Applicable for North America, Canada
Reimelt Corporation
Revised 2/18/03
Reimelt Corporation
Revised 2/18/03
1. General
The following terms and conditions apply to all estimates, quotations and offers of the Seller, and all agreements arising therefrom, except as provided within this proposal or as varied by separate instrument, in writing, signed by the Seller (together the "Agreement"). The term "Equipment", as used herein, shall mean the machinery, equipment, attachments, parts and accessories to be provided by the Seller as set out by the Seller in writing within this proposal.
2. Title
Title to Equipment shall remain in the Seller, and Equipment shall remain the personal property of the Seller, until the purchase price, interest, and all costs and expenses arising hereunder are paid to the Seller in full. Buyer agrees to execute all documents requested to establish and perfect Seller's security interest in the Equipment.
3. Risk of loss
For F.O.B. Seller's plant shipments, Seller's responsibility in the delivery of the Equipment ceases with delivery to a common carrier in marketable condition, which Buyer and Seller agree shall be conclusively presumed by a delivery receipt from the carrier. Identification shall occur and risk of loss shall be upon Buyer at the moment of delivery of the Equipment to a common carrier for shipment to Buyer.
For F.O.B. job site shipments, Seller shall be responsible for delivery to Buyer's destination, with the risk of loss upon Seller; Seller's responsibility in the delivery of the Equipment ceases with the carrier's delivery of the Equipment in marketable condition to the Buyer's job site. However, should any F.O.B. job site shipment reach the Buyer's destination in a damaged condition, Buyer will not accept it from the common carrier until the carrier's agent makes a notation on the freight documents describing in reasonable detail the equipment's damaged condition. MOREOVER, BUYER MUST NOTIFY SELLER WITHIN FOURTEEN (14) CALENDAR DAYS OF DELIVERY REGARDING ANY DAMAGE IN TRANSIT; OTHERWISE, BUYER WAIVES ANY SUCH CLAIM AS AGAINST SELLER. Seller may procure a negotiable Bill of Lading to its order.
4. Payment
Payment shall be made in accordance with the Seller's written offer, confirmation of order, or as otherwise provided in the parties' Agreement. All amounts bear interest at the maximum rate allowed by law, from the dates on which they are payable until actual payment. In the event of a claimed defect in Equipment, Buyer shall continue to make payments when due, without set-off, and Buyer's sole remedy shall be enforcement of the warranties hereunder. In the event of nonpayment by Buyer, Seller may cease work entirely after five (5) calendar days' notice to Buyer, until payment is brought current; Seller also may pursue its remedies at law or equity for Buyer's default.
5. Taxes and freight
Buyer shall be liable for direct payment of any federal, state or local taxes or assessment of any nature and freight, including storage, unless agreed in writing to be paid by Seller and separately stated in the Order Confirmation and billed by Seller to Buyer as separate items.
6. Cancellation
Orders are not subject to cancellation by Buyer without prior written consent of Seller. If Buyer requests to stop or cancel any part of an order, and Seller consents, payment for work in process shall be completed and paid for in full as stated above. All items not within thirty (30) days of completion shall be paid for on the basis of actual cost of all labor, material and supplies, plus overhead expenses, determined in accordance with Seller's standard practice, plus fifteen percent (15%) of the total of all such costs and expenses; except that the total shall not exceed ninety percent (90%) of the contract price of all such items. Seller shall determine, in its sole discretion, what contracts with its suppliers and subcontractors can be cancelled or must be paid in full. The cost of all such contracts shall be included in the "actual cost" computation provided above. Payment after cancellation shall be due within thirty (30) calendar days of invoice from Seller. Seller's cancellation figures and calculations shall be deemed final and conclusive.
7. Delivery
Buyer shall excuse Seller for any delay in delivery, installation or any part delivery hereunder, if caused by fire, explosion, flood, epidemic, war, interruption or delay in transportation, labor dispute or any cause beyond Seller's reasonable control.
IN CASE OF DELAY CAUSED BY SELLER'S DEFAULT, SELLER SHALL IN NO EVENT BE HELD RESPONSIBLE OR LIABLE FOR CONSEQUENTIAL DAMAGE, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR OTHER ANCILLARY DAMAGES.
In case of delay caused by Buyer's failure to furnish necessary information as to details to be determined by Buyer, Seller may extend the date for shipment for a reasonable time, based on the period of Buyer's delay and conditions at Seller's factories. In case shipment shall be delayed by Buyer's failure to furnish shipping instructions on request, or otherwise by Buyer, Seller may, at its option, invoice Equipment ready for shipment, and payment therefore shall be made in accordance with the terms hereof, substituting the invoice for the Bill of Lading.
If the manufacture or delivery of Seller's products is delayed due to any cause within Buyer's control, these products may be placed in storage by Seller, for Buyer's account and risk, and regular charges thereof and expenses in connection therewith shall be paid by Buyer; but if, in Seller's opinion, Seller is unable to obtain, or continue such storage, Buyer will, on request, promptly provide or arrange for suitable storage facilities and assume all costs and risks in connection therewith.
8. Guarantee and liability
Seller warrants material and workmanship hereunder for a period of one (1) year from the commencement of commercial operation of the Equipment, but not later than eighteen (18) months after final shipment. "Commercial operation" shall mean the ability for initial production of marketable product on the Equipment. This warranty shall remain in effect, provided: Equipment has been properly maintained during storage and maintained and operated under normal conditions; and further provided Buyer notifies Seller in writing that a defect exists within ten (10) calendar days of the reasonable discovery of the defect by Buyer. Within the warranty period, Seller agrees to repair or replace, at Seller's option, any part or parts which in Seller's sole opinion are defective, when such parts are returned to Seller's plant with all shipping charges prepaid. Seller will assume no expense or liability for any repairs or alterations made by Buyer or others without Seller's prior written consent.
Any Equipment and/or accessories furnished by third parties are guaranteed only to the extent of the original manufacturer's guarantee to Seller which Seller hereby assigns to Buyer without recourse. Such warranty shall cease to be effective in the event of, and the Seller shall be under no responsibility for or in respect of: faulty erection or installation; if the defect claimed has been caused by Buyer or any third party; abnormal wear and tear; improper operation or maintenance contrary to operating instructions; alterations or repairs by anyone other than the Seller without the Seller's written approval; or damages or accidents caused by improper or violent treatment, excessive strain, use of inappropriate materials, or force majeure. Repair or replacement of Equipment shall not extend the original warranty on the Equipment or any part thereof.
The foregoing notwithstanding, the Seller represents that it has taken reasonable efforts to make its computer hardware and software components of the Equipment Y2K compliant – meaning that components manufactured by the Seller are able to accurately process date/time data (including, but not limited to, calculating, comparing, and sequencing) from, into, and between the Twentieth and Twenty-first centuries, and the years 1999 and 2000, as well as leap year calculations, to the extent that other information technology, used in combination with the Equipment, properly exchanges date/time data with the Equipment. The duration of this Y2K warranty, and the remedies available to the Buyer for breach of this Y2K warranty, shall be the same as are defined for the remainder of this section, with the following exceptions:
2. Title
Title to Equipment shall remain in the Seller, and Equipment shall remain the personal property of the Seller, until the purchase price, interest, and all costs and expenses arising hereunder are paid to the Seller in full. Buyer agrees to execute all documents requested to establish and perfect Seller's security interest in the Equipment.
3. Risk of loss
For F.O.B. Seller's plant shipments, Seller's responsibility in the delivery of the Equipment ceases with delivery to a common carrier in marketable condition, which Buyer and Seller agree shall be conclusively presumed by a delivery receipt from the carrier. Identification shall occur and risk of loss shall be upon Buyer at the moment of delivery of the Equipment to a common carrier for shipment to Buyer.
For F.O.B. job site shipments, Seller shall be responsible for delivery to Buyer's destination, with the risk of loss upon Seller; Seller's responsibility in the delivery of the Equipment ceases with the carrier's delivery of the Equipment in marketable condition to the Buyer's job site. However, should any F.O.B. job site shipment reach the Buyer's destination in a damaged condition, Buyer will not accept it from the common carrier until the carrier's agent makes a notation on the freight documents describing in reasonable detail the equipment's damaged condition. MOREOVER, BUYER MUST NOTIFY SELLER WITHIN FOURTEEN (14) CALENDAR DAYS OF DELIVERY REGARDING ANY DAMAGE IN TRANSIT; OTHERWISE, BUYER WAIVES ANY SUCH CLAIM AS AGAINST SELLER. Seller may procure a negotiable Bill of Lading to its order.
4. Payment
Payment shall be made in accordance with the Seller's written offer, confirmation of order, or as otherwise provided in the parties' Agreement. All amounts bear interest at the maximum rate allowed by law, from the dates on which they are payable until actual payment. In the event of a claimed defect in Equipment, Buyer shall continue to make payments when due, without set-off, and Buyer's sole remedy shall be enforcement of the warranties hereunder. In the event of nonpayment by Buyer, Seller may cease work entirely after five (5) calendar days' notice to Buyer, until payment is brought current; Seller also may pursue its remedies at law or equity for Buyer's default.
5. Taxes and freight
Buyer shall be liable for direct payment of any federal, state or local taxes or assessment of any nature and freight, including storage, unless agreed in writing to be paid by Seller and separately stated in the Order Confirmation and billed by Seller to Buyer as separate items.
6. Cancellation
Orders are not subject to cancellation by Buyer without prior written consent of Seller. If Buyer requests to stop or cancel any part of an order, and Seller consents, payment for work in process shall be completed and paid for in full as stated above. All items not within thirty (30) days of completion shall be paid for on the basis of actual cost of all labor, material and supplies, plus overhead expenses, determined in accordance with Seller's standard practice, plus fifteen percent (15%) of the total of all such costs and expenses; except that the total shall not exceed ninety percent (90%) of the contract price of all such items. Seller shall determine, in its sole discretion, what contracts with its suppliers and subcontractors can be cancelled or must be paid in full. The cost of all such contracts shall be included in the "actual cost" computation provided above. Payment after cancellation shall be due within thirty (30) calendar days of invoice from Seller. Seller's cancellation figures and calculations shall be deemed final and conclusive.
7. Delivery
Buyer shall excuse Seller for any delay in delivery, installation or any part delivery hereunder, if caused by fire, explosion, flood, epidemic, war, interruption or delay in transportation, labor dispute or any cause beyond Seller's reasonable control.
IN CASE OF DELAY CAUSED BY SELLER'S DEFAULT, SELLER SHALL IN NO EVENT BE HELD RESPONSIBLE OR LIABLE FOR CONSEQUENTIAL DAMAGE, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR OTHER ANCILLARY DAMAGES.
In case of delay caused by Buyer's failure to furnish necessary information as to details to be determined by Buyer, Seller may extend the date for shipment for a reasonable time, based on the period of Buyer's delay and conditions at Seller's factories. In case shipment shall be delayed by Buyer's failure to furnish shipping instructions on request, or otherwise by Buyer, Seller may, at its option, invoice Equipment ready for shipment, and payment therefore shall be made in accordance with the terms hereof, substituting the invoice for the Bill of Lading.
If the manufacture or delivery of Seller's products is delayed due to any cause within Buyer's control, these products may be placed in storage by Seller, for Buyer's account and risk, and regular charges thereof and expenses in connection therewith shall be paid by Buyer; but if, in Seller's opinion, Seller is unable to obtain, or continue such storage, Buyer will, on request, promptly provide or arrange for suitable storage facilities and assume all costs and risks in connection therewith.
8. Guarantee and liability
Seller warrants material and workmanship hereunder for a period of one (1) year from the commencement of commercial operation of the Equipment, but not later than eighteen (18) months after final shipment. "Commercial operation" shall mean the ability for initial production of marketable product on the Equipment. This warranty shall remain in effect, provided: Equipment has been properly maintained during storage and maintained and operated under normal conditions; and further provided Buyer notifies Seller in writing that a defect exists within ten (10) calendar days of the reasonable discovery of the defect by Buyer. Within the warranty period, Seller agrees to repair or replace, at Seller's option, any part or parts which in Seller's sole opinion are defective, when such parts are returned to Seller's plant with all shipping charges prepaid. Seller will assume no expense or liability for any repairs or alterations made by Buyer or others without Seller's prior written consent.
Any Equipment and/or accessories furnished by third parties are guaranteed only to the extent of the original manufacturer's guarantee to Seller which Seller hereby assigns to Buyer without recourse. Such warranty shall cease to be effective in the event of, and the Seller shall be under no responsibility for or in respect of: faulty erection or installation; if the defect claimed has been caused by Buyer or any third party; abnormal wear and tear; improper operation or maintenance contrary to operating instructions; alterations or repairs by anyone other than the Seller without the Seller's written approval; or damages or accidents caused by improper or violent treatment, excessive strain, use of inappropriate materials, or force majeure. Repair or replacement of Equipment shall not extend the original warranty on the Equipment or any part thereof.
The foregoing notwithstanding, the Seller represents that it has taken reasonable efforts to make its computer hardware and software components of the Equipment Y2K compliant – meaning that components manufactured by the Seller are able to accurately process date/time data (including, but not limited to, calculating, comparing, and sequencing) from, into, and between the Twentieth and Twenty-first centuries, and the years 1999 and 2000, as well as leap year calculations, to the extent that other information technology, used in combination with the Equipment, properly exchanges date/time data with the Equipment. The duration of this Y2K warranty, and the remedies available to the Buyer for breach of this Y2K warranty, shall be the same as are defined for the remainder of this section, with the following exceptions:
- The Buyer agrees to test the Equipment for Y2K compliance promptly upon delivery, and no later than upon the commencement of commercial operation. The Buyer further agrees to notify the Seller within ten (10) calendar days of its Y2K testing of the Equipment, should there be any defect in the Equipment's Y2K compliance. The absence of such notification shall be deemed by the parties to demonstrate that the equipment is Y2K compliant, or that the Buyer has waived any claim for the Equipment not being Y2K compliant.
- To the extent that the Equipment contains computer hardware or software furnished by third parties (the "Third Party Components"), the Seller guarantees the Y2K compliance of the Third Party Components only to the extent of the original manufacturer's guarantee to the Seller, which the Seller hereby assigns to the Buyer without recourse. The Buyer and Seller expressly agree that the Seller upon the Buyer's written request, will make reasonable inquiries of the original manufacturer concerning the Third Party Components' Y2K compliance, but that the Seller is not the guarantor of, and does not offer any Y2K warranty regarding, the Third Party Components.
9. Insurance
Unless otherwise stipulated in writing, Buyer shall, from the time of shipment of the Equipment until complete installation and full payment, insure all of the Equipment against fire, windstorm, and extended coverage and shall provide Seller with a certificate of insurance for such insurance upon request.
Buyer will require any Sub-contractor or furnisher of construction/installation services performing construction or installation work at the direction of Buyer to provide Seller proof of general liability and worker's compensation insurance in the minimum amount of $2,000,000.00 and $1,000,000.00, respectively. Coverage written on an occurrence basis shall be maintained without interruption from the date of this Agreement through the commencement of commercial operation; coverage written on a claims-made basis shall be maintained through the warranty period as defined in Section 8, above.
Whenever Seller shall have in its possession property of the Buyer for fabrication or as otherwise required, Seller shall be deemed the insurer thereof and shall be responsible for same until its acceptance by common carrier for shipment according to Buyer's instructions.
10. Confidentiality plans, specifications and terms
All plans, specifications, illustrations, diagrams, and terms (the "Plans") supplied by the Seller remain the property of the Seller until an agreement is effected with Buyer. Buyer shall not show, transmit, or otherwise disclose Seller's Plans to any third parties, nor shall Buyer duplicate or reproduce the Plans in any manner whatsoever. If an agreement is not effected with Buyer, all of the Seller's Plans shall be returned to the Seller upon demand. The Buyer shall pay Seller's customary charges for the preparation of such Plans.
Seller reserves the right to alter or modify the details of any Plans of its Equipment from time to time without notice.
No alterations or modifications of this order or the Plans and the specifications pertaining hereto shall be binding on the Seller unless made in writing and signed by the Seller.
Should any of the terms and conditions of any previous Buyer's order conflict or not be in accord with any of the terms and conditions herein, then the terms and conditions herein shall govern.
11. Governing law and venue
This Agreement shall be governed by and solely construed in accordance with the laws of the State of Florida. Exclusive venue of any dispute, claim, or cause of actions arising from or relating to this Agreement shall be the courts of Hillsborough County, Florida.
12. Attorneys fees and costs
In the event either party seeks to enforce this Agreement by suit, then the prevailing party in such suit shall be entitled to recover costs and reasonable attorney's fee from the non-prevailing party.
