THE FOLLOWING TERMS AND CONDITIONS OF SALE APPLY TO BOTH NEW AND USED MACHINERY.
OFFER AND ACCEPTANCE. Unless otherwise noted, this quotation by Hariton Machinery Company, Inc. (“HMC”) constitutes an offer to sell you (“Buyer”) certain machinery and/or equipment (collectively, “Machinery”) upon the terms and conditions set forth herein. The Buyer may accept this offer only upon such terms and conditions. HMC hereby objects to any terms contained in the Buyer’s acceptance which are in addition to or different from the terms set forth herein. If the Buyer submits to HMC an acceptance or confirmation that contains terms in addition to or different from the terms in this offer, such acceptance or confirmation shall be operative as an acceptance of this offer, but such additional or different terms shall not become part of this contract. The offer provided for herein is subject to prior sale or, in the case of Machinery to be purchased by HMC from a third party to fill the Buyer’s order, the continued availability of such Machinery. The Buyer agrees that its acceptance of the Machinery tendered shall constitute an acknowledgment by the Buyer that such Machinery satisfies any and all obligations of HMC hereunder. The Buyer may not revoke its acceptance for any reason whatsoever.
TERMS. Terms of payment are one-third (1/3) non-refundable deposit of the total sale to be paid with the order and the balance due in United States dollars prior to delivery, unless otherwise specified on the invoice form of HMC. The Buyer shall pay HMC a service charge on all amounts over thirty (30) days past due computed on an interest rate equal to eighteen (18%) percent per annum. The Buyer shall be liable for any and all costs and expenses incurred by HMC arising out of or in connection with the efforts by HMC to collect any unpaid accounts hereunder including, without limitation, attorney or collection agency fees and expenses. No forbearance, indulgence, or delay by HMC in taking any action hereunder shall be deemed a waiver of any rights of HMC under this contract. Unless othefwise stated all Machinery is quoted F.O.B. trucks at shipping point.
TITLE. Title to the Machinery shall not pass to the Buyer until payment of the purchase price is made in full. Prior to said payment in full, HMC retains title to the Machinery.
TAXES. Prices do not include any federal, state or local taxes which are in addition to the purchase price and must be paid by the Buyer. Any and all foreign duties and taxes are the responsibility of the Buyer. Unless the Buyer furnishes HMC with a tax exemption certificate, any sales, use, excise, or similar tax, where applicable, shall also be the responsibility of the Buyer and may, at the election of HMC, be added to the quoted purchase price and invoice by HMC to the Buyer. The failure of HMC to invoice such taxes does not excuse the Buyer from responsibility for paying the same.
FREIGHT AND INSURANCE. All freight and insurance charges are the responsibility of the Buyer unless otherwise agreed by HMC and the Buyer in writing. Shipping dates are approximate and not guaranteed. HMC shall not be liable for failure to deliver or perform, occasioned by causes beyond its control. Notwithstanding any terms of shipment, the Buyer shall be responsible for loss or damage to the Machinery in transit. Risk of loss to the Machinery shall pass to the Buyer upon delivery of the Machinery to a carrier for shipment, delivery to the Buyer’s facility, or upon the Buyer’s taking possession thereof, whichever occurs first.
INSPECTION. Upon responsible notice to HMC, the Buyer shall have the right to inspect the Machinery at HMC’s location during normal business hours prior to time of shipment.
WARRANTY DISCLAIMER. THE MACHINERY SOLD BY HMC HEREUNDER IS SOLD “AS IS” AND WITHOUT WARRANTY. HMC NEITHER MAKES NOR ASSUMES ANY LIABILITY UNDER ANY WARRANTY, WHETHER CONTRACTUAL, STATUTORY, BY OPERATION OF LAW, OR OTHERWISE. THE WARRANTIES DISCLAIMED HEREUNDER INCLUDE, BUT ARE LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. HMC DOES NOT WARRANT THAT THE MACHINERY WILL NOT INFRINGE ANY PATENT, TRADEMARK OR OTHER RIGHTS OF A THIRD PARTY, OR THAT SUCH MACHINERY CONFORMS WITH ANY PLANS OR SPECIFICATIONS OF THE BUYER OR OTHERS, OR MEETS ANY REQUIREMENTS OF ANY FEDERAL, STATE, OR LOCAL LAWS, REGULATIONS OR ORDINANCES, PERTAINING TO SAFETY OR INSURANCE REQUIREMENTS. NO SALESMAN OR OTHER REPRESENTATIVE OF HMC HAS AUTHORITY TO MAKE ANY WARRANTIES. THE DISCLAIMERS OF WARRANTIES SET FORTH IN THIS AGREEMENT MAY ONLY BE MODIFIED OR SUPPLEMENTED IN A WRITING DULY SIGNED BY AN OFFICER OF HMC. IT IS THE BUYER’S RESPONSIBILITY TO INSPECT THE MACHINERY AND TO ASCERTAIN THAT THE SPECIFICATIONS, DESCRIPTIONS AND CONDITION OF THE MACHINERY CONFORM TO THE BUYER’S REQUIREMENTS. ANY WARRANTY CONCERNING SAID MACHINERY MADE BY A THIRD PARTY IS ENFORCEABLE ONLY AGAINST THE THIRD PARTY AND NOT AGAINST HMC. THERE ARE NO OTHER WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE THEREOF, EXCEPT THOSE EXTENDED FOR NEW MACHINERY BY THE MANUFACTURER. THESE WARRANTIES ARE AVAILABLE IN WRITING UPON REQUEST.
BUYER’S RESPONSIBILITY AND INDEMNITY. It shall be the Buyer’s responsibility that any Machinery purchased from HMC is installed and operated in a proper and safe manner. The Buyer also acknowledges that it may have to install or change guards, safeties, warnings or other components to insure that the Machinery purchased hereunder will conform to all laws, regulations, ordinances, codes, insurance requirements and industry standards. The Buyer shall bear and pay all expenses, losses, damages that may arise from the transportation of the Machinery, and all losses, damages, debts and liabilities incurred by the Buyer in connection with its purchase of the Machinery and every other expense relating or incidental thereto, except such costs, damages or expenses as may arise from any action or proceeding brought against the Buyer with respect to the title of HMC to the Machinery, and HMC’s right to sell and advertise the same. The Buyer agrees to defend, indemnify and hold harmless HMC, its agents and employees from and against any and all suits, claims, costs, damages and expenses, including, but not limited to, reasonable attorneys’ fees, arising out of, or in connection with, the transportation, purchase, ownership, or use of the Machinery sold hereunder.
NON-LIABILITY OF HMC. HMC shall not be liable for its failure to perform hereunder, due to any contingency beyond its reasonable control, including acts of God, fires, floods, wars, sabotage, accidents, labor disputes or shortages, government laws, regulations, ordinances or codes, inability to obtain material or equipment and any similar or different contingences. In no event, whether as a result of breach of contract, delay in shipment, or express or implied warranty, tort (including negligence) or otherwise, will HMC be liable to the Buyer, its successors or assigns, or its employees or agents, for any incidental or consequential damages including, but not limited to, damages for loss of revenue or profits, cost of capital, claims of customers for service interruptions or failure of supply, or costs and expenses incurred in connection with labor, overhead, transportation, installation or removal of products or substitute facilities or supply sources, even if HMC shall have been advised of the possibility of such damages. If HMC notifies the Buyer that HMC does not own the Machinery, but is merely acting as a broker of such Machinery on behalf of the Buyer or the owner thereof, it is understood and agreed that HMC shall be entitled to terminate this agreement upon written notice to the Buyer if for any reason the Machinery becomes unavailable for sale to the Buyer.
QUOTATIONS. All quotations are made for immediate acceptance and are subject to withdrawal or change by HMC at any time and without notice. The Buyer requests that HMC continue to provide the Buyer with information on the availability and cost machinery HMC may offer for sale in the future, and agrees to accept such information by telefacsimile, mail, or such other means as HMC may employ.
BANKRUPTCY. In the event any one or more of the following shall occur, any and all obligations of HMC hereunder including, without limitation, any obligation to deliver the Machinery to the Buyer, shall terminate immediately and without further action by HMC: the Buyer files a petition in bankruptcy or is adjudicated bankrupt, or a petition in bankruptcy is filed against the Buyer; the Buyer becomes insolvent or makes an assignment for the benefit of its creditors or makes an arrangement pursuant to any bankruptcy law; or the Buyer discontinues its business or a receiver is appointed for it or its business.
TIME FOR BRINGING ACTION. Any action by the Buyer for breach of any agreement for which these terms are a part shall be commenced, and HMC must be served, within one year after the cause of action has accrued.
GOVERNING LAW; VENUE. This quotation and any contract arising therefrom shall be deemed for all purposes to have been made in the State of Connecticut and shall be governed by and construed in accordance with the laws of the State of Connecticut. Any cause or action arising from a contract resulting from this quotation shall be brought only in the Superior Court of the State of Connecticut in and for the County of Fairfield, which shall have sole and exclusive jurisdiction over all controversies arising hereunder.
IN ADDITION TO THE ABOVE TERMS AND CONDITIONS THE FOLLOWING TERMS AND CONDITIONS SHALL ALSO APPLY FOR ANY USED MACHINERY.
RETURN PRIVILEGE. If Machinery purchased “cleaned, painted and cycled” is proven to be mechanically unsatisfactory, HMC agrees to either accept within thirty (30) days from shipment any Machinery sold with a return privilege with all transportation charges to be prepaid by the Buyer or repair the Machinery at HMC’s option. This return privilege does not apply to Machinery sold on an “AS IS” basis or Machinery damaged in transit. The Buyer shall have the risk of loss of all Machinery until such Machinery is returned to HMC in good condition.
REPRESENTATIONS. The Machinery is offered “reconditioned”, “cleaned painted or cycled”, or on as “AS IS” basis to be specified in HMC’s offering and acknowledged in the Buyer’s purchase orders, but at no time does HMC represent the Machinery to be rebuilt or to comply with the American National Standards Institute Safety Standards. The Machinery descriptions are intended only as a guide and their accuracy is not guaranteed.