Liberty Machinery Company Terms and Conditions of Sale
The following terms and conditions (these “Terms and Conditions”) are agreed to by Liberty Machinery Company (“LMC”) and the purchaser (“Purchaser”). LMC’s acceptance of any order is subject to these Terms and Conditions. No contrary, additional or different terms, provisions or conditions shall be binding on LMC unless accepted by LMC in writing.
- Payment Terms: Terms of payment are net cash in United States dollars, prior to delivery, F.O.B. LMC’s place of business, unless otherwise specified on the accompanying “quote/invoice” form. Purchaser shall pay Liberty Machinery Company (“LMC”) a late penalty on all amounts over 30 days past due computed on an interest rate equal to 18% per annum. Purchaser shall also be liable for any and all costs and expenses incurred by LMC arising out of or in connection with efforts by LMC to collect any unpaid amounts hereunder including, without limitation, attorney or collection agency fees and expenses. No forbearance, indulgence, or delay by LMC in taking any action hereunder shall be deemed a waiver of any rights of LMC under these Terms and Conditions. Title to this equipment or merchandise shall not pass to Purchaser until payment of the purchase price is made in full. Prior to said payment, LMC shall retain title. In the event Purchaser fails to remit payment for any one shipment when same becomes due, LMC reserves the right, among other remedies, either to terminate the contract or to suspend further deliveries. Should Purchaser's financial responsibility become unsatisfactory to LMC, in LMC’s sole and absolute discretion, cash payments or security satisfactory to LMC, in its sole and absolute discretion, may be required by LMC before future deliveries of equipment or merchandise are made by LMC.
- Taxes: Prices do not include any federal, state or local taxes, which are in addition to the purchase price and must be paid by Purchaser. Any and all foreign duties and taxes are the responsibility of Purchaser. Unless Purchaser furnishes LMC with a tax exemption certificate, any sales, use, excise or other similar tax, where applicable, shall also be the responsibility of Purchaser and may, at the election of LMC, be added to the quoted purchase price and invoiced by LMC to Purchaser. The failure of LMC to invoice such taxes does not excuse the Purchaser from responsibility for paying them. In the event that Purchaser either fails to pay the tax or other charges as agreed above or fails to provide a valid exemption certificate, Purchaser agrees to indemnify and hold LMC harmless from any liability and expense by reason of Purchaser's failure. Such indemnification shall include, but not be limited to, attorneys' fees and/or other legal expenses relating to such failure.
- Acceptance by Purchaser: 30 Day Limited Return Privilege: Purchaser agrees that Purchaser’s acceptance of the machinery or equipment tendered shall constitute an acknowledgment by Purchaser that such merchandise or equipment satisfies any and all obligations of LMC hereunder. Purchaser may not revoke its acceptance for any reason whatsoever, provided, however, and unless otherwise specifically provided herein to the contrary, every machine offered from the stock of LMC is covered by a 30 day warranty that it is mechanically satisfactory. If any mechanical defects arise within 30 days of delivery to Purchaser and within that same 30 day time period Purchaser notifies LMC in writing of the existence of the mechanical defect, then, at LMC’s option, either LMC will repair the machine at Purchaser’s site or said machine will be accepted by LMC for return and Purchaser will receive a complete refund. The machinery if accepted for return must be returned in the same condition as shipped, freight prepaid by Purchaser. Purchaser shall not return any machinery without prior written permission of LMC. The warranty herein shall be void in the event that Purchaser makes any attempt to correct any mechanical defect or otherwise alters the machinery. This return privilege does not apply to machines sold directly from auctions, sold from private user’s plants or sold from other non-MDNA Dealers’ inventories unless specifically arranged in writing. This return privilege does not apply if Purchaser has negotiated a reduced price which takes into consideration the condition of the property and or if the machinery or equipment is sold “as is”.
- Freight and Insurance: All freight and insurance charges are the responsibility of Purchaser unless otherwise agreed by LMC and Purchaser in writing. LMC shall deliver all equipment or merchandise sold hereunder to a carrier for transport to Purchaser’s place of business or as directed in writing; Purchaser shall bear all risk of loss with respect to the equipment or merchandise sold hereunder from the moment they are delivered to the carrier. Purchaser shall not move, load, transport or otherwise handle the equipment or merchandise on LMC's premises without first having obtained insurance coverage satisfactory to LMC. Such insurance shall include "Workers Compensation", employer's liability, public liability (bodily injury, property damage and contractual liability) and automobile liability (bodily injury and property damage) insurance. Certificates of insurance evidencing the aforementioned insurance coverages shall be furnished to and shall be approved by LMC. Purchaser shall comply with LMC’s safety rules and regulations.
- Inspection: Upon reasonable notice to LMC, Purchaser shall have the right to inspect the merchandise and equipment at LMC’s location during normal business hours prior to time of shipment. LMC STRONGLY RECOMMENDS THAT PURCHASER CONDUCT AN ON-SITE INSPECTION OF THE EQUIPMENT AND MERCHANDISE SOLD HEREUNDER. LMC SHALL NOT BE RESPONSIBLE FOR THE CONSEQUENCES OF PURCHASER'S FAILURE TO INSPECT THE EQUIPMENT OR MERCHANDISE OR FOR ANY INACCURACIES, INSUFFICIENCIES, OR OMISSIONS IN SUCH DESCRIPTIONS, SAMPLES AND/OR SPECIFICATIONS. The employees or representatives of LMC are not authorized to make any statement or representation as to the quality, character, size, condition, quantity, etc. of the equipment and merchandise offered for sale inconsistent with these Terms and Conditions. Any such statements made will not be binding on LMC or be grounds for any subsequent claim
- No Warranty: Excepting the limited return privilege above, the equipment or merchandise sold by LMC hereunder is sold “as is” and without warranty. LMC NEITHER MAKES NOR ASSUMES ANY LIABILITY UNDER ANY WARRANTY, WHETHER CONTRACTUAL, STATUTORY, BY OPERATION OF LAW OR OTHERWISE. THE WARRANTIES DISCLAIMED HEREUNDER INCLUDE, BUT ARE NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LMC does not warrant that the merchandise and goods will not infringe any patent, trademark or other rights of a third party, or that such equipment or merchandise conforms with any plans or specifications of Purchaser or others, or meets any requirements of any federal, state, or local laws, regulations or ordinances, pertaining to safety or insurance requirements. No salesman or other representative of LMC has authority to make any warranties. The disclaimers of warranties set forth in these Terms and Conditions may only be modified or supplemented in a writing duly signed by an officer of LMC. It is Purchaser’s responsibility to inspect the goods and to ascertain if the specifications, descriptions and condition of the goods conform to the Purchaser’s requirements. Any warranty concerning said goods made by any third party is enforceable only against the third party and not against LMC.
- Purchaser’s Responsibility and Indemnity: It shall be the Purchaser’s responsibility to ensure that any merchandise or equipment purchased from LMC is installed and operated in a proper and safe manner. Purchaser acknowledges that it must contact the original manufacturer to obtain up-to-date installation and operation manuals and other information to insure safe operation of the equipment or merchandise sold hereunder. Purchaser also acknowledges that it may have to install or change guards, safeties, warnings, or other components to ensure that the merchandise or machines purchased hereunder will conform to all laws, regulations, ordinances, codes, insurance requirements and industry standards. Purchaser shall bear and pay all expenses, losses, and damages that may arise from the transportation of the merchandise or equipment, and all losses, damages, debts and liabilities incurred by the Purchaser in connection with its purchase, installation, alteration, and operation of the merchandise or equipment and every other expense relating or incidental thereto, except such costs, damages, or expenses as may arise from any action or proceeding brought against the Purchaser with respect to the title of LMC to the merchandise or equipment and LMC’s right to sell and advertise the same. Purchaser agrees to defend, indemnify and hold harmless LMC from and against all suits, claims, costs, damages and expenses, including, but not limited to, reasonable attorney’s fees, arising out of, or in connection with, the transportation, purchase, ownership, or use of the merchandise or equipment sold hereunder. This indemnification, and all other indemnifications in these Terms and Conditions, shall survive delivery of the equipment or merchandise to Purchaser and any subsequent sale or other transfer of the equipment or merchandise to a third party.
- Non-Liability of LMC: LMC shall not be liable for its failure to perform hereunder, due to any contingency beyond its reasonable control, including acts of God, fires, floods, wars, sabotage, accidents, labor disputes or shortages, government laws, regulations, ordinances or codes, inability to obtain material or equipment and any similar or different contingencies. In no event, whether as a result of breach of contract, delay in shipment, or express or implied warranty, tort (including negligence) or otherwise, will LMC be liable to Purchaser, its successors or assigns, for any incidental or consequential damages including, but not limited to, damages for loss of revenue or profits, cost of capital, claims or customers for service interruptions or failure of supply, or costs and expenses incurred in connection with labor, overhead, transportation, installation or removal of products or substitutes facilities or supply sources, even if LMC has been advised of the possibility of such damages.
- Sales – Used Merchandise or Equipment; Purchaser understands that the equipment or merchandise sold hereunder have been used by persons other than LMC. Purchaser is warned and acknowledges that such equipment or merchandise 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 or at any other time after the article leaves the possession and control of LMC). Purchaser does hereby discharge LMC from any and all liability directly or indirectly resulting from the presence of the aforesaid chemicals or materials, including and not limited to any and all liability directly or indirectly resulting from the failure of LMC to give more specific warning with respect to individual articles or substances or from the inadequacy of any warning.
- Modifications: Purchaser acknowledges that these are the only Terms and Conditions of sale, and is intended by the parties as a complete and exclusive statement of the terms of their agreement. This supersedes all prior agreements, written or oral, and upon issuance of LMC’s invoice or acknowledgment will become part of that invoice or acknowledgment. No course of prior dealings between the parties, no usage of trade, nor any form preferred by Purchaser containing different or conflicting terms, shall be part of the parties’ agreement, nor shall they be relevant to determine the meaning of any agreement with LMC even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection. Whenever a term defined by the Uniform Commercial Code (“Code”) is used herein, the definition contained in the Code shall control. Any variation from the terms hereof contained in the Purchaser’s acceptance is hereby rejected. The agreement of which these terms are a part can be modified or rescinded only in writing signed by LMC.
- Quotations: All quotations are made for immediate acceptance and are subject to withdrawal or change at anytime and without notice. Purchaser requests that LMC continue to provide Purchaser with information on the availability and cost of machinery LMC may offer for sale in the future, and agrees to accept such information by telefacsimile, mail or such other means as LMC may employ.
- Limitations of Remedies: No claim arising out of or relating to this agreement shall be greater in amount than the purchase price of the merchandise or equipment in respect of which such damages are claimed. Failure to give notice of claim within thirty (30) days from the date of delivery or the date fixed for delivery (in the event of non-delivery) shall constitute a waiver by Purchaser of all claims in respect of such merchandise. The remedy hereby provided shall be the exclusive and sole remedy of Purchaser and any right to consequential and incidental damages is excluded.
- Waiver or Right to Jury Trial/Submission to Jurisdiction/Designation of Law and Forum: In any action brought by Purchaser, any successor or assignee or Purchaser arising out of or related to invoices, these Terms and Conditions, or the performance or breach thereof, or the equipment or goods sold hereunder, PURCHASER HEREBY WAIVES ITS RIGHT TO A TRAIL BEFORE A JURY. The parties agree that the law of the State of Illinois shall control in construing and in any such dispute and that all such actions brought arising out of or related to all invoices, the equipment or goods sold, or these Terms and Conditions shall be brought in a court of competent jurisdiction located in Lake County, Illinois.
- Bankruptcy: In the event any one or more of the following shall occur, any and all obligations of LMC hereunder, including without limitation, any obligation to deliver merchandise or goods to Purchaser, shall terminate immediately and without further action by LMC: Purchaser files a petition in bankruptcy or is adjudicated a bankrupt, or a petition in bankruptcy if filed against Purchaser; Purchaser becomes insolvent or makes an assignment for the benefit of its creditors or makes an arrangement pursuant to any bankruptcy law; or Purchaser discontinues its business or a receiver is appointed for it or its business.
- Time for Bringing Action: Any action by Purchaser for breach of agreement of which these Terms and Conditions are a part shall be commenced, and LMC must be served, within one (1) year after the cause of actions has accrued.
- Assignment: Purchaser may not assign its rights or delegate its performance in whole or in part under any invoice without the prior written consent of LMC and any attempted assignment or delegation without such consent shall be void.
- Severability: If any provision of the invoice or these Terms and Conditions is determined illegal or unenforceable, it shall not affect the enforceability of any other provision or paragraph of the invoice or these Terms and Conditions.
- Fees and Costs: In the event any party institutes legal proceedings to enforce its respective rights arising out of the invoice or these Terms and Conditions, the prevailing party shall be entitled to the award of attorneys' fees and court costs, plus cost of executing, enforcing and/or collecting any judgment at all trial and appellate levels.