Terms and Conditions of Sale

Applicability: These Terms and Conditions of Sale (“Terms”) apply to any merchandise sold pursuant to the Sales Order-Bill of Sale (“Sales Order”) to which they are attached or referred to in the Sales Order.  The Sales Order and these Terms may be referred to collectively as the “Agreement.”

 Payment: Unless otherwise stated on the Sales Order, payment in full by Buyer is required upon signing of the Sales Order and Seller, nor Seller’s Agent, shall have an obligation to ship merchandise prior to payment in full.  If Buyer fails to comply with the payment terms, Seller has the right, upon written notice to Buyer, to cancel the Sales Order.  In addition, if any portion of the payment due is to be made after shipment or if for any reason payment is not made prior to shipment, Seller reserves a security interest in the merchandise and is authorized to file such financing statements and other documents as may be necessary to perfect such security interest.  Seller shall have all remedies available to it under the Uniform Commercial Code (“Code”) in the event Buyer does not make payment on a timely basis.  Without limiting the foregoing, in the event of such non-payment, Buyer shall, at its sole cost and expense, return the merchandise to Seller upon Seller’s demand. If Buyer fails to return the merchandise to Seller immediately after such demand to Buyer, then Seller may directly, or by its agents, enter upon the premises where any of the merchandise may be located, and take possession of any such merchandise.  Such entry by Seller or its agents upon the premises where any of the merchandise may be located shall not constitute a trespass. Further, Buyer waives any and all rights to notice and to judicial hearing with respect to the repossession of the merchandise in the event a breach or default hereunder by Buyer.  In the event Seller seeks possession of the merchandise through replevin or other court process, Buyer hereby irrevocably waives any bond, or security required as an incident of such possession. Buyer shall immediately pay to Seller, all costs, charges, expenses and damages, sustained or otherwise incurred by Seller, in enforcing any of the Buyer’s obligations under this Agreement.  If the Sales Order requires a deposit, the deposit shall be non-refundable if such order is cancelled, except where such cancellation is solely the result of Seller inability to perform.

 Taxes: Except as otherwise expressly set forth in the Sales Order, prices stated do not include Federal, State or local taxes, all of which shall be paid by Buyer in addition to the sales price. Buyer is to provide Seller with a valid tax exemption certificate. In the event that Buyer either fails to pay the tax or other charges as agreed above or fails to provide a valid exemption certificate, Buyer agrees to indemnify and hold Seller harmless from any liability and expense by reason of Buyer's failure. Such indemnification shall include, but not be limited to, attorneys' fees and/or other legal expenses relating to such failure.

 Delivery: All shipments are F.O.B. Shipping point, and risk of loss to the merchandise shall pass to Buyer at that point. Skidding and crating, if necessary, are available at an extra cost to Buyer.  Delivery dates stated are estimates and not a guarantee of delivery on that date.  Seller shall not be liable for failure or delay in delivering merchandise to Buyer if such failure is due to or results from strikes, lockouts, or other disputes or unrest, fire, explosion, flood, natural disaster of act of God, war, civil disturbance, riots or armed conflict, governmental action, order, condemnation, sequestration, confiscation or other act directly affecting Seller’s performance hereunder, or any other cause beyond Seller’s reasonable control.

 DISCLAIMER OF WARRANTIES: ALL MERCHANDISE IS SOLD “AS IS” WITH ALL FAULTS.  NO WARRANTIES OR REPRESENTATIONS ARE MADE BY SELLER, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE, AGAINST INFRINGEMENT, OR OTHERWISE.  IN ADDITION, SELLER MAKES NO WARRANTY AS TO WHETHER SAID MERCHANDISE IS NEW OR USED OR WHETHER OR NOT SELLER HAS RECONDITIONED IT, AND SELLER DOES NOT WARRANT OR REPRESENT THAT SUCH MERCHANDISE CONFORMS WITH ANY PLANS OR SPECIFICATION OR MEETS ANY REQUIREMENTS OF ANY FEDERAL, STATE, OR LOCAL LAWS, REGULATIONS, OR ORDINANCES PERTAINING TO SAFETY OR INSURANCE REQUIREMENTS.

 Assignment of Manufacturer’s Warranty.  If and to the extent there are warranties by the manufacturer of new merchandise purchased or to be purchased by Buyer hereunder, which are assignable by Seller, all such warranties are assigned to Buyer as of the time title passes to Buyer.  Buyer agrees to look solely to the manufacturer of such merchandise for any remedies with respect to any breach of such warranties.

 Responsibility of Buyer: Indemnity: Buyer shall provide proper safety devices and equipment or such other means as may be necessary, to safeguard operators of the merchandise from harm, and to ensure that proper, safe operating procedures are followed. Buyer shall defend, indemnify and hold Seller and its affiliates and each of their respective agents, employees, officers, directors, shareholders, legal representatives and successors and assigns harmless from and against all suits, claims, costs, and expenses for personal injury, death or property damage arising from the purchase, ownership or use by Buyer or Buyer’s agents, employees, independent contractors, or privies of the merchandise delivered pursuant to this Agreement. Any claim arising from alleged manufacturing or design defects in such merchandise may be asserted only against its manufacturer and not against Seller, Seller’s officers, directors, shareholders, employees, affiliates, agents, legal representatives, successors and/ or assigns. Provided that Buyer is not in breach or default of Its obligations under this Agreement, and further provided that Buyer actually indemnifies Seller in accordance with the foregoing, Seller shall, to the extent permissible, assign to Buyer any rights of indemnity or contribution which Seller may have against persons other than Buyer in connection with the matter for which Buyer has so indemnified Seller.

 Interpretation: This Agreement is intended by the parties as a complete and exclusive statement of the terms of their agreement, and supersede all prior agreements, written or oral. No course of prior dealings between the parties and no usage of the trade shall be relevant to supplement or explain any term. Whenever a term is not defined in this Agreement, its definition, if contained in the Code, shall govern.

 Authority of Seller’s Agents: No agent, employee or representative of Seller has any authority to bind Seller to any affirmation, representation or warranty concerning the merchandise subject hereto, and unless such affirmation, representation or warranty is included in this Agreement, it is not part of the basis of this bargain and shall not be enforceable against Seller. Buyer represents and warrants that no representations or warranties other than those contained in this Agreement have been made or relied upon.

 Limitation of Liability:  SELLER, NOR SELLER”S AGENT, SHALL HAVE LIABILITY TO BUYER, BUYER’S CUSTOMERS OR THIRD PARTIES FOR ANY DIRECT, INDIRECT, PUNITIVE OR EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST SAVINGS OR LOSS OF GOOD WILL, ARISING OUT OF THIS AGREEMENT OR ITS PERFORMANCE OR BREACH, ANY MERCHANDISE OR ITS DELIVERY, INSTALLATION, USE, REPAIR, REPLACEMENT OR MAINTENANCE, OR THE PERFORMANCE OR BREACH OF ANY WARRANTY, WHETHER ARISING OUT OF CONTRACT, TORT OR OTHERWISE.  IN ALL EVENTS THE TOTAL LIABILITY OF SELLER TO BUYER UPON ALL CLAIMS OF WHATEVER NATURE SHALL NOT EXCEED THE PURCHASE PRICE FOR THE MERCHANDISE WHICH IS THE SUBJECT OF THE CLAIMS.

 Default: If Buyer shall default in the performance of any of its obligations hereunder, then in addition to any other remedies it may have, Seller and Seller’s Agent shall be entitled to its reasonable attorneys’ and experts’ fees and expenses incurred in enforcing the terms and provisions of this Agreement. 

 Construction: This Agreement shall be construed in accordance with the laws of Illinois (without regard to its principles of conflicts of law). The parties agree that any action, suit or proceeding between them with respect to this Agreement shall be brought in the courts of Will County, in the State of Illinois. The parties hereby accept the exclusive jurisdiction of the court for the purpose of any such action, suit or proceeding.