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R.O. DEADERICK COMPANY, INC.
TERMS AND CONDITONS OF SALE
Posted 11/11/2008
1. GENERAL: The goods and services described in this Purchase Order are provided by R.O. DEADERICK COMPANY, INC. (hereinafter referred to as "RODCO") subject to the following terms and conditions. Buyer agrees to be bound by and to comply with all such terms and conditions. No statement, oral or written, made prior or subsequent to the acceptance of the purchase order purporting to modify the said terms and conditions shall be binding unless consented to in writing, signed by a duly authorized officer of RODCO in a document making specific reference to this transaction. Any attempt by Buyer to modify the terms and conditions by sending contrary or conflicting terms and conditions, regardless of when or how provided to RODCO, shall be totally void and without effect unless in writing and signed by a duly authorized officer of RODCO.
2. SALE PRICES: Unless otherwise noted, all prices quoted are subject to change without notice and may be withdrawn at any time prior to our acceptance of a purchase order. All prices are F.O.B. Ship Point (i.e. manufacturer's plant, port of entry or stocking warehouse), unless otherwise stated and shipment will be freight collect.
3. TAXES: Prices do not include sales, use, excise, property or similar taxes arising out of or relating to the sale or use of the equipment. Buyer shall indemnify and hold RODCO free and harmless from and against the imposition and payment of such taxes, whether or not they are stated in any invoice for equipment shipped. RODCO, at its option, may at any time, separately bill Buyer for any taxes not included in RODCO'S invoice and Buyer shall pay said taxes, or in lieu thereof, shall provide RODCO with a tax exemption certificate acceptable to taxing authorities.
4. PAYMENT TERMS: A non-refundable 25% deposit is required with the order; 70% is required prior to shipment; and the balance (5%) is due upon installation (not to exceed 21 days from shipment). Other payment terms may be made available on a case by case basis to credit worthy government entities, large corporations and some repeat customers. Any such other payment schedule must be confirmed in writing before the machine can be delivered and are subject to interest charges when past due.
If Buyer fails to make any payment on or before the due date, Buyer shall pay to RODCO a late charge at 1 ½% of the amount due for each and every month, or portion thereof, that payment is overdue, which late charge shall be due and payable monthly on the last day of each calendar month or portion thereof for which a late charge is assessed. Buyer shall pay RODCO all of it's costs of collection and/or repossession including a reasonable attorney's fee, in the event Buyer fails to make any payment when due. If shipments are delayed by Buyer or because Buyer's account is in arrears, payment shall become due on the date when RODCO shall be prepared to make shipment. Products held by RODCO for purchase shall be at the risk and expense of Buyer.
The Buyer agrees to offer normal assistance and financial information required to obtain appropriate financing for the dollar amount purchased. RODCO reserves the right to cancel and to refuse to complete Buyer's purchase if, in RODCO'S opinion, Buyer has not established credit to promptly meet the payment terms of the order.
5. DELIVERY: RODCO shall exert its best efforts to cause the equipment to be shipped and delivered in accordance with the terms and provisions of the sales contract. However, all delivery dates stated by RODCO are approximate dates only, subject to prior sale, subject to confirmation by the manufacturer at the time of order placement and are estimated in good faith to the best of RODCO'S ability, commensurate with foreseeable scheduling. RODCO will not assume any liability for any loss or damage whatsoever, including loss of income and/or profits, incidental, special or consequential damages resulting from RODCO'S delayed performance in shipment and delivery of the equipment for any reason whatsoever and Buyer specifically covenants that it will assert no such claim against RODCO. Any claims for shortages or claims that the equipment delivered is other than that which was ordered or claims for damages prior to delivery to Buyer or Buyer's agent must be made in writing to RODCO within ten (10) days after the arrival of the equipment at Buyer's plant or place of business.
6. RISK OF LOSS: Upon delivery by RODCO or the manufacturer to a carrier for shipment of equipment to Buyer, risk of loss shall pass to Buyer. Thereafter, the carrier shall be deemed to be acting for and on behalf of Buyer and the terms of payment for the equipment shall not be affected by damage to or destruction of the equipment sold.
7. CANCELLATIONS: This order is non-cancelable by Buyer. Any deviation from this policy must have approval of RODCO management, and any cancellation accepted shall be deemed to have damaged RODCO to extent of, but not limited to, the amount held as non-refundable deposit, and thus, deposit shall be forfeited. Buyer will be held responsible for all charges including, but not limited to, any and all charges and attorney's fees which may arise as a result of any cancellation.
8. SECURITY INTEREST: Buyer hereby grants to RODCO and RODCO hereby retains a continuing purchase money security interest in all of the equipment sold and delivered by RODCO to Buyer, whether presently in the possession of Buyer or hereafter acquired, and all spare parts and components therefore, together with any and all proceeds of sale or other disposition of the equipment, including, but not limited to, cash, accounts, contract rights, and chattel paper. Buyer shall join with RODCO in executing one or more financing statements pursuant to the Uniform Commercial Code and such other documents in a form satisfactory as may be required by RODCO, in its sole discretion, to secure RODCO'S interest in the equipment. Buyer shall keep the equipment free from any adverse lien, security interest or encumbrance and will not store the equipment or any part thereof or use the equipment in violation of any statute or ordinance. In the event Buyer shall be in default under the contract, Buyer expressly agrees RODCO shall have the remedies of a secured party under the Uniform Commercial Code. RODCO may enter the Buyer's premises and remove the equipment. Buyer agrees to pay RODCO'S reasonable attorney's fees and court costs for the collection of any amounts owing to RODCO hereunder or incurred in the repossession of the equipment.
9. CONFIDENTIALITY: All drawings, designs, specifications, manuals, programs and prices furnished to Buyer by RODCO shall remain the confidential and proprietary property of RODCO. All such information, except as may be found in the public domain, shall be held in strict confidence by Buyer and shall not be disclosed by Buyer to any third parties. Copyright in all material made available by RODCO shall remain in RODCO at all times.
10. SAFETY PRECAUTIONS: Buyer shall require employees to use all safety devices, guards and proper safe operating procedures as set forth in manuals and instruction sheets furnished by RODCO and/or the manufacturer. Buyer shall not remove or modify any such device, guard or sign. It is Buyer's responsibility to provide all the means that may be necessary to effectively protect all employees from serious bodily injury which otherwise may result from the method of particular use, operation, set-up or service of the equipment. If Buyer fails to comply with such provisions of this paragraph or the applicable standards or regulations aforementioned, Buyer shall indemnify and hold RODCO harmless from and against any and all claims, losses or damages arising therefrom. It is the responsibility of Buyer to comply with any and all local and federal codes.
11. TIME STUDY: All time study figures are estimates only and are based on RODCO'S understanding of the limits of accuracy and finish required, machine-ability of the material, amount of material to be removed and Buyer's operating conditions.
12. DESCRIPTIONS OF EQUIPMENT: All weights and measurements given are estimates, stated as correctly as possible and any minor deviations shall not invalidate this purchase order. Brochures, photographs and other illustrations representing the equipment offered are not binding in detail, as improvements are constantly being made in design. Brochures are subject to change without notice.
13. LIMITATION OF WARRANTY: It is understood and agreed: (a) that RODCO is an independent distributor and not the manufacturer of any of the equipment it sells; (b) that all warranties offered are those of the manufacturers of the equipment and not RODCO and RODCO assigns to Buyer, all warranties, if any, received by it from the manufacturer; (c) that RODCO has no obligation or liability arising from the manufacturer's warranty; and (d) that third party dealers are not agents of RODCO and RODCO has no obligation or liability arising from any warranty made by said third party dealer.
Buyer further represents and acknowledges that RODCO has not made and hereby disclaims any representations or warranties, direct or indirect, express or implied in any manner whatsoever, including without limitation, any and all warranties concerning or related to the design or condition of any item of equipment, its merchantability or its liability or its fitness for any particular purpose, the quality of the material or workmanship of any item of equipment, improper delivery, delay in delivery and/or conformity of any item of equipment to the provisions and specifications of any purchase or orders relating thereto, nor shall RODCO be liable for incidental or consequential damages (Including lost profits and strict liability in tort).
RODCO shall not be liable to Buyer, or any other party, for any loss, damage, injury or expense of any kind or nature caused directly or indirectly by the equipment or the failure of the equipment to operate properly. RODCO and manufacturer shall be entirely free from liabilities or responsibilities of any problem due to patent infringements, trademark, design registered, marking or stamp or otherwise on the goods supplied in accordance with Buyer's instruction. Buyer hereby agrees to assume whole responsibility to pay royalty or expenses if any for any dispute resulting from such use.
RODCO gives no warranty, express or implied, as to: the quality, finish, accuracy or tolerance, compliance with electrical, hydraulic, pneumatic or other safety codes required by any governmental or quasi-governmental body; efficiency, productivity, performance, merchantability, conditions of the merchandise being suitable for any particular use intended purpose or otherwise.
14. LIMITATION OF REMEDIES: Buyer acknowledges that the sales price at which RODCO has agreed to sell the machinery, accessories and other goods or services sold hereby is limited because of the disclaimer of warranties and limitation of remedies set forth herein, without which the price would be substantially higher. RODCO expressly limits its liability to the repair, refund or replacement (in RODCO's sole discretion) of the item sold, and disclaims any liability for any other damages or relief, at law or in equity, however characterized.
15. FORCE MAJEURE: RODCO shall not be responsible for nonperformance or late performance of any part of the contract due to orders, regulations, and/or ordinances by government, act of god, war, blockade, insurrection, mobilization or due to any other causes or circumstances beyond RODCO'S control. All contracts are subject to export permit by the Government of the country machine originated.
16. NONWAIVER OF DEFAULT: In the event of any default by Buyer, RODCO may decline to make further shipments without in any way affecting its rights under such order. If, despite any default by Buyer, RODCO elects to continue to make shipments, its action shall not constitute a waiver of any default by Buyer or in any way affect RODCO'S legal remedies of any such default.
17. SERVICE: All service work on standard and special machines not covered by manufacturer's warranty or after the manufacturer's warranty period has expired, will be charged for at the prevailing rate, plus all expenses, transportation, material and parts.
18. TECHNICAL ADVICE: The work of installing the machine and its assembly and the making of electrical and other connections, etc, is to be performed by the buyer at his expense.
19. ENGINEERING CHANGES: Any manufacturer's specifications which are provided to RODCO were in effect at the time they were provided and/or that the catalog was approved for printing. RODCO and all such manufacturers reserve the right to discontinue or to make such changes on any model at any time and to change specifications or design without prior notice and without incurring obligation.
20. ASSIGNMENT: This agreement may not be assigned without the express written consent of the parties hereto. Any attempted assignment of rights or delegation of duties shall be void.
21. GOVERNING LAW: This agreement shall be construed in accordance with the laws of the State of Alabama, USA. The provisions of this agreement are divisible and the invalidity or unenforceability of any provision or provisions contained herein shall not in any way affect the validity of this agreement without the invalid or unenforceable provision or provisions.
22. MERGER CLAUSES: The entire contract is embodied in this writing. There are no understandings, agreements, representations, or warranties, either oral or written, relative to the products, including statements made in or conduct implied from past dealings that are not fully expressed herein.
23. REVISIONS: RODCO, in its sole discretion, may modify the terms and conditions of this agreement up until RODCO'S acceptance of Buyer's purchase order. It is the responsibility of the Buyer to review all information posted online. The applicable terms and conditions may be found at RODCO'S website: www.rodcocnc.com.
24. SEVERABILITY. If any of the terms or conditions of this agreement are held by any court of competent jurisdiction to be unenforceable or invalid, such unenforceability or invalidity shall not render unenforceable or invalid the entire agreement. Instead, this agreement shall be construed as if it did not contain the particular provision or provisions held to be unenforceable or invalid, the rights and obligations of the parties shall be construed and enforced accordingly, and this agreement shall thereupon remain in full force and effect.
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