TERMS & CONDITIONS OF SALE OF EQUIPMENT
These terms and conditions of sale (“Terms & Conditions”) are binding upon Buyer and Komplet America LLC, a New Jersey limited liability company (“Seller”).
1. ACCEPTANCE. All sales of Komplet crushers, screeners, shredders and other equipment by Seller (“Equipment”) are subject to and expressly conditioned upon these Terms & Conditions. Seller’s acceptance of any sales order for the sale of any Equipment is expressly subject to these Terms & Conditions. No variations to these Terms & Conditions will be binding upon Seller unless agreed to in writing by an officer of Seller. All orders are subject to acceptance at Seller’s location in Hillsborough, New Jersey.
2. TAXES. All taxes and duties (including any sales or use taxes, transfer, title or registration fees, VAT, import duties, and any related penalties, fines, or interest) imposed by any governmental authority will be the responsibility of the Buyer. If Seller pays any such taxes or duties, Buyer will reimburse Seller for same.
3. DELIVERY. Shipping dates submitted are approximate. All shipment dates are subject to delays by reasons beyond Seller’s control. All shipments are FCA Hillsborough, New Jersey, unless otherwise noted on the sales order. Seller does not deliver Equipment outside the United States. Buyer will be responsible for transportation of all Equipment from Seller’s shipping point noted on the sales order. Risk of loss with respect to the Equipment (including any damage in transit) passes to Buyer at the moment that Buyer or Buyer’s carrier takes possession of the Equipment at Seller’s shipping point noted on the sales form. Buyer will indemnify, defend, and hold Seller harmless from and against any and all damages and losses incurred in connection with the transportation of Equipment by Buyer or Buyer’s carrier, and for any acts or omissions of Buyer after taking possession of the Equipment. Buyer agrees to ensure that Buyer or Buyer’s carrier maintains full insurance coverage for damages and losses that may be incurred in transit or otherwise from the moment Buyer or Buyer’s carrier takes possession. It is the Buyer’s responsibility to inspect and accept the Equipment at the shipping point. If the Buyer is unable to accept delivery at the shipping point, Buyer agrees that Buyer is responsible for all costs and fees associated with storage or shipping of the Equipment from that time and location.
4. LIMITED WARRANTY; DISCLAIMER OF WARRANTIES. Buyer acknowledges that Seller is an authorized distributor and service provider, and is not the manufacturer of the Equipment. The Equipment is covered by a limited Manufacturer’s Warranty. Seller provides no warranty other than to the extent of the original Manufacturer’s Warranty.
THE MANUFACTURER’S WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE, AND NO PERSON OR ENTITY IS AUTHORIZED TO ASSUME FOR SELLER ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OF THE EQUIPMENT OR ITS PARTS. IN NO EVENT SHALL SELLER BE LIABLE FOR LOST PROFITS, LOSS OF PRODUCTION OR DAMAGE TO MATERIALS, INJURY TO PERSONS, OR OTHER SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHETHER IN CONTRACT, TORT, PRODUCT LIABILITY OR OTHERWISE, RELATING TO THE SALE OF ANY EQUIPMENT OR RELATED SERVICE. SELLER’S LIABILITY WITH RESPECT TO THE SALE OF EQUIPMENT OR RELATED IS LIMITED TO THE AMOUNT OF BUYER’S DAMAGES UP TO THE PRICE PAID TO SELLER FOR THE EQUIPMENT OR SERVICE. IN NO EVENT WILL SELLER BE LIABLE TO BUYER IN EXCESS OF THE PRICE PAID BY BUYER.
5. REPAIRS; SERVICE. Seller is authorized to perform repairs and service on Komplet Equipment. Seller only performs such services within the United States. Unauthorized third party repairs or services on the Equipment will void the Manufacturer’s Warranty. Buyer is responsible for the costs of all repair and service which are not covered by the manufacturer’s warranty, including any reasonably required travel, lodging, and shipping incurred in connection with such repair or service.
6. PAYMENTS; LATE PAYMENTS; SECURITY INTEREST. Payment due dates are set forth on the Sales Order. Payment in full is required before shipment. Late payments are subject to interest rate charges at the rate of 1.5% per month on any unpaid balance. In the event of any unpaid balance owed in connection with the sale of the Equipment, Buyer grants Seller a security interest in the Equipment to secure such balance. Buyer authorizes Seller to file any financing statements or similar documents which may be required to perfect Seller’s security interest, and Buyer will fully cooperate to complete such documents.
7. SOLVENCY. Buyer represents and warrants that Buyer is solvent and able to pay the purchase price and associated costs for shipment and insurance, as applicable.
8. INDEMNITY. Buyer agrees to indemnify, defend, and hold Seller harmless from all actions, claims, or demands by any person or entity arising from the Equipment’s operation, use or misuse, Seller or Buyer modifications, or regarding any product made or handled by the Equipment, including any claims for bodily injury or property damage, except all such actions, claims, or demands based on a breach or negligence of Seller. Buyer further indemnifies Seller against any liability, loss, cost, damage, or expense (including reasonable attorney fees) arising out of Buyer’s resale of the Equipment. Buyer understands that any modifications made to the Equipment by Seller or Buyer are outside of manufacturer’s original Equipment design and may void manufacturer’s standard warranty.
9. FORCE MAJEURE. Seller will not be in default or have breached these Terms & Conditions for any failure or delay in fulfilling or performing any of the terms hereof when and to the extent such failure or delay is caused by or results from acts or circumstances beyond Seller’s reasonable control, including without limitation acts of God, flood, fire, weather, earthquake, explosion, governmental acts or orders, war, invasion or hostilities, terrorist threats or acts, riots or other civil unrest, national emergency, revolution, insurrection, epidemic, strikes or other labor disputes (whether or not relating to Buyer or Seller’s workforces), or restraints or delays affecting carriers or inability or delay in obtaining supplies of materials, telecommunications breakdowns, or power outages.
10. SEVERABILITY. If any portion of these Terms & Conditions is, for any reason, held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such invalidity, illegality, or unenforceability will not affect other provisions of these Terms & Conditions, and these Terms & Conditions will be construed as if such provision had never been contained herein.
11. ARBITRATION. Any controversy or claim arising out of or relating to these Terms & Conditions or the sale of Equipment, or any breach thereof, will be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The parties agree that the claim or controversy will be heard and decided by a three (3) member arbitration panel, unless the parties agree to accept a single arbitrator. Any arbitrators selected must have experience as an arbitrator resolving similar disputes in New Jersey. The place of arbitration will be Somerset County, New Jersey.
BUYER AND SELLER HEREBY WAIVE ANY RIGHTS TO A TRIAL BY JURY.
12. CHOICE OF LAW. Buyer and Seller agree that the sale of the Equipment, these Terms & Conditions, and any related claims will be governed by the laws of the State of New Jersey, specifically the Uniform Commercial Code as adopted in the State of New Jersey, without regard to conflict of laws principles which may result in any other law being applied. Arbitration proceedings will be governed by the law of the State of New Jersey.
13. VENUE AND JURISDICTION. Buyer and Seller agree that the proper jurisdiction and venue of any dispute resolution shall be in Somerset County, New Jersey.
14. ENTIRE AGREEMENT. The sales order and these Terms & Conditions constitute the entire and complete understanding of Buyer and Seller regarding the sale of the Equipment. These Terms & Conditions supersede all prior agreements and understandings, whether oral or written, regarding the subject matter herein.
