(1) CONTRACT AND ACCEPTANCE
The terms and conditions of sale set forth herein, and the descriptions on the facing page hereof constitute the entire agreement between Northtech Machine, LLC (Seller) and Buyer. SELLER’S ACCEPTANCE OF THIS ORDER IS EXPRESSLY CONDITIONED BY BUYERS ASSENT TO THE TERMS CONTAINER HEREIN AND MAY BE REJECTED BY SELLER FOR ANY REASON.
(2) PRICES
Unless specified in writing, all prices are F.O.B. 102 Walnut St. Borden, IN 47106 and do not include additional packaging. Accepted forms of payment are include check, cash, wire transfer, or ACH to Seller without any convenience fees. Credit card payments are subject to a 3-5% convenience fee. Convenience fees are payable by the Buyer. Initial business relations may require credit card or C.O.D. Orders for Buyer are payable in accordance with the terms on facing page hereof. Buyer agrees to pay a finance charge of 2% monthly (24% annual) on any amount past due. Any action by seller to collect past due money from buyer, such as but not limited to, cost of collection, collection fees, additional accounting and operation efforts and or attorney’s fees will be charged to the buyer. Collections will be inclusive of any previously offered discount. No deduction shall be made in the payment by the Buyer without the Seller’s written acceptance hereof. Buyer is responsible for increases in Tariffs and associated costs that are implemented after order placement. Terminations and cancellations of orders are subject to fees up to the cost of the order. Buyer is responsible for any bank fees that are a result of the Buyer and Sellers banks processing payment, regardless of whose bank is imposing fee.
(3) DELIVERY AND SHIPPING
Seller will estimate shipping schedules as closely as practicable but does not warrant any delivery schedule. The Seller will not be responsible for deviations in shipping schedules nor for any losses or damages to Buyer (or any third person) by deviations in the performance or the nonperformance of any of Seller’s obligations under this contract or by loss of or damage to the product when caused directly or indirectly by or in any manner arising from any casualty, riots, acts of or failure of action by Buyer or Seller, strikes or other labor difficulties, shortage of labor, supplies, IT issues, cyber terrorism, transportation delays, shipping issues, or any other similar or different cause or causes beyond Seller’s control or the control of its suppliers, vendors or subcontractors. Seller reserves the right to ship in advance of any Buyer requested dates. Seller reserves the right to make delivery in multiple shipments and packages. Upon delivery of each lot, Seller shall have the right to immediately invoice an appropriate portion of the total selling price. Should shipment be held beyond the scheduled delivery date for the convenience of the Buyer, the Seller reserves the right to bill immediately for the goods and to charge Buyer for warehousing, insurance, trucking charges and all other expenses related to such delay.
(4) SHIPPING CLAIMS, LOSSES AND SHORTAGES
Buyer agrees to check condition and notate any damages to crating or packaging. Any notice of shortages or other errors must be made to Seller via email or with fax notification within 24 hours after receipt of shipment. Failure to give such notice shall constitute as acceptance and a waiver of all claims by Buyer. Risk of loss for damages to the products sold hereunder passes to Buyer upon delivery, and prior to unloading, regardless of which party pays shipping costs. Damages by Buyer due to unloading are the responsibility of the Buyer. Any claim for loss, breakage (obvious or concealed) are Buyer’s responsibility on Buyer scheduled or supplied freight. Seller will render Buyer reasonable assistance in securing satisfactory adjustments of such claims.
(5) TRANSPORTATION CHARGES AND ALLOWANCES
No freight is included unless stated in Seller’s invoice or proposal (if any). If the quoted price includes shipping, Seller reserves the right to designate the common carrier and to ship in the manner it deems most feasible and or low risk of damage. Added costs due to special requests by the Buyer are chargeable to the Buyer. Under no circumstances is any freight allowance, which is absorbed by Buyer or Seller, to be deducted from the selling price. If the quoted prices include transportation, no reduction will be made if Buyer supplies transportation. Buyer accepts responsibility of any Seller incurred freight increases, added fees or surcharges on orders with 90day+ delivery times.
(6) TAXES
Seller’s prices do not include any applicable sales, excise or similar taxes and duty. If under any law or governmental regulation now or hereafter in effect, the Seller is required to pay or collect any tax upon the products included in this order or predicated upon, measured by or arising from the sale, transportation, delivery, use or consumption of said products whether directly or indirectly, the prices to be paid by the Buyer hereunder shall be increased by the amount of such tax. Buyer agrees to pay such tax as part of the purchase price. Buyer also agrees that such payment for taxes shall be made even if Seller learns of taxes due subsequent to the delivery and receipt of final payment.
7) PRODUCT INSTALLATION
Any application and/or permits required for erection and installation of Sellers products shall be the sole responsibility of the Buyer and shall be obtained by the Buyer. Unless stated on invoice, no installation or start up and training or special services are included. Any alteration or modification necessary to the building/foundation upon which Seller’s products are erected is the sole responsibility of the Buyer. If Seller has agreed to install the product, Seller warrants that such installation will be performed in a workmanlike manner. Buyer shall pay all costs of installation including the cost of any modifications to the Buyer’s plant and equipment which is necessary to accommodate the Seller’s product. Seller specifically does not warrant that such modifications will not be necessary. Proper installation requires professionals within each respective fields. Improper installation and inspection of items such as but not limited to inspections of clearances, oil levels, surrounding area, proper service connections or level. Buyer agrees that any part or machine will be installed by a professional in the respective field. Buyer accepts all labor as nonunion and without prevailing wage use.
(8) WARRANTY
The Seller warrants those items sold hereunder conform to the descriptions given to buyer and are to the best of their knowledge accurate, less any design changes that do not affect performance of the item, hereof and will be free from any defects in material and workmanship which become apparent under normal wear and use, and of which Buyer gives written notice to Seller immediately upon discovery and only for non-wear parts within a period of 12 months or 2080hrs whichever comes first. Electrical components are not warranted. The 12 month period is explicitly outlined within the preceding and interpreted as a 2080hr single shift operation or 6 months of a 4160hr double shift operation, or the proration of thereof for any other warranties for multiple shifts. Warranty start date is at time of shipment to customer or notice to customer of ready to ship status. If, within the warranty period, the Seller receives from Buyer written notice of any alleged defect in or nonconformance of any product and if, in Seller’s sole judgment of warranty process for approval. The Buyer will return the parts at their expense and Sellers request collect and provide all details and information, and or return defective parts to 102 Walnut St. Borden, IN 47106 at which time, upon receiving the parts, Seller will inspect parts and if parts are deemed to be not warranted for any reason, Buyer may have parts returned at their expense, and will be invoiced for the replacement parts. Dismounting and reinstallation of defective or non-conforming parts is done at Buyer’s expense. Seller provides no Labor with this warranty. In such occasions Labor is included in writing and on invoice. Buyer agrees to pay any warranty run that is determined to be non-warranted as if it were a Buyer ordered service run. Delivery method of warranty parts is standard ground, any expenses for rush charges are the sole cost of the Buyer. Warranty may be voided by installation of any non-OEM parts installed by someone other than Seller. Buyer agrees to perform and maintain records of all preventive maintenance and manufacture recommended routine maintenance which may be found in the manual or by contacting Seller. Seller’s sole responsibility and Buyer’s exclusive remedy hereunder shall be limited to such repair, credit or replacement. Shipping costs are that of the Buyer for any warranty claim. This warranty is expressly in lieu of and excludes all other expressed, written or implied warranties, including but not limited to warranties of safety, merchantability, use of application, production speed or return of investment. There is no affirmation of fact or representation which extends beyond the face
hereof. The warranty of Seller does not cover and Seller makes no warranty with respect to: * failures not reported to Seller immediately and within the warranty period; * failure or damage due to misapplication, abuse, improper installation or abnormal conditions of temperature, lack of training, dirt, lack of reporting or corrosive matter; * failure due to excessive operation either intentional or otherwise, above rate capacities or in an otherwise improperly used; * products which have been any way tampered with or altered by anyone other than an agent of Seller; * product damaged in shipment or otherwise without fault of Seller; * expenses incurred by Buyer or a third party in an attempt to repair or rework any alleged defective product; * defects in material and workmanship which are attributable to drawings and specifications provided by Buyer. Any warranty service call will be billed at standard rates should reason for service call be deemed non warrantable. Any standalone parts sales have a warranty of 6 months on all mechanical non wear parts or 12 month warranty when installed by Sellers agent. Buyer agrees to pay the cost of any shipping should Buyer want to return a machine for any reason.
(9) LIMITATION OF LIABILITY
Seller’s sole responsibility and Buyer’s sole and exclusive remedy with respect to any breach of warranty under the agreement shall be limited to repair, credit or replacement at Seller’s sole option. Seller’s total responsibility and liability for any and all claims, damages of any nature, losses, accidents liability or costs of correction efforts, including but not limited to those relating to any warranty arising out of or related to performance of this agreement or the products covered hereunder or the performance thereof shall not exceed the purchase price. In no event shall Seller be liable for any special, indirect, incidental or consequential damages of any character, including but not limited to, loss of use of production equipment, lost profits, property damage, missed opportunities, expense incurred in reliance on Seller’s performance hereunder, or lost production, whether suffered by Buyer or any third party. Buyer agrees that Seller shall have no liability for any costs, claims, demands, either direct or indirect, or incident to any property damage arising out of any cause or action of Seller or machinery. Buyer agrees to take pictures of machine and surrounding area immediately upon any accident, incident or injury.
(10) OPERATION
Buyer agrees to operate equipment in a safe and caring manner using all guarding supplied by factory and safety protocols common and proper to such application, as well as specific to Buyer’s operations. Buyer acknowledges that Seller cannot be held responsible for dangers specific to Buyer’s operations, applications or conditions in which Sellers’s equipment is placed and or operated. It is the Buyers responsibility to provide any additional safety protocol and or guarding should they see such need. Any safety concerns will be reported by Buyer to Seller immediately upon identification. Buyer agrees to not operate machine that they have reported a problem on until such time the matter is safely resolved. Buyer agrees to conduct daily inspections and maintain these records on each of Sellers machinery purchased. Buyer agrees to monitor and replace wear items as needed and identified through daily inspections. It Is Buyers responsibility to ensure all operators receive technical and operational education, no less than monthly operator safety training sessions. Buyer agrees to maintain safety training records for 5 years. Seller may request training records from Buyer. Buyer can contact Seller anytime for operational training on any of Sellers machinery.
(11) MODIFICATION RECESSION AND WAIVER
This contract may not be modified or rescinded nor any of its provisions waived unless such modifications, rescissions or waiver is in writing and signed by one of the Sellers executive officers.
(12) SECURITY INTEREST
Buyer hereby grants to Seller a security interest in the products being purchased hereunder and agrees that proceeds there from may be deemed as security for payment of the full purchase price, until such time machine is paid in full. Buyer agrees to execute financing statements and such other documents as the Seller may request to perfect this security interest. Buyer agrees not to remove the products from the jurisdiction in which they are initially delivered or installed without Seller’s prior within consent, for so long as any portion of the purchase price remains unpaid.
(13) CANCELLATIONS
In the event that Buyers purchase is special‐order part or machine, defined as anything not currently in stock or on a stocking order, there is no cancellation available. For stock items, the calculation of damages which would result from cancellation or for any reason Buyer causes Seller to stop performance on any order, or by failure to meet the payment terms of this Agreement, Buyer agrees to pay the following cancellation fees based on the number of days prior to scheduled delivery that written notice of cancellation is received from Buyer or that Seller notified Buyer in writing that it is stopping performance, whichever event occurs earlier. A cancellation occurring; 90+ days from due date will result in a 20% fee payable by Buyer; 89‐61 days from due date will result in 50% fee payable by Buyer, 60‐0 days from due date will result in 75% fee payable by Buyer. Any stock machine or part return subject to 25% restocking fee. Shipping costs are non-refundable and the expense of the Buyer. Custom or specialized parts or parts for custom machines may not be returned or cancelled after order has been accepted. Returns after 45days not accepted by Seller. Any third party discounts or commissions to be repaid to Seller upon any return by customer. Any credit issued by Seller for new purchase excludes third party incentives; credits must be used within same calendar year as issued. Seller may immediately terminate or cancel any sales agreement if buyer becomes insolvent, is adjudicated bankrupt, files for bankruptcy or seeks protection from creditors for any reason; in such case Seller will maintain ownership of deposits, machinery, and or parts.
(14) SETTLEMENTS, COSTS AND EXPENSES
Buyer agrees to pay Seller all costs and expenses, including reasonable attorney’s fees (including those on appeal) incurred by Seller in exercising any of its rights and remedies hereunder, including specifically the collection of any outstanding balance owed to Seller by Buyer. Buyer agrees to submit the required daily inspection, safety, maintenance and training records, pictures of equipment at time of incident or accident as well as current photos or area and machinery, upon any litigation filed against Seller.
15) APPLICABLE LAW; DISPUTES; JURISDICTION; FEES
The performance and construction of this
Agreement shall be governed by the internal laws of the State of Indiana, excluding conflict of laws. Buyer agrees that any claim it may have relating to its purchase hereunder shall be resolved by binding arbitration conducted under and governed by the commercial arbitration rules of the American Arbitration Association (the “AAA”), such arbitration to take place in Clark County, Indiana. A hearing shall begin within 90 days of demand for arbitration and all hearings shall conclude within 120 days of demand for arbitration. These time limitations may not be extended unless a party shows cause for extension and then for no more than a total of 60 days. Arbitrators shall be licensed attorneys selected from the appropriate arbitration panel of the AAA. Seller may, at its option, bring any suit, action or proceeding against Buyer either by way of the jurisdiction located in Clark County, Indiana or that county of the Buyers operations. Seller shall be entitled to payment by Buyer of its attorney fees in the event it is the prevailing party following arbitration or other judicial proceedings, as the case may be. The parties do not waive applicable Federal or state substantive law except as provided herein.
(16) MISCELLANEOUS
Seller reserves the right to furnish substitutes for material which cannot be reasonably obtained because of any restrictions, voluntarily or compulsorily, established by or in connection with any governmental authority or program. Factory ordered machines are not dual voltage. Any special requirements or certifications including but not limited to electrical or safety shall be explicitly outlined in writing by Buyer to Seller. Buyer agrees to no mimic, replicate or reverse engineer any product of Seller. Seller may during any periods of shortage due to causes beyond the control of Seller or its suppliers, prorate its supply of products among all of its Buyers in such manner as may be deemed equitable in the sole judgment of Seller. Seller shall not incur any liability to Buyer because of any proration hereunder. All orders must be accepted by an authorized employee of Seller at its office. Failure of Seller to insist in any one or more instances upon the performance of any of the terms and conditions of this contracts or the failure of Seller to exercise any of its rights hereunder shall not be construed as a waiver or relinquishment of any such terms, conditions, or right hereunder and shall not affect Seller’s right to insist upon strict performance and compliance with regard to any unexecuted portions of this contract, past or future performance of these terms and conditions. Dealers are expected to inform all customers of detail herein.