- AGREEMENT. The following terms and conditions (“Terms”), together with the accompanying documentation provided by Seller herewith (collectively, the “Agreement”), represent the entire and exclusive agreement between Aaron Kendell Packaging Equipment, LLC (“Seller”) and the purchaser (“Purchaser”) with respect to the purchase of the goods (“Goods”) and/or services (“Services”) ordered hereunder and supersede any other understandings or agreements. Any order placed by Purchaser with Seller shall be subject to these Terms. NO CONTRARY, ADDITIONAL OR DIFFERENT TERMS, PROVISIONS OR CONDITIONS SHALL BE BINDING ON SELLER UNLESS ACCEPTED BY SELLER IN WRITING. ANY ADDITIONAL OR DIFFERENT TERMS ALREADY OR HEREAFTER PROPOSED BY PURCHASER, WHETHER IN A PURCHASE ORDER OR OTHER COMMUNICATION OR OTHERWISE, ARE HEREBY REJECTED AND SHALL NOT APPLY. SELLER’S ACCEPTANCE OF ANY ORDER FROM PURCHASER IS CONDITIONAL UPON PURCHASER’S ASSENT TO THE TERMS IN LIEU OF ANY PROVISIONS CONTAINED IN ANY OF PURCHASER’S COMMUNICATIONS OR DOCUMENTATION. Purchaser shall accept or reject Seller’s sales proposal within ten (10) days from the date thereof. Purchaser’s acceptance of any proposal, however, shall not result in a contract of sale, and Seller shall not be bound by any order of Purchaser until Seller has provided an acknowledgement in writing confirming the order, subject to these Terms, at which time both Seller and Purchaser shall be bound by the order and these Terms. Seller and Purchaser agree that no course of performance or prior dealings between the parties or usage of trade inconsistent with the terms and conditions herein shall be relevant to give particular meaning to supplement or qualify any of the Terms, and none of the provisions of these Terms shall be deemed to have been waived by any act of or acquiescence on the part of either Seller or Purchaser, or their respective agents or employees other than by an instrument in writing signed by an authorized representative of the waiving party.
- DELIVERY AND RISK OF LOSS. Unless otherwise specified in writing by the Seller, Seller shall make the Goods available to Purchaser’s nominated carrier at Seller’s designated place of business, with all costs related to shipping, including packaging/crating, freight, duties, insurance, and other related costs borne by Purchaser. Seller may, but shall be under no obligation to, upon mutual written agreement of Purchaser and Seller, arrange transportation for the Goods on Purchaser’s behalf, provided, however, Purchaser shall remain solely responsible for all related costs and must prepay all such costs prior to shipment of the Goods. Title to and risk of loss of the Goods shall transfer to Purchaser from the moment the Goods are delivered to the carrier, whether Purchaser arranged transportation on its own or whether Seller assisted with the arrangements. In either case, Seller’s responsibility for damaged Goods ceases upon acceptance by the carrier and all claims for loss or damage occurring after acceptance by the carrier must be filed by Purchaser with the carrier. Seller shall not be liable for any delays, loss or damage in transit. The Goods will be delivered within a reasonable time after an order is accepted, subject to availability of the ordered Goods. Seller reserves the right to make delivery in installments, and all such installments, when separately invoiced, shall be paid for when due per Seller's invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Purchaser of its obligation to accept remaining deliveries. If, and to the extent, any Goods purchased hereunder are not available for delivery to Purchaser due to any third party’s failure to deliver the Goods to Seller, Seller shall promptly refund any amounts deposited or paid for such Goods by Purchaser and may cancel the order for such Goods, and such refund shall be Purchaser’s sole remedy with respect to Seller’s failure to deliver such Goods.
- PAYMENT. Purchaser shall pay all invoices in U.S. dollars within thirty (30) days from the date of invoice. Late payments shall be subject to interest at the lesser of the rate of 1.5% per month or the highest rate allowed by law, from the date of the invoice until it is paid. Purchaser may not withhold any payment by reason of setoff of any claim with Seller. If Seller engages counsel in respect of any late payment or default, Purchaser will pay, in addition to the balance then due and owing, all collection costs, court costs, administrative costs, investigation costs, reasonable attorneys’ fees and all other incidental costs, charges or expenses incurred in the collection of past due amounts.
- TAXES AND OTHER CHARGES. All quoted and invoiced prices are exclusive of customs, duties, and taxes which shall be the sole responsibility of Purchaser, including, but not limited to, sales, use, excise and transfer taxes; provided, however, that Purchaser shall not be responsible for taxes related to Seller’s income, revenues, gross receipts or real or personal property. If applicable, Purchaser shall provide Seller with a valid tax exemption certificate prior to acceptance of the related order.
- CANCELLATION; SUSPENSION. In the event Purchaser fails to remit payment for any shipment when the same becomes due or fails to satisfy Seller’s reasonable credit or financial requirements, Seller reserves the right, notwithstanding any other remedies it may have, to terminate the contract or to suspend further deliveries. Should Purchaser fail to satisfy Seller’s reasonable credit or financial requirements, in Seller’s sole and absolute discretion, cash payments or security satisfactory to Seller, in its sole and absolute discretion, may be required by Seller before future deliveries of Goods are made to Purchaser.
- DISCLAIMER OF WARRANTIES
A. ALL GOODS ARE PURCHASED BY THE PURCHASER “AS IS” AND “WITH ALL FAULTS”.
B. SELLER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY OR ANY OTHER MATTER WITH RESPECT TO THE GOODS OR SERVICES.
C. Any affirmation of fact or promises made by Seller or its employees or representatives shall not be deemed to create an express warranty that the Goods or Services shall conform to such affirmation or promise. Any descriptions, samples and specifications with respect to Goods or Services offered for sale herein are not warranted by Seller to be accurate or complete. If a model or sample was shown to Purchaser, such model or sample was used merely to illustrate the general type and quality of goods sold by Seller and not to represent that the Goods would necessarily conform to such model or sample. 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 PURCHASER CONDUCT AN ON-SITE INSPECTION OF THE GOODS SOLD HEREUNDER PRIOR TO PURCHASE. SELLER SHALL NOT BE RESPONSIBLE FOR THE CONSEQUENCES OF PURCHASER’S FAILURE TO INSPECT THE GOODS OR FOR ANY INACCURACIES, INSUFFICIENCIES, OR OMISSIONS IN SUCH DESCRIPTIONS, SAMPLES AND/OR SPECIFICATIONS.
- DELIVERY. Seller shall deliver all Goods to a carrier for transport to Purchaser's place of business or as directed in writing, with all costs of transport borne by Purchaser. Purchaser shall bear all risk of loss with respect to the Goods from the moment the Goods are delivered to the carrier.
- DISCLAIMER OF WARRANTIES:
- ALL GOODS ARE PURCHASED BY THE PURCHASER "AS IS" AND "WITH ALL FAULTS", AND SELLER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS, OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER MATTER WITH RESPECT TO THE GOODS.
- 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 goods offered for sale herein are not warranted by Seller to be accurate or complete. If a model or sample was shown to Purchaser, such model or sample was used merely to illustrate the general type and quality of goods sold by Seller and not to represent that the Goods would necessarily conform to such model or sample. 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 PURCHASER CONDUCT AN ON-SITE INSPECTION OF THE GOODS SOLD HEREUNDER. SELLER SHALL NOT BE RESPONSIBLE FOR THE CONSEQUENCES OF PURCHASER'S FAILURE TO INSPECT THE GOODS OR FOR ANY INACCURACIES, INSUFFICIENCIES, OR OMISSIONS IN SUCH DESCRIPTIONS, SAMPLES AND/OR SPECIFICATIONS. C. The employees or representatives of Seller are not authorized to make any statement or representation as to the quality, character, size, condition, quantity, etc. of the goods offered for sale inconsistent with these Terms and Conditions. Any such statements made will not be binding on Seller or be grounds for any subsequent claim.
- SALES - USED EQUIPMENT. Purchaser understands that the Goods described herein have been previously used, and may have been modified, by persons other than Seller. Purchaser is warned and acknowledges that such 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, to health, or to property (by reason of toxicity, flammability, explosiveness or for other similar or different reasons during use, handling, cleaning, reconditioning, disposal or at any other time after the article leaves the possession and control of Seller). Purchaser does hereby discharge 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 the failure of Seller to give more specific warning with respect to individual articles or substances or from the inadequacy of any warning.
- REPAIR. Seller is not obligated to do any repair work upon or modifications to the Goods prior to sale or delivery. Any repair work or modifications performed by Seller on the Goods prior to sale shall be performed as a result of the sole request of Purchaser using designs and instructions provided by Purchaser. Accordingly, Seller shall not be liable for any alleged damages caused by or resulting from the repairs or modifications. SELLER GIVES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE QUALITY, MERCHANTABILITY, WORKMANSHIP OR ANY OTHER MATTER WITH RESPECT TO ANY SUCH REPAIRS OR MODIFICATIONS.
- DISCLAIMER OF LIABILITY. Purchaser acknowledges that the Goods sold herein may be dangerous if improperly used. Purchaser acknowledges that it must contact the original manufacturer to obtain up-to-date installation and operation manuals and other information to insure the safe operation of the Goods. Seller will not be responsible for any loss or injury resulting from defects or alleged defects in the Goods sold or from the subsequent use of the items.
- ASSUMPTION OF RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PURCHASER ASSUMES ALL RISK AND LIABILITY RELATED TO THE OWNERSHIP AND OPERATION OF THE GOODS, INCLUDING, BUT NOT LIMITED TO, ANY INJURY OR PROPERTY DAMAGE RELATED TO THE USE OF THE GOODS AND ANY RESULTS OBTAINED BY THE USE OR POSSESSION OF THE GOODS, WHETHER RELATED TO OPERATING COSTS, EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY SELLER RELATED TO THE USE OF THE GOODS.
- INSPECTION. Purchaser has inspected the Goods prior to purchase or hereby acknowledges that Seller invited, urged and cautioned Purchaser to inspect the Goods, and Purchaser declined to examine the same.
- INDEMNIFICATION. Purchaser hereby agrees to defend, indemnify and hold harmless Seller, its affiliates, and their respective directors, officers, employees, agents and representatives from and against any and all liabilities, judgments, claims, settlements, losses, damages, penalties, obligations and expenses, including attorneys’ and other professionals’ fees and expenses, incurred or suffered by such person arising from, by reason of, or in connection with any claim, loss or damage or injury to person or property arising from, by reason of or in connection with (a) the Goods or Services sold hereunder or the use, operation, possession, and modification of the Goods by Purchaser or its affiliates, officers, directors, employees, agents or representatives, and whether used alone or in combination with other products or services, (b) any actual or alleged injury, illness, or damage to person or property related to the Goods or Services, including to the extent caused by Seller’s negligence, (c) Purchaser’s failure to pay any taxes or other charges, or to provide a valid tax exemption certificate, as required herein, (d) any third party claim that the Goods infringe any proprietary or other rights of any third party as a result of any repair work or modifications to the Goods by Seller at the direction of Purchaser, or (e) Purchaser’s breach of any representation, warranty, covenant, or obligation of Purchaser contained in these Terms. This indemnification shall survive the provision of any Services hereunder, the delivery of the Goods to Purchaser and any subsequent sale or other transfer of the Goods to a third party.
- INSURANCE. Purchaser shall not move, load, transport or otherwise handle the Goods on Seller’s premises without first having obtained insurance coverage satisfactory to Seller. Such insurance shall include workers compensation, employer’s liability, commercial general liability (bodily injury, property damage and contractual liability) and automobile liability (bodily injury and property damage) insurance, each in an amount satisfactory to Seller. Purchaser shall ensure that each such insurance policy waives any right of subrogation of the insurers against Seller and its affiliates. Certificates of insurance evidencing the aforementioned insurance coverages shall be furnished to and shall be approved by Seller upon request of Seller.
- COMPLIANCE WITH LAWS. Purchaser will comply with all applicable laws, regulations and ordinances in its performance of its obligations hereunder and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations. Purchaser shall, and shall cause its employees, agents, and representatives to, comply with Seller’s plant safety rules and regulations in effect at all times when on Seller’s premises. Purchaser shall strictly comply with any applicable laws regarding import/export regulations, tax and/or customs and duties (“Import/Export Laws”) related to the import or export of the Goods. Purchaser shall ensure that it will not export, sell, divert, transfer or otherwise dispose of the Goods in violation of any Import/Export Laws. Purchaser agrees to, at its expense, obtain any and all licenses and approvals that may be necessary to import the Goods to the point of delivery specified in an order and to export the Goods from the point of origin of such Goods in accordance with Import/Export Laws.
- FORCE MAJEURE. Seller shall not be liable for any default or breach of the Agreement due to any failure or delay in Seller’s performance hereunder to the extent such failure or delay is beyond the reasonable control of Seller, including due to: act of God, war, sabotage, accidents, riots, fire, explosion, flood, epidemic, pandemic, strike, labor stoppages, lockout, injunction, inability to obtain fuel, power, raw materials, labor, containers or transportation facilities, breakage of machinery or apparatus, national defense requirements, recommendation, request, or requirement of any governmental authority having or claiming to have jurisdiction over Seller, its subcontractors and/or its suppliers, or any other cause beyond the control of Seller. Seller’s obligations hereunder shall be suspended during such force majeure event and for a reasonable period of time thereafter; provided, however, that these Terms shall otherwise remain in effect.
- LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SELLER BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR FOR ANY RELATED EXPENSES, INCLUDING, BUT NOT LIMITED TO, COST OF LABOR, SHIPPING COSTS, DOWNTIME, REMOVAL, REINSTALLATION, OR LOST PROFITS. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SALE OF GOODS OR SERVICES OR THE TERMS EXCEED THE PURCHASE PRICE OF THE GOODS OR SERVICES RELATED TO WHICH SUCH LIABILITY ARISES.
- ASSIGNMENT. Purchaser may not assign its rights or delegate its performance in whole or in part under the Agreement without the prior written consent of Seller. Any attempted assignment or delegation without such consent shall be void.
- GOVERNING LAW; DISPUTE RESOLUTION. The Agreement shall be governed by and construed according to the laws of the State of Illinois, exclusive of conflict or choice of law rules. Any dispute, claim or controversy arising out of or relating to the Agreement or the breach, performance, interpretation or validity of the Agreement, shall be determined by arbitration in Chicago, Illinois before a single neutral arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
- OFAC. Purchaser hereby certifies that Purchaser and its directors, officers, employees, agents, representatives, sub-contractors and/or consultants are familiar with, and shall comply in all respects with, all applicable laws in force from time to time regarding economic sanctions and trade embargos, including the International Emergency Economic Powers Act (50 U.S.C. § 1701), and all other laws administered by the Office of Foreign Assets Control of the US Treasury Department (collectively, “Sanctions Laws”). Purchaser represents and warrants that it is not, and has not previously been, the target of any economic sanctions or trade embargos under any Sanctions Laws.
- EXPORT CONTROLS. Purchaser acknowledges that all shipments by Seller are or may be subject to restrictions and limitations imposed by United States export controls, trade regulations and trade sanctions. Purchaser at all times will comply with such sanctions, controls and regulations and will cause compliance with such sanctions, controls and regulations in its use and disposition of the Goods. With respect to each shipment of Goods pursuant to these Terms, Purchaser will obtain and supply to Seller in writing all information required by Seller to obtain any U.S. export license, permit, approval or documentation applicable to such shipment. Notwithstanding anything to the contrary herein, Seller will have no obligation to make any shipment to Purchaser until it has received all such information and has obtained the applicable licenses, permits, approvals or documentation for shipment, if any. If Seller learns, or has reasonable cause to believe, or if any branch or agency of the United States claims, that a violation of any applicable trade sanctions, export controls or trade regulations has occurred or is likely to occur because of any shipment, Seller may, in addition to any other remedy it may have, terminate any order immediately upon written notice to Purchaser.
- SEVERABILITY. If any provision of the Terms is determined illegal or unenforceable, it shall not affect the enforceability of any other term or provision of the Terms.
- INDEPENDENT CONTRACTOR. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Copyright © 2023 by the Aaron Kendell Packaging Equipment, LLC • All Rights Reserved • INV-3/31/23