|
1.
Acceptance Governing and Cancellation
— Quality Commercial Machines Corporation acceptance of Purchaser's order
is conditioned upon Purchaser's assent that the terms and conditions set
forth herein shall be deemed a part of such order. No modified or other
conditions will be recognized by Quality Commercial Machines Corporation
unless specifically agreed to in writing, and failure of Quality Commercial
Machines Corporation is subject to provisions contained in any purchase
order or other communication from a Purchaser shall not be construed as a
waiver of these conditions nor an acceptance of any such provisions. No
order accepted by Quality Commercial Machines Corporation may be canceled or
altered by the Purchaser except upon the terms and conditions acceptable to
Quality Commercial Machines Corporation.
2. Delivery and Delay
— Delivery of goods to a
carrier at Quality Commercial Machines Corporation plant or other loading
point shall constitute delivery to Purchaser and any further const and
responsibility thereafter for claims, delivery, loss, or damage, including
placement and storage at installation site, shall be borne by Purchaser
unless otherwise stipulated. Quality Commercial Machines Corporation
reserves the right to make delivery in installments unless otherwise
expressly stipulated herein, all such installments to be separately invoiced
and paid for when due per invoice, without regard to subsequent deliveries.
Delay in delivery of any installment shall not relieve Purchaser of his
obligations to accept remaining deliveries. Claims for shortages or other
errors in delivery must be made in writing to Quality Commercial Machines
Corporation within ten (10) days after receipt of shipment and failure to
give such notice shall constitute unqualified acceptance and a waiver of all
such claims by Purchaser.
All supervision and labor provided by Quality
Commercial Machines Corporation shall be on the basis of eight (8) hours per
day, Monday through Friday inclusive. If it is mutually agreed that other
working periods are required, Purchaser will pay additional charges,
allowances or any other cost resulting therefrom.
Quality Commercial Machines Corporation shall not be
liable for any loss or damage as result of any delay in delivery or
installation due to any cause beyond Quality Commercial Machines Corporation
reasonable control, including without limitation, an act of God, act of the
Purchaser, embargo or other governmental act or authority regulation or
request, fire, theft, accident, strike, slow-down, a war, riot, delay in
transportation, inability to obtain necessary labor, materials or
manufacturing facilities.
In the event of any such delay, the date of delivery
shall be extended for a period equal to the time lost by reason of the
delay.
If shipping, or progress of the work is delayed or
interrupted by the Purchaser, directly or indirectly, the Purchaser shall
pay Quality Commercial Machines Corporation for all additional charges
resulting therefrom.
3. Substitutes, Changes and Improvements
— Quality Commercial Machines Corporation may furnish suitable substitutes
for materials unobtainable because of priorities or regulations established
by government authority or unavailability of materials from suppliers. If
changes in the layout or arrangement are desired or required by conditions
of which Quality Commercial Machines Corporation was unaware or which were
unforeseen at the time this order is accepted, the price is subject to
revision.
4.
Storage
— If the equipment is not
shipped within five (5) days after notification has been made to Purchaser
that is ready for shipping for any reason beyond Quality Commercial Machines
Corporation's reasonable control, including the Purchaser's failure to give
shipping instructions, Quality Commercial Machines Corporation may store
machinery at the Purchaser's risk in a warehouse or yard or upon Quality
Commercial Machines Corporation premises and the Purchaser shall pay all
handing, transportation and storage costs at the prevailing commercial rates
upon submission of invoices therefore.
5.
Insurance
— Prior to full payment of the
purchase price, Purchaser shall keep insured materials and equipment shipped
to Purchaser by Quality Commercial Machines Corporation under policies with
such provisions, for such amounts and with such insurers as shall be
satisfactory to Quality Commercial Machines Corporation.
6. Installation
— When specified the services of
a competent engineer to supervise the stating and/or installation or
erection of the equipment and to instruct the Purchaser's representative in
its operation are included. These services will be supplied for the
specified number of days. If such services are required for a period in
excess of that time, the Purchaser will pay for such additional services at
the specified rate per day plus additional living expenses and travel
expenses as may be incurred by reason of the extension of the period of
services.
Surplus materials by Quality Commercial Machines
Corporation remain Quality Commercial Machines Corporation property and will
be disposed of by them.
Quality Commercial Machines Corporation will not
responsible for work done or materials furnished by the Purchaser of Quality
Commercial Machines Corporation benefit without written orders signed by
authorized representatives of bother at agreed upon total rates. Back
charges will not be recognized without Quality Commercial Machines
Corporation approval.
7. Payment
— During engineering,
manufacture, construction or installation of the goods, Quality Commercial
Machines Corporation may require monthly progress payments by Purchaser by
invoicing Purchaser for that part of the contract price equal to the
percentage of work completed (as determined by Quality Commercial Machines
Corporation) on the invoice date less a 10% hold back. Progress payment
shall be due 10 days after invoicing. Final payment of the full contract
price including all hold backs from previous progress payments, shall be due
10 days after Quality Commercial Machines Corporation notifies Purchaser
that shipment of installation is complete. If any time after order receipt
the financial condition of the Purchaser does not justify the terms of
payment specified. Quality Commercial Machines Corporation may demand full
or partial payment in advance before proceeding with the contract. If
shipping or progress of the work is delayed or interrupted by or at the
request of the Purchaser, or if the Purchaser defaults in any other lawful
remedies, may defer delivery or cancel this contract. If delivery is
deferred, the good may be stored as provided in paragraph 4 above and
Quality Commercial Machines Corporation may submit a new estimate and cost
for completion based upon prevailing conditions.
8. Taxes and Other Charges
— Any manufacturer's tax, retailer's occupational tax, use tax, sales tax,
excise tax, duty, custom, inspection or testing fee, or any other tax, fee
or charge of any nature whatsoever, imposed by any governmental authority,
on or measured by the transaction between Quality Commercial Machines
Corporation and the Purchaser shall be paid by the Purchaser in addition to
prices quoted or invoiced in the event Quality Commercial Machines
Corporation is required to pay and such tax, fee or charge. The Purchaser
shall reimburse Quality Commercial Machines Corporation therefore, or in
lieu of such payment, the Purchaser shall provide Quality Commercial
Machines Corporation at the time the order is submitted with an exemption
certificate or other document acceptable to authority imposing them.
9.
Return of Material — Equipment must not be
returned without obtaining permission and shipping instruction from Quality
Commercial Machines Corporation. Any material returned shall be subject to
restocking and recondition charges and must be returned with all shipping
charges prepaid by Purchaser.
10. Warranties
— Quality Commercial Machines Corporation warrants equipment and parts
manufactured by it and supplied hereunder to be free from defects in materials
and workmanship for LIFETIME [one year for
electrical components] after shipment (or installation, if within such period
any such equipment or parts shall be proved to Quality Commercial Machines
Corporation's satisfaction to be defective, such equipment or parts shall be
repaired or replaced, for installation at Purchaser's expense, at Quality
Commercial Machines Corporation option and is subject to the following
requirements: (a) the defect must be reported in writing to Quality Commercial
Machines Corporation within ten (10) days of its discovery; (b) if so advised
by Quality Commercial Machines Corporation, Purchaser must return the part or
component with a statement of the observed deficiency no later than seven (7)
days after the expiration date of the warranty to the address designated by
Quality Commercial Machines Corporation, during normal business hours,
transportation charges prepaid and (c) upon examination by Quality Commercial
Machines Corporation the part or component must be found not to comply with
the above warrant. Return trip transportation charges for the part or
component shall be prepaid by the Purchaser.
The foregoing warranty is subject to the condition
that the apparatus, part or component be properly operated under conditions of
normal use and that regular periodic maintenance and service be performed or
replacements made in accordance with instructions provided by Quality
Commercial Machines Corporation. The foregoing warranty shall not apply to any
apparatus, part or component that has been repaired other than by Quality
Commercial Machines Corporation or an authorized Quality Commercial Machines
Corporation representative or in accordance with written instructions provided
by Quality Commercial Machines Corporation, that has been altered by anyone
other than Quality Commercial Machines Corporation or that has been subject to
improper installation or abuse, misuse, negligence, accident or corrosion.
THE FOREGOING WARRANTIES ARE IN LIEU ALL OTHER EXPRESS
AND IMPLIED WARRANTIES EXCEPT TITLE INCLUDING WITHOUT LIMITATION WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR PURPOSE, and no warranty shall be implied by
law. Quality Commercial Machines Corporation shall not be subject to any other
obligations or liabilities whatsoever with respect to equipment, parts or
services, manufactured or furnished by it, quality or quantity of Purchaser's
products or manufacturing processes or lines or any undertakings, acts of
omissions relating thereto.
11.
Patents
— INFRINGEMENT, Quality Commercial Machines Corporation agrees that it will,
at its own expense, defend all suits or proceedings instituted against the
Purchaser, insofar as they are based on any claim that the said equipment or
any part thereof furnished under this contract constitutes and infringement of
any patent of the United States provided that Purchaser gives to Quality
Commercial Machines Corporation all needed information, assistance and
authority in a timely manner to enable Quality Commercial Machines Corporation
to do so, it being understood, however, that Quality Commercial Machines
Corporation shall not be held responsible for infringements of combination
patents or process patents covering the use of this equipment in combination
with other equipment or materials not furnished by Quality Commercial Machines
Corporation. In case the equipment furnished by Quality Commercial Machines
Corporation is in such suit held in and of itself to constitute infringement
and its use enjoined, Quality Commercial Machines Corporation within
reasonable time, will, at its option, either secure for the Purchaser the
right to continue using said equipment by suspension of the injunction by
procuring for the Purchaser a license or otherwise, or will, at its own
expense, replace such equipment with non-infringing or remove the said
enjoined equipment and refund the sums paid therefore. These provisions,
however, shall not apply to any patented equipment, device or part specified
by the Purchaser but not manufactured by Quality Commercial Machines
Corporation.
12. Consequential
Damages — IN NO EVENT SHALL QUALITY COMMERCIAL MACHINES
CORPORATION BE LIABLE FOR DIRECT, INDIRECT, SPECIAL INCIDENTAL, OR
CONSEQUENTIAL DAMAGES, ARISING FROM ANY SOURCE such as, but not limited to,
the manufacture, use, deliver (including late delivery) or transportation of
any apparatus, part or component sold to Purchaser, whether such damages are
caused by Quality Commercial Machines Corporation's negligence or otherwise.
Without limiting the generality of the foregoing sentence, Quality Commercial
Machines Corporation shall not be liable for: the cost of capital; the cost of
apparatus, services, repairs, components or parts; loss of profit of revenue;
the cost of power whether purchased or produced by the consumer thereof; loss
of use of the apparatus or any part thereof, or any other property owned by
Purchaser; claims or costs of Purchaser's customers; injury to persons or
death; or damages to any property. In the event that any limited warranty or
disclaimer of liability is found to be unlawful or inapplicable, or to have
failed or its essential purpose, Quality Commercial Machines Corporation's
liability shall be limited to the amount paid by Purchaser for the apparatus.
13.
Drawings,
etc. — All specifications, drawings, design, data, information,
ideas, methods, patterns and/or inventions, made conceived, developed or
acquired by Quality Commercial Machines Corporation incident to procuring
and/or carrying out its contract will vest in and inure to Quality Commercial
Machines Corporation sales benefit.
Purchaser agrees not to give, loan, exhibit or sell to
any other party or interest, outside of its own company, any drawing,
photograph or specification furnished by Quality Commercial Machines
Corporation or reproduction thereof which will enable, other than Quality
Commercial Machines Corporation to furnish similar equipment or parts thereof.
14.
Price
Adjustment
— (a) The prices quoted are subject to adjustment for
increase in costs of materials and components, such as instruments, alloy,
electrical gear, etc. In effect at the time of shipment. The increase would be
the actual percent of increase, (b) the prices quoted are subject to
adjustment for increase in material and labor costs at the time of shipment or
installation. The increase would be the actual percent of increase.
15.
Assignment
— No assignment of this contract may be made by the Purchaser without the
written consent of Quality Commercial Machines Corporation.
16.
Title
— The title and right of possession of any apparatus and material sold
hereunder shall remain with Quality Commercial Machines Corporation and such
apparatus and materials shall remain personal property until all payments
hereunder (including deferred payments, whether evidenced by notes or
otherwise) shall have been made in full in cash and the Purchaser agrees to
all acts necessary to perfect and maintain such right and title in Quality
Commercial Machines Corporation, and to protect the interest of Quality
Commercial Machines Corporation by adequately insuring the apparatus and
material against loss or damage from any external cause with Quality
Commercial Machines Corporation named as insured or co-insured.
17.
OSHA
— Quality Commercial Machines Corporation will supply apparatus as closely
in compliance with the requirement of the Occupational Safety and Health Act (OSHA)
as possible. However, since (a) the apparatus is to be installed by others;
(b) the piping, buildings, foundations and operations, all of which are beyond
the control of Quality Commercial Machines Corporation, directly effect the
operation of the apparatus; and (c) there are numerous alternate methods for
complying with certain OSHA requirements relating to matters such as noise
levels that do not necessarily relate to the apparatus, Quality Commercial
Machines Corporation cannot accept responsibility for compliance with OSHA.
18. Limitation
of Suits and Claims
— No action or suit shall be brought by Purchaser
against Quality Commercial Machines Corporation for damages arising out of the
purchase, manufacture, use, delivery (including late delivery), or
transportation of the apparatus, whether such suit or action is for breach of
contract, breach or warranty, tort or otherwise, unless such action is
commenced within one year after the cause of action has accrued. No suit,
action or claim shall be made or filed against Quality Commercial Machines
Corporation by the Purchaser unless the Purchaser has paid the entire purchase
price or all installments due thereon, is strict accord with the terms of the
purchase order, at the time the claim is made or the suit or action is filed,
and failure to make such payments shall be an absolute defense to any such
suit, action or claim.
19.
Applicable
Law — This order shall be governed by the law of the
Commonwealth of Illinois.
20.
Captions —
The captions of the paragraphs contained herein are only for the convenience
and reference and are in no way to be constructed as part of the agreement
between the parties or as a definition, limitation or description of the scope
of said agreement or of the particular paragraphs to which they refer.
|
