Terms and Conditions
Addendum to Invoice Terms and Conditions of Sale
Definitions. As used herein, (a) “Seller” shall mean Meadoworks, LLC, an Illinois limited liability company; (b) “Buyer” shall mean the person or entity referred to in the Invoice, as defined herein, as buyer or purchaser; (c) “Goods” shall mean the items of property, which may include, but not necessarily be limited to, certain used equipment, as described on the Invoice, as defined herein; (d) “Invoice” shall mean Seller’s invoice to Buyer for the sale of Goods; and (e) “Addendum” shall mean this Addendum to Invoice Terms and Conditions of Sale.
Parties’ Agreement. Seller and Buyer agree that the parties’ agreement for the purchase of Goods consists of the terms and conditions set forth in the Invoice and in the Addendum. Seller and Buyer agree and stipulate that Seller’s acceptance of Buyer’s order, and/or Buyer’s acceptance of Seller’s offer, is deemed subject solely to the terms and conditions set forth in the Invoice and in the Addendum. Seller and Buyer specifically agree and stipulate that no terms or conditions stated by Buyer in any purchase order, proposal or other document, or in accepting or acknowledging the Invoice and the Addendum shall be binding unless expressly approved by Seller in writing. To the extent that Buyer alters or purports to alter any of the terms and conditions set forth in the Invoice or in the Addendum without Seller’s express written consent, such alterations shall not be binding upon Seller and shall be excluded from the parties’ agreement.
Goods Sold; Price; Payment; Taxes. (a) The description, quantity and purchase price of Goods shall be as set forth in the Invoice. (b) All prices for Goods are Ex-Works, the location set forth on the Invoice, unless otherwise stated on the Invoice. (c) Unless otherwise stated in the Invoice, Seller must receive payment in full for the Goods before Buyer may remove the Goods. If the Invoice permits Buyer to make payment within a certain number of days or period from the date of the Invoice and Seller does not receive payment in full for the Goods within that period, Buyer shall be liable for interest to Seller at the rate of 1.5% per month, or the highest interest rate allowed by law, whichever is lower, on the outstanding balance of the Invoice from the date of the Invoice until it is paid in full. (d) Buyer shall be solely liable and responsible for paying any and all sales taxes and for indemnifying and holding Seller harmless from same.
Tender of Delivery; Risk of Loss; Removal; Insurance; Title. (a) The manner, time and place of Seller’s tender of delivery of the Goods shall be as set forth on the Invoice. (b) Risk of loss to the Goods shall pass to Buyer upon the earlier of (i) such time as Seller tenders delivery to Buyer or to Buyer’s agent, contractor or carrier, or (ii) such time as Buyer pays the purchase price in full for the Goods. (c) Terms of Buyer’s removal of the Goods shall be as set forth on the Invoice. In addition, unless otherwise set forth in the Invoice or in a signed writing, Buyer shall be solely responsible for preparing, dismantling, loading, insuring and shipping the Goods and all costs relating thereto. To the extent that Seller agrees to assist Buyer in preparing, dismantling, loading, or shipping arrangements, Buyer shall still be responsible for any loss or damage to the Goods, and it shall be Buyer’s responsibility to insure the Goods for any damage or loss resulting from preparing, dismantling, loading or shipping. Further, regardless of whether Seller agrees to assist Buyer in preparing, dismantling, loading or shipping, Buyer agrees to look solely to the rigging and shipping companies for any losses, claims, or damages relating to preparing, dismantling, loading or shipping and shall indemnify Seller for any losses, claims or damages asserted. Buyer agrees and stipulates that Buyer is responsible for proper inspection of the equipment prior to loading and shipping, and proper completion of any bill of lading. (d) If Buyer needs to dismantle or perform other work on or relating to the Goods on premises owned by, controlled by, or in possession of Seller, then Seller requires that Buyer, or Buyer’s agent, have the following insurance: (i) worker’s compensation insurance that meets or exceeds the requirements of the laws of the state in which the work is being done; and (ii) a general liability insurance policy for personal injury and property damage with combined limits of not less than $3,000,000 per occurrence with our interests on the policy. (e) Unless otherwise stated on the Invoice, title shall transfer from Seller to Buyer upon the later of: (a) Seller’s tender of delivery of the Goods; and (b) Seller’s receipt of payment in full for the purchase price for the Goods. Provided, however, that, to the extent that Seller tenders delivery of the Goods to Buyer and Seller has not received payment in full for the purchase price for the Goods, Seller may, in its sole discretion, file a purchase money security interest lien on the Goods in which circumstance the parties agree and stipulate that title to the goods shall be deemed to be transferred from Seller to Buyer upon Seller’s tender of delivery of the Goods.
Disclaimer of Warranties. Unless otherwise stated on the Invoice, Seller and Buyer agree that the Goods are sold on an “AS IS” AND “WITH ALL FAULTS” basis. SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, STATUTORY, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, AND/OR ANY OTHER MATTER WITH RESPECT TO THE GOODS OR ANY OF THEM. Any affirmation of fact or promises made by Seller shall not be deemed to create an express warranty that the Goods shall conform to such affirmation or promise. Any descriptions, samples and specifications with respect to the Goods are not warranted by Seller to be accurate or complete. Any description is for the sole purpose of identifying the Goods and no affirmation, promise, description, sample or model shall be deemed part of the basis of the bargain. SELLER STRONGLY RECOMMENDS THAT BUYER CONDUCT A PRE-PURCHASE ON-SITE INSPECTION OF THE GOODS. SELLER SHALL NOT BE RESPONSIBLE FOR THE CONSEQUENCES OF BUYER’S FAILURE TO INSPECT THE GOODS OR FOR ANY INACCURACIES, INSUFFICIENCIES, OR OMISSIONS IN SELLER’S DESCRIPTIONS, SAMPLES AND/OR SPECIFICATIONS. Seller’s employees and representatives are not authorized to make any statement or representation as to the quality, character, size, condition, quantity, etc. of the Goods inconsistent with the terms and conditions set forth in the Invoice and in the Addendum. Any such statements will not be binding on Seller or be grounds for any subsequent claim by Buyer against Seller.
Buyer’s Waiver/Disclaimer Of Liability. (a) Buyer agrees and stipulates that the Goods may consist of pre-owned, used equipment, which was neither designed nor manufactured by or on behalf of Seller and which was not used by Seller. Buyer also agrees and stipulates that Seller is unaware of Buyer’s intended use for the equipment. Buyer acknowledges that it is Buyer’s responsibility to provide, and to require all employees to use, appropriate safety devices for Buyer’s particular use, so as to protect the operator and others from harm, and to comply with all applicable government laws, rules and regulations relating to safety and environmental standards, and all industry safety and environmental standards, related to the operation of the equipment. Buyer agrees and stipulates that Buyer understands that the use and operation of the equipment may be inherently dangerous, and it shall be Buyer’s responsibility to provide all the means that may be necessary to effectively protect all employees and others from serious bodily injury, and to cause employees and others to use all appropriate safety devices and proper safe operating procedures. Buyer shall indemnify, defend, and save Seller harmless from and against any and all claims, losses or damages arising from or related to the use of the equipment by Buyer, as well as any and all claims, losses or damages arising from or relating to the manufacture of the equipment.(b) Buyer agrees and stipulates that it has notice that the Goods 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, health or to property (whether by reason of toxicity, flammability, explosiveness or other similar or different reasons during use, handling, cleaning, reconditioning, disposal or at any other time after the Goods or any of them are tendered to Buyer. Buyer hereby discharges Seller 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 Seller’s failure to give more specific warning with respect to individual articles or substances or from the inadequacy of any warning.
Indemnity. Buyer agrees to defend, indemnify and hold Seller and Seller’s members, officers, employees, agents, and representatives harmless from and against any and all liabilities, judgments, claims, settlements, losses, damages, penalties, obligations and expenses, including attorneys’ fees and expenses, incurred or suffered by such person or entity arising from, by reason of, or in connection with any personal injury, death, damage to tangible property, or a claim by a third party in respect of Buyer’s purchase, possession and/or use of the Goods or Buyer’s breach of the terms or conditions in the Invoice or in this Addendum, except to the extent caused by Seller’s sole negligence.
Seller’s Liability. Seller’s liability with respect to the Goods, or any of them, sold to Buyer is and shall be limited to refunding payment made. In no event will Seller be liable for indirect, incidental, special or consequential damages, lost profits, or any expenses of Buyer, including but not limited to, shipping costs.
Inspection; Return. Buyer represents that it inspected the goods and/or hereby acknowledges that Seller invited, urged, and cautioned Buyer to make an on-site pre-purchase inspection of the Goods and Buyer declined to inspect same. Seller will make the Goods available for pre-purchase inspection by Buyer at the places and times specified by Seller. Unless expressly authorized by Seller in writing, Seller will not accept return of the Goods, or any of them, from Buyer.
Termination For Failure To Perform; Liquidated Damages. If Buyer does not pay for the Goods pursuant to the terms and conditions of the Invoice and this Addendum, and/or if Buyer does not remove the Goods pursuant to the terms and conditions of the Invoice and this Addendum, Buyer agrees that Buyer thereby loses all right, title and interest which Buyer had otherwise acquired or might otherwise have acquired in and to the Goods. In addition, if Buyer does not pay for the Goods pursuant to the terms and conditions of the Invoice and this Addendum, then, if Buyer has made a deposit or down payment on the Goods, the parties agree that Seller shall retain Buyer’s deposit or down payment as liquidated damages, the parties agreeing and stipulating that quantifying Seller’s loss arising from Buyer’s failure to complete payment for the Goods is inherently difficult to ascertain and the parties further agreeing and stipulating that Seller’s retention of Buyer’s deposit where Buyer fails to complete payment is not a penalty, but a reasonable measure of Seller’s damages.
Force Majeure. If or to the extent that Seller’s performance of any terms or conditions of the Invoice or of this Addendum may be affected in case of an act of force majeure, such as an act of God, war, sabotage, accidents, riots, fire, explosion, flood, strike, lockout, injunction, inability to obtain fuel, power, raw materials, labor, containers or transportation facilities, accident, breakage of equipment or other goods, national defense requirements, or any other cause beyond Seller’s control, Seller shall have no liability to Buyer in the event of such force majeure and Seller’s obligations pursuant to the Invoice and this Addendum shall be suspended during such force majeure event and for a reasonable period of time thereafter; provided, however, that the terms and conditions in the Invoice and in this Addendum shall otherwise remain in effect.
Assignment. Seller and Buyer agree that neither party may assign any right or interest in their agreement for the purchase and sale of Goods without the express written consent of the other party.
Attorneys’ Fees And Costs. In the event that Seller brings any legal action to enforce its rights under the parties’ agreement, Buyer shall be liable for Seller’s reasonable attorneys’ fees and costs.
Integration Clause; Modifications; Severability. The terms and conditions set forth in the Invoice and in this Addendum contain the entire agreement between the parties hereto with respect to the transaction(s) contemplated herein and supersedes and cancels all prior agreements, including, but not limited to, all proposals, letters of intent, or representations, written or oral, with respect thereto. No subsequent change or modification of the terms of the parties’ agreement will be made except by a writing signed by both parties. In the event that a court of competent jurisdiction holds any provision of this agreement unenforceable under applicable law, the remaining provisions of the agreement shall remain enforceable.
Choice Of Law; Jurisdiction; Venue. The parties agree that the law of the State of Illinois shall apply in any dispute arising from or relating to the validity, interpretation, performance or enforcement of this Agreement and to any matter arising from or relating to the Agreement. The Parties (a) consent to the exclusive jurisdiction and venue of the federal and state courts located in Chicago, Illinois in any action arising out of or relating to this Agreement; (b) both Parties waive any objection they might have to jurisdiction or venue of such forums or that the forum is inconvenient; and (c) agree not to bring any such action in any other jurisdiction or venue to which either party might be entitled by domicile or otherwise.
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