Terms & Conditions
Hartwig Inc. Terms & Conditions
STANDARD TERMS AND CONDITIONS GOVERNING THE SALE OF PRODUCTS AND SERVICES
This proposal by Hartwig, Inc. does not constitute a firm offer but is an invitation to place an order. All orders are subject to written acceptance by Hartwig, Inc. If an order based upon this proposal is accepted by Hartwig, Inc., it is agreed that the order shall be subject to the terms and conditions set forth below all of which shall be incorporated in the order by reference and shall supersede all prior oral, written or printed Terms and Conditions.
(a) All prices are F.O.B. manufacturer’s factory unless otherwise specified. Prices are subject to change without notice until an order is accepted by Hartwig, Inc. in writing.
(b) All sales are made subject to applicable sales, use and excise taxes, the amount of which, Buyer agrees to pay and to indemnify Hartwig, Inc. against same.
(c) Prices for Services performed are at Seller’s prevailing standard rates for said Services, plus necessary travel and other incidental expenses, unless mutually agreed by Buyer and Seller in writing.
(d) Services performed by Seller shall be during the Seller’s normal working hours unless otherwise provided for in writing, or Buyer agrees to pay a reasonable premium for said Services performed on off-shifts, weekends or holidays.
- PAYMENT TERMS:
Subject to credit approval and unless otherwise specified,
(a) Payment in full of all invoices is due with 10 days from date of shipment. Any unpaid balance is subject to a late payment charge equal to the lesser of 2% per month or the maximum permitted by law. There shall be no extension of or change in the time for payment due to delays in installation and/or delays in operation of the equipment caused by damage, warranty service or warranty replacement of parts.
(b) A non-refundable deposit of 10%, or such greater amount as may be specified in the purchase order or quote, is required on all machinery orders at time of order. All deposits made shall be non-refundable.
(c) Buyer agrees to pay all of Hartwig, Inc.’s costs including attorney’s fees incurred in collecting overdue accounts.
- SECURITY INTEREST: Buyer hereby grants Hartwig, Inc. a purchase money security interest in and agrees that Hartwig, Inc. has and shall have a security interest in each item of equipment being purchased and the proceeds thereof until such time as the equipment and this purchase order and invoices and obligations have been paid in full. Buyer agrees to execute and deliver any additional document reasonably requested by Hartwig, Inc., to evidence or perfect its security interest in the equipment. Buyer authorizes Hartwig, Inc., to file in the public records in any jurisdiction, without Buyer’s signature, any applicable financing statement under the UCC with respect to Hartwig Inc.’s interest in the equipment. Buyer warrants that Buyer is the owner of the equipment free and clear of any adverse claim, security agreement or encumbrance. Buyer agrees to maintain and use the equipment solely in the conduct of its own business, in a careful and proper manner and in conformity with all applicable permits and licenses. Buyer shall maintain service and repair the equipment so as to keep it in good operating order as long as this security interest is in effect. If Buyer defaults in payment, or if a proceeding in bankruptcy, dissolution, liquidation, insolvency, receivership or reorganization is instituted by or against Buyer, Hartwig, Inc. shall have the right to declare the unpaid balance owing under any orders to be payable immediately, to take immediate possession of the equipment or any portion thereof without demand, further notice or legal process. To the extent permitted by law, the Debtor expressly waives any notice of sale or other disposition of the equipment and any other right and remedies of the Buyer. Buyer agrees that in the event that notice is not waived, then notice shall be deemed reasonable and shall fully satisfy such notice if notice is deposited with the United States postal Service, postage prepaid to the Buyer at the address shown above at least ten (10) days before the time of the sale or disposition. Buyer agrees that Hartwig, Inc. shall have the right to sell the equipment at a public or private sale.
- SHIPPING SCHEDULES:
(a) Proposed shipping schedules are approximate and subject to prior sale and confirmation by the manufacturer at time of Hartwig, Inc.’s acceptance of order.
(b) While Hartwig, Inc. will use its best efforts to meet delivery schedules; it can accept no liability for loss to Buyer, whether direct or consequential, as a result of delays.
- RISK OF LOSS:
The risk of loss or damage to goods shall pass to Buyer when placed with a common carrier for delivery to Buyer.
- WARRANTIES, DAMAGES:
(a) Goods – All goods sold by Hartwig, Inc. have been manufactured by others. Consequently Hartwig, Inc. cannot make any warranties with
respect to goods sold by it. The warranties available to Buyer are those extended by the manufacturer, if any, to the extent they are in force and effect
Hartwig, Inc. will upon request assign to Buyer any reasonable right it has under manufacturers’ warranties. THE MANUFACTURER’S WARRANTY, IF
ANY, IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES WHETHER WRITTEN, ORAL OR IMPLIED, INCLUDING THE WARRANTY
OF MERCHANTABILITY AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. No promise or affirmation of fact (including but not limited to statements regarding capacity or performance of a machine) shall constitute a warranty by Hartwig or the Manufacturer or give rise to any liability or obligation of Hartwig or manufacturer, unless made in writing and signed by an officer of Hartwig.
(b) Services – If this proposal includes services to be performed by Hartwig, Inc., Hartwig, Inc. warrants that such services will be performed in a workmanlike manner. Such warranty with respect to its services is IN LIEU of all other service warranties. In the event Hartwig, Inc. breaches the service warranty it shall, at its sole option, either refund the portion of the service charge relating to the defective service or correct the default. No claim for breach of the service warranty shall exceed the service charges.
(c) Damages in the event of Hartwig, Inc.’s breach of any of the terms of the contract for the sale of goods or services resulting from its acceptance of an order pursuant to this proposal shall not be liable for any of Buyer’s indirect, incidental, special or consequential damages and in no event shall exceed any amount received by Hartwig, Inc. pursuant to the order.
Buyer agrees to release, indemnify, defend and hold Hartwig, Inc., its officers, agents, and employees harmless from any loss, cost, damage or bodily injury (including death) of whatsoever kind or nature arising out of or incidental to the performance of work related to this order except to the extent caused by the negligence or misconduct of Hartwig, Inc.
Orders accepted by Hartwig, Inc. can be cancelled only with its written consent. If Hartwig, Inc. consents to the cancellation of an order, it will be protected from loss and shall have the right to receive:
(a) The contract price for all products which shall have been completed prior to acceptance of the cancellation.
(b) All costs incurred by Hartwig, Inc. in connection with the uncompleted portion of the order plus an amount equal to the normal profit Hartwig, Inc. would have received if the order had not been cancelled; and
(c) An amount equal to any cancellation charges which Hartwig, Inc. incurs by reason of Buyer’s Cancellation.
- BUYER’S USE:
Buyer agrees that its employees when operating machinery or equipment purchased from Hartwig, Inc., will comply with all operating procedures set forth in manufacturers operators’ manuals and instruction sheets relating to such machinery or equipment and Buyer further agrees not to remove or modify any safety device, warning sign, operator’s manual or work handling tools. Buyer shall notify Hartwig, Inc. promptly of any accident connected with the use of machinery or equipment purchased from Hartwig, Inc. and agrees, upon Hartwig, Inc.’s request, to cooperate with Hartwig, Inc. in investigating and determining the cause of any such accident. Buyer agrees to indemnify and hold Hartwig, Inc. harmless from any loss, or any damages resulting from injury to buyer’s employees, agents, invitee’s, or liability including attorney’s fees arising out of Buyer’s failure to perform its obligations pursuant to this paragraph.
- PERFORMANCE IN THE EVENT OF DEFAULT:
In addition to the rights and remedies conferred on Hartwig, Inc. by law, Hartwig, Inc. will not be required to proceed with the performance of any order or contract if Buyer is delinquent or in default under any other order or contract with Hartwig, Inc. In the event that Hartwig, Inc., at any time, doubts Buyer’s ability to pay for goods within quoted terms, Hartwig, Inc. may ship the goods C.O.D.
Hartwig, Inc. retains the right to correct any clerical errors in its acceptance of orders and Buyer agrees to promptly notify Hartwig, Inc. of any suspected clerical errors.
No alterations or amendments to any contract formed by Hartwig, Inc.’s acceptance of an order shall be effective unless in writing and signed by an authorized representative of Hartwig, Inc.
- APPLICABLE LAW/VENUE:
The contract resulting from the acceptance of an order pursuant to this proposal shall be governed by and construed according to the laws of the State of Missouri. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO SHALL BE BROUGHT EXCLUSIVELY IN THE COURTS OF THE COUNTY OF ST. LOUIS, STATE OF MISSOURI OR ANY COURT OF THE UNITED STATES OF AMERICA FOR THE EASTERN DISTRICT OF MISSOURI AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF SUCH COURTS. THE PARTIES IRREVOCABLY WAIVE ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH ANY OF THEM MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS. EACH PARTY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF SUCH COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO EACH OF THE OTHER PARTIES AT ITS ADDRESS IS PROVIDED HEREIN, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING