ConEquip's Terms and Conditions of Purchase
ACCEPTANCE - All purchase orders by ConEquip Parts & Equipment, LLC (“ConEquip”) to Seller are made pursuant to these Terms and Conditions of Purchase. Acceptance of ConEquip’s purchase order is expressly conditioned on Seller's consent to all of the terms and conditions stated herein. The parties agree that these Terms and Conditions of Purchase 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. On items purchased based on specifications from ConEquip, no deviations from the specifications shall be made without ConEquip’s prior written consent. If Seller shall, instead of making written acceptance of ConEquip’s purchase order, ship any goods in response to the purchase order, ConEquip may, in its sole discretion, treat such action as Seller's acceptance and assent to ConEquip's Terms and Conditions of Purchase.
PRICE - In the event that after the date of ConEquip’s purchase order, but prior to Seller’s fulfillment of the order, Seller reduces the price of the goods of the kind or quality of the goods that are the subject of the order, such price reduction shall apply to ConEquip’s purchase order. If no price is specified herein, the price shall be not higher than that Seller last previously quoted or charged ConEquip for goods of like kind or quality. If Seller has not previously quoted or charged ConEquip prices as to any goods ordered hereby, the price shall be the lowest price charged by Seller to any buyer for goods of like kind and quality from the date hereof until date of delivery.
WARRANTIES - Seller warrants that all goods and/or services provided by it: (i) shall be of good quality and workmanship and free from defects, latent or patent; (ii) shall conform to all specifications, drawings, descriptions and/or samples furnished, specified or adopted by ConEquip; (iii) shall be merchantable and suitable and sufficient for their intended purposes and/or use; and (iv) shall be free of any claim of any third party, whether or not Seller is a merchant of such goods and/or services. ConEquip shall have thirty (30) days from the receipt of the goods to inspect same. ConEquip may reject any defective or non-conforming goods. In such event, at ConEquip’s sole option: (i) Seller shall, at Seller’s cost, promptly repair or replace same; (ii) ConEquip may return same to Seller, at Seller’s cost, for a refund or credit for amounts previously paid by ConEquip; or (iii) ConEquip may correct or replace same and Seller shall be responsible for the cost thereof. NONE OF THE REMEDIES AVAILABLE TO CONEQUIP FOR THE BREACH OF ANY OF THE FOREGOING WARRANTIES MAY BE LIMITED EXCEPT TO THE EXTENT AND IN THE MANNER AGREED UPON BY CONEQUIP IN A SEPARATE AGREEMENT SPECIFICALLY DESIGNATING SUCH LIMITATION AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF CONEQUIP. ConEquip’s inspection and/or acceptance of and/or payment for goods and/or services shall not constitute a waiver by it of any warranties. ConEquip’s approval of any sample or acceptance of any goods shall not relieve Seller from responsibility to deliver goods conforming to specifications, drawings and description. Seller warrants that: (i) neither the goods furnished hereunder nor the sale or use thereof will infringe any United States or foreign patent, trademark, copyright, trade secretor other proprietary or similar rights; (ii) Seller will, at its own expense, defend any suit that may arise in respect thereto; and (iii) Seller will indemnify and hold ConEquip harmless from all loss and expense incurred on account of any alleged or actual infringement. ConEquip shall promptly notify Seller of any such infringement claim made against it.
PACKING, SHIPMENT AND DELIVERY - Unless otherwise specifically provided herein, delivery shall be made to ConEquip’s customer's place of business designated on the face hereof. Risk of loss and/or damage shall remain with Seller until the goods are physically delivered to such place of delivery. Seller shall suitably pack, mark and ship all goods to prevent damage and to conform to requirements of common carriers. No charge shall be made for packing, boxing, drayage or storage without ConEquip’s specific written authorization. Seller shall mark each package with ConEquip’s order number and address and shall place inside each package a memorandum showing shipper’s name, the contents thereof and ConEquip’s order number. Delivery shall be made in quantities and at the time specified in ConEquip’s order or instructions, ConEquip expressly reserving the right to change delivery schedules. If this order requires or authorizes the delivery of goods in separate lots and any goods do not conform hereto, ConEquip may, at its sole election, reject any or all goods affected, the entire lot, and any undelivered lot. Delivery dates specified herein are of the essence. Deliveries not made on the date or dates specified may be cancelled and/or rejected by ConEquip. Seller shall reimburse ConEquip for all expenses incurred by ConEquip as a result of improper packing, marking or routing. Unless otherwise provided, ConEquip will not accept COD shipment.
INSPECTION/REJECTION – All goods are subject to ConEquip's final inspection and acceptance, notwithstanding any payment. Such inspection will be completed within a reasonable time after delivery of the goods. ConEquip shall notify Seller if any goods are rejected and, at ConEquip's election and at Seller's risk and expense, such goods shall be held or returned to Seller. No replacement or correction of rejected goods shall be made by Seller unless agreed to in writing by ConEquip.
INVOICING - Seller shall mail invoices in duplicate, together with the bill of lading, on the date of shipment of goods. Unless written notice to the contrary is given to ConEquip by Seller prior to shipment, all invoices for goods shipped shall be tendered by and be payable to Seller. If prepaid transportation charges are for ConEquip’s account, the invoice must be supported by the prepaid receipted transportation bill. Payment shall be made within sixty (60) days from the date of receipt by ConEquip of the goods/services or from the date invoices are received by ConEquip, whichever is later.
COMPLIANCE WITH LAW - Seller warrants that its performance hereunder shall comply with all applicable federal, state and local laws, rules, regulations, administrative and executive orders and pertinent governmental procurement regulations, including, without limitation, the Fair Labor Standards Act of 1938, as amended, Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, the Rehabilitation Act of 1973 and the Vietnam Era Readjustment Act of 1974; the provisions of Executive Orders 11141-Age Discrimination, 11246 and 11375-Government Contractors and Subcontractors, 11625- National Program for Minority Business Enterprise, 11701 - Employment of Veterans and 11758-Employment of Handicapped Persons, and the rules and regulations duly promulgated thereunder. If goods ordered hereunder are to be used in a place of employment of ConEquip, Seller warrants that such goods comply with the Occupational Safety and Health Act of 1970 and with any then applicable standards and regulations thereunder. Seller agrees to indemnify ConEquip for any loss sustained by reason of Seller’s failure to comply with any applicable federal, state and local laws, rules, regulations, administrative and executive orders.
DISCLOSURE OF INFORMATION - Any unpatented knowledge or information concerning Seller’s products, methods or manufacturing processes that may be disclosed to ConEquip shall, unless ConEquip otherwise specifically agrees in writing, have been disclosed in consideration for this order, and Seller shall not assert any claim against ConEquip as the result of ConEquip’s use thereof. All technical information in the nature of drawings, patterns, specifications, samples or other goods furnished by ConEquip to Seller shall be considered and kept strictly confidential by Seller and shall not be used for any purpose other than the performance of work for ConEquip.
CHANGES - ConEquip reserves the right at any time prior to shipment to make changes as to: (a) specifications of any goods; (b) methods of shipment or packing; (c) place of delivery; (d) time of delivery; and (e) reduce, increase or cancel the quantities ordered. If any such change causes an increase or decrease in the cost of or the time required for performance of this order, an equitable adjustment shall be made in the contract price or delivery schedule or both. Any claim by Seller for adjustment under this clause shall be deemed waived unless asserted in writing within ten (10) days from receipt by Seller of the change.
CANCELLATION AND REMEDIES - ConEquip may cancel this order, in whole or in part, if: (i) the goods furnished do not conform to the warranties herein; (ii) Seller fails to make deliveries as provided herein; (iii) Seller breaches any other term, condition or covenant herein; (iv) any representation by Seller proves to have been false when made; (v) Seller ceases to operate in the normal course of business; or (iv) Seller is insolvent, a petition is filed for reorganization of Seller or for its adjudication as a bankrupt, Seller makes an assignment for benefit of creditors, a receiver or trustee is appointed for any of Seller’s assets, or any other type of insolvency proceeding or formal or informal proceeding for the dissolution, liquidation, or winding up of affairs of Seller is commenced. ConEquip also reserves the right to cancel this purchase order for any other reason permitted by the Uniform Commercial Code then in effect in the State of New York. In the event of any such cancellation, ConEquip shall have the right, in addition to its other rights: (i) to refuse to accept delivery of goods and/or performance of services; (ii) to return to Seller any goods already delivered and to recover all payments made therefor and for expenses incident thereto; (iii) to recover any advance payments to Seller for undelivered or returned goods; and (iv) to purchase elsewhere and charge Seller with any additional cost resulting therefrom. ConEquip’s right to return goods is not affected by any assignment by Seller of moneys due or to become due hereunder. In addition, ConEquip may cancel this order in whole or in part at any time for ConEquip’s convenience. Upon any cancellation by ConEquip, ConEquip shall be charged only (i) the allocable part of price for conforming goods delivered and services performed, and (ii) Seller’s actual cost for undelivered goods (including sums payable to settle obligations reasonably incurred in reliance on this order), such total charge to be in no event greater than the price herein. Upon such payment, all goods shall become ConEquip’s property and shall be delivered to ConEquip as herein provided.
INDEMNIFICATION - To the fullest extent permitted by law, Seller agrees to indemnify, defend and hold harmless ConEquip and its affiliated companies, their respective customers, directors, officers, members, owners, employees and agents, from and against any losses, liabilities, costs, expenses, suits, actions, claims and all other obligations and proceedings whatsoever, including without limitation, reasonable attorney's fees and any other cost of litigation, arising out of: (i) the performance of ConEquip's purchase order; (ii) the goods that are the subject of ConEquip's purchase order; (iii) any act or omission to act by Seller; or (iv) any breach by Seller of any its representations, warranties or covenants herein. Seller will maintain in force adequate insurance to cover any loss or damage caused by the goods that are the subject of ConEquip's purchase order resulting in injuries to persons or damage to property, including damage to the goods being delivered.
NONASSIGNABILITY - Seller may not assign any right or interest in this order and may not delegate performance of any of its obligations hereunder without ConEquip’s prior written consent. Any attempted assignment or delegation by Seller without such consent shall be void.
MISCELLANEOUS - Whenever Seller shall have in its possession any property of ConEquip, Seller shall be deemed an insurer thereof and responsible for its safe return to ConEquip. Whenever ConEquip has the right to demand of Seller adequate assurance of due performance, ConEquip shall be the sole judge of the adequacy of any assurance given by Seller. Except as otherwise specifically provided in this order, Seller shall pay any sales, use, excise, tariff, duty or other tax that may be imposed upon any of the goods. 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. No single or partial waiver by ConEquip thereof shall preclude any other or further exercise thereof or the exercise of any other right or remedy. All rights and remedies of ConEquip hereunder are cumulative. No course of prior dealings between ConEquip and Seller and no usage of the trade shall be relevant to supplement or explain the parties' agreement. ConEquip's Terms and Conditions of Purchase and this purchase order constitute the entire agreement between Seller and ConEquip, superseding all previous understandings and writings regarding this transaction. The parties' agreement cannot be modified or amended without the written consent of ConEquip. ConEquip's Terms and Conditions of Purchase and this purchase order shall be governed by and under the laws of the State of New York. Any disputes and all legal claims related to these Terms and Conditions of Purchase 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 ConEquip's Terms and Conditions of Purchase, 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. If any term, condition or provision of ConEquip's Terms and Conditions of Purchase is for any reason declared illegal, invalid or otherwise unenforceable, it shall be severed and deemed deleted from these Terms and Conditions of Purchase, 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.
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