1. OFFER AND ACCEPTANCE, This writing constitutes an offer or counter-offer by RM Wilson Co, Inc. (“RMW”) to sell the equipment described herein (“Equipment”) in accordance with these terms and conditions. This writing is not an acceptance of any offer made by Purchaser and is expressly conditioned upon Purchaser’s assent to these terms and conditions. Purchaser will be deemed to have assented to these terms and conditions when: (a) Purchaser signs and delivers to RMW an acknowledgement copy of any of RMW’s sales, quotation, order acknowledgement or invoice forms; (b) Purchaser has received delivery of the whole or any part of the Equipment described herein; or (c) Purchaser has otherwise assented to the terms and conditions hereof. No additional or different terms and conditions will be binding upon RMW unless specifically agreed to in writing. RMW hereby objects to any such additional or different provisions contained in any purchase order or other communication heretofore or hereafter received from Purchaser. This offer expires 30 days from its date, unless goods are subsequently shipped by RMW and accepted by Purchaser.
2. PRICES, All prices listed are payable in United States Dollars. All prices are subject to change without notice, and the price of Equipment on order but unshipped will be adjusted to the price in effect at the time of shipment, excluding any negotiated or contract pricing.
3. TERMS OF PAYMENT, Unless otherwise specified on the face hereof or in RMW’s Order Acknowledgement, payment is due, at RMW’s option, either upon presentation of shipping documents or 30 days from date of invoice, subject to RMW’s approval of purchase credit. RMW may at any time change credit or payment terms or require payment in advance. If, in the judgment of RMW, the financial condition of Purchaser at any time does not justify continuing any terms of payment, RMW may require full or partial payment in advance. Invoices will be dated as of the time RMW is prepared to make shipment. Delays or deferments of delivery, for any reason, whether or not at the request of Purchaser, shall not extend the terms of payment.
Interest will be charged at the rate of 1% per month, or at the highest rate permitted by applicable law, whichever is less, on accounts past due. Notwithstanding the above, at its option at any time, RMW may require Purchaser to make payment by irrevocable letter of credit, and may defer shipment or cancel any order if Purchaser does not promptly provide such a letter of credit. Any such letter of credit shall be issued for RMW’s benefit by a prime U.S. bank, shall be subject to and governed by the Uniform Customs and Practice for Documentary Credits (ICC Publication No. 400, 1983 Revision), shall provide for payment against RMW’s Invoice and bill of lading, and shall be in form and substance satisfactory to RMW.
4. TITLE AND SECURITY INTEREST, Until RMW collects in full all amounts owed by Purchaser to RMW for the Equipment, RMW retains title to the Equipment; and Purchaser grants to RMW a continuing security interest in and a lien upon the Equipment and the proceeds thereof (including insurance proceeds), as security for the payment and performance of all present and future obligations of Purchaser to RMW. Purchaser shall execute any and all financing statements and other documents and instruments and do and perform any and all other acts and things which RMW may consider necessary, desirable or appropriate to establish, perfect or protect RMW’s title, security interest and lien. In addition, Purchaser authorizes RMW and its agents and employees to execute any and all such documents and instruments and do and perform any and all such acts and things in Purchaser’s name and on Purchaser’s behalf. Such documents and instruments may also be filed without the signature on Purchaser to the extent permitted by law.
5. TAXES AND OTHER CHARGES, Customs duties are included in the prices specified only if specifically stated, and then only in an amount determined by the rate in effect on the date of RMW’s Order Acknowledgement; otherwise customs duties paid by RMW are for Purchaser’s account. Any manufacturer’s tax, occupation tax, use tax, sales tax, excise tax, value-added tax, inspection or testing fee, or any other tax, fee or charge of any kind imposed by any governmental authority, on or measured by the transaction between RMW and Purchaser shall be paid by Purchaser in addition to the prices quoted or invoiced. In the event RMW is required to pay any such tax, fee or charge, Purchaser shall reimburse RMW therefor. At RMW’s request, Purchaser shall deliver to RMW proof of payment of all such taxes, fees or charges or evidence of exemption therefrom.
6. DELIVERY, All prices hereunder are F.O.B. point of shipment unless otherwise stated in RMW’s Order Acknowledgement or on the reverse side hereof. Unless otherwise agreed in writing, delivery of Equipment to any carrier constitutes delivery to Purchaser; thereafter, regardless of shipping terms or freight payment, all risk of loss or damage in transit shall be borne by Purchaser. RMW 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. Any deliveries not in dispute shall be paid for regardless of other controversies relating to other delivered or undelivered merchandise. Delay in delivery of any installment shall not relieve Purchaser of its obligations to accept remaining deliveries. Method and route of shipment shall be at the discretion of RMW unless Purchaser shall specify otherwise; and additional expense of the method or route of shipment specified by Purchaser shall be borne entirely by Purchaser. Purchaser shall bear all costs of bags, barrels, boxes, pallets or other containers used to ship Equipment sold hereunder. No shipping containers may be returned to RMW unless such return in accepted in advance by RMW in writing and unless all return freight is prepaid by Purchaser.
7. CLAIMS, Purchaser shall inspect the Equipment immediately upon arrival and immediately file with the delivering carrier claims for loss or damage during transportation; RMW must be notified immediately in writing of any such claims. All other claims must be made in writing to RMW within ten days from receipt of the Equipment. Purchaser’s failure to give such notice shall constitute unqualified acceptance of all shipments made prior to RMW’s receipt of Purchaser’s notice of claim, and shall constitute a waiver of all such claims by Purchaser. RMW shall not be responsible or liable for any damage due to improper storage or handling prior to installation and start-up. Purchaser shall provide to RMW with an opportunity to inspect all Equipment with respect to which claim is made, either at Purchaser’s or RMW’s premises. RMW shall not credit Purchaser for any equipment or parts returned to RMW or any cost incurred by Purchaser for the repair thereof, as the case may be, without RMW’s prior written consent therefor, nor shall RMW be responsible for any such equipment or parts.
8. DELAYS, All delivery dates are approximate. RMW shall not be liable for any damage as a result of any delay or failure to deliver due to any act of God, act of Purchaser, embargo or other governmental act, regulation or request, fire, flood, accident, sabotage, strike, slowdown or other labor difficulties, war, riot, delay in transportation, defaults of common carriers, inability to obtain necessary labor, materials or manufacturing facilities or, without limiting the foregoing, any other delays beyond RMW’s control. In the event of any such delay, delivery date(s) shall be extended by a time at least equal to the period of the delay and its consequences, or RMW, at its sole discretion, may cancel this contract without liability to the Purchaser. If deliver of any Equipment sold hereunder is delayed beyond any guaranteed delivery period for reasons solely within RMW’s control and such unexcused delay is the sole reason for a material delay in Purchaser’s scheduled start-up of such delayed Equipment, then RMW, at its option, shall either permit Purchaser to rescind this contract or pay to Purchaser, as liquidated damages and not as a penalty, 0.1% of the price payable under this contract for such delayed Equipment for each business day of such delay, starting with the business day following the end of the guaranteed delivery period and ending the day before delivery is made; provided, however, that in no event (a) shall an unexcused delay in delivery of any Equipment not substantially necessary for start-up of such Equipment give rise to liquidated damages or (b) shall such liquidated damages exceed 5% of the price payable under this contract for such delayed Equipment. For any such unexcused delay in delivery, Purchaser and RMW agree that rescission or liquidated damages, calculated in accordance with this Section 8, constitute a fair and adequate remedy in light of their commercial expectations and the allocations of risk between them. Purchaser’s exclusive remedy for RMW’s inability to deliver shall be, at RMW’s option, rescission of this contract or liquidated damages for unexcused delay, calculated in accordance with this Section 8. Delivery shall be timely made if the Equipment is shipped or notification of RMW’s readiness to ship has been given to Purchaser before the expiration of the delivery period.
9. STORAGE, If the Equipment is not shipped within fifteen (15) days after notification to Purchaser that it is ready for shipping, for any reason beyond RMW’s reasonable control, including Purchaser’s failure to give shipping instructions, RMW may store such Equipment at the Purchaser’s risk and expense in a warehouse or yard or upon RMW’s premises. During any period of delay of deferment requested by Purchaser, Purchaser shall pay all handling, transportation and storage charges at the prevailing commercial rates upon submission by RMW of invoices therefor.
Purchaser may not obtain any delay or deferment of delivery unless RMW agrees in writing. In no event will RMW agree to any such delay or deferment unless Purchaser establishes good and sufficient cause therefor, to the satisfaction of RMW, and unless Purchaser agrees in writing to terms acceptable to RMW. No period of delay or deferment at the request of Purchaser may exceed 60 days.
10. CHANGES, RMW may at any time make such changes in design and construction of Equipment as RMW deems appropriate, without notice to Purchaser. RMW may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority or non-availability of materials from suppliers.
No order may be altered by Purchaser except upon terms and conditions acceptable to RMW, as evidenced by RMW’s written consent. In the event that Purchaser requires and RMW agrees to any change in the Equipment, RMW may, in its sole discretion, adjust the order or the prices specified to compensate RMW for any increase in cost to RMW, and may likewise adjust the specified delivery schedules to compensate for any increase in the time required to manufacture or procure the Equipment.
11. LIMITED WARRANTY, RMW warrants to Purchaser that the Equipment manufactured and/or supplied hereunder: (a) conforms to the dimensions and specifications of RMW’s standard products as described in RMW’s catalog, quotation, Order Acknowledgement or on the face hereof, or, if different from the foregoing, to Purchaser’s print dimensions, tolerances and material specifications, if provided to and accepted in writing by RMW; and (b) is free from defects in materials and workmanship. RMW’s obligation in this paragraph 11 is limited, however, at its option to a refund of the purchase price or the repair or replacement of any Equipment which RMW, in its sole discretion, deems nonconforming or defective within the period given on the face hereof or, if not specified, before the earlier of 6 months from the first date of operation or 9 months from the date of shipment. Such credit, repair or replacement shall be RMW’s sole obligation and Purchaser’s exclusive remedy hereunder and shall be conditioned upon RMW’s receipt of notice of any nonconformity within 10 days after receipt of shipment or, as the case may be, notice of any alleged defect within 10 days after the discovery and, at RMW’s option, return of such Equipment to RMW, F.O.B. its factory.
RMW’s warranty hereunder applies only to Equipment which is properly installed, operated and maintained in accordance with RMW’s instructions and operating manuals and under normal conditions and proper supervision.
Equipment or components supplied by RMW hereunder which are obtained by RMW from a third party supplier are not warranted by RMW in any way, but RMW agrees to assign Purchaser any warranty rights in such Equipment or components that RMW may have from the original manufacturer or third party supplier.
THIS WARRANTY IS EXCUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS, OBLIGATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, AND RMW EXPRESSLY DISCLAIMS AND EXCLUDES ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER RMW NOR ANY OF ITS SUPPLIERS ASSUMES, OR AUTHORIZES ANY PERSON TO ASSUME ON ITS BEHALF, ANY OTHER WARRANTY OR OBLIGATION.
Any description of the Equipment, whether in writing or made orally by RMW or its agents, samples, models, bulletins, drawings, diagrams, engineering sheets or similar materials used in connection with Purchaser’s order are for the sole purpose of identifying the Equipment and shall not be construed as an express warranty except as otherwise set forth herein. Any suggestions by RMW or its agents regarding use, application or suitability of the Equipment shall not be construed as an express warranty unless confirmed to be such in writing by RMW.
12. COMPLIANCE WITH LAWS, RMW certifies that the Equipment was produced in compliance with all applicable requirements of sections 6, 7 and 12 of the Fair Labor Standards Act, as amended, and all regulations and orders of the United States Department of Labor issued under section 14 thereof.
13. IMPROPER PAYMENTS, Purchaser certifies that it, its agents and employees have not made any undisclosed or improper payments of any nature whatsoever to any of RMW’s agents or employees in connection with this sale.
14. RETURNS, Equipment may be returned to RMW only when Purchaser obtains in advance RMW’s written permission, signed by duly authorized personnel of RMW. Returned Equipment must be securely packaged and reach RMW without damage. Any cost incurred by RMW to put Equipment in marketable condition will be charged to Purchaser.
15. PATENTS, TRADEMARKS, AND COPYRIGHTS, To the best or RMW’s knowledge, the design and construction of the Equipment (except as the result of incorporating a design modification in the Equipment at the Purchaser’s request) does not infringe any valid United States patent. RMW shall indemnify Purchaser and its customers against any financial judgment awarded in any suit against Purchaser or its customers to the extent that such judgment is based upon a finding that RMW breached the foregoing representation, provided that Purchaser, in writing, promptly notifies RMW of the commencement of such suit and the assertion of the claims on which such suit is based, and affords RMW the opportunity, at RMW’s option and expense, to settle and defend such suit and claims. If RMW elects to defend any such suit and claims, Purchaser agrees to give RMW all information, assistance and authority RMW deems necessary to do so. This paragraph sets forth, with respect to infringements, RMW’s exclusive liability to Purchaser, its successors, assigns and customers and users of the Equipment. In no event shall RMW’s liability hereunder exceed the amount of the judgment on the infringement action.
Notwithstanding the foregoing, RMW shall not be responsible for any compromise or settlement made without its written consent, or for infringements of combination or process patents covering the use of the Equipment in combination with other products or materials not furnished by RMW. The sale of Equipment hereunder may in no way be construed as an inducement by RMW of any infringement by Purchaser.
As to any Equipment furnished by RMW to Purchaser manufactured in accordance with drawings, designs, instructions or specifications proposed or furnished by Purchaser or any claim or contributory infringement resulting from the use or resale by Purchaser of Equipment sold hereunder, RMW shall not be liable, and Purchaser shall indemnify RMW and hold RMW harmless from and against any and all loss, liability, damage, claim or expense (including but not limited to RMW’s reasonable attorneys’ fees and other costs of defense) incurred by RMW as a result of any claim of patent, trademark, copyright or trade secret infringements, or infringements of any other proprietary rights of third parties.
16. INSTALLATION AND OPERATION OF EQUIPMENT: INDEMNIFICATIONS, Purchaser shall install, operate and maintain the Equipment, and shall require its employees and agents to operate the Equipment, in compliance with RMW’s instructions and operating manuals and under normal conditions, safe operating procedures and proper supervision. Except as otherwise provided herein, RMW is not responsible for providing or installing any guards or safety devices, whether or not required or recommended under the Occupational Safety and Health Act or the safety regulations of any jurisdiction. This remains the responsibility of Purchaser. Purchaser shall provide, install and use, and shall require its employees and agents to use, all such guards and safety devices and shall maintain such guards and safety devices in proper working order. In the event Purchaser shall fail to do so, Purchaser shall indemnify and hold RMW free and harmless of and from any and all claims, liabilities and obligations with respect to any personal injuries or property damage directly or indirectly related to the operation or use of the Equipment. Purchaser shall also notify RMW promptly, and in any event not later than 10 days after Purchaser has notice or knowledge thereof, of any accident or malfunction involving the Equipment resulting in any personal injury or property damage and shall cooperate fully with RMW in investigating and determining the causes of such accident or malfunction. In the event Purchaser fails to give such notice to RMW or to cooperate with RMW, Purchaser shall indemnify and hold RMW free and harmless of and from any and all claims, liabilities and obligations relating to such accident or malfunction.
17. EXCLUSION OF CONSEQUENTIAL DAMAGES AND DISCLAIMER OF LIABILITY: PURCHASERS INDEMNITY, RMW’s liability with respect to breaches of warranty shall be limited as provided in Section 11 hereof. With respect to other breaches of this contract, RMW’s liability shall in no way exceed the price paid for the part, unit or other component of the Equipment on which the claim is based. RMW SHALL NOT BE SUBJECT TO AND DISCLAIMS: (1) ANY OTHER OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR OF WARRANTY, (2) ANY OBLIGATIONS WHATSOEVER ARISING FROM TORT CLAIMs (INCLUDING NEGLEGENCE AND STRICT LIABILITY) OR ARISING UNDER OTHER THEORIES OF LAW WITH RESPECT TO EQUIPMET SOLD OR SEVICES RENDERED BY RMW, OR AND UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO, AND (3) ALL CONSEQUENTIAL, INCINDENTIAL AND CONTINGNET DAMAGES WHATSOEVER. Without limiting the generality of the foregoing, RMW specifically disclaims any liability for penalties (including administrative penalties), special or punitive damages, damages for lost profit or business, revenues or goodwill, loss of use of Equipment or any associated equipment, cost of capital, facilities or services, downtime, shut-down or slowdown costs, spoilage of material, or for any other types of damage to property or economic loss. All the limitations and disclaimers contained in this paragraph and in the rest of this content shall apply to claims of Purchasers customers or any third party asserted by Purchaser against RMW for Indemnity or contribution, as well as direct claims of Purchaser against RMW.
Purchaser shall indemnify RMW against any and all losses, liabilities, damages and expenses (including, without limitation, attorneys’ fees and other costs of defending any action) which RMW may incur as a result of any claim by Purchaser or others arising out of or in connection with the Equipment sold hereunder and based on defects not proven to have been caused solely by RMW’s negligence.
18. TECHNICAL INFORMATION, Any sketches, models, samples or designs submitted by RMW shall remain the property of RMW, and shall be treated as confidential unless RMW has indicated in writing a contrary intent. Purchaser shall not, without the express written consent of RMW, use or disclose such sketches, models and samples, or any design or production process or techniques revealed thereby.
19. PURCHASERS PROPERTY, Any property of Purchaser placed in RMW’s custody for performance of this contract is not covered by insurance, and no risk is assumed by RMW in the event of loss or damage to such property by fire, water, burglary, theft, civil disorder or any accident beyond the reasonable control of RMW.
20. MANUALS, BROCHURES, INSTRUCTIONS, Any and all operating manuals, instructions, brochures, warnings or the like concerning the Equipment supplied hereunder shall be written in the English language and are supplied as an aid to Purchaser and are not represented to be accurate, complete or sufficient. Purchaser warrants that it will accurately translate such manuals, instructions, brochures or warnings to appropriate languages and dialects so that its employees and all third party users of the Equipment will be properly informed of all the contents thereof. Purchaser will indemnify and hold harmless RMW against all liabilities and expenses (including attorney fees) arising out of the use of the Equipment by Purchaser or a third party in any case where Purchaser fails to make available adequate warnings, labels, manuals and instructions concerning the proper and normal use of the Equipment.
21. SEVERABILITY, If any provisions of these terms and conditions of sale shall be deemed illegal or unenforceable, such illegality or unenforceability shall not affect the validity and enforceability of any legal and enforceable provision hereof, which shall be construed as if such legal and enforceable provision(s) had not been inserted herein.
22. RMW’S REMEDIES, In the event that Purchaser fails to make any payments when due, fails to take delivery at the specified time or destination or, by any action or inaction, prevents or frustrates any delivery or any shipment to effect delivery, or otherwise defaults in the performance of these terms, RMW may cancel or terminate the Contract of Sale. In the event of any such cancellation or termination, Purchaser shall pay to RMW (a) the prices specified for all Equipment completed prior to such cancellation or termination; (b) the amount of RMW’s expenditures and financial obligations in connection with all unfinished Equipment, including without limitation, any cancellation charges paid by RMW of for which RMW may be liable with respect to commitments made by RMW in connection with the Equipment; and (c) the amount of RMW’s lost profits, as determined by RMW, arising out of such cancellation or termination. The rights and remedies of RMW hereunder are not exclusive but are in addition to any other rights and remedies which shall be available to RMW under applicable law.
23. WAIVER, No waiver by RMW of any default hereunder shall operate as a waiver of any default or of the same default on a future occasion.
24. GOVERNING LAW, This contract and these terms and conditions shall constitute the entire warranty agreement between RMW and the purchaser, and shall be governed by and construed according to the internal laws of the state of West Virginia and of the United States of America (without reference to principals of conflicts of laws). The rights and obligations of the parties hereunder shall not be governed by the provisions of the 1980 U.N. convention or contracts for the international sale of goods.