Terms & Conditions
The provisions on the face hereof, all drawings, specifications, descriptions and other documents attached hereto and these Standard Terms and Conditions of Sale constitute the entire contract between AGPAK Incorporated and Buyer and supersede all prior quotations, purchase orders, correspondence and other communications, whether written or oral, between AG-PAK Incorporated and Buyer. No provision of this contract shall be subject to change in any respect, except by a writing signed by an authorized representative of AG-PAK Incorporated at its main office at Gasport, New York. The failure of AG-PAK Incorporated to object to any provision in conflict herewith, whether contained on Buyer’s purchase order or otherwise, shall not be construed as a waiver of the provisions hereof nor as an acceptance thereof.
No statement, representation or warranty not contained herein shall be binding on AG-PAK Incorporated unless made in writing by an officer of AG-PAK Incorporated.
1. All orders are received subject to acceptance and may be accepted only on Ag-Pak
Incorporated’s printed Conditional Sales Contract form. Typographical and clerical errors in quotations, orders and acknowledgements are subject to correction.
QUOTATIONS AND PUBLISHED PRICES
2. Until executions of this contract, all written quotations are subject to change upon mailing of written notice to Buyer and are void after 30 days, unless a shorter or longer period is expressly specified.
The prices shown on any published price lists and other published literature issued by AG-PAK Incorporated are not offers to sell and are subject to confirmation by specific quotation and acknowledgement. All published prices and discounts are subject to change without notice.
3. Buyer agrees to pay in United States funds to AG-PAK Incorporated the amount designated on the reverse hereof as the purchase price for the described machinery. The price of such described machinery does not include conveyors, tables, tubing or other equipment or supplies, including, without limiting the generality of the foregoing, films and products used in the initial operation and required in the operation of the machine.
4. AG-PAK Incorporated’s prices do not include any applicable sales, use, excise or similar taxes, and except in states requiring by applicable law that AG-PAK Incorporated collect and pay any such tax, the Buyer shall pay all such applicable taxes; provided, however, that if in connection with this sale AG-PAK Incorporated is required by applicable laws of any state to collect and pay any such tax, then the amount of any such tax shall be added to the price and Buyer shall remit the price and such tax to AG-PAK Incorporated.
5. Unless otherwise indicated on the face hereof, a down payment of forty percent of the total purchase price shall accompany buyer’s order. An additional forty percent is payable upon completion of manufacturing and proof of shipment (invoice including Bill of Lading). The balance of the purchase price is due thirty days after shipment. If AG-PAK Incorporated, in its judgment at any time deems that, by reason of Buyer’s financial condition or otherwise, the continuance of production of shipment on the terms specified herein is not justified, AG-PAK Incorporated may require full or partial payment in advance.
6. The Buyer will be charged for export packing or other special packing required, the cost of which will be quoted upon request.
7. All shipping dates are approximate and are contingent upon receipt by AG-PAK Incorporated of conditional sales contract executed by Buyer accompanied by payment of forty percent of the total purchase price, mutual agreement on all terms, conditions and specifications, and prompt receipt of all necessary information and data regarding Buyer’s order. AG-PAK Incorporated will use its best efforts to meet the scheduled delivery date shown on the face hereof, but is not responsible for failure to do so for causes beyond its reasonable control.
DELAYS OR NON-PERFORMANCE
8. Anything herein to the contrary not withstanding, AG-PAK Incorporated shall not be liable for any delays or failure in the performance of any of its obligations hereunder when such delay or failure is caused by fire, flood, drought, storm, accident, act of God, war, strike, lockout, labor difficulties, riots, sabotage, interference by civil or military authorities, car or fuel shortages, embargo, inability to obtain suitable or sufficient labor, machinery, supplies, or materials as and when required, transportation difficulties, orders or directions by any public authority or any other cause beyond its reasonable control whether of a similar or different nature.
POINT OF SHIPMENT, SHIPPING COSTS AND PASSAGE OF TITLE
9. All new and repaired apparatus will be shipped F.O.B. AG-PAK Incorporated’s plant, Gasport, New York, unless some other point of shipment is expressly agreed to in writing by AG-PAK Incorporated. Passage of title shall occur upon AG-PAK Incorporated’s delivery to Buyer’s carrier at such designated point of shipment. If Buyer desires to procure insurance to cover its risk of loss, it shall do so at its expense.
CHANGES IN ORDER BEFORE COMPLETION
10. The Buyer may from time to time (but only with AG-PAK Incorporated’s written consent) make any change in the apparatus covered by any order, in which event, Buyer shall pay to AG-PAK Incorporated the reasonable costs and other expenses (including engineering expenses and all commitments to its suppliers and subcontractors) incurred by AG-PAK Incorporated prior to receipt of notice of such change for all work rendered unnecessary by such change or incurred by AG-PAK Incorporated thereafter for all work required to effect such change, plus in either case an amount determined by AG-PAK Incorporated in its discretion by applying to the amount of such costs and other expenses AG-PAK Incorporated’s usual rate of profit for similar work. Also, in the event of any such change, AG-PAK Incorporated shall be entitled to revise its price and delivery schedules to reflect such change.
11. All undelivered parts of any order may be cancelled by the Buyer at any time but only with AGPAK Incorporated’s written approval.
If the Buyer makes an assignment for the benefit of creditors, if a voluntary or involuntary petition or other action in bankruptcy or for reorganization or under any other insolvency law shall be filed by or against the Buyer, if the Buyer shall admit its inability to pay its debts, if a trustee, receiver or liquidator is appointed for any part of the assets of the Buyer, or if the Buyer fails to make payments to AG-PAK Incorporated in accordance with the terms hereof, AG-PAK Incorporated may at its option cancel all undelivered parts of any order by written notice to Buyer.
In the event of any cancellation of this order, Buyer shall pay to AG-PAK Incorporated the reasonable costs and expenses (including engineering expenses and all commitments to its suppliers and subcontractors) incurred by AG-PAK Incorporated prior to receipt of notice of such cancellation, plus an amount determined by AG-PAK Incorporated, in its discretion, by applying to the amount of such costs and expenses AG-PAK Incorporated’s usual rate of profit for similar work.
12. AG-PAK Incorporated warrants the machine and parts furnished Buyer (but not supplies procured or used by Buyer or Buyer’s ultimate product) against defects in material and workmanship under normal use and with proper servicing adjustment and maintenance, for a period of twelve (12) months after date of installation subject to the following limitations:
1. As to parts manufactured or processed by AG-PAK Incorporated, AG-PAK
Incorporated’s obligation hereunder is limited to, at AG-PAK Incorporated’s option, repairing or replacing without charge, F.O.B. its Gasport plant, any such part proven defective within the warranty period, provided Buyer shall have given AG-PAK
Incorporated immediate notice upon discovery of the defect. Buyer shall return the
defective part or parts, transportation cost collect. Buyer is responsible for all costs for the installation of any replacement parts.
2. As to parts purchased by AG-PAK Incorporated, AG-PAK Incorporated transfers the
original manufacturer warranty, if any, to Buyer. It is Buyer’s responsibility to enforce the original equipment manufacturer’s warranty.
3. AG-PAK Incorporated’s warranty shall not apply to defects resulting from improper or inadequate servicing, adjustment or maintenance, modifications not approved by AG-PAK Incorporated, or misuse.
THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE AND NO FURTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, IN
CONNECTION WITH THE DESIGN, SALE OR USE OF ANY OF AG-PAK INCORPORATED’S PRODUCTS EXCEPT AS TO TITLE, and AG-PAK Incorporated’s liability on its warranty shall in no event exceed the cost of correcting defects in the machinery and/or part sold.
INSTALLATION AND TRAINING
13. AG-PAK Incorporated shall supervise Buyer’s personnel in the proper installation of machinery, at the rate per hour designated on the reverse hereof, plus travel expense for an eight-hour working day. During this visit and in conjunction with installation, AG-PAK Incorporated shall train Buyer’s qualified operator in the machinery. Buyer agrees to have its qualified operator available for such instruction. If installation or training time in excess of one eight hour day is requested by Buyer, Buyer shall pay AG-PAK Incorporated therefore at AG-PAK Incorporated’s normal service rates then in effect plus expenses.
14. After installation, AG-PAK Incorporated shall have spare parts and trained personnel available to supervise service. The charge to Buyer for such service supervision shall be at AG-PAK Incorporated’s hourly rate for labor then in effect plus all expenses incurred by AG-PAK Incorporated in connection therewith (including travel and living expenses).
MACHINERY MODIFICATIONS REQUIRED BY LAW
15. Any modifications to the machinery required in order to comply with federal, state or local laws, regulations or ordinances are Buyer’s responsibility and will be undertaken by AG-PAK Incorporated only on a time/expense and materials basis.
16. AG-PAK Incorporated agrees, at its own expense, to defend any suit or proceeding brought against Buyer insofar as such suit or proceeding is based on a claim that said machine, or any part thereof, hereby sold to Buyer infringes any Letters Patent of the United States or Canada in force at the date hereof and to indemnify and hold harmless Buyer from all damages and costs based on such infringement awarded against Buyer by the judgment or decree of the court in such suit or proceeding, excluding, however, any part of such damages or costs so awarded which is based on profits arising from the use of such machine, or from products resulting from the use thereof provided, however, that the foregoing obligation of AG-PAK Incorporated is subject to the condition that Buyer shall give AG-PAK Incorporated timely notice in writing of the institution of such suit or proceeding, shall permit AG-PAK Incorporated through its counsel to defend the same in Buyer’s name and shall give AG-PAK Incorporated all needed authority and reasonable aid at the expense of AG-PAK Incorporated to enable AG-PAK Incorporated to do so.
RELEASE AND INDEMNITY BY BUYER
17. AG-PAK Incorporated shall not be liable to Buyer, its agents or employees, or to anyone else, for loss, damage, or injury to persons (including death), or to product or to property caused by or arising out of the installation, condition, maintenance, operation, use or non-use of said machines, or the methods or processes employed thereby, nor for the damages of any kind sustained or alleged to have been sustained by Buyer as the result of such installation, condition, maintenance, operation, use or non-use, and Buyer agrees to, and shall, exonerate, indemnify and save harmless AG-PAK Incorporated from and against any and all liability, damage, loss, cost or expense of every kind whatsoever which may accrue to or be sustained by or asserted against AG-PAK Incorporated on account of any such loss, damage or injury, or on account of liens, attachments or claims levied upon or assessed against said machines in any action brought or claim made against Buyer or anyone claiming through Buyer, Buyer shall defend, and shall pay all costs and attorneys’ fees incurred in, and all judgments resulting from, any such action.
18. All quotations made and all orders accepted by AG-PAK Incorporated are subject to the laws of the State of New York, and the construction and effect of all provisions hereof shall be governed by and construed according to the laws of that state. This contract shall not be modified, supplemented, qualified or interpreted by any usage of trade or custom not made a part of the contract by its express terms. The captions herein are for convenience only and shall not be considered in the construction of the provisions of this contract.
19. If suit is brought to compel performance of this contract or for damages for its breach, the prevailing party shall be entitled to reasonable attorneys’ fees and cost fixed by the court.
20. The remedies provided herein are Buyer’s sole and exclusive remedies. AG-PAK Incorporated shall not be liable for any direct, indirect, special, incidental or consequential damages, whether based on contract, tort or any other legal theory.