NEW SALE TERMS
ALL ERECTION & CRANE RENTAL CORP. AND ITS AFFILIATES TERMS AND CONDITIONS FOR THE SALE OF NEW EQUIPMENT
These Terms and Conditions for the Sale of New Equipment ("Terms and Conditions") govern the purchase by Buyer of new equipment sold by Seller as a dealer or distributor. Buyer and Seller are hereinafter each a "Party" and collectively the "Parties."
- Equipment Sale. Seller is engaged in the business as a dealer or distributor of new equipment on behalf of the manufacturer identified in the New Equipment Sales Agreement into which these terms are incorporated by reference therein (the "Agreement"). In accordance with these Terms and Conditions, the Seller identified in the Agreement agrees to order, sell, assign, and transfer to Buyer and Buyer agrees to purchase and accept from Seller the equipment (the "Equipment") described in the Agreement at the purchase price contained therein. Unless otherwise expressly stated in the Agreement, the purchase price does not include federal, state or local sales, duties, use or excise taxes. In addition to payment of the purchase price, a delivery charge (if applicable) and other payments as specified in the Agreement, Buyer shall be responsible for, and shall pay, any and all applicable taxes due in connection with the sale of the Equipment, unless Buyer provides Seller with a tax exemption certificate in form and substance acceptable to Seller.
- Inspection and Acceptance of Equipment. Buyer agrees that it shall inspect the Equipment immediately after receipt and shall provide written notice to Seller of any non-conformity or defect in the Equipment no later than seven (7) days thereafter. Buyer's failure to give timely notice thereof to Seller, or the commercial use of the Equipment, shall constitute Buyer's acceptance of the Equipment. Acceptance shall be final and, except as otherwise specifically provided by the Terms and Conditions, such notice by Buyer shall automatically cause the provisions of the manufacturer's warranty (as hereinafter described) to apply and shall govern the rights, obligations and liabilities of the Buyer and manufacturer with respect to adjustment and/or handling such nonconformity or defect. Seller shall provide reasonable assistance to Buyer in the event of a warranty claim.
- Equipment Warranty; Seller Disclaimer. Buyer acknowledges and agrees that (A) the manufacturer's warranty, a copy of which is incorporated by reference herein and is available upon request if not provided to Buyer with the Agreement, is the sole and exclusive warranty with respect to the Equipment; (B) it is Buyer's sole responsibility to review the terms of the manufacturer's warranty and make an independent determination of the scope of the warranty without reliance on any interpretation, statement or representation of Seller, including but not limited to the existence of any conditions, limitations or exclusions in the manufacturer's warranty terms; (C) Buyer is purchasing the Equipment on the basis of its own due diligence and investigation of the Equipment, its capacities, capabilities, value and Buyer's intended use thereof; (D) Buyer has inspected the Equipment and is acquiring the Equipment "AS IS, WHERE IS, WITH ALL FAULTS" THERE BEING NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES BY SELLER, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR ANY PARTICULAR USE, DESIGN OR PURPOSE, OR ANY OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WHICH SELLER HEREBY DISCLAIMS; and (E) each Party's remedies and liabilities are limited to those provided in the Agreement and these Terms and Conditions.
- Delays; Force Majeure; Limitation of Liability. Seller's performance and delivery dates referenced in the Agreement are approximate dates only. Seller shall not be responsible or liable for any damages or penalties for delays or failure to give notice of delays. Seller shall additionally not be responsible or liable for any delays or its failure to perform if such delay or failure is caused by events or circumstances beyond its control, including without limitation, acts of God, catastrophe, weather conditions, labor shortages, unavailability of parts, war, riots, civil commotion, confiscation, or governmental action or restriction, including frost law restrictions. Buyer hereby waives any and all rights to backcharges, set-off, deductions or retention from amounts owed to Seller under the Agreement. In no event shall Seller be liable or responsible for any loss of use, lost time, work stoppages, lost profits, inconvenience, or any indirect, incidental, special, liquidated, or consequential damages or losses arising out of or related to the Agreement and Seller's performance of these Terms and Conditions.
- Indemnification. To the fullest extent permitted by law, Buyer shall indemnify, defend and hold harmless Seller and its affiliated companies, and their respective directors, officers, managers, employees, agents, successors and assigns ("Seller Group") from and against any and all loss, damage, cost, expense, penalty, violation, fine, lien, award or judgment, including attorney's fees and court costs, arising out of or related to any claim, demand, suit or legal action or proceeding of any nature, including without limitation personal injury and/or property damage made upon or against the Seller Group, or any of them, and caused by, or otherwise arises under or is related, directly or indirectly, to (A) Buyer's possession, use, ownership, operation, custody, maintenance, repair, delivery, handling or transportation of the Equipment, (B) any other action or omission of Buyer, and/or (C) Buyer's violation of any applicable statutes, regulations, rules, codes, ordinances and orders of lawfully constituted authorities, including without limitation regulations promulgated by the Occupational Safety & Health Administration, as may be amended from time to time. The provisions of this Section shall survive the termination of the Agreement.
- Seller's Security Interest Until Payment in Full; Buyer's Insurance. In the event Buyer obtains possession of the Equipment prior to issuing full payment of all amounts owed to Seller as set forth in the Agreement, Buyer acknowledges and agrees as follows: (A) Seller shall retain a vendor's lien, and Buyer hereby grants a security interest in and to the Equipment, equal to amount of the unpaid purchase price, plus any charges or other amounts due to Seller under the Agreement; (B) Seller may take any action deemed necessary and/or appropriate to perfect and/or protect its security interest in the Equipment, Buyer consenting in all respects thereto, and agreeing to fully cooperate with Seller in connection therewith; and (C) Buyer shall procure and maintain insurance in accordance with the following requirements at all times while the Equipment is in Buyer's care, custody and/or control until Seller receives the full purchase price and all other funds owed by Buyer pursuant to the Agreement:
All liability policies and insurance certificates shall name "ALL ERECTION & CRANE RENTAL CORP. AND ITS AFFILIATES" as an Additional Insured (using ISO Form CG 20 33 03 97 or equivalent). All property insurance policies and certificates shall name "ALL ERECTION & CRANE RENTAL CORP. AND ITS AFFILIATES" as a Loss Payee As Their Interests May Appear. Seller's policies shall be considered excess over all Buyer's policies. Indemnification obligations by Buyer under this Agreement are in addition to, and not an alternative, to the insurance coverage required herein, and Buyer's maintenance of any such insurance coverage shall not operate to waive any such indemnification obligations. Buyer shall furnish Seller with insurance certificate(s) upon request by Seller.
- worker's compensation and employer's liability insurance, with limits of at least the statutory minimum or $1,000,000, whichever is greater;
- primary, non-contributory commercial general liability insurance on an occurrence basis, including bodily injury and property damage coverage with minimum limits of $1,000,000 per occurrence and $2,000,000 in the aggregate;
- physical damage insurance providing coverage for the Equipment against ALL RISK PERILS, INCLUDING BOOM, JIB AND OVERLOAD in an amount no less than the purchase price; and
- automobile liability and collision insurance with minimum limits of $1,000,000 per occurrence and in the aggregate.
- Export Controls; United States Foreign Corrupt Practices Act. Buyer shall comply with and conform to all applicable municipal, state, provincial, federal, national, and foreign laws relating to the Agreement and the Equipment, and shall pay all costs and expenses of every character occasioned by or involving the ownership and possession of the Equipment, including all taxes, assessments, public charges, impositions or fees imposed by any such authorities. Buyer represents, warrants and covenants to Seller that Buyer, any party retained or paid by the Buyer, and any purchaser of the Equipment from Buyer, has and will comply with all applicable export control laws, anti-boycott laws, economic and trade sanctions, embargoes, and other applicable laws, regulations and executive orders regarding the export, re-export, transfer, distribution and sale of the Equipment, or any component part thereof, including without limitation, the U.S. Export Administration Regulations (15 C.F.R. §§ 730-799), continued in effect under the International Emergency Economic Powers Act (IEEPA), (50 U.S.C. §1701 et seq.), the Arms Export Control Act (22 U.S.C. 2751, et seq.), the International Traffic in Arms Regulations (22 C.F.R. §§ 120-130), as these laws and regulations may be amended or superseded from time to time, and all other applicable laws, regulations and executive orders. Buyer shall be solely responsible for the exportation of the Equipment if applicable. Buyer assumes full responsibility for preparing, submitting and procuring all licenses, permits, approvals, clearances and other documentation required to export the Equipment out of the USA and import the Equipment into the intended destination. Buyer shall be solely responsible for and shall pay when due all export taxes, import taxes, customs charges and duties, VAT and all other fees, taxes and related charges concerning or otherwise related to the exportation, importation, transportation, possession, and storage of the Equipment. Buyer further represents and warrants to Seller that it has complied, and covenants to continue to comply, with the United States Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et seq. with respect to all transactions, activities, and operations of Buyer relating to the Equipment.
- Seller's Trademarks/Trade Names. Nothing in the Agreement or these Terms and Conditions authorizes the utilization by Buyer, its agents and representatives, of Seller's trade names, trademarks and/or logos; and Buyer agrees that it shall not use Seller's trademarks, trade names, and/or logos for any purpose, including but not limited to marketing purposes, without Seller's prior written consent.
- Default; No Waiver. Time is of the essence with respect to Buyer's performance of its obligation under the Agreement and these Terms and Conditions. Should Buyer default, Seller shall have the right, at its option and without notice, to terminate the Agreement, to sell or offer to sell the Equipment to another prospective buyer or otherwise transfer possession or ownership of the Equipment to any other party, to repossess the Equipment (if applicable), and/or to exercise any and all other rights and/or remedies available at law or in equity. All rights and remedies are cumulative. Buyer shall reimburse Seller for all costs and expenses incurred by Seller in connection with the enforcement of the Agreement, including costs of collection and reasonable attorney's fees. Any forbearance or other delay on the part of Seller to exercise any of its rights and remedies available under the Agreement and these Terms and Conditions shall not constitute a waiver by Seller to require Buyer's strict compliance in the event of any subsequent breach.
- Applicable Law; General Provisions. This Agreement shall be construed under and enforced in accordance with the laws of the state where Seller's principal office is located. Buyer agrees that exclusive jurisdiction to bring and maintain any action or proceeding arising out of or related to this Agreement shall be brought in the county of the state, or in the United States District Court, where Seller's principal office is located. Any provision of this Agreement that conflicts with any statute or rule of law in any jurisdiction wherein it may be sought to be enforced, or that is otherwise deemed to be invalid and/or unenforceable, shall not operate to invalidate the remaining provisions hereof. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Each Party agrees that in any dispute regarding the interpretation or construction of the Agreement, no presumption shall operate in favor of or against any Party hereto by virtue of his/her/its role in drafting or not drafting these Terms and Conditions. Captions provided herein are inserted for convenience only and shall not be considered a part of the Agreement.
- Assignment; Successors and Assigns. The Agreement may not be assigned by Buyer without the written consent of Seller, such consent to be made within Seller's sole discretion. Seller may assign this Agreement and the sale of the Equipment to any affiliated entity of Seller without advance notice to or consent from Buyer. Seller warrants and represents to Buyer that Seller is an authorized agent of such affiliate for the purpose of the Agreement and Equipment sale. Buyer agrees to accept an invoice from the affiliate-assignee and to pay all amounts due to the assignee pursuant to the terms hereof and instructions in the invoice. The Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and/or permitted assigns.
- Entire Agreement; Buyer's Purchase Order. The Agreement, including these Terms and Conditions and the Bill of Sale, constitutes the entire agreement between the Parties with respect to the sale of the Equipment and supersedes all prior discussions, negotiations, representations, agreements, whether oral or in writing, between the Parties relating to the subject matter. The Agreement shall not be subject to amendment or modification except by a writing, signed on behalf of the Parties by their authorized representatives, and making specific reference to the Agreement and the amendment thereof. No representation of any kind has been made by either Party to induce making or signing the Agreement except as set forth herein. If Buyer issues a purchase order or other contract document in connection with Buyer's purchase of the Equipment, Buyer specifically acknowledges and agrees that all terms and conditions contained in such purchase order or contract shall be deemed deleted in their entirety and without any effect, the same being disclaimed and rejected by Seller, and shall have no effect, regardless of whether such document (A) was provided to Seller prior to Seller's performance or delivery; (B) provides that the terms and conditions contained therein shall supersede or otherwise prevail over the provisions contained in any other document offered by Seller; (C) provides that Buyer rejects or otherwise disavows any terms and conditions not contained within said document; (D) provides that performance on the part of Seller constitutes acceptance of the terms contained in said document; and/or (E) states that the Parties' entire agreement and understanding has been incorporated and integrated into said document. The Agreement constitutes an offer by Seller and acceptance is strictly limited to the terms herein without modification or amendment. In the event the Agreement has been tendered to Buyer for execution, but has not been signed by Buyer or its representative, acceptance of the Equipment by Buyer or its representative shall constitute Buyer's performance under, and acceptance of the Agreement and these Terms and Conditions. No prior course of dealing between the Parties, and no usage of trade, shall be relevant to supplement or explain any term contained in the Agreement or in these Terms and Conditions.