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TERMS AND CONDITIONS
1. Payments: NEW EQUIPMENT: twenty five percent (25%) of the total purchase price is to be paid by Buyer before Seller will commence any work. Twenty five percent (25%) of the total purchase price is to be paid by Buyer when the equipment is 50% complete. The balance is due on tender of delivery. Interest will be charged on overdue payments at the rate of 1.833% per month, if permitted by law, otherwise, at the highest lawful rate. If Buyer fails to make any payments as agreed to, shows evidence of a changed financial condition, or, fails to perform any of its obligations, Seller may suspend its performance, without prejudice to any claims for damages Seller may be entitled to make, until satisfactory terms, conditions and security are received by Seller. In addition, Seller shall have such other rights and remedies as are provided herein and/or allowed to an aggrieved seller under the Uniform Commercial Code (the “Code”). Down payment(s) are not refundable.
2. Taxes. The amount of any present or future tax based on the sale, use, or contract price of the equipment covered hereunder shall be paid by Buyer unless otherwise included in the sale price. Buyer shall indemnify and hold Seller harmless from any such tax, and any interest and penalties thereon, and any claims, demands or legal proceedings (including the costs, expenses and reasonable attorney's fees incurred in connection with the defense of any such matter). Seller shall also receive interest on the amount of taxes paid at the rate of 1.833% per month if permitted by law, otherwise, at the highest lawful rate from the date of payment of the taxes by Seller to the date of Buyer's reimbursement to Seller of these taxes.
3. Tender of Delivery and Shipment. The equipment is sold "F.O.B." place of shipment. Tender of delivery by Seller to Buyer shall occur at the place of shipment when Seller gives Buyer notice that the equipment is complete. Seller is authorized to make the necessary arrangements with a carrier for both the delivery of the equipment to the carrier and the transportation by the carrier to Buyer. Buyer shall furnish notification reasonably necessary to enable the carrier to make proper delivery at the destination, and Buyer must furnish facilities reasonably suited to the receipt of the equipment. Risk of loss and title to the equipment shall pass to Buyer upon tender of delivery by Seller to the carrier at the place of shipment. Buyer shall bear the cost of shipment, unless otherwise agreed to in writing by Seller. Claims on account of error or shortage will not be considered unless made immediately on receipt of shipment. The items of material as shown on the invoice, packing list, and bill of lading shall govern settlements in all cases unless such notice of shortage is immediately reported to both the agent of the delivering carrier and to Seller so that the alleged shortage can be verified.
4. Delays in Performance and Shipment. In addition to delays agreed to or caused by Buyer, Seller shall also be excused for delays in performance which result, in whole or in part, from strikes, lockouts or other differences with employees or any cause beyond the control of the Seller including, but not limited to, fire, earthquake, flood or windstorm, war, terrorism, riot, or embargoes, delays, losses or damages in transportation, or shortage or delay in receipt of cars, fuel, labor or material. If any such event occurs, the time of completion shall be extended accordingly. Buyer may, at its option, request a delay in the scheduled shipment date at no penalty provided the request is made one hundred eighty (180) days prior to the scheduled shipment date. Should such a delay occur, Buyer shall pay for the balance of the sales price when completed, irrespective of the shipment date. At Seller's sole option, the equipment may be stored at Buyer's risk and expense.
5. Security Interest and Default. Buyer hereby grants Seller a security interest in the equipment purchased and the proceeds thereof, which shall continue until payment in full of the purchase price for such equipment, payment of any rental which may be charged for Buyer's use of axles, fifth wheels and other equipment furnished by Seller to transport equipment purchased to its permanent site and payment and performance by Buyer of all of its other obligations hereunder. If Buyer wrongfully rejects or revokes acceptance or fails to make a required payment on or before delivery, repudiates or otherwise breaches the Agreement, then Seller shall have all the remedies available herein and under the Code, including the right to resell the equipment involved and recover damages from Buyer. If resale is at a private sale, Seller shall give Buyer reasonable notification of its intention to resell. If the resale does not result in satisfying all of Seller’s loss, then Buyer is obligated to pay to Seller such additional amounts as will make Seller whole under the Agreement. Buyer shall pay Seller, in addition to the interest on overdue payments specified in Paragraph 1 herein and all damages as allowed by law, reasonable attorney's fees and other costs of Seller incurred in enforcing any of Seller's rights or remedies under the Agreement and the Code. The equipment purchased shall remain personal property and shall not be considered a fixture or a part of any real estate on which it may be located.
6. Transportation of Equipment. It shall be Buyer's responsibility to determine whether the equipment is intended for permanent installation, or whether it is intended to remain portable. Regardless, Buyer shall also be responsible for compliance with all applicable transportation, motor vehicle and safety laws. Buyer shall obtain any necessary licenses and/or permits and meet all federal, state, and local requirements. Except for Seller’s negligence, the use of portable equipment is at Buyer's risk and Seller shall in no way be held responsible for damage, injury or expense incurred by Buyer or any other party as a result of Buyer transporting equipment from Seller’s plant to job site or from job site to job site. Buyer shall indemnify and hold Seller harmless from all claims, demands or legal proceedings (including the expenses and reasonable attorney's fees incurred in connection therewith) which may be made or brought against Seller in connection with Buyer's failure to comply with all applicable laws and regulations or arising out of Buyer’s transporting of said equipment.
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