2.DELIVERY Delivery of the Equipment shall be made on or before a date to be confirmed by Seller within one (1) business day of receiving this order. Equipment typically will be shipped within 4-6 weeks of order. Seller will verify purchase price, including all applicable taxes, shipping and handling charges at the time of order confirmation. Delivery of the equipment by SELLER to the carrier at the point of shipment shall constitute delivery to BUYER, subject to a security interest of SELLER for the unpaid purchase price. SELLER may withhold delivery if BUYER is in default to SELLER on this or any other order. SELLER shall not be liable for any delay or failure to deliver if the delay or failure is occasioned by fire, embargo, strike, inability to secure materials or any other circumstances beyond the reasonable control of the SELLER which shall hinder SELLER's performance of this Agreement. 3.PAYMENT Visa, MasterCard and American Express Accepted. Otherwise, payment is due in full within ten (10) days after shipment with established and/or approved credit. Any amounts not paid when due shall bear a late charge of 1 1/2% per month from the due date. BUYER shall pay SELLER's attorneys' fees and other costs associated with collecting amounts owed. Any taxes with respect to the purchase price (other than taxes based on Seller's net income), shall be paid by BUYER. Credit card payments will be processed at the time of shipment. Miminum Order: $50 Net. 4.SECURITY INTEREST Buyer hereby grants to Seller a purchase money security interest in the Equipment delivered to Buyer pursuant to this sales order to secure payment of the purchase price of the Equipment and Buyer further Agrees to sign, at Seller's request, financing statements and other documents necessary to evidence such security interest. 5.EQUIPMENT WARRANTY The Equipment shall conform to the specifications set forth in SELLER's Quotation or published specification sheets. No changes in specifications shall be made without the written, consent of SELLER. SELLER WARRANTS ALL NEW EQUIPMENT TO BE FREE FROM DEFECTS IN MATERlAL AND WORKMANSHIP UNDER NORMAL USE AND SERVICE FOR THE PERIOD SET FORTH ON UNDER THE CUMMINS-ALLISON WARRANTY {"Warranty Period"). SELLER'S OBLIGATIONS UNDER THIS WARRANTY ARE LIMITED TO REPAIR OF THE EQUIPMENT AND REPAIR OR REPLACENIENT OF ANY OF ITS PARTS REASONABLY DETERMINED BY SELLER TO BE DEFEC-TIVE, AT THE FACTORY IN MT. PROSPECT OR AT THE NEAREST AUTHORIZED SERVICE POINT. NO RETURNS ARE ALLOWED WITHOUT RETURN AUTHORIZATION FORM. However, if the Equipment is located within a SELLER Customer Service area and is covered by a Maintenance agreement entered into with an authorized SELLER representa-tive at the time of purchase, any material or workmanship found defective will be replaced or repaired at SELLER's option, without charge, at any time during the Maintenance Agreement Period (excluding consumables). 6. DISCLAIMER AND LIMITATION OF LIABILITY THE WARRANTIES HEREIN SHALL BE APPLICABLE ONLY IF THE EQUIPMENT SHALL BE THE PROPERTY OF THE ORIGINAL PURCHASER OR USER. AND SHALL HAVE BEEN PROPERLY USED, OPERATED AND MAINTAINED IN ACCORDANCE WlTH THE MANUAL OR INSTRUCTIONS PROVIDED WITH THE EQUIPMENT AND FOR THE PURPOSE FOR WHICH SOLD. NORMAL WEAR AND TEAR AND CONSUMABLE SUPPLIES ARE NOT COVERED BY THESE WARRANTIES. THESE WARRANTIES SHALL NOT BE APPLICABLE IF THE EQUIPMENTORANY PART THEREOF HAS BEEN REPAIRED OR REPLACED BY THE BUYER WITHOUT THE SELLER'S PRIOR WRITTEN PERMISSION OR HAS BEEN SUBJECTED TO ANY ACCIDENT, CASUALTY, MISAPPLICATION, ALTERATION, ABUSE OR MISUSE. NO OTHER WARRANTY, EITHER EXPRESS OR IMPLIED, AND INCLUDING A WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, HAS BEEN OR WILL BE MADE BY OR ON BEHALF OF SELLER, OF BY OPERATION OF LAW WITH RESPECT TO THE EQUIPMENT AND ACCESSORIES OR THEIR INSTALLATION, USE, OPERATION, REPLACEMENT, OR REPAIR WHETHER USED ALONE OR WITH ANY THIRD PARTY PRODUCTS OR SOFTWARE. SELLER SHALL NOT BE LIABLE BY VIRTUE OF THIS WARRANTY, OR OTHERWISE. FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGE RESULTING FROM THE USE OR OPERATION OF THE EQUIPMENT, OR OTHER-WISE ARISING UNDER THIS AGREEMENT, WHETHER OR NOT SELLER WAS APPRISED OFTHE POSSIBILITY OF SUCH DAMAGES, SELLER'S LIABILITY FOR DAMAGES TO BUYER FOR ANY CAUSE WHATSOEVER SHALL NOT EXCEED THE PURCHASE PRICE FOR THE EQUIPMENT ON WHICH THE CLAIM IS BASED. IRRESPECTIVE OF ANY STATUTE, THE BUYER RECOGNIZES THAT THE EXPRESS WARRANTIES SET FORTH HEREIN ARE THE EXCLUSIVE REMEDY TO WHICH IT IS ENTITLED AND WAIVES ALL OTHER REMEDIES, STATUTORY OR OTHERWISE. REPAIR OR REPLACEMENT SHALL BE BUYER'S SOLE REMEDY UNDER THESE WARRANTIES. 7. NON CONFORMIING EQUIPMENT BUYER must inspect EQUIPMENT promptly upon receipt Except as provided by written warranty, BUYER waives any claim based on nonconforming Equipment and/or Software unless such claim is made within Thirty (30) days after BUYER learns of the defect complained of, but in any event within ninety (90) days after delivery by SELLER of the Equipment All claims of BUYER shall be made in writing by certified mail, return receipt requested, addressed to SELLER at its address set forth herein. 8.DEFAULTS AND REMEDIES If BUYER fails to pay any amount to SELLER when due or fails to perform any other material term of this Agreement and such failure continues unremedied for ten (10) days after receipt of written notice from SELLER. BUYER shall be in default and SELLER may cancel all or any part of this Agreement and exercise any available rights. Upon such cancellation, BUYER shall be liable for all applicable costs, charges, and damages, includ-ing attorneys' fees. 9.LIMITATIONS OF ACTIONS No action shall be maintained by BUYER against SELLER unless written notice of any claim alleged to exist is delivered by BUYER to SELLER within thirty (30) days after the event complained of first becomes known to BUYER and an action is commenced by BUYER within ninety (90) days after such notice. In no event may action for breach be commenced more than one year after the cause or action accrues. 10.ENTIRE AGREEMENT: GOVERNING LAW This sales order, including the specifications referenced herein and the manual and other materials which accompany the Equipment (collectively, the "Agreement"), is the entire contract between the parties with respect to the subject matter hereof and supersedes, all prior agreements and negotiations between them as to the subject matter. This Agreement may be amended only in writing signed by the duly authorized representative of the parties. All additional or conflicting provisions proposed by BUYER are rejected. If any provisions of this Agreement are determined invalid or unenforceable, the remaining provisions shall remain in effect. This Agreement shall be construed in accordance with the laws of the State of Illinois as a contract made and to be performed in that State. |
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