Customer and Yoder Brothers Machinery LTD (“YBM”) agree that the purchase and sale of YBM machines (“Products”) are made under these terms and conditions, and that YBM shall not be bound by Customer’s additional or different terms. The Customer’s placement of its order and purchase of the Products shall constitute acceptance of these terms and conditions. Any order accepted by a salesperson or representative on behalf of YBM is subject to approval by YBM.
ENTIRE AGREEMENT:
This document represents the entire agreement of the parties regarding the listed items. All prior or contemporaneous agreements, representations and understandings with respect to this purchase and Products sold hereunder are merged herein. All Products sold are listed on the Quotation and/or Invoice. Accessory or electrical equipment, tools, dies, etc., are not included unless specifically listed herein. This agreement may only be changed by a writing signed by all parties.
TITLE OF GOODS:
Title to the Products covered herein shall pass at YBM’s warehouse upon delivery of the Products to the carrier. All sales and all deliveries of Products to carriers are subject to prior sales. YBM retains a security interest and right of possession in the Products until Customer makes payment in full. Customer authorizes YBM to execute and file financing statements and any other required documents necessary to perfect YBM’s security interest in the Products sold hereunder until payment of the purchase price has cleared YBM’s bank.
PRICE AND PAYMENT:
All Products are quoted F.O.B. YBM’s warehouse, Holland, Ohio unless otherwise stated. All Products are offered subject to prior sale. Prices quoted are subject to change at any time prior to order confirmation at the sole discretion of YBM. Payment for Products shall be by cash or check at the time order is placed and accepted by YBM. Customer agrees not to send YBM payments marked “paid in full”, “without recourse”, or similar language. If Customer sends such a payment, YBM may accept it without losing any of YBM’s rights and customer will be obligated to pay any further amount owed to YBM.
SALES TAXES:
Product prices are exclusive of, and Customer shall pay, applicable sales, use, service, value added or like taxes, unless Customer has provided YBM with an appropriate exemption certificate for the delivery destination acceptable to the applicable taxing authority.
DELIVERY:
YBM shall deliver the Products to a carrier at YBM’s warehouse and, if the Products are sold to a Customer outside the United States, YBM shall clear the Products for export outside the United States. Customer shall pay all freight charges, applicable import duties, and other necessary fees and shall bear the risks of carrying out customs formalities and clearance.
SHIPMENT:
Shipping dates are approximate. Unless otherwise stated, all Products are sold F.O.B. YBM’s Warehouse, and mode of shipment shall be at YBM’s discretion and judgment. YBM shall not be liable for any loss, damages, or expenses resulting from any delay and/or delivery issues from any cause whatsoever. Claims for shipment shortage shall be deemed waived unless presented to YBM in writing within thirty (30) days of shipment.
TERMINATION:
YBM may, in its sole discretion, terminate these terms and conditions with respect to a Customer (without prejudice to YBM’s other rights and remedies) and may suspend a sale immediately at any time prior to delivery of the Product to the carrier without notice to Customer and without any liability for YBM.
RISK OF LOSS:
Risk of loss shall pass to Customer at time of delivery of the Products to the carrier.
CANCELLATION:
This contract may not be cancelled without YBM’s written consent.
GUARANTEE AND WAIVER OF WARRANTY:
If a Product is found to be mechanically unsatisfactory, it may be returned within thirty (30) days from shipment for a refund of the purchase price or at YBM’s option, be repaired by YBM. YBM’s sole obligation (and Customer’s sole remedy) with respect to the foregoing Guarantee shall be to, at YBM’s option, return the fees paid or repair/replace any defective Product provided that YBM receives written notice of such defects. YBM’s guarantee does not apply to any Products that have been subject to improper installation, misuse, alteration, repair, neglect, accident, fire, or the like. This guarantee does not apply to any freight charges. Products must be returned in same or better condition than when shipped. Customer is responsible for all freight charges. YBM does not guarantee the electrical system of the Products or the Customer’s electrical capability to run the Product. This guarantee applies only to Products owned by YBM and does not apply to Products sold for “special price” or Products sold “as-is.” EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE PRODUCTS ARE SOLD “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY OTHER WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. YBM DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULTS OF THE USE OF THE PRODUCTS IN TERMS OF CORRECTNESS, ACCURACY RELIABILITY OR OTHERWISE AND DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE. Customer affirms that it has not relied upon YBM’s skill or judgment to select or furnish goods for any particular use or purpose. The entire liability of YBM is set forth above. To the maximum extent permitted by law, YBM SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE OR RESPONSIBLE FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, EXPENSES, LOST PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCTS. YBM encourages the Customer to inspect the Product prior to purchase.
Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, this limitation may not apply. If the foregoing limitation of liability is found not enforceable because a YBM Product sold to Customer is determined by a court of competent jurisdiction in a non-appealable judgment to be defective and to have directly caused bodily injury, death or property damage, in no event shall YBM’s liability for property damage exceed the greater of $25,000.00 or the purchase price paid for the specific product that caused such damage upon return of the Products to YBM in the same condition as when shipped.
INDEMNIFICATION OF YBM:
Customer acknowledges that the Products herein described were neither designed nor manufactured by YBM and that the Products are being sold, with all faults, and with no warranties implied whatsoever, including those which may pertain to compliance with the health and/or industrial safety code or standards of any state, municipality, or other jurisdiction. Further, the Customer agrees to assume all risk and liability and to forever indemnify and hold YBM harmless respecting any and all claims or liabilities from accidents involving these machines caused by failure of user, its employees, or agents to follow instructions, warnings or recommendation available from the original equipment manufacturer, or by failure of user to comply with Federal, State or Local laws applicable to such equipment including the Occupational Safety and Health Act of 1970. Customer assumes all risk and liability for loss, damage and/or injury to persons or property of Customer or others arising out of the use or possession of any Products sold hereunder and agrees to forever indemnify and hold YBM harmless from any and all costs, expenses and/or damages resulting thereby.
PLEASE NOTE THE IMPORTANT PARAGRAPH BELOW:
The Products sold herein may or may not conform to OSHA standards. It is the responsibility of the Customer and the factory user to equip and operate the equipment properly and put protective guarding on the equipment in order to avoid possible injuries through its operation. It is the Customer’s responsibility to provide proper safety devises and equipment to safeguard the Product’s operator from harm. It is the Customer’s responsibility to equip the Products to conform to all Federal, State and Local Government safety standards and meet all industry safety standards of OSHA. These Products may not incorporate approved activating mechanism, operator safety devices, or safety guards, as required by OSHA or otherwise. It is agreed that the Customer and factory user shall, at their own cost and expense, defend any claim or action which may be brought by any person or firm claiming damages for personal injuries resulting from the operation of the Products and shall indemnify and hold YBM harmless from any such claim or resulting judgment.
ACKNOWLEDGMENT / GOVERNING LAW / DISPUTES:
Customer acknowledges reading these Terms and Conditions, understands them and agrees to be bound by them. A waiver of any provision of this agreement shall not be construed a waiver or modification of any other term hereof. Disputes arising in connection with these Terms and Conditions of Sale shall be governed by the laws of Lucas County, State of Ohio without regard to principals of conflicts of laws. Any controversy or claim arising out of this transaction or theses terms and conditions shall be determined by arbitration conducted in Toledo, Lucas County, Ohio
