STANDARD TERMS AND CONDITIONS OF SALE
Terms. The standard terms and conditions of sale set forth below apply to all sales except to the extent that such conditions may be expressly altered or modified in writing by Big Lift, LLC. (“Seller”). Any terms which are either different from or additional to the standard terms and conditions of sale set forth below are objected to and are excluded from the terms of sale, irrespective of the materiality of any such different or additional terms, unless Seller expressly agrees in writing to the inclusion of such terms in the terms of sale.
Quotations. Unless the express terms of a quotation provide otherwise, all quotations are and shall be deemed to constitute only an invitation to order the goods described in a quotation and all prices, terms and conditions included in any such quotation are subject to revision by Seller without notice to any party. Any purchase order submitted by Buyer pursuant to any quotation of Seller shall not result in any contract or agreement until such purchase order is accepted and acknowledged by Seller at Seller’s offices in Lombard, Illinois.
Price. The prices set forth in this invoice are subject to adjustment in the sole discretion of Seller. Unless otherwise expressly agreed in a writing signed by Seller, the final price for goods sold shall be Seller’s price in effect for such goods on the date of shipment of such goods.
Credit. Positively no goods will be delivered on credit unless Seller expressly agrees in writing in advance.
Taxes. Any tax, public charge, value added, tariff, duty, or other similar amount assessed, levied, or imposed (i) upon Seller by reason of the manufacture, sale, transfer, import, export, or delivery of any goods ordered by Buyer or (ii) upon, or with respect to, the transfer, sale, import, export, or use of such goods by Buyer, other than a generally applicable net income tax imposed on Seller by the jurisdiction in which Seller is resident or otherwise present for income tax purposes (such non-excluded items, "Transfer Taxes"), shall be separately stated, and added to the price for such goods and shall be paid by Buyer with the applicable invoice, sales order, or otherwise within five (5) days of Seller's written demand. Where permitted by, or required by, applicable law, Buyer shall directly pay to the applicable governmental jurisdiction any required Transfer Taxes imposed on Buyer's acquisition and/or use of the goods in such jurisdiction, and Buyer shall provide Seller with a duly and validly executed direct payment exemption certificate in such case. Buyer shall also provide to Seller with any other applicable resale or other exemption certificate required by applicable law that is necessary to establish an exemption or reduction in any such Transfer Taxes. Any tax, public charge, tariff, or duty assessed, levied or imposed upon Seller by reason of the manufacture, sale or delivery of any goods ordered by Buyer shall be added to the price for such goods and shall be paid by Buyer.
Delivery. All shipments are F.O.B. Seller’s plant and all risk of loss with respect to any goods shipped shall pass to Buyer when such goods are delivered to the carrier at such plant. Dates of delivery shall be determined from the date of Seller’s acknowledgement of Buyer’s purchase order. All delivery dates are estimates of approximate dates of delivery and do not constitute a guaranty of delivery on such dates. Unless otherwise expressly agreed in writing, Seller shall have the right to ship the goods in one lot or in several lots from time to time.
Warranty. The terms, conditions, limitations and provisions of the “Big Lift, LLC. Warranty Policies and Procedures,” a copy which has been received by Buyer, are hereby incorporated by reference herein; in addition, Seller warrants that the goods sold: (a) were not produced or manufactured in violation with any applicable provisions of the Fair Labor Standards Act of 1938 as amended; (b) will pass without objection in the trade under the contract description’ and (c) will be fit for the ordinary purposes for which such goods are used. No goods shall be returned to Seller without its prior authorization. THE FOREGOING SHALL CONSTITUE BUYER’S SOLE AND EXCLUSIVE REMEDY AND A FULFILLMENT OF ALL SELLER’S LIABILITY WITH RESPECT TO THE GOODS. OUR RESPONSIBILITY CEASES AFTER WE OBTAIN RECEIPT IN GOOD ORDER FROM TRANSPORTATION COMPANY, ALL CLAIMS FOR DAMAGES, DELAYS, OR LOSS MUST BE MADE AGAINST THE TRANSPORTATION COMPANY, POSITIVELY NO GOODS RECEIVED FOR CREDIT UNLES PREVIOUSLY AGREED.
Warranty Limitation. The warranty provided in paragraph 7 hereof is exclusive and is in lieu of all other warranties and the remedy provided in paragraph 7 is the sole and exclusive remedy and all other remedies are expressly excluded. Seller does not represent or warrant that the goods conform to any occupational safety and health standard promulgated pursuant to the Federal Occupational Safety and Health Act of 1970. All warranties, other that the warranty provided in paragraph 7 hereof, whether express or implied or arising by operation of law, course of dealing, usage of trade or otherwise are excluded. THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PURPOSE.
Consequential Damages. In no event shall Buyer be entitled to recover any consequential or incidental damages whether claimed to have been caused, in whole or in part, directly or indirectly, by any delay, failure or nonperformance of any person.
Contingencies. Seller shall not be liable for any delay or failure to manufacture or deliver any or all of the goods ordered to Buyer or for any failure to perform any obligation required to be performed by Seller under the terms of sale if such delay or non-delivery is caused by, or if performance of the obligation was made impractical by any fire, explosion, earthquake, windstorm, accident, breakdown, strike lockout combination of workmen or other labor trouble, flood, drought, embargo, war, riot, act of God or of the public enemy, action or request of any government authority or agency, delay or failure of carriers or contractors, labor shortages or inability to obtain from regular sources raw materials, operation materials, plant equipment, tools or materials required for maintenance and repair, or any contingency, delay, failure or cause beyond the control of Seller, irrespective of whether such contingency is specified herein or is presently occurring or anticipated.
Technical Advice. It is expressly understood that any advice furnished by Seller with respect to the use of its goods or services is given without charge, and Seller assumes no obligation or liability for the advice given or results obtained. All such advice being given and accepted at Buyer’s risk.
Acceptance-Rejection. All claims for damages, errors, defects, shortages or any other nonconformity in any shipment of goods delivered to Buyer shall be made in writing to Seller’s offices at Lombard, Illinois no later than ten (10) days after Buyer’s receipt of such goods. Buyer’s failure to make such claim within such time period shall constitute an irrevocable acceptance of the particular shipment and an admission that such shipment fully complies with all terms, conditions and specifications contained in the terms of sale for such goods. Each shipment of goods shall be accepted or rejected in its entirety and buyer’s acceptance of part of the goods tendered in a shipment shall constitute acceptance of all the goods tendered in that shipment. If buyer accepts a shipment, such acceptance shall be final and irrevocable and no attempted revocation of such acceptance shall be effective. If Buyer rejects any shipment, Buyer must notify Seller of such rejection by a written notice mailed by registered mail to Seller’s offices in Lombard, Illinois no later that sever (7) days after Buyer’s receipt of the goods. Such notice of rejection must fully specify all claimed defects and nonconformities giving rise to the rejections and any failure to specify any error, defect, shortage or nonconformity shall constitute a waiver of that error, defect, shortages or nonconformity.
Cure. If a shipment of goods is rejected by Buyer, Seller shall have the right to cure in any reasonable manner the error, defect, shortage or other nonconformity giving rise to the rejection.
Inspection. Buyer’s inspection of goods delivered shall occur no later than ten (10) days after buyer’s actual receipt of the goods, shall be a reasonable and complete inspection and shall in any event simulate Buyer’s actual production and use conditions.
Waiver. No claim or right of Seller that arises out of a breach of the agreement for sale of the goods can be discharged in whole or in part by a waiver or renunciation unless it is supported by consideration and is in a writing signed by Seller.
Remedies. Seller shall have all rights and remedies specified hereinabove in addition to those specified in the Illinois Universal Commercial Code as such Code is in effect on the date of Seller’s acknowledgement of Buyer’s purchase order.
Authority of Agents. No agent, employee or representative of seller has any authority to bind Seller to any affirmation, representation, or warranty concerning the goods sold, other that the affirmations, representations, and warranties specified hereinabove, and any affirmations, representation, or warranty, other than the affirmations, representations, and warranties specified hereinabove, is hereby expressly excluded and deemed to be unenforceable irrespective of when the same may be made.