under the United
States eankrnpeey Code elan respect to iteell; (b1 Any idveluntery petition initiating a proceeding udder the Inited Stacee
nankruptoy Cede iR ftlnd against Purchaser and such petition is not diemieaod wtthia thirty (30) days; (cl Purchaser in
adjudicated as bankrupt:, ne) Purchaser makes ors eanipeMent for the benefit of its creditors ow takes the beneiite of any
ini limey lava: (e) A:receiver is appointed for purchaeer or for a suaatantini part of ice property and such appointment is
not discharged within eiixty (so) deya; ill puxahaaer shall ,emit ie writing its inability to pay its debts generally es
they become duct Ig) Any governmental body or agency condemns or raquimicions any significant asset of seller; (h) Purchaser
gale ce pose aecuriny requested by Seiler within giftsen Si5I dd4.e after the request; or (f) Pnr:rani*' shell eoaveiy any
breach of the eontrlct Ond.ahsll fail to remedy ouch breach within seven (7) deya after the giving of netin* thereof by
fell.* en Purebacer in %Iri*ng or by telex, cable e■ talepwnet, thus and in all or any amen ,wows ohs Seller may by aoei** to
Purchaser in writing or hy,telox, cable or telegram cancel any resulting eencredt rO far as any future periermancn by
Sellerie eoncnaned bit without preludiee to tee right* sod remedies of either Festive arising nut e£ any antecedent
performance or breach. '
14. PATTERNS; It purchaser finaabed patterns, shipping and erahine ChaCgee on pattern shall he bertie by the purchaser.
Prints ambxace no assumption or responsibility en the part oL the Seller for lode or damage ea patterns. seller shall not be
liable for any damage* Jbieih may arise from damage to or lose of nnneerna even if due to Sellars MI/Mae. Costs for
ineuranee On patcerne wi.Innot be absorbed by the Seller, and Patterns are Arid at Purchasers riet.
18. TODereffrlCnrxon AHD, LIMITIATIOH OF LiABTLIT1f: Se11er and Purebaser snail indemnify, defend and held the ether harmleee
from claims, demands and camels of enticing asserted against the rade;n11t5e by any person 'including, without limitation,
Purchasers or rollers ea)ptoyeee to the extent thee such enployeea ere not ceepeesac*d by applicable stet, weekTene
corpanaakian ataauOes, Ourcbaesr ax Heller* oubcontractore and empleyese of such eubcontractore to she extent that ouch
employees are nee compensated by ennlieablc atato workmen, coltpensacion statutes, or any other third party) for pereenal
injury Or death resulting from the rndeonitore negligence or willful miscandUCt hereunder. where pernonai injury or death
manure ea the result of:the joint negligence or willful misconduct or Seller and Purchaser, the Indemnitora duty of
Indemnification *hall ne in proportion to its allOteble share of joint negligence or willful mieeondueet it being the intent
e£ this provision chat Xe11ar and Purchaser be liable few the proportion of liability caused by their oaglige:ee er willful
mincOAduet,
id. s1e7,U$Iplf OF OOHSEe(UsjTIAL DAMMA6: Purchaser spocifioally tnderacanda and agraaa teat under no eireumeneneee will
seller be liable to Pere}(aser for economic, epeelai, incidental or eonaequeotsal damages or looses of any kind whatsoever,
intiudin; hue not limited to, lone or ateieipeted profits end any other lose caused by reason of the nenoperatien of the
goods. This exclusion is adplicabie to claims for breach of warranty, 1,wtieee conduct or any other cause of action against
Seller.
17. PATn2!9, Bollix vi111defend and save heroical; Purchaser from ell costa, expenses sad daaegee 4e a result of any
infringement. or claim of infringement, of any United neaten patent existing at the time of sellera nrepoeal or
Ouo41e1enfoEfer to Se11 eniaoCoutts: of the aquipmeen £uxniehed by seller, provided Purchases notieied Seller proliitly in
writing of any well claim and Seller i■ eleven authority co defend acid elaia end e11 information and Resistance by Pureh,;ser
nsee0Aaxy in Seilera opia:ige to the defenae ef said stein, omit or proeeeding. Seiler, however, makes no warranty nor assumes
any patent infringemenc;lidbility reepseting Purchasers men of the equipment with ethos equipmstlt, foe infringement; of
pfOOeOi or product patentel nor for royalties as!eeeed on the basis ei the amount ef product produced by or other utilization
of the equipment.
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