Subject to the attached Terms and Conditions of Sale the undersigned Seller, for and in consideration of the payment by the undersigned Buyer of the sum of U.S. $
Buyer acknowledges that it has read and agrees it is bound by the attached Terms and Conditions of Sale which are hereby incorporated into this Sales Order-Bill of Sale by this reference. Seller does hereby certify that it is conveying to Buyer marketable title to such equipment free, clear of all liens, except as set forth in the attached Terms and Conditions. Title to such goods shall pass to Buyer at the same time as the risk of loss passes to Buyer in accordance with the attached Terms and Conditions and such transfer shall occur at the location of the Sellers facility from which it is shipped.
As evidence of their agreement, the undersigned have entered into this Sales Order-Bill of Sale as of the dates set forth below.
Note: Make payments in accordance with the following instructions: [INSTRUCTIONS TO BE PROVIDED BY EQUIPNET:]
Terms and Conditions of Sale
Payment: Unless otherwise stated on the Sales Order, payment in full by Buyer is required upon signing of the Sales Order and Seller, nor Sellers agent, shall have an obligation to ship Equipment 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 Equipment 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 applicable law, including the Uniform Commercial Code to the extent applicable to the transaction, 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 Equipment to Seller upon Sellers demand. If Buyer fails to return the Equipment to Seller immediately after such demand to Buyer, then Seller may directly, or by its agents, enter upon the premises where any of the Equipment may be located, and take possession of any such Equipment. Such entry by Seller or its agents upon the premises where any of the Equipment 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 Equipment in the event a breach or default hereunder by Buyer. In the event Seller seeks possession of the Equipment 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 Buyers 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, local or other taxes or other charges or duties, all of which shall be paid by Buyer in addition to the sales price, including any tax, charges or duties in connection with the sale and purchase of such Equipment or the transportation or exportation of such Equipment. Buyer is to provide Seller with a valid tax exemption certificate. In the event that Buyer either fails to pay any tax, charges or duties 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: The shipment term for the Equipment is EX WORKS (EXW) (Incoterms 2010) at the Sellers facility identified by Seller, and risk of loss to the Equipment shall pass to Buyer at that point. 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 Equipment 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 Sellers performance hereunder, or any other cause beyond Sellers reasonable control. Buyer agrees to comply with all United States export control and related laws, and acknowledges that Seller is not the exporter of any purchased piece of Equipment. Certain items of Equipment may constitute restricted technology and under federal law, such items may not be shipped outside of the United States. Seller makes no representation or warranty concerning, and has conducted no investigation to ascertain which items, if any, constitute restricted technology.
DISCLAIMER OF WARRANTIES: ALL EQUIPMENT IS SOLD AS IS, WHERE IS, AND WITH ALL FAULTS. NO WARRANTIES OR REPRESENTATIONS OF ANY KIND 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 OR REPRESENTATION AS TO WHETHER SAID EQUIPMENT IS NEW OR USED OR WHETHER OR NOT SELLER HAS RECONDITIONED IT, AND SELLER DOES NOT WARRANT OR REPRESENT THAT SUCH EQUIPMENT 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. IN ADDITION, SELLER MAKES NO WARRANTY, GUARANTEE OR REPRESENTATION RESPECTING AS TO THE NATURE, QUALITY, VALUE OR CONDITION OR ANY FEATURE, CHARACTERISTIC, SUITABILITY, PRIOR USE, SAFETY, ABSENCE OF DEFECT (WHETHER OF DESIGN, OR LATENT OR PATENT), CLEALINESS OR ABSENCE OF ENVIRONMENTAL HAZARD OF THE EQUPMENT. EQUIPMENT IS BEING SOLD WITHOUT SOFTWARE. IN THE EVENT THAT SOFTWARE IS INCLUDED IN THE EQUIPMENT FOR SALE, NOTHWITHSTANDING THE DISCLAIMER ABOVE, SELLER MAKES NO REPRESENTATION, GUARANTEE OR WARRANTY REGARDING BUYERS RIGHT TO USE SUCH SOFTWARE, AS TO THE PERFORMANCE OF SUCH SOFTWARE, NON-INFRINGEMENT OR OTHERWISE.
Seller not Manufacturer or Merchant; Assignment of Manufacturers Warranty. Seller is neither the manufacturer of the Equipment nor a merchant of the Equipment. Buyer is to assume the Equipment does not carry any manufacturers warranty at the time this item is offered for sale. If and to the extent there are warranties by the manufacturer of Equipment 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, without any representation or warranty from Seller. Buyer agrees to look solely to the manufacturer of such Equipment for any remedies with respect to any breach of such warranties.
Responsibility of Buyer; Indemnity; Release of Claims: Buyer takes and accepts the Equipment as is, where is, and with all faults. Buyer has inspected the Equipment to its satisfaction. Buyer is solely responsible for verifying the truth and accuracy of all listing information. Buyer acknowledges and agrees that all descriptions of the Equipment are a good faith attempt to accurately reflect the specifications of the Equipment being offered for sale, but Seller shall have no liability as a result of any description or other information provided to Buyer. It is the Buyers sole responsibility to meet all government safety and environmental standards in removing, shipping and using any purchased Equipment. Certain items of Equipment may contain hazardous substances as that term is defined under federal, state or local environmental laws and regulations. While Seller may have cleaned the Equipment prior to sale it is the Buyers sole responsibility to ensure it contains no materials that would affect it intended use and Seller makes no warranties or representations to that effect. Buyer shall provide proper safety devices and equipment or such other means as may be necessary, to safeguard operators of the Equipment 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, transportation, ownership, use, misuse or disposal by Buyer or Buyers agents, employees, independent contractors, or privies of the Equipment delivered pursuant to this Agreement. Any claim arising from alleged manufacturing or design defects in such Equipment may be asserted only against its manufacturer and not against Seller, Sellers 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. Buyer forever discharges and releases Seller and its officers and employees from all claims, causes of action, demands and each and every form of liability, whether known or unknown, that may ever be asserted as a result (wholly or partially) of Sellers sale of the Equipment or Buyers purchase, transportation, exportation, ownership, use, misuse, operation or disposal of the Equipment. This release and discharge of all claims includes, but is not limited to, claims for property damage, diminution in value, environmental insult, personal injury and death. Buyer agrees not to sue Seller, its agents or employees, or initiate or prosecute any other legal, arbitral, or other proceeding seeking monetary or other relief arising out of or related to Buyers purchase, transportation, exportation, ownership, use, misuse, operation or disposal of the Equipment. This provision shall survive the expiration of this Agreement.
Interpretation: This Agreement is intended by the parties as a complete and exclusive statement of the terms of their agreement, and supersedes 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 apply.
Authority of Sellers Agents: No agent, employee or representative of Seller has any authority to bind Seller to any affirmation, representation or warranty concerning the Equipment 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: NEITHER SELLER, NOR SELLERS AGENT, SHALL HAVE LIABILITY TO BUYER, BUYERS 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 EQUIPMENT OR ITS DELIVERY, INSTALLATION, USE, REPAIR, REPLACEMENT OR MAINTENANCE, OR THE PERFORMANCE OR BREACH OF ANY REPRESENTATION OR 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 EQUIPMENT WHICH IS THE SUBJECT OF THE CLAIMS. ANY CLAIM BY BUYER OF WHATEVER NATURE MUST BE MADE BY BUYER NO LATER THAN FOUR (4) MONTHS AFTER THE DATE ON WHICH THE RISK OF LOSS PASSES TO BUYER AND NO CLAIM MAY BE MADE BY BUYER AFTER SUCH DATE AND, IF ANY PURPORTED CLAIM IS MADE BY BUYER AFTER SUCH DATE, SUCH CLAIM SHALL BE INVALID AND OF NO EFFECT.
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 Sellers 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 the State of Wisconsin (without regard to its principles of conflicts of law).
All information disclosed to EquipNet by SCJ relating to its products, operations, manufacturing, marketing, facilities, employees, business or customers is considered SCJs Confidential Information. Confidential Information may be disclosed in oral, written, visual, or physical form by SCJ employees or by other persons or entities disclosing under SCJs authorization. In addition, EquipNet acknowledges that it may be exposed to Confidential Information through observation while in SCJs facilities. Confidential Information may be used by EquipNet only to perform Services under the Agreement. EquipNet shall not use or disclose Confidential Information except as is expressly authorized by this Agreement. Contractor may only disclose Confidential Information to those of its employees who perform Services and agree to abide by the requirements of this Exhibit B. However, EquipNet may disclose Confidential Information in compliance with to the extent required by applicable law or an order of a court of competent jurisdiction if EquipNet gives SCJ prompt, advance notice of its need to disclose and cooperates with SCJ in an effort to narrow or avoid such disclosure of Confidential Information, obtain any available protective order, or the like.
EquipNets obligations under this Exhibit B continue (A) indefinitely for all Confidential Information that constitutes a trade secret under applicable law, and (B) for three (3) years after the termination of the Agreement for all other Confidential Information.
Confidential Information does NOT include:
Upon SCJs request, EquipNet shall return to SCJ or destroy any written or physical embodiments (e.g., papers, information on computers, electronic copies, CD ROMs, tape drives, written in code, models, mock-ups, etc.) of or containing any Confidential Information which are in EquipNets possession or control.
Buyer
Seller
IN LIEU OF A SIGNATURE ABOVE, BUYER MAY ENTER INTO THIS SALES ORDER-BILL OF SALE BY MEANS OF CLICK-THOUGH ACCEPTANCE OR OTHER ELECTRONIC MEANS OF DOCUMENTING BUYERS AGREEMENT. THE PERSON SO SIGNING, ACCEPTING OR OTHERWISE AGREEING TO THIS SALES ORDER-BILL OF SALE REPRESENTS AND WARRANTS TO SELLER THAT IT HAS FULL POWER AND AUTHORITY TO BIND BUYER.
Applicability: These Terms and Conditions of Sale (Terms) apply to any equipment and other assets (collectively, the Equipment) 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.
Information that EquipNet demonstrates was in its possession before it was first disclosed by SCJ to EquipNet;
Information that is available to the general public, as long as the information was not made available to the general public by EquipNet after disclosure by SCJ; or
Information that is disclosed to EquipNet without restriction by a third party who has a right to disclose and is under no legal obligation to SCJ to keep the information confidential.