Surplus Equipment Sales Agreement
Buyer agrees to purchase the following equipment from , SELLER, for the total amount of . The price is inclusive of state and/or local and Use Taxes, BUYER will remit amount of such taxes directly to SELLER in addition to the price, unless BUYER furnishes a valid sales tax exemption certificate, herewith. Buyer agrees to all Terms and Conditions with this sale.
TERMS AND CONDITIONS
1. DEFINITIONS: As used herein, (a) "SELLER" shall mean ; (b) "BUYER" shall mean the company or person that is purchasing the articles from the SELLER; and (c) "ARTICLES" shall mean the items of property declared as surplus by the SELLER.
2. DESCRIPTIONS: Any description that may have been published for ARTICLES offered for sale is not warranted by the SELLER to be accurate or complete. The SELLER shall not be responsible for any insufficiencies, inaccuracies or omissions.
3. DISCLAIMER OF WARRANTY: SELLER MAKES NO EXPRESS WARRANTIES WHATSOEVER, EXCEPT THAT SELLER OWNS THE ARTICLES. NO WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE SHALL BE IMPLIED. The ARTICLES are offered and accepted “AS IS, WHERE IS” and “WITH ALL FAULTS”. The SELLER shall not be responsible for damages of any kind (included but not limited to, direct, incidental of consequential damages) to anyone for any deficiencies or failure of any ARTICLES for any reason. BUYER assumes all risks of loss, after delivery by SELLER and/or upon the commencement by BUYER of the dismantling or other work performed.
4. WARNING OF HAZARDS: BUYER acknowledges that SELLER warns that the ARTICLES may bear or contain hazardous chemicals or other hazardous materials which may be, or may become by chemical reaction or otherwise, directly or indirectly, hazardous to life, to health, or to property by reason of toxicity, flammability, explosiveness or for other similar or different reasons, during use, handling, cleaning, reconditioning, disposal, etc. The BUYER has inquired and received satisfactory information from the SELLER regarding such latent and patent hazards associated with the ARTICLES. BUYER EXPRESSLY ASSUMES ALL RISK OF AND RESPONSIBILITY FOR INJURY OR DAMAGE TO THE BUYER OR OTHERS BASED ON OR ARISING OUT OF POSSESSION, HANDLING, DISMANTLING OR USE BY BUYER OR BY OTHERS OF ANY SUCH GOODS FOR ANY PURPOSE WHATSOEVER. BUYER agrees to warn of all possible hazards to any persons to whom BUYER resells, contributes, or delivers the ARTICLES, or to any person who may be exposed to their hazards. BUYER understands and agrees that no change in this broad warning shall bind SELLER. No additional specific warning shall be deemed to limit this broad warning, and if the additional specific warning is inadequate, all of the TERMS AND CONDITIONS herein below set forth shall still apply, even if the inadequacy of the specific warning was due to negligence on SELLER'S part; and no course of action on SELLER'S part shall be deemed to limit this broad warning.
5. INDEMNIFICATION: BUYER indemnifies, defends and holds SELLER harmless against any and all liability and damage, including, but not limited to, reasonable attorney's fees arising out of any claim for personal injury, sickness, and death to any persons and for any property damage caused by the ARTICLES or by hazardous chemicals or other hazardous material on or in the ARTICLES, whether or not due to the negligence of SELLER, during the commencement of the dismantling or other work by BUYER and thereafter following delivery by SELLER. The word "persons" as used herein, shall be construed to imply both the plural and the singular, as the case may demand, and shall include corporations, companies, associations, societies and municipal corporations as well as individuals.
6. REPRESENTATION: The employees or representatives of the SELLER are not authorized to make any statements as to the quality and condition of the ARTICLES being offered for sale, other than the written statements made herein. Buyer acknowledges that any such statement made will not be binding on the SELLER.
7. DAMAGES: Any damage done to the SELLER’S property during the removal of ARTICLES sold, including environmental damage, will be the responsibility of the BUYER to repair and remediate.
8. LABELS: BUYER shall remove and refrain from making use of any and all of the SELLER’S trademarks, service marks, labels, logos, distinctive markings, and designs that may appear on the ARTICLES or on any packaging materials. Nothing contained herein shall be construed to grant or imply a license to buyer of any such marks, labels, logos, markings and designs. BUYER must also refrain from naming Lilly as the source of the equipment, particularly in the advertisement of ARTICLES for sale.
9. TITLES: Title to ARTICLES shall transfer from the SELLER to the BUYER upon proper payment. Payment shall be made and title passed to the BUYER prior to BUYER’S commencement of removal activities from SELLER’S premises. Thereafter, BUYER shall be responsible for the maintenance, operation and disposal of the ARTICLES in accordance with applicable law.
10. FORCE MAJEURE: The SELLER shall not be liable for its failure to perform hereunder due to circumstances beyond its reasonable control, including acts of God, fire, flood, riot, war, sabotage, accident, explosion, flood, strike, lockout, injunction, labor dispute, shortage, governmental law, ordinance, rules and regulations, breakage of machinery or apparatus, national defense requirements, whether valid or invalid (including, but not limited to priorities, requisitions, allocations, and price adjustment restrictions), or inability to obtain material, equipment or transportation, and/or any other similar or different circumstances beyond the control of the SELLER preventing the sale, pickup or dismantling of the ARTICLES.
11. PAYMENT: Prior to dismantling or removal of ARTICLES, BUYER shall make payment by bank wire transfer or cashier’s check, or other certified funds acceptable to SELLER, unless alternate terms are mutually agreed upon. Should the BUYER fail to comply with the payment terms, the SELLER may terminate the sale.
12. SALES TAXES: BUYER agrees to pay, at the time of sale, all applicable sales or use taxes or other taxes, charges, or fees required to be paid or collected by SELLER by reason of this sale, or to provide SELLER with a valid exemption certificate. In the event that BUYER either fails to pay the tax or other charges as agreed to above or fails to provide a valid exemption certificate, BUYER agrees to indemnify, defend and hold SELLER harmless from any liability and expense by reason of BUYER'S failure.
13. SHIPMENT: It shall be the responsibility of the BUYER to arrange the shipment and to perform any preparation for shipment (dismantling, boxing, packaging, and skidding) thru SELLER approved contractors. SELLER shall not be held responsible for damage during shipping. Additionally, the BUYER agrees to exercise all necessary and prudent precautions to insure all loading and transportation will be performed in a manner that does not interfere with or jeopardize the facilities in or adjacent to the ARTICLES being removed. BUYER shall comply with all applicable State and Federal Laws and Regulations, including OSHA requirements, oversize permits, and all safety rules set forth by the SELLER while on the SELLER’S property.
14. FAILURE TO PERFORM: If ARTICLES are not removed by the BUYER within 30 days of purchase, (i) such ARTICLES shall be deemed abandoned by the BUYER, (ii) BUYER shall forfeit all monies paid to SELLER for the purchase of such ARTICLES, including any rigging costs, and (iii) BUYER shall forfeit the right to purchase such ARTICLES. In addition, BUYER shall be responsible for all damages suffered by SELLER, including, but not limited to, any dismantling, transportation, storage or other costs, including attorneys’ fees, incurred by SELLER as a consequence of BUYER’S failure to remove such ARTICLES. SELLER reserves the right to offer the ARTICLES for sale and to recover the difference, if any, in the bid price and the price paid by the new purchaser.
15. GOVERNING LAW: This Agreement shall be governed by and shall be construed according to the laws of the State of Indiana as if executed and to be performed wholly within he State of Indiana. All actions, legal or other, instituted by BUYER under this Agreement must be filed in a federal or state court located in Indiana.
16. RIGHT OF ACCESS: SELLER may, at its own discretion, restrict any or all access to SELLER’S facilities by the BUYER without prior notice. SELLER shall not be liable for any loss the BUYER may experience as a result of restricted access.
17. ENTIRE AGREEMENT: These TERMS AND CONDITIONS contain the entire agreement and understanding between the SELLER and the BUYER as to the ARTICLES and supersede all prior agreements, commitments, representations, and discussions between the SELLER and the BUYER pertaining to the sale of the ARTICLES.
18. MODIFICATION: BUYER understands and agrees that (a) no modification or waiver of these “TERMS AND CONDITIONS” shall be effective unless made by an authorized representative of SELLER in writing addressed to BUYER and specifically referring to this document; (b) no course of action on the part of SELLER shall be deemed to modify these "TERMS AND CONDITIONS"; and (c) SELLER'S acknowledgment of acceptance of anything in writing from BUYER which is in conflict with these "TERMS AND CONDITIONS" and any subsequent delivery of ARTICLES shall not constitute a modification or waiver of these "TERMS AND CONDITIONS".