Used Equipment Sales Terms and Conditions
1. TERMS AND CONDITIONS CONTROL The following terms and conditions (these “Terms and Conditions”), are agreed to by Source Machinery Sales LLC (Seller”) and you the purchaser (“ Purchaser”) (Collectively with Seller, (”Parties”), 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.
2. COMPLETE AGREEMENT. This document represents the full final and complete agreement of the Parties regarding the sales and these Terms and Conditions.
3. 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 machinery shall not constitute a modification or waiver of these Terms and Conditions.
4. MACHINERY SOLD. The final invoice shall cover the specific quantities of items listed on the face thereof (the “Machinery”).
5. 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.
6. TERMS OF PAYMENT. The purchase price for the Machinery sold shall be as shown on the face of the invoice, F.O.B. Seller’s place of business. The purchase price shall be payable in United States currency in accordance with the terms outlined in the invoice.
7. 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 Machinery shall conform to such affirmation or promise. Any descriptions, samples and specifications with respect to Machinery offered for sale herein are not warranted by Seller to be accurate or complete. If a model or samples and specifications with respect to Machinery offered for sale herein are nor warranted by Seller to be accurate or complete. If a model or sample was shown to Purchaser, such model was used merely to illustrate general type and quality of Machinery sold by Seller and not to represent that the Machinery would necessarily conform to such model or sample. Any description is for the identifying the Machinery and no affirmation, promise, description, sample or model shall be deemed part of the basis of the bargain. SELLER STRONGLY SUGGEST THAT THE PURCHASER CONDUCT AN ONSITE INSPECTION OF THE MACHINERY SOLD HEREUNDER. SELLER SHALL NOT BE RESPONSIBLE FOR THE CONSEQUENCES OF PURCHASER’S FAILURE TO INSPECT THE MACHINERY OR ANY INACCURACIES, INSUFFICIENCIES, OR OMISSIONS IN SUCH DESCRIPTIONS, SAMPLES AND OR/OR SPECIFICATIONS. The employees or representatives of Seller are not authorized to make any statement or representation as to the quality, character, size, condition, quality, etc. of the Machinery offered for sale inconsistent with these Terms and Conditions. Any such statements made will not be binding on Seller or be grounds for ant subsequent claim.
8. SALES – USED EQUIPMENT. Purchaser understands that the Machinery described herein has been used by persons other than Seller. Purchaser is warned and acknowledges that such Machinery may bear or contain 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 different reasons during use, handling, cleaning, reconditioning, disposal or at any other time after the article leaves the possession and control of Seller). Purchaser hereby discharges 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 warnings with respect to individual articles or substances or from the inadequacy of any warning.
9. DISCLAIMER OF LIABILITY. Purchaser acknowledges that the Machinery 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 ensure the safe operation of Machinery. Purchaser also agrees and understands that certain safety mechanism may have been disabled and may not meet OSHA requirements and purchaser must discuss, safe use of the machine and safety components with the manufacture. Seller will not be responsible for any loss or injury of any matter whatsoever resulting from defects in the Machinery 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 in connection therewith or resulting therefrom.
10. 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, incurred or suffered by such person arising from, by reason of, or in connection with any loss, damage or injury to person or property or other transfer of the Machinery to a third party.
11. INSURANCE AND SAFETY RULES. Purchaser shall not move, load, transport or otherwise handle the Machinery 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 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.
12. FORCE MAJEURE. Sales may be suspended in case of act of God, war, sabotage, accidents, riots, fire, explosion, flood, strike, epidemic, pandemic, disease, virus, lockout, injunction, government order, mandate or request, 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 Machinery. Such deliveries so suspended shall be cancelled without liability, but the contract shall otherwise remain unaffected.
13. INSPECTION. Purchaser has inspected the Machinery or hereby acknowledges that Seller invited, urged and cautioned Purchaser to inspect the Machinery, and Purchaser waived the right to inspect.
14. LIMITATION OF DAMAGES. Seller’s liability with respect to Machinery sold to Purchaser shall be limited to refunding any payments made by Purchaser; with respect to Machinery returned to and accepted by Seller. 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.
15. GOVERNING LAW. All invoices and these Terms and Conditions shall be construed according to the laws of the state of Minnesota. 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 district court of Hennepin County, MN.
16. TAXES. All taxes assessed to any order are the responsibility of Purchaser, including, but not limited to, local and regional sales taxes. In the event that Purchaser either fails to pay the tax or other charges as agreed or 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 to limited to, attorneys’ fees and/or other legal expenses relating to such failure.
17. 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.
18. 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.
19. 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 level.