1. Formation of Contract. 1.1 The Terms of Conditions set forth herein confirm the offer of Demag Cranes & Components ("Seller) to sell, and shall constitute a complete statement between Buyer & Seller, which shall not be supplemented, varied or amended except as set forth in provisions on the face of this Sale Confirmation (which provisions shall govern where inconsistent with these Terms and Conditions) or by separate written agreement signed by both Parties. Seller's acceptance or acknowledgement of Buyers purchase orders or shipping instructions shall not constitute such written agreement. If this Sale Confirmation (Order Acknowledgement) shall be deemed an acceptance of a prior offer by Buyer, such acceptance is expressly conditional on Buyer's assent to any additional or different terms contained herein.
1.2 Acceptance by Buyer of delivery of all or any part of goods sold hereunder shall be an acknowledgement and acceptance by Buyer of these Terms and Conditions, whether or not Buyer shall have acknowledged receipt of this Sale Confirmation.
2. Prices, Taxes, Packaging, Testing. 2.1 Prices furnished by Seller do not include sales, use, excise or similar taxes applicable to the goods sold hereunder. Any taxes or assessments imposed by any taxing authority shall be added to the purchase price to be paid hereunder, and Buyer shall reimburse Seller for the amount of such tax or assessment immediately upon presentation of a bill therefor.
2.2 Weights, dimensions, capacities, prices, performance ratings and other data included in catalogues, advertisements, illustrated matter and price lists are approximations only and binding on Seller only to the extent expressly referred to and incorporated herein.
3. Terms of Payment, Security Agreement. 3.1 All invoices for hoists, components, drives and parts shall be due and payable within 30 days from the dates thereof. For cranes 1/3 of order value shall be due upon placing the order 1/3 due two weeks prior to shipment and 1/3 thirty days after shipment.
3.2 If the credit of Buyer shall in the sole judgement of Seller become impaired at any time, Seller, at its option and without incurring any liability therefor, may divert or prevent the discharge of shipments in route to Buyer and may in addition either (1) cancel the unfilled portion of the contract, or (2) require from the Buyer advance payment of security for payment satisfactory to Seller before making any further shipment, in which case Seller shall have the right to cancel the unfilled portion of this contract upon failure of Buyer to provide such security or advance goods previously delivered but unpaid, whether pursuant to this Sale Confirmation or otherwise, as well as to goods to be delivered.
3.3 Prompt payment is of the essence of this contract and default in any payment will, at the option of Seller, operate as a breach of the entire contract. Past due payments shall bear interest computed monthly at a rate of 1 �% per month.
3.4 Buyer hereby grants to Seller a security interest in the goods (and proceeds thereof) covered by this Sales Confirmation to secure payment of the purchase price of same. In the event of any default when due (including any accelerated payment as herein authorized), Seller shall have all the rights and remedies of a secured party under applicable law. Seller is authorized, in its discretion, to file one or more financing statements under the Uniform Commercial Code or other statute naming Buyer as debtor and Seller as secured party and indicating therein the goods as items of collateral. Buyer further agrees to execute, within 5 days following any request by Seller, such financing statements as Seller shall require for filing or recording is agreement . Buyer warrants that no financing statement or like document covering the goods is on file or authorize or permit to be filed in any jurisdiction prior to payment of the full purchase price hereunder any such financing statement or like document covering the goods in which Seller is not named as the sole secured party.
4. Deliveries and Acceptance of Goods. 4.1 Delivery dates refer to the time when it is estimated that the goods will be ready for shipment at the point of delivery and are contingent upon fulfillment by Buyer of its contractual obligations, in particular the punctual receipt by Seller of all payments theretofore due and all necessary information. Partial deliveries by Seller shall be permitted. When the goods or any part thereof are ready for delivery and the contemplated delivery cannot be made for any cause referred to in section 6, Seller may store same at Buyer's expense, including demurrage, preparation for storage, storage charges, insurance, and handling, payable by Buyer upon submission of invoices therefor. Seller may deliver such goods when conditions permit upon payment by Buyer of all amounts due.
4.2 The Goods shall be installed by and at the risk and expense of Buyer. Any assistance by Seller or its representatives in the installation of the goods shall be provided only in accordance with such separate terms as may be agreed upon in writing.
4.3 Buyer shall inform Seller in writing of any defect in the goods or any failure to meet contract specifications within 10 days after the goods are put into service, but not more than 30 days after delivery to the first location at which the goods are to be put into service.
4.4 Risk of loss of the equipment shall pass to Buyer upon Seller's delivery or tender of delivery of the equipment at the specified point of delivery or, if delivery is delayed pursuant to Section 5 or Section 6, on movement of the equipment to storage
5. Failure of performance by Buyer. If Buyer fails to fulfill any contractual obligation to Seller, Seller may suspend performance and any costs incurred by Seller as a result thereof shall be payable by Buyer. Seller shall be entitled to an extension of time for performance of its obligations equal to period of Buyer's nonfulfillment whether or not Seller elects to suspend performance. If such non-performance is not rectified by Buyer within 10 days on notice thereof, Seller may terminate performance and Buyer shall pay Seller its termination charges upon submission of invoice.
6. Force Majeure. 6.1 If because of force majeure either Party is unable to carry out any of its obligations (other than the payment of money) under this Sale Confirmation, and if such Party promptly notifies the other in writing expressly claiming and describing such force majeure, then the provisions of Subsections 6.2-6.3 shall apply. The term "force majeure" as used herein shall mean any cause reasonably beyond the control and without fault or negligence of the Party affected thereby which wholly or in substantial part prevents the manufacture, shipment, delivery or storing of goods sold hereunder. Examples, without limitation, of force majeure are acts of God of war or of public enemy, riot or civil commotion, labor disputes, labor or material shortages, accidents, fires, explosions, floods, breakdowns of our damage to plants, equipment, or facilities, faulty castings or forgings, interruptions to or contingencies of transportation, acts, rules, regulations, orders or expressed policies of any governmental authority, and delays of sub-contractors.
6.2 If a condition of force majeure occurs and notice is given as provided in Subsection 6.1, the obligations of notifying Party shall be suspended to the extent made necessary by such force majeure and during its continuance; provided that the effect of such force majeure is eliminated insofar as possible with all reasonable dispatch (but nothing herein shall be construed to require a party claiming force majeure to accede to any demands of labor or other third parties which such Party considers unreasonable.) If one or more conditions of force majeure continue so that obligations remain suspended for a period amounting to 45 days measured from the date of notice and at the end of said period or at any time thereafter either Buyer or Seller reasonably concludes that there is no likelihood of ending such conditions in the immediate future, then either Party may terminate this contract without liability to the other Party, therefor upon 15 days notice to the other Party, provided such condition continues during said 15 days.
6.3 Termination shall apply only as to unfilled portions of the order covered by this contract; amounts due from Buyer for deliveries made in transit prior to notice of force majeure shall be paid to Seller notwithstanding suspension or termination pursuant to Subsection 6.2. This provision shall survive the termination hereof.
7 Warranty. Demag Cranes & Components Corp. warrants that the goods sold by DCC shall be free from defects in material and workmanship for a period of twelve (12) months from the date of delivery or until the equipment has been operated for a total of two thousand (2,000) hours, whichever occurs earlier DCC's obligations under this warranty shall be limited to repairing or replacing at DCC's option, F.O.B. point of manufacture, freight prepaid by Buyer, any part of the goods which, if properly installed, used and maintained, proves defective in material or workmanship within the warranty period. DCC shall in no event be responsible for the cost of field labor or other charges incurred in removing and/or reaffixing any portion of the equipment. Such warranty obligations are contingent upon (1) Buyer giving notice and satisfactory proof of any defect in accordance with Subsection 11.1 and (2) Buyer's fulfillment of all obligations imposed hereunder. All parts replaced, as set forth above shall become the property of DMHEC. Except as otherwise provided in this warranty, no warranty shall apply with respect to any performance specification or performance guarantee (if there be any) once Buyer is deemed to have accepted goods. This warranty shall be void and DMHEC shall not be responsible for any defects if Buyer has carried out modifications or reconditioning work on the goods without DMHEC's prior written consent, or if the equipment has been used beyond rated capacity. This warranty does not cover brake linings, wire ropes, or rope guide assemblies or damage due to normal wear and tear. Anything to the contrary herein notwithstanding, DMHEC's warranty with respect to goods for parts not manufactured by DMHEC or its affiliates shall further be limited to the warranty DMHEC receives from the supplier.
A. DISCLAIMER OF IMPLIED WARRANTY OF MERCHANTABILITY: DEMAG AND BUYER AGREE THAT IMPLIED WARRANTY OF MERCHANTABILITY IS EXCLUDED FROM THIS TRANSACTION, AND SHALL NOT APPLY TO THE GOODS INVOLVED IN THIS TRANSACTION
B. DISCLAIMER OF IMPLIED WARRANTY OF FITNESS: DEMAG AND BUYER AGREE THAT THE IMPLIED WARRANTY OF FITNESS FOR PARTICULAR PURPOSE IS EXCLUDED FROM THIS TRANSACTION AND SHALL NOT APPLY TO THE GOODS INVOLVED IN THIS TRANSACTION.
C. DISCLAIMER OF EXPRESS WARRANTY: DEMAG AGENTS OR DEALERS AGENTS, OR DISTRIBUTORS AGENTS MAY HAVE MADE ORAL STATEMENTS ABOUT THE MACHINERY AND EQUIPMENT DESCRIBED IN THIS TRANSACTION. SUCH STATEMENTS DO NOT CONSTITUTE WARRANTIES, AND BUYER AGREES NOT TO RELY ON SUCH STATEMENTS. BUYER ALSO AGREES THAT SUCH STATEMENTS ARE NOT PART OF THIS TRANSACTION.
D. DEMAG AND BUYER AGREE THAT ANY CLAIM MADE BY BUYER WHICH IS INCONSISTENT WITH WARRANTY REMEDIES HEREIN, AND IN PARTICULAR CONSEQUENTIAL AND INCIDENTAL DAMAGES, ARE EXPRESSLY EXCLUDED
E. DEALER OR DISTRIBUTOR NOT AN AGENT. DEMAG AND BUYER AGREE THAT BUYER HAS BEEN PUT ON NOTICE THAT DEALER OR DISTRIBUTOR DEMAG'S AGENT IN ANY RESPECT OR FOR ANY REASON. DEMAG AND BUYER ALSO AGREE THAT BUYER HAS BEEN PUT ON NOTICE THAT DEALER OR DISTRIBUTOR IS NOT AUTHORIZED TO INCUR ANY OBLIGATIONS OR TO MAKE ANY REPRESENTATIONS OR WARRANTIES ON DEMAG'S BEHALF OTHER THAN THOSE SPECIFICALLY SET FORTH IN THE WARRANTY DEMAG ISSUES WITH SUCH SPECIFIC MACHINERY AND EQUIPMENT INVOLVED IN THIS TRANSACTION.
F. MERGER: THIS WARRANTY, AGREEMENT CONSTITUTES A FINAL WRITTEN EXPRESSION OF ALL THE TERMS AND CONDITIONS OF THIS WARRANTY AND IS A COMPLETE AND EXCLUSIVE STATEMENT OF THOSE TERMS.
8. Patents. If Buyer receives a claim that the goods delivered by Seller infringe a United States patent, Buyer shall notify Seller promptly in writing and give Seller exclusive authority to evaluate, defend and settle such claim. Seller shall then at its own expense and option (1) defend against such claim, (2) settle such claim, (3) Procure the right to use the goods, (4) replace or modify the goods to avoid infringement, and/or (5) remove the goods and refund the purchase price, less a reasonable amount of depreciation. Provided such timely notice has been given by Buyer, should any court of competent jurisdiction hold such goods to constitute infringement, Seller shall pay any costs and damages finally awarded on account of such infringement and if the use of such goods is enjoined Seller shall take at its option one or more of the actions under (3), (4) or (5) above. The obligation of Seller with respect to patents or any other industrial property rights are solely and exclusively as stated herein.
11.1 Notice or any objections or complaints concerning quantity or quality of the goods sold shall be communicated to Seller in writing within 10 calendar days after delivery or, if the defect was latent within 10 calendar days after discovery of the defect, it being expressly agreed that the time periods referred to in this sentence shall be deemed reasonable periods for the discovery and notification of such objections. Buyer shall at its expense promptly furnish Seller with proof of the defect satisfactory to Seller. Failure to give such notice or furnish such proof shall be deemed a waiver by Buyer of all claims with defect.
11.2 In the event the goods shall materially differ from or shall not comply with the terms of this Sale Confirmation, Seller will, at Buyer's option, to be exercised at the time notice is given pursuant to Paragraph 4.3, replace such goods or credit Buyer with the difference in value between the goods as delivered and as specified.
11.3 In the event of breach of this contract by Seller by reason of failure to deliver or make timely delivery of all or part of the goods. Seller's liability shall in no event exceed 5% of the contract price of goods due but remaining undelivered for each full week of nondelivery, up to a maximum total of 5% of the contract price or untimely delivered. It is expressly agreed that such limits on Sellers liability for late delivery or non-delivery are reasonable. Buyer shall have no right of cancellation due to breach by Seller by reason of failure to make timely delivery except as to such portions of this contract as relate to goods remaining undelivered 10 weeks after delivery is due hereunder. In no event shall Seller be liable for incidental or consequential damages or for any loss whatsoever incurred by Buyer or third parties as a result of Seller's breach of this contract, nor shall Seller be liable for any damages caused to Buyer or any third by the equipment delivered to Buyer. Buyer shall hold Seller harmless from all claims or actions brought by third parties with respect to any damages described in the Subsection.
11.4 In no event shall Seller be liable for incidental or consequential damages or for any loss whatsoever incurred by Buyer or third parties as a result of Seller's breach of this contract, nor shall Seller be liable for any damages caused to Buyer or any third party by the equipment delivered or to be delivered to Buyer, or by Buyer's or any third party's use of such equipment after it has been delivered to Buyer. Buyer shall hold Seller harmless from all claims or actions brought by third parties with respect to any damages described in this Subsection.
11.5 The remedies provided for herein shall be Buyer's sold remedies. If a court of competent jurisdiction shall find as a matter of law that any provision herein determining Buyer's remedies is unconscionable, Sellers liability shall nevertheless be limited solely to an amount determined in accordance with Subsection 11.2 and/or 11.3 as may be appropriate.
12. Cancellation. Except as otherwise provided herein, Buyer may terminate this contract only if agreed to in writing by Seller and upon payment to Seller of cancellation charges as established by Seller.
13. Government Authorization. Buyer shall be responsible for the timely procurement of any required authorization, including import and export licenses, exchange permits and other govermental authorization, even though such authorization may be applied for by seller. Buyer and Seller shall assist each other in every manner reasonably possible in securing such authorizations. Seller shall not be liable if any authorization is delayed or denied, and Buyer shall not be relieved thereby of its obligations to pay Seller for its work.
14. Severability of Terms: Waiver. Waiver by Seller of any default of Buyer hereunder shall not be deemed a waiver of any other default of Buyer. The express provision herein for certain rights and remedies of Seller shall not be construed to deprive Seller of any other rights and remedies to which it would otherwise be entitled under applicable law. The invalidity of any provision of these Terms and Conditions shall not affect the remaining provisions hereof.
15. Governing Law/Disputes. This contract shall be governed by and interpreted in accordance with the internal laws of the state of Ohio. In any dispute hereunder, the same shall be tried by a judge, and the parties waive their right to a jury trial.
16. Assignment Notice. 16.1 Any assignment or transfer by Buyer of any of its rights or obligations hereunder without the prior written consent of Seller shall be void in the inception.
16.2 Any notice or other communication shall be given by one party to the other by telex or mailgram, in which event such notice shall be deemed to have been received the next business day after transmission, or by registered or certified, return receipt requested, in which event it shall be deemed to have been received on the fifth day after mailing (or the next business day if the fifth day is not a business day), or , if earlier, the date marked as received on the return receipt. Where both methods of notice are used, the earlier shall establish the effective date of notice. Notice shall be given to the address of a Party as stated on the face hereof until appropriate notice otherwise.
