CAN-AM MACHINERY, INC.
TERMS AND CONDITIONS - SALE OF SURPLUS EQUIPMENT
DEFINITIONS: Wherever used, the term "Seller" shall mean CAN-AM Machinery, Inc., the term "Buyer" shall mean the party whose name appears on Seller's invoice and the term "Surplus Items" shall mean the items listed or described on Seller's invoice.
WARRANTY: Seller warrants only that it has free and clear title to the Surplus Items offered. Buyer understands and accepts that the Surplus Items are sold "AS IS", WHERE IS", and WITH ALL FAULTS AND DEFECTS. EXCEPT AS TO WARRANTY OF TITLE, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
DESCRIPTION: Buyer expressly understands and agrees that descriptions, including specifications, are for the purpose of identification only. While Seller intends that descriptions are accurate, the Seller does not warrant nor represent that the Surplus Items will conform to such descriptions. All Used Items are available for inspection at plant site. On site inspection is recommended.
INDEMNITY: Buyer agrees to indemnify, defend and hold the Seller, its employees, agents and representatives harmless from and against any and all losses, costs, expenses, demands, claims or judgments resulting from damage to property or personal injuries sustained by any person, rising out of, resulting from, or in any way connected with the removal, operation, maintenance, possession, use, transportation or disposition of the Surplus Items, but excluding only claims which are found to have resulted solely from the negligent act(s) or omission(s) of the Seller and not contributed to by the negligence of the Buyer or its employees. In addition, Buyer agrees to secure the above indemnification in favor of the Seller from any party who subsequently purchases the Surplus Items from the Buyer. Buyer also agrees to require any subsequent purchaser to include the above provision in any other sale of the Surplus Items. Buyer agrees to assume all risks, costs, losses and/or expenses incurred by the Seller arising out of or resulting from Buyer's failure to secure such an indemnification.
SHIPMENT TERMS/TITLE: Unless otherwise specified, "Where Is" means Buyer is to furnish qualified labor and suitable equipment to load and ship at Buyer's expense. Title and risk of loss shall pass from Seller to Buyer upon physical possession of Surplus Items at the location where the Surplus Items are located.
HAZARDOUS CHEMICALS, HAZARDOUS WASTES AND OTHER HAZARDOUS CONDITIONS: BUYER acknowledges that it has been warned by the Seller that the Surplus Items may include articles which can be hazardous in operation or which may contain hazardous materials which may be or may become by chemical reaction hazardous to life, to health or to property by reason of toxicity, flammability, explosiveness or other reasons during use, handling, cleaning, reconditioning, disposal or at any other time. Buyer is also warned and acknowledges that the Surplus Items may bear and contain hazardous chemicals or be in a hazardous condition which may or may not become directly or indirectly, hazardous to life, to health, or to property during use, handling, cleaning, reconditioning, disposal, or at any other time. Buyer hereby discharges Seller from any and all liability directly or indirectly resulting from the presence of said chemicals and/or conditions resulting from the failure of the Seller to give a more specific warning or from the inadequacy of any warning. It is agreed that Buyer shall be considered the generator of any waste resulting from the removal, transportation, installation, possession or use of the Surplus Items.
PAYMENT: Payment is to be made in full by cash, certified check, cashier's check, or other form acceptable to Seller upon receipt of invoice. Full payment must be received before Surplus Items are shipped, picked up by Buyer, or dismantling commences. Buyer agrees to pay all applicable taxes required by law or to provide Seller with a valid exemption certificate.
LIABILITY: Seller's liability with respect to any Surplus Items sold to Buyer shall be limited to the invoice price of the Surplus Items upon which liability is premised. In no event will Seller be liable for any indirect, incidental or consequential damages (including lost profits) sustained or incurred in connection with its performance.
REMOVAL: Unless otherwise provided herein, Buyer shall remove the Surplus Items from the premises of Seller within thirty (30) days of the date of written acceptance of this offer by Seller. During removal Buyer or Buyer's contractors will comply with all applicable laws relating to or affecting the employment of labor. Buyer must comply with Seller's safety rules and all OSHA regulations. Buyer, before dismantling, removing, loading or transporting the Surplus Items, shall procure and maintain in amounts acceptable to Seller the following: (a) Workers' Compensation and Employer's Liability insurance in accordance with the applicable law of the State in which the work is to be performed: (b) Comprehensive General Liability and automobile insurance; and (c) such other insurances as Seller may require. Removal of the Surplus Items by third parties will require approval of Seller.
ASSIGNMENT: This agreement is not assignable or transferable by Buyer, in whole or in part, except with the written consent of Seller.
MODIFICATION: Buyer understands and agrees that Seller's acceptance is expressly limited to the terms herein recited and any additional or different terms are objected to by the Seller and are of no effect. No modification or waiver of the terms herein shall be effective unless made by an authorized representative in writing. The terms and conditions herein represent a final expression of the agreement of the parties and is intended as a complete and exclusive statement of the terms of such agreement.
FORCE MAJEURE: Neither Seller or Buyer shall be responsible for any expense, loss or damage resulting from a delay due to circumstances beyond its reasonable control, including but not limited to fire, windstorm, explosion, flood, strike, accident, embargo, war, act of God, act of the public enemy, riot, or action, or request of any government authority.
CHOICE OF LAW: The terms of this agreement shall be construed in accordance with the laws of the Commonwealth of Massachusetts.