TERMS AND CONDITIONS OF SALE
1. Scope. These terms and conditions of sale (these “Terms”) apply to all sales of products (the “Products”) by ASW Machinery, Inc., dba Felder USA (“Felder”) to the buyer of the Products (“Buyer”) indicated on the attached order confirmation (the “Order”). These Terms (along with the specific terms, if any, of the Order) constitute the complete and entire agreement between the parties relating to the Products, and supersede any and all prior and contemporaneous terms, provisions or conditions, whether oral or written, including negotiations, prior quotations and purchase orders between the parties. These Terms may be modified only by a writing signed and approved by an authorized representative of Felder. Felder’s failure to object to any term or condition contained in any communication from Buyer (including in any purchase order) shall not be deemed a waiver or modification of these Terms. These Terms shall not be modified, supplemented, qualified or interpreted by any trade usage or prior course of dealing not expressly made a part hereof.
2. Orders. Subject to Section 1, a contract between Felder and Buyer shall be formed only upon Felder’s written acceptance of Buyer’s order or Delivery of Products to Buyer pursuant to Buyer’s written purchase order. If Felder accepts by Delivery, then the acceptance shall only be for the quantity shipped.
3. Title and Delivery.
3.1 Title and Risk of Loss. Delivery is F.O.B. Felder’s point of shipment (“Delivery”). Notwithstanding the risk of loss passing to Buyer, Felder shall retain title to the Products until Felder has received full payment for the Products on Delivery. In the event governing law requires a change in title, then Felder hereby reserves and Buyer hereby grants to Felder a purchase money security interest in the Products sold and the proceeds thereof, including accounts receivable, until Buyer pays Felder the purchase price in full. Upon Felder’s request, Buyer shall execute any financing statements, continuation statements or other documents as may be necessary to protect Felder’s security interest.
3.2 Delivery and Storage. Any scheduled Delivery date quoted is approximate and not the essence of the contract. If Buyer fails to claim the Products within thirty (30) days of Delivery, Felder may elect to store the Products. Such storage shall be at Buyer’s risk and expense. Felder may charge Buyer a $400 initial storage fee and an additional storage fee of $90 per machine, per week. Storage fees will be deducted from Buyer's deposit until such deposit is depleted, after which time Felder may, at its sole option, continue to store the Products at Buyer’s expense or sell the Products to mitigate Felder’s damages.
3.3 Delay in Delivery. Should Delivery of all or any part of the Products (or any other obligation of Felder) be delayed by events beyond Felder’s reasonable control, Felder’s time for performance shall be extended by the period of the delay. Felder may at Felder’s option upon fifteen (15) days notice to Buyer cancel the Order, in whole or in part, without liability. In such event Buyer shall remain liable for all Deliveries already made.
4. Pricing. Felder reserves the right to increase prices for any unshipped Products if the cost to Felder for supplies, raw materials, labor or services, increase as a result of governmental action or any other cause beyond Felder’s reasonable control. The prices quoted on Order shall be valid only for the period of time there indicated. All prices are exclusive of transportation, insurance, taxes, duties and other charges related thereto. Such charges, when applicable, will appear as separate items on the invoice unless Felder receives a certified tax exemption from Buyer prior to Delivery. Buyer agrees to indemnify, defend and hold Felder harmless from any loss or expense arising out of or related to Felder’s reliance on any tax exemption provided by Buyer.
5. Payment. Payment in full (less any deposits previously made) shall be due and payable prior to Delivery. Felder may require full or partial payment in advance of Delivery of the Products. Felder reserves the right to charge a late fee on late payments at the lesser of one and one-half percent (1.5%) per month or the maximum rate allowable by law, together with Felder’s costs of collections including, without limitation, attorneys’ fees.
6. Acceptance. Use of the Products by Buyer, or the failure by Buyer to reject the Products in writing within five (5) days following Delivery of such Products shall constitute acceptance by Buyer. Buyer may only reject the Products if the Products do not conform to the mutually agreed upon specifications therefor or if no such specifications exist, then the specifications then generally provided by Felder to the public regarding the Products.
7. Felder’s Limited Warranty and Limitation of Liabilities.
7.1 Limited Warranty. Felder warrants that each Product, under normal use and conditions, will comply in all material respects with Felder’s applicable written technical documentation for such Product for a period of twelve (12) months with respect to all electrical parts, thirty (30) months with respect to parts and six (6) months with respect to labor. Felder shall have the right to make substitutions and modifications from time to time in the specifications of the Products.
7.2 Limitations. EXCEPTING ONLY FELDER’S LIMITED WARRANTY SET FORTH IN SECTION 7.1, FELDER SPECIFICALLY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, OF MER¬CHANTABILITY AND AGAINST INFRINGEMENT. THE EXPRESS WARRANTY IN SECTION 7.1 ABOVE SHALL EXTEND TO BUYER ONLY AND NOT TO ANY THIRD PARTY. NO PERSON IS AUTHORIZED TO MAKE ANY WARRANTY OR REPRESENTATION ON BEHALF OF FELDER CONCERNING THE PER¬FORMANCE OF THE PRODUCTS OTHER THAN THE LIMITED WARRANTY EXPRESSLY SET FORTH IN SECTION 7.1.
7.3 Liability. With respect to any claims asserting breach of the limited warranty set forth in Section 7.1, Felder’s exclusive liability and Buyer’s sole remedy, is at Felder’s option, to replace or repair the defective Product or to issue credit to Buyer for the purchase price of the Product (without interest), provided that prior to any replacement, repair or credit the following conditions are satisfied: (i) Felder is promptly notified in writing by Buyer upon discovery of any such breach, and (ii) such failures did not arise as a result of misuse, abuse, improper installation or application, repair, alteration, or accident, or negligence in use, storage, transportation or handling by anyone other than Felder. Any replacement Product will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Felder shall in no event be responsible for any labor or other costs incurred by Buyer incident to the replacement of any defective Product.
7.4 NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS OR THE ORDER, FELDER SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY NATURE INCLUDING WITHOUT LIMITATION LOSS OF PROFIT, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEAD, DATA, INJURY TO REPUTATION OR LOSS TO CUSTOMERS, ARISING OUT OF OR IN CONNECTION WITH THE PURCHASE, SALE, USE, PERFORMANCE OR FAILURE OF THE PRODUCTS, WHETHER SUCH LIABILITY ARISES UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF FELDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN. IN NO EVENT WILL FELDER’S LIABILITY TO BUYER ARISING OUT OF OR RELATING TO THE PRODUCTS OR THESE TERMS EXCEED THE AMOUNT OF THE PURCHASE PRICE PAID TO FELDER BY BUYER FOR THE PRODUCT THAT GIVES RISE TO THE CLAIM.
8. Default. If Buyer (i) becomes insolvent, bankrupt, (ii) makes an assignment for the benefit of its creditors, (iii) is otherwise unable to meet Buyer’s obligations as they come due or (iv) breaches Buyer’s obligations under these Terms, Felder may cease performance hereunder and avail itself of all legal and equitable remedies Felder may have against Buyer. If, despite default by Buyer, Felder elects to continue to make Deliveries, Felder’s action shall not constitute a waiver of any default by Buyer or in any way affect Felder’s legal remedies of any such default.
9. Advice/Training/Service. Buyer acknowledges that no installation, training or education is contracted for or purchased hereunder. If Felder offers or gives technical advice or performs any installation or training in connection with the use of any of the Products, such advice or training will be provided only as an accommodation to Buyer and Felder shall have no responsibilities or liabilities whatsoever for the content or use of such advice.
10.1 Notices. All notices, authorizations, and requests shall be deemed effective upon receipt and shall be addressed as set forth on the Order or to such other address as the party to receive the notice or request so designates by written notice to the other.
10.2 Law; Venue. These Terms shall be governed by the laws of the State of Delaware without reference to that state’s choice of law provisions. The Delaware state courts of New Castle County, Delaware (or, if there is exclusive federal jurisdiction, the United States Third Circuit District Court for the District of Delaware) shall have exclusive jurisdiction and venue over any dispute arising out of this Agreement, and each party hereby consents to the jurisdiction and venue of such courts. Notwithstanding the foregoing, Felder may take interim action in any jurisdiction, or to enforce a judgment or other decision.
10.3 No Waiver; Assignment. The failure by Felder to enforce any of the provisions of these Terms, to exercise any election or option provided herein, or to require the performance by Buyer of any of the provisions herein will not in any way be construed as a waiver of such provisions. Any such waivers must be in writing. If any provision of these Terms is declared invalid, illegal or unenforceable, all remaining provisions shall continue in full force and effect and the offending provision shall be modified, if possible, to give effect to such provision. Buyer shall not assign the Order or any interest in or any rights hereunder without the prior written consent of Felder. All unauthorized attempted assignments shall be null and void.
10.4 Excused Performance. Nonperformance of either party, except for financial obligations, shall be excused to the extent that performance is delayed or rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason beyond the reasonable control and not caused by the negligence of the non-performing party.
10.5 Headings/Interpretation. Headings herein are for reference purposes only and in no way define, limit or describe the contents of such section or in any way affect this Agreement. Where the context provides, the singular shall include the plural and terms shall be interpreted as gender neutral. The word “including” shall be read as “including without limitation.”