LEHIGH EQUIPMENT CO..
INVOICE
TERMS AND CONDITIONS OF SALE
ALL SALES MADE BY LEHIGH EQUIPMENT CO.., ARE MADE ON THE FOLLOWING TERMS AND CONDITIONS:
Within this terms and conditions of sale, Lehigh Equipment Co.., will be known as Seller.
PRICES AND TAXES
Prices are exclusive of all federal, state, municipal, or other government excise, sales, use, occupational, or like taxes or duties now in force or enacted in the future. Any such fax, fee, or charge of any nature whatsoever imposed by any governmental authority on, or measured by, the transaction between the Seller and the Buyer shall be paid by the Buyer in addition to the prices quoted or invoiced. In the event the Seller is required to pay any such tax, fee, or a charge, at the time of sale or thereafter, the Buyer shall reimburse the Seller therefore.
DELIVERY
Delivery will be made F.O.B. Seller’s designated place of delivery. The time of delivery is the time the product to be delivered is picked up by the carrier.
Title to the products shall pass to the Buyer upon delivery thereof by Seller to carrier (F.O.B. Seller’s designated place of delivery) and upon delivery the Buyer shall be responsible for and bear the entire risk of loss or damage to the products.
SHIPMENT
In the absence of specific shipping instructions, the Seller will ship by the method it deems most advantageous. Transportation charges will be collected, or if prepaid, will be subsequently invoiced to Buyer. Unless otherwise, indicated, Buyer is obligated to obtain insurance against damage to the material being shipped. Unless otherwise specified, products shall be shipped in standard commercial packaging. When special or export packaging is requested or, in the opinion of the Seller, required under the circumstances, the cost of the same, if not set forth on the invoice, will be separately invoiced.
SECURITY INTEREST
The Seller hereby reserves a purchase money security interest in the products/goods/equipment (products) sold and the proceeds thereof, in the amount of the purchase price. In the event of default by Buyer of any of its obligations to the Seller, the Seller shall have the right to repossess the products sold to Seller, the Seller shall have the right to repossess the products sold hereunder and without liability to Buyer. In such event, Buyer agrees to make the products available to the Seller so that the Seller can repossess them without a breach of the peace. These security interests will be satisfied by payment in full.
A copy of the invoice may be filed with appropriate authorities at any time as a financing statement and/or chattel mortgage, in order to perfect the Seller’s security interest. On request of the Seller, buyer will execute financing statements and other instruments Seller shall desire to perfects its security interest.
TERMS OF PAYMENT
Terms are net 30 days. Accounts 30 days past due will be subject to a monthly charge at the rate of one and one-half (1.5%) per month or the maximum permitted by law, whichever is less, to cover the costs of servicing these accounts.
Orders from customers with invoices that are 30 days overdue (i.e. not paid within 60 days of invoice date) will be accepted only on a C.O.D. or cash-with-order basis until credit is reestablished to the Seller’s satisfaction.
DATA AND PROPRIETARY RIGHTS IN DATA
Portions of the data supplied are proprietary to the Seller. The Seller retains for itself all proprietary rights in and to all designs, engineering details, and other data pertaining to any product sold except where rights are assigned under written agreement by a corporate officer of the Seller.
SALE CONVEYS NO LICENSE
The products are offered for sale and are sold by the Seller subject in every case to the condition that such sale does not convey any license, expressly or by implication, estoppel or otherwise, under any patent or other intellectual property claim with respect to which the Seller can grant licenses covering complete equipment, or any assembly, circuit combination, method or process in which any such products are used as components. The Seller expressly reserves all its rights under such patent or other intellectual claims.
WARRANTY
The Seller warrants that all products of its own manufacture conform to Seller specifications and are free from defects in material and workmanship when used under normal operating conditions and within the service conditions for which they were furnished.
The obligation of the Seller hereunder shall expire one (1) year after delivery, unless otherwise specified, and is limited to repairing, or at its option, replacing without charge, any such product which in Seller’s sole opinion proved to be defective within the scope of this Warranty. In the event the Seller is not able to repair or replace defective products or components within a reasonable time after receipt thereof, Buyer shall be credited for their value at the original purchase price.
Seller must be notified in writing of the defect or nonconformity within the warranty period and the affected product returned to Seller factory or to an authorized service center within thirty (30) days after discovery of such defect or nonconformity. Shipment shall not be made without prior authorization by the Seller. This is Seller’s sole warranty with respect to the products delivered hereunder. No statement, representation, agreement or understanding, oral or written, made by an agent, distributor, representative or employee of the Seller which is not contained in the warranty, will be binding upon Seller, unless made in writing and executed by an authorized Seller employee.
The Seller makes no other warranty of any kind whatsoever, expressed or implied, and all implied warranties or merchantability and fitness for a particular use which exceed the aforestated obligation are hereby disclaimed by Seller and excluded from the agreement. Under no circumstances shall the Seller be liable to Buyer, in contract or in tort, for any special, indirect, incidental, or consequential damages, expenses, losses or delay however caused.
Equipment or parts which have been subject to abuse, misuse, accident, alteration, neglect, unauthorized repair or installation are not covered by warranty. Seller shall make the final determination as to the existence and cause of any alleged defect. No liability is assumed for expendable items such as lamps and fuses. No warranty is made with respect to custom equipment products produced to Buyer’s specifications except as specifically stated in writing by Seller in the contract for such custom equipment.
This warranty is the only warranty made by the Seller with respect to the goods delivered hereunder, and may be modified or amended only by a written instrument signed by a duly authorized officer of Seller and accepted by Buyer.
Except as hereinafter provided, THE SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND SELLER EXPRESSLY EXCLUDES AND DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE.
LIMITATION OF LIABILITY
Seller shall not be liable for any loss, damages or penalty resulting from delay in deliver when such delay is due to causes beyond the reasonable control of Seller, including but not limited to supplier delay, force majeure, act of God, labor unrest, fire, explosion, or earthquake. In any such event the delivery date shall be deemed extended for a period equal to the delay.
SELLER’S LIABILITY UNDER, FOR BREACH OF, OR ARISING OUT OF THIS AGREEMENT AND/OR SALE, INCLUDING INFRINGEMENT INDEMNIFICATION PROVIDED FOR BELOW, SHALL BE LIMITED TO REFUND OF THE PURCHASE PRICE. IN NO EVENT SHALL SELLER BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY THE BUYER. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT) WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR OTHERWISE. THIS EXCLUSION ALSO INCLUDES ANY LIABILITY WHICH MAY ARISE OUT OF THIRD PARTY CLAIMS AGAINST BUYER. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF THE SELLER ARISING OUT OF THIS AGREEMENT AND/OR SALE.
SUBSTITUTIONS AND MODIFICATION
Seller shall have the right to make substitutions and modifications in the specifications of products sold by the Seller provided that such substitutions or modifications will not materially affected overall product performance.
CANCELLATION
This contract may be cancelled by Buyer only upon the payment of reasonable cancellation charges, which shall include but not limited to expenses already incurred for labor and material costs, overhead, commitments made by Seller, and a reasonable profit. In the event of cancellation, Buyer will have no rights in partially completed goods.
BANKRUPTCY
If Buyer shall become bankrupt or insolvent or compounds with his creditors or commences to be wound up or suffers a receiver to be appointed, Seller shall be at liberty by notice in writing to cancel this contract without prejudicial intervention or declaration of default of Buyer and without prejudice to any right or remedy which shall have accrued or shall accrue thereafter to the Seller.
PATENT INFRINGEMENT
Seller agrees that it will, at its own expense, defend all suits or proceedings instituted against the Buyer and pay any award or damages assessed against the Buyer in such suits or proceedings, insofar as the same are based on any claim that the products or any parts thereof furnished under this contract constitutes an infringement of any patent of the United States, provided the Buyer gives to Seller immediate notice in writing of any claim made or the institution of a suit or proceedings or any claim and permits Seller through its counsel to defend the same and gives Seller all needed information, assistance and authority to enable Seller to do so; it being understood, however, that Seller shall not be held responsible for infringements of combination patents or process patents, covering the use of the products in combination with out products, equipment or materials not furnished by Seller. In case the product furnished by Seller in such suit is held in and of itself to constitute infringement and its use enjoined, Seller may, without obligation to do so, at its option, either secure for the Buyer the right to continue using said products by suspension of the injunction, by procuring for the Buyer a license or otherwise, or replace such products with non-infringing products, or it may, without obligation to do so, remove the enjoined products and refund the sums paid therefor. These provisions, however, shall not apply to any patented equipment, device, or party specified by the Buyer but not manufactured by Seller. THE FOREGOING STATES SELLER’S ENTIRE LIABILITY AND OBLIGATION (EXPRESS, STATUTORY, IMPLIED OR OTHERWISE) WITH RESPECT TO INTELLECTUAL PROPERTY INFRINGEMENT OR CLAIMS THEREFOR.
ACCEPTANCE BY BUYER-ENTIRE AGREEMENT
The terms and conditions as set forth herein shall constitute the entire agreement between Seller and Buyer. Seller shall not be bound by any terms of Buyer’s order which are inconsistent with the terms herein set forth. Acceptance by Buyer of these terms may be made either by written acceptance, or by receipt of Buyer of deliver of any products described on the face of this document and failure by Buyer to return the same within five (5) days following delivery of such products as herein provided.
This contract shall not be modified, supplemented, qualified, or interpreted by any trade usage or prior course of dealing not made a part of the contract by its express forms.
The failure by Seller to enforce at any time any of the provisions of this contract, or to exercise any options, nor in any way to affect the validity of this agreement or any part thereof, or the right of Seller thereafter to enforce each and every such provision.
Buyer hereby acknowledges that he has not entered into this agreement in reliance upon any warranty of representation by any person or entity except for the warranties or representations specifically set forth herein.
APPLICABLE LAW
The contract between the parties is made, governed by, and shall be construed in accordance with the laws of the Commonwealth of Kentucky.
JURISDICTION AND VENUE
THE KENTUCKY STATE COURTS OF BOONE COUNTY KENTUCKY (OR, IF THERE IS EXCLUSIVE FEDERAL JURISDICTION, THE UNITED STATES DISTRICT COURT FOR KENTUCKY) SHALL HAVE EXCLUSIVE JURISDICTION AND VENUE OVER ANY DISPUTE ARISING OUT OF THIS AGREEMENT AND SALE, AND BUYER HEREBY CONSENTS TO THE JURISDICTION OF SUCH COURTS.
ERRORS
Stenographic and clerical errors are subject to corrections.
ATTORNEY’S FEES
Reasonable attorney’s fees and costs shall be awarded to the prevailing party in the event of litigation involving the enforcement or interpretation of this agreement or any request for shipment release issued and accepted under the terms and conditions of this agreement.