SURESTRIKE INTERNATIONAL, INC. (“SELLER”)
Terms of Sale (“Terms”)
1. APPLICATION
These Terms apply to all transactions between Seller and Buyer. Modification of these Terms may be made only in a writing signed by the Seller. By ordering the goods, Buyer accepts these Terms. Any order is expressly limited to, and expressly made conditional on, Buyer’s acceptance of these Terms. Seller objects to any different or additional terms in the Buyer’s documents. Any purchase order or similar document shall be valid only to specify the product to be supplied, the place and estimated time of delivery, and the price. All other terms in such documents shall be void and unenforceable, and neither Seller’s sale of goods nor any other course of conduct by it will constitute acceptance by Seller of any such terms.
2. TERMS OF PAYMENT
Buyer shall, pending credit approval, pay per the terms called out on the invoice, unless otherwise agreed in writing. Invoices will be dated date of shipment from Seller’s place of manufacture, unless other payment terms are specifically called out on the Sales Order and Invoice. All hammer sales require 30% down payment with order and balance prior to shipment.
Interest will accrue on all overdue payments from the due date until paid in full at the annual rate of 12%.
When Buyer does not pay in full prior to shipment it is buying the goods on credit and is a debtor of Seller. In such cases Buyer authorizes Seller, at Seller’s discretion, to prepare and/or file and/or add additional information in order to properly perfect a security interest, including but not limited to a security agreement, initial financing statement, initial financing statement in lieu of a continuation statement, amendments, and continuation statements, by any means authorized by law, whether such law is currently in effect or becomes effective after the execution of this agreement, including electronic filing. Buyer authorizes Seller to (1) prepare and file such record(s) without the signature of Buyer, (2) file such writing bearing any general, generic or super-generic description of the collateral authorized by the applicable law and (3) file any future records, which shall be deemed authenticated (as defined in the applicable law) by Buyer.
3. SHIPMENT AND DELIVERY
All shipments are EXW Seller’s place of manufacture or storage unless otherwise stated in writing. Delivery dates are estimates only and Seller shall not be liable for any loss or expense (consequential or otherwise) incurred by Buyer or Buyer's customers if Seller fails to meet the specified delivery schedule.
4. TITLE OF GOODS AND RISK OF LOSS
Title to goods sold, and risk of loss, shall pass to Buyer upon delivery.
5. QUOTATIONS AND PRICES
Prices are subject to change without notice. The amount of all present or future taxes, duties, excises, license fees, and other charges applicable to the goods shall be added to the purchase price and shall be paid by Buyer, or in lieu thereof the Buyer shall provide Seller with a tax exemption certificate acceptable to the taxing authorities.
6. RETURNED GOODS
No goods may be returned except on written approval by the Seller. Returns will be accepted only by prior authorization and if shipped freight prepaid. If Seller agrees to accept a return it will issue a return materials authorization (RMA) number and that number must accompany all returns, otherwise, shipment is subject to refusal and return at Buyer’s expense. Returned goods shall be subject to a 15% handling/restocking charge for any aftermarket mechanical or wear spare parts, and 25% for any machine or original equipment assemblies. Returned goods must be in new and unused condition.
7. WARRANTIES
(a) Warranty for Aftermarket Spare Parts (AFM Warranty)
Seller warrants that aftermarket spare parts (both those that are fabricated in-house by Seller and those that are purchased and resold by Seller), “AFM Spares,” that are sold to Buyer shall be free of defects in workmanship and material at the time of delivery. This warranty will be effective for 30 days beginning on delivery and unless Seller receives Buyer’s notice of breach of warranty within thirty (30) days after the date of delivery, Seller shall have no liability as to such AFM Spares under this warranty. After providing notice of a warranty claim and upon Seller concurrence, Buyer will obtain an RMA and return the AFM Spares claimed to be in breach of warranty to Seller as Seller directs. Upon receipt of such AFM Spares from Buyer, Seller will examine such goods to determine if such AFM Spares are not as warranted and were not affected by misuse, neglect, improper installation, repair, alteration, or accident. If Seller determines that such AFM Spares are not as warranted and were not so affected, then as the sole and exclusive remedy for breach of warranty, Seller shall promptly and at its discretion replace, repair, or issue a credit for such AFM Spares. Seller’s liability under this warranty shall be limited to replacing, repairing, or issuing credit for any defective or nonconforming AFM Spares sold to Buyer. Repairs to, alteration of, or work done on the AFM Spares warranted hereunder, without Seller’s prior written authorization shall void this warranty.
(b) Warranty For Original Manufactured Equipment (OEM Warranty)
Seller warrants all new equipment, whether manufactured in house or contracted, (“OEM Equipment”) against defects in material or workmanship. This OEM Equipment warranty will be effective for six (6) months from the date of readiness for operation, 1,000 working hours, or twelve (12) months from shipment, whichever occurs first (“Warranty Period”). If sold through a dealer or agent Buyer must make its warranty claim through the dealer or agent. When, within the Warranty Period, Seller is given prompt notice of a defect, it shall repair or replace, at its option, the defective part or Good, provided Buyer provides satisfactory proof to Seller of the defect, including all relevant data and documentation needed to make an assessment. Buyer must provide the serial number of the equipment and the serial number must be clearly identifiable on the Seller’s nameplate on the equipment. All parts Buyer claims to be defective must be returned to Seller, freight prepaid, for inspection to determine that the said part or parts are defective unless otherwise agreed to in writing. Seller’s sole obligation, and Buyer’s sole remedy, shall be this repair or replacement. Parts replaced or repaired under this warranty shall remain under warranty to the end of the original Warranty Period as warranty repairs shall not extend the Warranty Period.
This warranty is void if i) the serial number plate and/or other markings identifying the machine as Seller’s product have been altered or removed; ii) the machine was not sold under the Seller’s Surestrike brand name or another brand name approved by Seller; iii) parts have been used other than those supplied by Seller.
If Seller’s reasonable determination there is a defect in workmanship or material, Seller provide a replacement part or parts at no cost but Buyer will pay the freight charges. If in Seller’s reasonable determination there is no defect in material or workmanship, Seller will ship a replacement part or parts freight collect to Buyer with the receipt of a purchase order. Buyer will pay any freight costs.
This warranty does not apply to any defect caused by improper installation, operation, maintenance, or storage; or caused by Buyer, a third party, or accident; or to any product repaired or altered in any way that, in Seller’s reasonable determination, affects the performance or purpose for which the equipment was originally manufactured.
Buyer will not be entitled to any labor charges for repair without Seller’s prior, written authorization. Buyer agrees that any affirmation of fact, description of the goods, sample, or model, whether relating to production, the capability of the goods to perform, or otherwise, are not part of this agreement and do not constitute warranties.
(c) SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY IMPLIED WARRANTY THAT COULD ARISE FROM COURSE OF DEALING OR USAGE OF TRADE.
8. CLAIMED SHORTAGES
Claims for errors in quantity of goods provided to Buyer shall be deemed waived unless made in writing within seven
(7) days after delivery. Failure to timely provide this notification shall void any claim for errors in quantities.
9. ORDER CANCELLATION, CHANGES, AND DEFERMENT
Orders placed with and accepted by the Seller may not be canceled except with the Seller’s written consent. If Seller agrees to an order cancellation Buyer shall, within thirty (30) days after cancellation, pay to Seller actual direct and indirect expenses and damages incurred by Seller including future expenses which Seller is not able to avoid, all as billed by Seller to Buyer. Buyer may change an order only after agreeing with Seller as to the amount of price increase necessary to compensate Seller for its additional costs as a result of the change. If Buyer requests a deferment in shipment, the price shall be due and payable as if delivery had been made on the originally scheduled date and Buyer shall pay Seller any additional costs it incurs for storage or resumption of work.
10. SAFETY DEVICES
Only such safety guards and devices as are specified in the contract shall be supplied by Seller. Any other safety guards or devices, whether required by law or otherwise, shall be Buyer’s responsibility.
11. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, SELLER SHALL NOT BE LIABLE, WHETHER IN CONTRACT, WARRANTY, FAILURE OF A REMEDY TO ACHIEVE ITS INTENDED OR ESSENTIAL PURPOSES, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY, OR ANY OTHER LEGAL THEORY FOR INDIRECT, SPECIAL, LIQUIDATED, PUNITIVE, EXEMPLARY, COLLATERAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES; CLAIMS BY BUYER FOR ITS CUSTOMERS’ DAMAGES; OR ANY OTHER LOSSES OR COSTS OF SIMILAR TYPE, EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SELLER’S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO GOODS OR SERVICES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL VALUE OF THE ORDER UNDER WHICH THE CLAIM AROSE, EVEN IF THE BUYER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
12. FORCE MAJEURE
Seller will not be liable for delay in delivery or in performance of its other obligations if (a) the delay results from circumstances beyond Seller’s reasonable control, (b) Seller promptly notifies Buyer of the delay, and (c) Seller makes reasonable efforts to overcome the effect of the delay. If the delay exceeds sixty (60) days, Buyer may cancel the order without liability.
13. DISPUTE RESOLUTION
All claims of any kind arising from the sale of goods hereunder shall be waived unless made in writing within thirty
(30) days after the claim arises. Any and all claims and/or disputes shall be resolved through arbitration under the Rules for Commercial Arbitration of the American Arbitration Association by one arbitrator appointed pursuant to such rules. Buyer and Seller shall be bound by the decision of such arbitrator. The place of arbitration shall be Los Angeles, California.
14. GOVERNING LAW
This Agreement is to be governed by and construed in accordance with the laws of the State of Wisconsin. The United Nations Convention on the International Sale of Goods is expressly excluded and will not apply.
15. ENTIRE AGREEMENT
These terms and conditions, together with terms on the face of the purchase order, constitute the entire agreement of the parties with respect to its subject matter and merges and supersedes all prior agreements, understandings, negotiations and discussions, representations, warranties, commitments, proposals, offers, contracts, and other writings concerning the subject matter hereof, whether oral or written.