NEW EQUIPMENT SALES TERM
Agreement. Unless otherwise agreed in a written document signed by a vice president of Empire Southwest, LLC ("Empire"), these Terms and Conditions of Sales and Service ("Terms") govern the purchase of goods (including, but not limited to, new and used equipment, trucks, attachments, components, technology and parts) ("Goods") and services ("Services") from Empire by any individual or entity that purchases such Goods or Services from Empire ("Client"). Empire hereby rejects the terms of any purchase order or other document submitted by Client, unless the document is signed by a vice president of Empire. The placing of an order with Empire or the receipt or acceptance of Goods or Services by Client constitute Client's acceptance of these Terms exactly as written.
Order and Delivery of Goods or Services. All orders for Goods and Services are subject to credit approval and final acceptance by Empire in its sole discretion. Client shall have no right to cancel purchase orders for Goods once a purchase order is issued to Empire; provided, however, some parts may be returnable to Empire in accordance with Empire's then current parts return policy. Client acknowledges that estimated delivery dates for Goods are estimates only; actual delivery dates depend on a variety of factors, including, but not limited to, the production schedules of manufacturers. Empire will use commercially reasonable efforts to meet estimated delivery dates and shall keep Client advised of the status of its delivery, but Empire shall have no liability for any loss associated with delay in the delivery of Goods. In addition, Empire shall have no liability for any delay in performance of Services or delivery of Goods caused by any circumstances beyond its reasonable control, including, but not limited to, delays caused by acts of God, acts of war or terrorism, fire or other casualty, storms or adverse weather, strikes, labor shortages or disturbances, shortages of materials, manufacturer delays, theft or vandalism, transport and handling accidents, or revisions to laws, regulations or governmental requirements.
Pricing. Unless otherwise set forth on a written quote issued by Empire ("Quote"), the price for Goods shall be Empire's list price for such Goods on the date such Goods are delivered to Client. Unless otherwise set forth on a Quote, the labor rates for Services shall be Empire's standard labor rates for the applicable type of Service (field rates, shop rates, mine rates or specialty rates, as applicable) in effect at the time the Services are performed. Pricing for future orders is subject to change without notice. Client will promptly pay to Empire any taxes that Empire is required to collect with respect to the purchase of Goods and Services, including, but not limited to, value added, personal property, sales, use and similar taxes ("Taxes"). For any Taxes from which Client claims exemption, Client shall provide Empire with properly completed exemption certificates and any documentation needed to validate the exemption prior to the purchase of the applicable Goods and Services. If Client fails to provide an appropriate exemption certificate and supporting documentation, as determined by Empire, Client will remain liable for all such Taxes and will indemnify Empire for any liability related to the same. Pricing and risk of loss for purchased Goods is FOB Empire's site, unless purchased Goods are shipped to Client directly from the manufacturer, in which case pricing and risk of loss is FOB factory. Any claims for shortages, damages, or delays must be made by Client direct to the carrier.
Payment Terms. For Clients with an open credit account with Empire, machine sales payments are due Net 10, and all other payments are due Net 30. For Clients who do not have an open credit account with Empire, payment is due upon delivery of Goods or completion of Services. Empire may, in its sole discretion, at any time: (a) revoke credit; (b) modify terms and conditions of credit; (c) require payment in advance; and/or (d) withhold Goods, completed Services or scheduled Services until receipt of payment. If Client fails to pay for Goods and Services as and when due, Client shall pay a late charge of 1.5% of the invoice balance each month until charges are paid in full, and Client shall pay Empire all reasonable attorneys' fees and collection costs incurred by Empire. In addition to any other right of set-off or recoupment Empire has under applicable law, Client agrees that, with respect to any amounts due from Client or Client's affiliates to Empire or Empire's affiliates, Empire and its affiliates may set-off such amounts against any amounts owing to Client or Client's affiliates. If Client requests customization of equipment, Client agrees to pay all parts and labor costs Empire incurs in customizing the equipment, regardless of whether or not Client completes the purchase of the customized equipment. Client must pick up its equipment from Empire's facility within 2 business days after notification from Empire of completion of Services. If Client's equipment is not picked up within two business days after such notification, Client will be liable for storage charges of $300.00 per day from the date of completion of Services until Client's equipment is picked up. Pursuant to A.R.S. § 33-1023, Empire may sell Client's equipment if such equipment remains in Empire's possession after 30 days and any amounts owed remain unpaid.
New Goods. If Client is purchasing new Goods from Empire, Client acknowledges that (i) Empire is not the manufacturer of the Goods; (ii) if the Goods include a manufacturer's warranty, Empire will pass through to Client the manufacturer's warranty to the extent permitted by the terms of such warranty; and (iii) the manufacturer's warranty will be subject to all conditions and exclusions set forth therein. In certain circumstances, Client may have the option of purchasing an equipment protection plan or extended service coverage (each, an "Extended Protection Product"); if such an Extended Protection Product is available and is purchased by Client at the time of sale, the Extended Protection Product will be subject to all conditions and exclusions included in such Extended Protection Product.
Indemnification. Each party agrees to defend, indemnify and hold harmless the other party for, from and against any third party claims related to the Goods or Services to the extent such third party claims (including, but not limited to claims related to the death or injury of any person(s) or damage to or destruction of any real or personal property) are caused by the indemnifying party's negligent acts or omissions, subject to the limitations set forth in Section 7 below. To the fullest extent permitted by law, Client agrees to defend, indemnify and hold harmless Empire, its affiliates and subsidiaries, and all of their respective owners, directors, officers, managers, employees, agents or representatives for, from and against any and all liabilities, claims, actions, suits, damages, losses and expenses (including, but not limited to, reasonable attorneys' fees, expert witness fees, costs and expenses) that are caused by, arising from or related in any way to fire suppression systems (including, but not limited to losses related to the death or injury of any person(s) or damage to or destruction of any real or personal property).
Liability Limitation. In no event shall either party be liable, whether based in contract, warranty, indemnity, tort, strict liability or any other theory of law or equity, for any special, incidental, indirect, punitive, exemplary or consequential damages, including, but not limited to, lost profits, loss of use of property or equipment, downtime, loss of third party contracts or lost production, regardless of whether or not such party was advised of the possibility of such damages. In addition, Empire's maximum aggregate liability (whether in contract, warranty, indemnity, tort, strict liability or any other theory of law or equity) for damages or loss, howsoever arising or caused, shall in no event exceed the amount Client paid to Empire for the Goods or Services to which the liability relates. The parties recognize that the pricing associated with Goods and Services reflects this allocation of risk and is the basis of the bargain between the parties. The foregoing limitations shall be valid and enforceable, notwithstanding any alleged failure of essential purpose of the limited remedies set forth herein. Any and all claims arising out of or relating to the Goods and/or Services will be barred unless a legal proceeding is commenced within one (1) year from completion of the Services or delivery of the Goods to Client.
USED EQUIPMENT SALES TERM
used equipment sold;price. Seller agrees to sell and Buyer agrees to buy the following used materials or equipment (individually or collectively referred to as the "Used Equipment") in the quantities and at the prices (the "Purchase Price")
Description of the Used Equipment. The description of the Used Equipment is based on the best information available to the responsible sales personnel of Seller. Seller, however, makes no warranty, express or implied, as to the description of any of the Used Equipment, except as expressly set forth otherwise in this Agreement.
Delivery. Unless otherwise specified, the purchase of Used Equipment will be F.O.B. Seller's location.
Title and Risk of Loss. Title to and risk of loss or damage to all Used Equipment purchased by Buyer will pass to Buyer upon Seller's delivery to Buyer, Buyer's agent or Buyer's carrier at Seller's plant.
Warranty. Seller and Buyer agree that all Used Equipment to be sold under this Agreement is sold on an "AS IS, WHERE IS, WITH ALL FAULTS" basis. SELLER MAKES NO REPRESENTATION OR WARRANTY, STATUTORY, EXPRESS OR IMPLIED WITH RESPECT TO THE USED EQUIPMENT INCLUDING MAKING NO WARRANTY THAT THE USED EQUIPMENT WILL BE MERCHANTABLE OR FIT FOR ANY PARTICULAR PURPOSE. THE ONLY WARRANTY OR REPRESENTATION MADE BY SELLER IS A WARRANTY THAT SELLER IS THE OWNER OF THE USED EQUIPMENT. Buyer assumes all risks and liability whatsoever resulting from the possession, use or disposition of the Used Equipment. Seller will have no liability with respect to the Used Equipment sold to Buyer, including having no liability for indirect, incidental or consequential damages.
Inspection. Buyer is invited, urged and cautioned to inspect the Used Equipment prior to purchase. The Used Equipment will be available for inspection at the places and times specified by Seller.
Force Majeure. Deliveries may be suspended by either party in case of act of God, war, 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, government laws, ordinances, rules and regulations, whether valid or invalid, or any cause beyond the control of such party preventing the manufacture, shipment, acceptance or consumption of a shipment of the Used Equipment. If, because of any such circumstance, Seller is unable to supply the total demand for the Used Equipment, such deliveries so suspended will be canceled without liability to Seller.
Assignment. Seller and Buyer agree that neither party may assign any interest in this Agreement without the written consent of the other party.
Termination. After the Purchase Price has been accepted by Seller, Buyer is bound by the terms of this Agreement and cannot terminate this Agreement. If the buyer fails to fulfill any of its obligations the Seller may, with prior written notice to Buyer, terminate this Agreement at any time. If Seller terminates this Agreement after the Purchase Price has been paid, then Seller will refund the Purchase Price to Buyer.