TYLER REFRIGERATION, A division of Carrier Commercial Refrigeration, Inc.
TERMS AND CONDITIONS OF SALE
CONTRACT TERMS. The terms and conditions of sale applicable to this Agreement are as set forth herein. Terms and conditions proposed by the Buyer do not become part of this Agreement unless accepted by Seller in writing. Seller shall not be bound until Buyer's order has been accepted in writing by an authorized representative of Seller.
SECURITY INTEREST. Buyer grants Seller a security interest in any and all equipment delivered hereunder until the total selling price, including taxes, delivery, installation and other charges, has been paid in full. Buyer agrees to sign and deliver to Seller any additional security agreement. Any deposit made by Buyer hereunder may be used by Seller pending acceptance or rejection of this order. Buyer will cooperate with Seller in providing Seller all information necessary to prepare a security agreement.
PAYMENT AND TAXES. Unless stated otherwise, prices are stated in U.S. dollars, are subject to change without notice, and do not include taxes or duties. In addition to the agreed price, the Buyer shall pay Seller any applicable taxes or governmental charges which may be required in connection with the services or material furnished under this contract.
Partial shipments may be made and are authorized, and payments therefore shall become due in accordance with the terms hereof. Finance charges are subject to rates in effect at time of delivery of equipment herein described. THE TERMS OF SALE HEREIN ARE SUBJECT TO CREDIT APPROVAL AND SELLER MAY AT ANY TIME PRIOR TO DELIVERY MODIFY THE TERMS OF PAYMENT ORIGINALLY SPECIFIED TO REQUIRE PAYMENT IN ADVANCE OR OTHERWISE CHANGE TERMS. Seller may also, at any time prior to delivery, require the personal guarantee of Buyer’s officers.
Payment shall be made net 30 days from date of invoice, unless otherwise agreed in writing. If payment is not timely made, Seller will charge interest on the unpaid balance, which shall accrue from the due date at a rate, which is the lesser of 2% per month, or the maximum legal rate. Buyer shall indemnify Seller against any and all expenses of collection arising from Buyer’s default.
Seller reserves the right to require cash payment or other alternative method of payment prior to completion of work if Seller determines, in its sole discretion, the Buyer or Buyer’s assignee’s financial condition at any time does not justify continuance of the net 30 day payment term.
ACCEPTANCE: CONTROLLING TERMS. Upon acceptance by Seller, this order shall take effect and the terms hereof shall survive (i) the delivery of the equipment ordered hereunder and (ii) the signing of any additional security agreement(s) relating to said equipment. If the terms hereof conflict with any such security agreement(s), the terms of the latter shall control.
SHIPMENT TERMS. Unless designated otherwise, all products are sold F.O.B. Seller’s factory. Title and risk of loss, damage, or destruction shall transfer at the shipping point.
Unless specifically agreed in writing, shipment dates quoted are estimates, and Seller does not guarantee a particular date for shipment or delivery of the goods. Seller shall not be liable for any losses, damages, or penalties occasioned by late performance, nor for any deviation in performance due to supplier delays, fires, strikes, labor disputes, embargos, wars, riots, governmental action, acts of terrorism, acts of nature, other delays in transportation or any other condition beyond Seller’s control. Partial shipments are authorized.
WORKING HOURS. All services performed under this Agreement including major repairs, shall be provided during Seller’s normal working hours unless otherwise agreed.
ORDER CHANGES. Work and material in addition to, or different from, that stated herein, and changes in drawings or specifications, shall be subject to Seller’s approval and shall entitle Seller to an adjustment in the contract price and schedule.
Services or parts requested by Buyer in addition to those specified in this Agreement will be provided upon receipt of Buyer’s written authorization and invoiced at Seller’s prevailing labor rates and parts charges. Additional services or parts shall be supplied under the terms of this Agreement.
THEFT OR LOSS ON-SITE. Buyer shall be responsible for equipment, supplies and other materials being used at the job site when Seller’s employees are not present to monitor their safekeeping. Any theft or loss due to neglect of this duty shall be borne by the Buyer.
WARRANTY. Subject to the limitations set forth below, Seller warrants each new product or part manufactured or fabricated by Seller to be free from defects in material and workmanship in accordance with Seller’s standard warranty. As to products not manufactured by Seller, the warranty, if any, of the respective manufacturer of any items of new equipment and parts set forth in this order is incorporated herein by reference.
Seller’s obligation under said warranties shall be limited solely, at Seller’s option, to repairing, replacing, or allowing credit for, component parts which are defective in material or workmanship, for a period not to exceed one (1) year from the date of shipment to Buyer for items manufactured by Seller, or for the period of manufacturer’s warranty for items not manufactured by Seller. All defective parts must be returned to Seller prior to replacement or repair.
THE WARRANTIES PROVIDED HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES (EXCEPT OF TITLE) EXPRESS OR IMPLIED, AND NO WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE ARE PROVIDED. IN NO EVENT SHALL SELLER BE LIABLE FOR (a) LOSS OF FOOD OR CONTENTS OF EQUIPMENT DUE TO FAILURE OR MALFUNCTION FOR ANY REASON, OR (b) FOR CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES.
USED PRODUCTS COVERED BY THIS ORDER ARE SOLD ON AN “AS IS” BASIS UNLESS OTHERWISE STATED IN A WRITING EXECUTED BY SELLER.
A copy or copies of Seller’s applicable warranty or warranties may be attached. Should the terms of any attached warranty conflict with those set forth above, the attached warranty will control.
Seller neither assumes, nor authorizes any person to assume for it, any other obligation or liability in connection with any equipment or part.
PROPRIETARY RIGHTS. During the term of this Agreement and in combination with certain services, Seller may elect to install, attach to Buyer’s equipment, or provide portable devices (hardware and/or software) that shall remain the personal and proprietary property of Seller. No devices installed, attached to real property, or portable device(s) shall become a fixture of the Buyer locations. Buyer shall not acquire any interest, title or equity in any hardware, software, processes, and other intellectual or proprietary rights to devices which are used in connection with providing service on Buyer equipment.
INSTALLATION. If this sales order provides for installation, Seller’s obligation to deliver the equipment and provide for its installation shall in no event commence until Buyer’s premises are ready to receive the equipment, and such obligation shall be subject to all the other terms of this sales order. Costs and expenses to Seller or its contractor for delays in installation due to interference or delays by other contractors and/or by Buyer on Buyer’s project will be charged to Buyer.
Buyer shall be responsible for all cost incurred by Seller caused by any change to Seller’s installation, if any, of equipment purchased hereunder, whether such change is made at Buyer’s request or required due to store layout, utility availability, or otherwise. BUYER IS RESPONSIBLE FOR ALL STORE SPECIFICATIONS PROVIDED BY OR ON BEHALF OF BUYER TO SELLER.
SPECIFICATIONS. Quantities and sizes are subject to variation in accordance with Seller’s standard practices and tolerances and the requirements of the job where the store equipment covered by this order is to be installed. Seller reserves the right to make changes in design, and other changes, whenever Seller believes its product will be improved thereby, but without incurring any obligation to incorporated such changes retroactively.
TERMINATION BY BUYER. Buyer shall have the right to terminate this Agreement for Seller’s non-performance provided Seller fails to cure such non-performance within 30 days after having been given prior written notice thereof. Any cancellation by Buyer for reasons other than Seller’s non-performance shall be subject to Seller’s approval, and shall entitle Seller to damages.
Upon early termination or expiration of this Agreement, Seller shall have free access to enter Buyer locations to disconnect and remove any of Seller’s personal proprietary property or devices as well as remove any and all Seller-owned parts, tools and personal property. Additionally, Buyer agrees to pay Seller for all incurred but unamortized service costs performed by Seller including overheads and a reasonable profit.
TERMINATION BY SELLER. Seller reserves the right to discontinue its service any time payments have not been made as agreed, or if alterations, additions or repairs are made to equipment during the term of this Agreement by others without prior agreement between Buyer and Seller.
LIMITATION OF LIABILITY. Under no circumstances shall Seller be held liable for any incidental, special or consequential damages, such as loss of revenue, loss of use of equipment or facilities, or economic damages based on strict liability or negligence. Seller shall be liable for damage to property, other than the equipment provided under this Agreement, and to persons, only to the proportionate extent that Seller’s negligent acts or omissions directly contributed to such injury or property damage. Seller’s maximum liability for any reason (except for personal injuries) shall consist of the refunding of all moneys paid by Buyer to Seller under this Agreement, subject to right of removal and return of equipment provided under this Agreement to Seller.
CLAIMS. Any suits arising from the performance or non-performance of this Agreement, whether based upon contract, negligence, strict liability or otherwise, shall be brought within one (1) year from the date the claim arose.
SUPERSEDURE, ASSIGNMENT and MODIFICATION. This Agreement contains the complete and exclusive statement of the agreement between the parties and supersedes all previous or contemporaneous, oral or written, statements. Buyer may assign this Agreement only with Seller’s prior written consent. No modification to this Agreement shall be binding unless in writing and signed by both parties.
DEFAULT. If Buyer fails or refuses to accept delivery of the equipment and parts ordered hereunder or defaults in the performance of any of the terms, covenants and conditions of this sales order, Seller may retain the funds deposited or paid to it and or equipment accepted by it on account of the sale price and apply the same toward payment of its damages. If equipment ordered has been delivered to Buyer by Seller at the time of default, Seller may declare the full amount due and payable without notice or demand and/or may have access to Buyer’s premises in order to repossess the equipment.
APPLICABLE LAW. Any agreement arising hereunder shall be governed by, and construed in accordance with, the laws of the State of Connecticut (excluding its choice of law provisions). The provisions of the U.N. Convention on Contracts for the International Sales of Goods shall not be applicable. A determination that any provision of a resulting agreement is ineffective or unenforceable shall not impair the enforceability of other provisions contained herein.
Posted August 20, 2007
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