IMPORTANT WARRANTY INFORMATION &
TERMS AND CONDITIONS OF SALE. EXPRESSLY REPRESENTS AND WARRANTS THAT
As used herein, the term “Broker” shall mean Alan Ross
Machinery, an Illinois corporation, who for the purposes of
this agreement may also be the “Seller” in those instances
where it holds title to the equipment at the time of quotation
and/or invoicing. The term “Buyer” shall mean the person
or business executing the order for purchase of the
equipment identified or described in the Invoice (the
“equipment.”) Subject to the terms of section 11, this
document constitutes the full and final agreement of the
parties for the purchase and sale of the goods and
services described on this quotation or invoice, and are not
to be modified or amended by any prior contemporaneous
agreement, written or oral. Modifications to this agreement
shall be in effect only if signed by the parties in writing, and
no modification shall be affected by acknowledgment,
acceptance or receipt of purchase order forms containing
different terms or conditions. This sale is expressly made
conditional on Buyer’s consent to, and Broker agrees to
furnish goods and services only upon, these terms and
conditions. Unless otherwise stated on the quote or
invoice, this sale is subject to the terms and conditions of
the agreements between Broker and the equipment’s
owner. No other representations or warranties shall be
binding against Broker other than those stated herein.
(1) PRICE. All prices (quoted and invoiced) are
exclusive of federal, state, municipal and foreign duties,
sales, use or similar taxes that Broker may be required to
collect or remit. Buyer is responsible for payment of such
taxes unless otherwise stated on the invoice.
(2) TERMS AND DELIVERY. Quotes and invoices are
conditioned upon Buyer’s immediate acceptance, and
remain subject to prior sale or other disposition and
change without notice. Buyer shall pay a non-refundable
deposit and balance of the purchase price prior to removal
of equipment. Invoices not paid in full on the date
equipment is ready for removal shall be subject to
liquidation, with Buyer’s deposit retained as liquidated
damages. Acceptance, constituted by receipt of cleared
funds, is made with the mutual understanding that Buyer’s
order is not subject to cancellation. Shipping dates where
provided are approximate only, and are contingent upon
delay or force majeure. Buyer agrees to, and is
responsible for, removal of equipment within 5 days of
notice of its availability for removal, contingent upon force
majeure, unless otherwise stated herein or equipment shall
be considered abandoned and Buyer shall be responsible
for associated costs of removal.
(3) TITLE. Title shall not pass to Buyer until the entire
purchase price is paid in US currency. Unless otherwise
stated on the quote or invoice: Broker does not hold title to
brokered or consigned equipment; Broker disclaims any
warranties of good title; and title shall pass from the
equipment’s owner directly to Buyer. For equipment
having a purchase price equal to or greater than One
Hundred Thousand Dollars, or otherwise upon Broker’s
written consent, Broker shall provide Buyer with UCC
searches for security interests granted by the owner in the
equipment. If there are any UCC financing statements
filed by the owner’s creditors granting a security interest in
the equipment, Broker shall obtain releases and provide a
limited warranty that title to the equipment is being
transferred to Buyer free of the security interests in the
equipment that are listed on such UCC searches (the
“Limited Warranty of Clear Title”). Broker’s liability under
the Limited Warranty of Clear Title shall be limited to the
lesser of the purchase price for the equipment or Twenty
Thousand Dollars ($20,000).
(4) INSPECTION. Buyer is encouraged to inspect the
equipment prior to shipment. The Buyer acknowledges
they are a sophisticated purchaser of machinery and
hereby accepts responsibility for defects or fault in
equipment purchased “as-is.”
(5) IMPORTANT: EQUIPMENT USE AND SAFETY.
BUYER ACKNOWLEDGES THE EQUIPMENT MAY
CONTAIN CERTAIN UNAVOIDABLE RISKS, WHICH
MAY ARISE DURING USE, OPERATION OR AFTER
SALE, AND THAT THE EQUIPMENT MAY BE
INHERENTLY DANGEROUS. BUYER
ACKNOWLEDGES SUCH RISKS AND DANGERS, AND express Limited Warranty and Limited
Warranty of Clear Title set forth above, the
BUYER WILL ASSUME ALL RESPONSIBILITY FOR
PERSONAL INJURIES ARISING FROM THE USE,
OPERATION AND SALE OF THE EQUIPMENT. Buyer
represents and warrants that it will provide all necessary
safety precautions (e.g., employee training, user
instructions, warnings, labels, screening, safety guards,
emergency stop switches and other safety mechanisms
and devices.) Buyer acknowledges that the equipment
was neither designed nor manufactured by Broker and
that Broker does not know of Buyer’s specific application.
Buyer represents and warrants that it is Buyer’s sole
responsibility to provide proper safety precautions (e.g.,
employee training, user instructions, warnings, labels,
screening, safety guards, emergency stop switches and
other safety devices) to safeguard Buyer and others from
harm arising from the use, operation or sale of
equipment. Buyer represents and warrants that it will
conform the equipment to federal, state and industry
safety standards and conform the equipment to
manufacturer’s warnings and instructions prior to use,
operation or sale.
(6) ALL WARRANTIES DISCLAIMED. EXCEPT AS
OTHERWISE STATED HEREIN, BROKER MAKES NO
REPRENSATIONS OR WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED, INCLUDING NO
WARRANTIES OF QUALITY, MERCHANTABILITY,
GOOD TITLE OR FITNESS FOR A PARTICULAR
PURPOSE. BUYER EXPRESSLY AGREES TO
ASSUME ALL RISKS AND LIABILITY FOR THE USE,
OPERATION AND SALE OF THE EQUIPMENT,
WHETHER USED, OPERATED OR SOLD SINGLY OR
IN COMBINATION WITH OTHER EQUIPMENT, GOODS
OR PRODUCTS. THE DESCRIPTION OF THE
EQUIPMENT PROVIDED IN THE INVOICE IS FOR THE
SOLE PURPOSE OF IDENTIFYING THE SAME AND
DOES NOT CONSTITUTE A REPRESENTATION OR
WARRANTY THAT THE EQUIPMENT CONFORMS TO
SUCH DESCRIPTION, CONDITION OR
SPECIFICATION. IN NO EVENT SHALL BROKER BE
LIABLE TO BUYER OR ANY OTHER PERSON FOR
INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES, INCLUDING, BUT NOT LIMITED TO
PROPERTY DAMAGE, PERSONAL INJURY,
REVENUE LOSS OR LOSS OF PROFITS OR CLAIMS
OF CUSTOMERS OR BUYER FOR ANY SUCH LOSS
OR DAMAGE, AND, NOT WITHSTANDING THE
PROVISIONS OF ANY STATUTE OR LAW. TO THE
EXTENT ALLOWED UNDER THE PROVISIONS OF
ANY STATUTE OR LAW, THE TERMS OF THIS
CLAUSE SHALL CONSTITUTE THE EXCLUSIVE
REMEDIES OF BUYER AND BROKER. ALL
EQUIPMENT IS SOLD EITHER “AS-IS,” OR
“GUARANTEED” AS STATED IN WRITING ON THIS
INVOICE. EQUIPMENT SOLD “GUARANTEED” IS IN
ALL RESPECTS OFFERED “AS-IS,” BUT IS SOLD
WITH A 30-DAY RETURN OR REPAIR PRIVILEGE
(“LIMITED WARRANTY”) AT THE SOLE DISCRETION
OF BROKER, WHICH WILL HAVE NO OBLIGATION
WITH RESPECT TO SUCH EQUIPMENT AFTER 30
DAYS FROM DATE OF SHIPMENT, REGARDLESS OF
ANY NOTIFICATION OF DEFECT, OR ANY REMEDIAL
ACTIONS ON THE PART OF THE BROKER.
EQUIPMENT SOLD “AS-IS” CARRIES NO RETURN
PRIVILEGE UNDER ANY CIRCUMSTANCES. IN THE
EVENT OF IMPROPER INSTALLATION, ALTERATION,
ABUSE, MISUSE, ACCIDENT, FIRE, FLOOD OR ACTS
OF GOD, ANY LIMITED WARRANTIES WHICH MAY
BE GIVEN BY BROKER TO BUYER ARE HEREBY
REVOKED AND CANCELLED.
(7) INDEMNITY. Buyer acknowledges hereby that Buyer
is a sophisticated purchaser. Buyer expressly agrees as
a condition of its purchase of the goods that it will
indemnify and hold harmless the Broker, its agents,
servants and employees (the “Indemnified Parties”), from
any and all claims arising from any purported defect(s) in
the goods or by reason of the use of the goods, which
may be asserted by any subsequent owner, subsequent
purchaser, user of the goods, lessor, lessee, any other
third party, or any agent, servant or employee of any of
the foregoing (each a “Claimant”). The Buyer assumes
all responsibility in connection with the goods upon
delivery thereof to the Buyer or to a common carrier,
whichever occurs first. Except for claims covered by the
Buyer shall indemnify and hold harmless
the Indemnified Parties, from and against
any and all losses, expenses, demands,
and claims made against the Indemnified
Parties by any Claimant because of: injury
or illness or alleged injury or illness
(including death); actual or alleged damage:
alleged infringement of or litigation
concerning any trade name, trademark,
patent, design, copyright, right of privacy or
similar right in connection with the
equipment; the current negligence of the
Broker with the Buyer or any Claimant
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
materials on or in them; or the possession,
operation, maintenance, transportation, use
or disposition of the goods by any Claimant,
including that caused by hazardous
materials on or in the goods. The
indemnifications herein shall include, but
are not limited to, all attorney’s fees and
legal expenses relating to such claims. The
Buyer shall defend, at its own expense, any
suit, action or cause of action brought
against the Indemnified Parties based on
any claim, and shall pay any and all
damages.
(8) FORCE MAJUERE. Broker shall not be
liable for any damages or penalty for delay
in delivery or for failure to give notice of
delay when such delay is due to the
elements, acts of God, acts of Buyer, acts
of civil or military authority, fires, floods, or
epidemics, quarantine, restrictions, war,
riots, terrorism, strikes, differences with
workmen, accidents to machinery, car
shortages, delays in transportation, delays
in delivery by Broker’s vendors, or any other
causes beyond Broker’s reasonable control.
The delivery date shall be deemed
extended for a period of time equal to the
time lost due to any delay excusable under
this clause.
(9) DAMAGES. Subject to the terms of
Sections 3 and 6, Broker’s liability with
respect to equipment sold to Buyer shall be
limited to refunding any payment or
cancelling the invoice, as applicable.
Broker shall not be liable for: incidental,
special or consequential damages; lost
profits; or any expenses, including, but not
limited to, shipping or rigging cost.
(10) GOVERNING LAW AND DISPUTES.
This agreement shall be construed in
accordance with the laws of the State of
Illinois, without regard to choice of law or
conflicts of law principles. The parties
consent to the jurisdiction and venue of the
courts of Cook County, Illinois or the United
States District Court for the Northern District
of Illinois, USA in any action or judicial
proceeding brought to enforce, construe, or
interpret this contract.
(11) 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 Broker
of a breach of any one of the terms and
conditions shall not be construed as a
waiver of any other breach.
© Copyright 2008. Alan Ross Machinery
Corporation.
All rights reserved