ConEquip's Terms and Conditions of Sale
- All sales of goods by ConEquip Parts & Equipment, LLC (“ConEquip”) to Buyer are made pursuant to these Terms and Conditions of Sale. Acceptance of an order submitted by Buyer to ConEquip is expressly conditioned on Buyer's consent to all of the terms and conditions stated herein. The parties agree that these Terms and Conditions of Sale are the complete and exclusive statement of the terms and conditions of the agreement between the parties. No other or additional terms or conditions are or will be accepted by ConEquip and are hereby expressly rejected.
- Buyer shall pay ConEquip's invoice before the goods are shipped. If Buyer needs credit terms, Buyer shall apply to ConEquip's third party credit program. Time for payment is of the essence. A late payment charge of one percent (1%) per month shall be paid by Buyer on all overdue amounts. ConEquip shall be entitled to collect from Buyer all reasonable attorneys' fees and costs incurred to obtain payment on an invoice.
- Delivery of the goods shall be FOB ConEquip's third party vendors' facility. Title to all goods and all risk of loss or damage with respect thereto will pass to Buyer upon delivery of the goods to the carrier.
- Buyer shall be responsible for paying all sales or other taxes arising out of the sale of goods.
- ConEquip's use of manufacturers' names, symbols and descriptions are for reference purposes only and do not imply that the parts listed are the products of the manufacturers.
- ConEquip shall not be liable for damages arising from its failure to make or delay in making delivery of any goods because of fire, flood, strikes, riots, car shortage, embargoes on freight of any government, accidents, insurrections, lockouts, pandemics, epidemics, breakdown of machinery, loss or damage of goods in transit, delay of carriers, acts of civil or military authorities, acts of God, or any circumstances or other unavoidable cause beyond ConEquip’s control. ConEquip will be excused from such performance to the extent that it is necessarily prevented, hindered or delayed thereby, and during the continuance of any such happening or event this agreement will be deemed suspended so long as and to the extent that any such cause prevents or delays ConEquip’s performance.
- Buyer acknowledges that ten (10) days after receipt of the goods will provide Buyer with a reasonable amount of time to inspect the goods. Therefore, the goods shall be subject to final inspection and acceptance by Buyer within ten (10) days after receipt by Buyer. Buyer’s failure to inspect within said time shall constitute a waiver of Buyer’s rights of inspection and rejection (including any claims for shortages), and such goods shall be deemed accepted by Buyer.
- All returns require ConEquip's prior written authorization and are subject to a minimum fifteen percent (15%) restocking fee. All return requests must be completed within ten (10) days of the goods being delivered. All refunds are determined based on results of testing and inspection. Due to the inspection process, returns may take up to sixty (60) days. Buyer is responsible for all shipping costs.
- If the goods are components and/or require assembly, Buyer must follow correct OEM manufacturer guidelines/specifications and installation must be in accordance with the latest version of the OEM workshop and OEM installation manuals.
- Buyer agrees to defend, indemnify and hold ConEquip harmless against any and all costs, damages, liabilities, judgments, decrees, claims and expenses, including but not limited to reasonable attorneys' fees and court costs, or any other loss that ConEquip might sustain by reason of Buyer's use of the goods.
- ConEquip sells the goods to Buyer AS IS. ConEquip shall pass through to Buyer any warranties provided by third party vendors in connection with the goods. CONEQUIP MAKES NO OTHER WARRANTIES WITH RESPECT TO THE GOODS, WHETHER EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
- IN NO EVENT SHALL CONEQUIP BE LIABLE TO BUYER OR ANY THIRD PARTY, WHETHER IN CONTRACT, NEGLIGENCE, TORT OR OTHER THEORY OF LAW, FOR LOSS OF PROFITS OR LOSS OF USE, OR FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, DIRECT OR INDIRECT DAMAGES, HOWSOEVER CAUSED. CONEQUIP’S MAXIMUM LIABILITY TO BUYER SHALL IN NO EVENT EXCEED THE PRICE PAID BY BUYER FOR THE GOODS THAT ARE THE SUBJECT OF THE APPLICABLE CLAIM. ConEquip shall not be liable for any damage, injury or loss arising out of the use of the goods if, prior to such damage, injury or loss, such goods are: (a) altered, changed, modified damaged or misused; or (b) not maintained, inspected or used in compliance with manufacturer specifications or applicable law.
- ANY ORAL OR WRITTEN STATEMENT, INFORMATION OR REPRESENTATION GIVEN OR MADE BY CONEQUIP OR ANY OF ITS EMPLOYEES, AGENTS, REPRESENTATIVES OR DISTRIBUTORS ABOUT THE GOODS, THEIR PERFORMANCE OR ABOUT PRODUCTION AND DELIVERY OF THE GOODS: (A) SHALL NOT CONSTITUTE A CONEQUIP REPRESENTATION OR WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THESE TERMS AND CONDITIONS OF SALE; (B) SHALL NOT BE RELIED UPON BY BUYER OR ANY OTHER PERSON, AND BUYER HEREBY EXPRESSLY DISCLAIMS SUCH RELIANCE WHEN ENTERING INTO THIS AGREEMENT; AND (C) IS NOT A PART OF ANY WARRANTY OR THE PARTIES' AGREEMENT.
- Any action against ConEquip for breach of contract, negligence, tort or otherwise must be commenced by Buyer within one (1) year after: (a) the date any alleged claim accrues; or (b) the date of delivery of the goods to Buyer, whichever is earlier.
- These Terms and Conditions of Sale constitute the entire agreement between ConEquip and Buyer, superseding all prior and contemporaneous negotiations and understandings of the parties regarding this transaction, whether written or oral. Any amendment or modification of these Terms and Conditions of Sale shall be void unless in writing and signed by ConEquip.
- These Terms and Conditions of Sale and the related sale of goods shall be governed by, and interpreted and construed in accordance with, the laws of the State of New York, without regard to principles of conflict of laws. Any disputes and all legal claims related to these Terms and Conditions of Sale and the related sale of goods shall be subject to the exclusive jurisdiction of and shall be finally settled in an action commenced or maintained in any state or federal court located in Erie County, New York. ConEquip and Buyer hereby consent and submit to the exclusive personal jurisdiction of such courts and agree not to challenge or assert any defense to the jurisdiction of such courts, including, without limitation, forum non convieniens. In any action or proceeding brought to enforce any provision of these Terms and Conditions of Sale, the prevailing party is entitled to be reimbursed by the nonprevailing party for all of its reasonable costs in such action or proceeding, including, without limitation, reasonable attorneys’ fees.
- No delay or omission by ConEquip in exercising any right or remedy hereunder shall be a waiver thereof or of any other right or remedy, and no single or partial exercise thereof shall preclude any other or further exercise thereof or the exercise of any other right or remedy. All rights and remedies of ConEquip are cumulative.
- If any term, condition or provision of ConEquip's Terms and Conditions of Sale is for any reason declared illegal, invalid or otherwise unenforceable, it shall be severed and deemed deleted from these Terms and Conditions of Sale, and the validity and enforceability of the remaining terms, conditions and provisions shall not be affected or impaired and they shall remain in full force and effect.
