Terms and Conditions
ACCEPTANCE AND ENTIRE CONTRACT THESE TERMS AND CONDITIONS CONSTITUTE THE ENTIRE CONTRACT FOR THE SALE AND GOODS DESCRIBED ON THE FACE HEREOF NOTWITHSTANDING ANY INCONSISTENT OR ADDITONAL TERMS THAT MAY BE CONTAINED IN BUYER'S FORMS OR DOCUMENTS PLACING OR CONFIRMING THE ORDER. A SPECIFIC WRITTEN AGREEMENT EXCLUDING THESE TERMS AND CONDITIONS SHALL BE THE SOLE MANNER AND METHOD TO ALTER THEM. IF NO SPECIFIC CONTRACT EXISTS, WE ACCEPT YOUR ORDER ONLY ON THE EXPRESS CONDITION THAT YOU ASSENT TO THE TERMS AND CONDITIONS. YOUR ACCEPTANCE OF, RECEIPT OR PAYMENT FOR THE GOODS SHIPPED HEREUNDER SHALL CONSTITUTE ASSENT TO THE TERMS AND CONDITIONS. THIS DOCUMENT CONSTITUTES THE ENTIRE AGREEMENT OF THE PARTIES. NO UNDERSTANDING OR AGREEMENT PURPORTING TO MODIFY OR VARY ANY OF THE TERMS OF THIS DOCUMENT SHALL BE BINDING, UNLESS IT IS IN WRITING AND SIGNED BY A CORPORATE OFFICER OF SELLER.
1. DISCLAIMER OF WARRANTIES.
A. THE GOODS ARE PURCHASED BY THE BUYER "AS IS AND WHERE IS". THE 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.
B. Descriptions and specifications for the goods are not warranted by the Seller to be accurate or complete. Models are used only to illustrate the general type and quality of the goods. Descriptions of the goods are for the sole purpose of identifying the goods for sale. The Seller shall not be responsible for any inaccuracies, insufficiencies, or omissions in descriptions and specifications. You acknowledge that you are not relying on any description or specification from Seller. Buyer has conducted an independent inspection and examination of the goods and acknowledges satisfaction with the goods in every way.
C. The employees or representatives of the Seller are not authorized to make any statement or representation as to the quality, character, size, condition, quantity, etc. of the goods.
2. SALES-USED EQUIPMENT. WARNING - Buyer understands that persons other than the Seller have used the goods. Buyer acknowledges that Seller did not design or manufacture the goods and does not have specialized expertise in the goods. Buyer covenants to Seller that Buyer: will use goods only for their intended uses: will not use Goods for personal, family or household purposes; will keep goods in good repair, will design and install guards as necessary for the safe operation of the goods and as required by OSHA; will keep all guards in place; will train the safe use of the goods all operators, service personnel, other employees and third parties with deal with Goods: will implement and enforce a Lockout/Tagout program per OSHA; will conduct a Process Hazard Analysis of its process and will comply with the findings of its analysis; will otherwise comply with OSHA regulations the National Electric Code and any other state of federal safely laws or regulations; has determined without reliance on Seller that goods are suitable components in Buyer's process; and, if ownership of goods is transferred, will furnish the new owner with all manuals, instructions and guards.
3. BUYER'S INDEMNITY OF PLASTIMACH CORP OR LOCATOR CORP
A. WARNING-The goods may be dangerous if improperly used. The Buyer covenants that it will contact the original manufacturer to obtain installation and operation information to insure the safe and proper operation of goods as well as appropriate and proper training for anyone using or operating the goods. Buyer agrees that Seller is not responsible for any damage, loss or injury resulting from defects in the items sold or from subsequent use of the goods. Buyer expressly agrees as a condition of its purchase that it will indemnify and hold Seller harmless from any and all claims and losses arising from any purported defect in the goods or by reason of the use of these items regardless of who holds, brings or makes said claim. Buyer agrees to assume all responsibility in connection with the goods upon delivery to a common carrier.
B. HAZARDS LIABILITY-Buyer shall hold Seller harmless and indemnified from and against any and all losses, expenses, demands, and claims, including reasonable attorneys' fees, made against Seller, its agents, servants, and employees due to death, injury, illness or property damage whether caused by the sole negligence of Seller or Buyer, any subsequent Buyer, any leaser or lessee or any other person or otherwise arising out of, resulting from or in any way connected with the operation, maintenance, possession, use, transportation, repair or disposition of the goods, including that caused by hazardous chemicals or other hazardous material on or in them. Buyers shall disclose these Terms and Conditions to any subsequent Buyer or user of the goods and that Seller is indemnified and held harmless by Buyer as described herein.
4. INSURANCE AND SAFETY RULES INSURANCE. Buyer shall not move, load, transport, or otherwise handle the goods on Seller's premises without first having obtained insurance coverage satisfactory to Seller. Certificates of Insurance evidencing insurance coverage shall be furnished to Seller. Purchaser shall comply with Seller's plant safety rules and regulations.
5. FORCE MAJEURE. Delivery or other performance hereunder may be suspended in case of act of God, war, sabotage, accidents, 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, or any cause beyond the control of such party preventing the shipment, acceptance or consumption of a shipment of goods. Suspended deliveries shall be cancelled without liability, but the Terms and Conditions shall otherwise remain unaffected.
6. PURCHASER'S CREDIT. Seller reserves the right, among its other remedies, to terminate this contract or to suspend further performance in the event Buyer fails to make any payment when same becomes due.
7. INSPECTION. Buyer has inspected the goods or hereby acknowledges that Seller invited, urged, and cautioned Buyer to inspect same since Seller has not made and cannot make any representation in connection with their condition. Buyer assumes all risks from handling, storage, resale, disposal, or from use or disposition of the goods. Buyer agrees to indemnify Seller for any amounts Seller may pay pursuant to judgment or settlement of any claims made against Seller by reason of damage to property or injury to persons resulting from Buyer's handling, storage, resale, disposal, or from other use or disposition of the goods.
8. DAMAGES. Seller's liability with respect to goods sold to Buyer shall be limited to refunding payment made and canceling the sale. Buyer's sole remedy, in the event of a default by Seller, is to cancel the contract and obtain a refund of any sums paid. In no event shall Seller be liable for incidental, special or consequential damages, or any shipping costs, including without limitation loss of profits, loss of production, loss of sales and interruption of manufacturing or operations or any other damages or losses. The provision of this paragraph shall supersede any inconsistent provisions on an any document involving Buyer's purchase of goods.
9. ASSIGNMENT. Purchaser may not assign its rights or delegate its performance in whole or in part hereunder without the prior written consent of the Seller. Any attempted assignment or delegation of Buyer's rights and obligations hereunder without Seller's written consent shall be void; however, Seller shall not unreasonably withhold such consent.
10. MISCELLANEOUS. Interpretation and enforcement of this contract and all causes of action relating to the sale and the terms hereof, or arising by virtue hereof, shall be construed solely according to the laws of the State of New York. The Buyer and Seller agree that the courts of New York shall be the sole, exclusive and only forum in which disputes arising hereunder or as a consequence hereof shall be adjudicated. The Buyer and Seller agree that any and all claims arising hereunder by virtue hereof must be brought in the courts of the State of New York, exclusive of its rules regarding choice of law. The Buyer and Seller also agree that venue for all claims arising hereunder or by virtue hereof shall, at all times, be solely and exclusively in Rockland County, New York and waives any claims as to inconvenient forum. Buyer and seller expressly agree that Seller shall not be amenable to suit or other action in any forum or jurisdiction other than in the courts of New York regardless of the circumstances or facts of any claim hereunder or as a result hereof.
11. TERMS OF PAYMENT. 50% of total purchase price required as deposit with order. Balance due and payable on or before shipment, unless specifically agreed to in writing to the contrary. Full payment is required within 30 days of the Sales Order Date and machinery must be removed within 60 days or deposit will be forfeited, unless specifically agreed to in writing to the contrary. After 30 days, any amount unpaid shall bear interest at 1 ½% per month or the maximum rate allowed by law, whichever is less. Machinery not removed within 60 days will be subject to additional storage and handling fees.
12. TAXES. All taxes assessed to this order are the responsibility of the Buyer or Lessee including but not limited to local and regional sales tax and personal property tax or the Buyer is to provide Seller with valid exemption certificate. In the event that Buyer either fails to pay the tax or other charges or fails to provide a valid exemption certificate, Buyer agrees to indemnify and hold Seller harmless from any liability and expense by reason of such failure.
13. MODIFICATION. Purchaser understands and agrees that (a) no modification or waiver of the Terms and Conditions hereof shall be effective unless made by an officer of Seller in writing addressed to Buyer and specifically referring to this document and (b) Seller's acknowledgement or acceptance of anything in writing from Buyer which is in conflict with these Terms and Conditions and any subsequent delivery of goods shall not constitute a modification or waiver of these Terms and Conditions.
14. DIRECTION. BUYER ACKNOWLEDGES THAT ANY WORK DONE BY SELLER ON THE GOODS IS DONE AT THE SOLE REQUEST OF AND UNDER THE SOLE DIRECTION OF BUYER USING THE DESIGNS, INSTRUCTIONS, SPECIFICATIONS AND ENGINEERING PROVIDED BY THE BUYER.
15. SEVERABILITY. If any provision of this acknowledgement is determined to be illegal or unenforceable it shall not affect the enforceability of any other provision or paragraph of this acknowledgement.