BTS CRANE PARTS INC
STANDARD TERMS OF SALE / SERVICE AGREEMENT
This Standard Terms of Sale and Limited Warranty Agreement (“Agreement”) applies to any order, purchase, receipt, delivery, or use of any products (“Goods”) sold through BTS Crane Parts Inc. (“Seller”) and the buyer (“Buyer”) named in the attached quotation, sales confirmation, or invoice.
1. ACCEPTANCE OF ORDERS: The acceptance of all orders and all sales by Seller are made subject to and expressly conditioned upon the terms and conditions contained herein. Any of Buyer’s terms and conditions which are different from or in addition to those contained herein is hereby objected to and shall be of no effect unless specifically agreed to in writing by Seller. The parties agree that the terms and conditions set forth herein constitute the sole agreement between the parties with respect to any transactions between Buyer and Seller herein. Seller is not responsible for any typographical, clerical, or other error or omission in any sales literature, quotation, price list, acceptance offer, invoice or other document.
2. ORDERS AND PAYMENT TERMS: Orders are not binding upon Seller until accepted by Seller. Terms of payment are within Seller’s sole discretion. Buyer agrees to pay the total purchase price for the Goods, plus applicable tax and shipping charges. Invoices are due and payable within the time period noted on the invoice, measured from the date of the invoice.
3. PAYMENT: Unless Seller has extended credit to Buyer, Buyer shall pay Seller, at Seller’s option, either by company check, major credit card, or wire transfer. If Seller elects to extend credit to Buyer upon approval of Buyer’s credit, Buyer agrees to make all payments in accordance with the credit terms. Seller reserves the right at any time to change the amount of, or to withdraw, any credit extended to Buyer.
4. TAXES: All prices are exclusive of all U.S. federal, state and local excise, sales, use, value added, and similar taxes. These taxes shall be paid by Buyer, or Buyer shall provide Seller with a tax exemption certificate acceptable to the taxing authorities.
5. LIMITATIONS ON USE: Goods purchased under this Agreement are not to be used in critical safety systems, any such activity or process involving nuclear fission or fusion, or in any other manner not considered a standard and ordinary commercial use. Buyer agrees not to use or sell or transfer the product to others for such purposes, without prior written authorization from Seller. If any such use occurs, Seller disclaims all liability and will in no event have any liability to Buyer or any third party for personal injury, death or property or other economic damage suffered. Buyer agrees to defend and indemnify Seller against any and all costs, damage or expense arising out of or related to such liability. As used herein, “liability: means liability of any kind at any time whether in contract, tort (including negligence and strict liability), warranty or otherwise. If Goods purchased under this Agreement is intended for export, it may be subject to export regulations. Buyer agrees to accept full responsibility for and to comply fully with all export regulations, including obtaining export licenses. Buyer agrees not to use all or any part of the Products in Cuba, Iran, Libya, Myanmar, Sudan, Syria or any other country to which the United States has embargoed goods; and Buyer represents, warrants, and covenants to Seller that (a) Buyer is not located in or under the control of any such country, and (b) Buyer is not a person or entity that appears on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. The export of Goods may also alter or void the manufacturer’s or publisher’s warranty.
6. DELIVERY/TITLE/RISK OF LOSS: Any delivery date given to the Seller is approximate only and Seller shall not be liable to Buyer for failure to deliver any particular date or dates. Seller reserves the right to make deliveries in installments. Delay in delivery of one installment shall not give rise to a right of cancellation by Buyer. All Goods will be delivered to Buyer F.O.B. Seller’s facility, or if the Goods are drop-shipped direct from the supplier, then the delivery will be F.O.B. supplier facility. All shipping charges and expenses shall be paid by Buyer. Shipping and handling fees will be added to invoice. Title of Goods passes to the Buyer at FOB shipping point. Goods or parts damages in shipment cannot be returned and all claims for such damage should be directed immediately to the transportation company.
7. SHIPMENT DISCREPANCY: Seller is not responsible for damage or shortage after delivery to transportation company. All discrepancies must be reported to Seller by Buyer within 5 business days of arrival of the Goods. Buyer agrees that any employee or representative of Buyer may sign for and receive the Goods sold to Buyer herein.
8. ACCURACY OF DATA/CORRECTIONS: Seller obtains certain data directly from the manufacturer, publisher or supplier of Goods and is not responsible for pricing, typographical or other errors in any such data. In addition, availability of third-party Goods is subject to change without notice. Seller reserves the right to cancel orders related to such errors or product discontinuation or unavailability, and to correct its quotation at any time, including pricing errors not detected until after Seller’s confirmation.
9. RETURNS: Other than as expressly provided in this Agreement, all sales are final and no returns will be accepted.
Return Policy: The return of Goods purchased from Seller is subject to specific manufacturer, publisher or distributor restrictions (collectively “Suppliers”). Suppliers may provide limited or no returns of the Goods. If the Supplier accepts returns, Buyer may return the Goods and Seller will assist in the replacement of the Goods or grant Buyer a credit against future purchases in an amount equal to the original purchase price and freight paid for the returned Goods less any applicable restocking fees. Buyer is responsible for shipping charges and risk of loss on all return shipments. Returns are also subject to the rights of return processes below. If Buyer fails to return Goods within the applicable return policy period or if the Goods do not meet the rights of return and processes set forth in this Agreement, the Goods are considered accepted by Buyer and not returnable.
Rights of Return
A. Hardware – if permitted by the manufacturer’s return policy; including, hardware, accessories, peripherals and parts may be returned if: 1) the packaging is unopened and still in the manufacturer’s sealed package, and 2) returned within 7 days from the date of receipt.
B. Software – Software may be returned if permitted by the manufacturer’s return policy, If the manufacturer does not allow the return of software, no returns will be accepted by Seller.
C. Damaged Products – Packages that are obviously damaged should be refused at the time of original delivery attempt. Goods or parts damages in shipment cannot be returned and all claims for such damage should be directed immediately to the transportation company.
D. Defective/Dead on Arrival (DOA) – Buyer must report DOAs to Seller’s Customer Service Department within 7 days of receipt of shipment. Some manufacturers and publishers require DOAs to be handled directly through them. In such cases, Customer Service Department will provide the manufacturer’s contact information.
E. Non-Returnable Goods (not all inclusive) – The following Goods cannot be returned:
• Discontinued items
• Special order items including eprom software, LCD replacement kits, complete systems configured for a specific crane model and serial number, DS350 main boards.
• Items for which manufacturers will not accept returns
• Custom configurations of systems
• Units in an unsuitable resale condition
F. Return Process – All returns must have return material authorization (RMA) number issued by Seller – If the return meets Seller’s return guidelines, Buyer may obtain a RMA number by contacting Customer Service Department.
• RMA numbers issued by Seller are good for 15 business days only. Product authorized for return must be received within such time period at the facility identified on your RMA instructions.
• RMA numbers cannot be extended or re-issued.
• Clearly mark each address label of each package being returned with the RMA number. DO NOT WRITE ON THE VENDOR’S BOX.
• Seller strongly recommends using a reputable shipping carrier capable of providing proof of delivery, as well as properly packing and fully insuring return shipments.
• All returns MUST be 100% complete and contain ALL original boxes and packing material, have original UPC codes on the manufacturer’s or publisher’s boxes; and contain all blank warranty cards, accessories and documentation provided by the manufacturer or publisher. Incomplete returns may be returned to sender or subject to a minimum 25% restocking fee at Seller’s sole discretion.
12. FORCE MAJEURE: Seller shall not be liable for delay or failure to deliver or perform due to any cause beyond its reasonable control, or for Acts of God, acts of Buyer, acts of any governmental authority, strikes or other labor disturbances, delays in transportation, fuel or energy shortages, or inability to obtain necessary materials, components, services, or facilities from usual sources.
13. LIMITED WARRANTY: PRODUCTS MANUFACTURED, PUBLISHED OR PROVIDED BY THIRD PARTIES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY BY SELLER OF ANY KIND, EITHER EXPRESS OR IMPLIED. Seller shall pass through to Buyer, to the extent available, any manufacturers/publisher/supplier’s written warranties associated with third-party Goods purchased from Seller. Although third-party services and support are considered “Goods” and you may purchase such services through Seller, Seller is not obligated to provide the services or support. Seller accepts no liability for any claims arising out of any act or omission, including negligence, by the third-party service provider; and any amounts associated with third-party services, including but not limited to taxes, will be collected solely in our capacity as an independent reseller of such Goods. Notwithstanding the above to the contrary, Goods which are sold “AS IS” carry no warranty whatsoever.
14. GENERAL LIMITATIONS OF LIABILITY: In no event, whether as a result of claims in contract, warranty, tort (including negligence and strict liability), or otherwise, shall Seller be liable for loss of profit or revenues, loss of goodwill, claims of customers, loss of use, damages to or loss of other property or equipment, INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER. The remedies of the Buyer set forth herein as to defective or nonconforming Goods are exclusive. The total cumulative liability of Seller with respect to this Agreement or anything done in connection therewith such as the performance or breach thereof or from the manufacture, sale, delivery, resale, or use of any Goods, whether for claims in contract, tort (including negligence and strict liability), or otherwise shall in no case exceed the price of the specific order to which the claim relates.
15. INDEMNITIES: Buyer shall defend and indemnify Seller from all liabilities and costs resulting from any suit or proceeding based upon a claim that the Goods infringe upon the right of a third party to the extent such claim arises from Seller’s compliance with Buyer’s designs, specifications or instructions. This indemnity shall survive the termination of this transaction and/or the completion of the transaction contemplated herein.
(a) The invalidity, in whole or in part, of any provision herein shall not affect validity of any other provision herein.
(b) Any representation, warranty, course of dealing or trade usage not contained or referenced herein shall not be binding on Seller or Buyer.
(c) No modification, amendment, rescission, waiver or other change in these terms and conditions shall be binding on Seller unless consented to in writing by its authorized representative.
(d) This Agreement sets forth the entire agreement and understanding between Seller and Buyer as to the subject matter hereof and merges and supersedes any and all prior discussions, agreements and understandings of every kind and nature.
(e) The Agreement and any sales of goods pursuant hereto shall be governed in accordance with the laws of Florida. The parties agree that the exclusive jurisdiction and venue of any action with respect to this Agreement shall be in the County of Broward, State of Florida, and each of the parties submits itself to the exclusive jurisdiction and venue of such courts for purposes of such action.
(f) If any legal action or other proceeding is brought for the enforcement of a party’s rights under this transaction or for a judicial declaration of rights hereunder or as a result of a breach, default or misrepresentation in connection with any of the provisions herein, the prevailing party shall be entitled to recover reasonable attorney’s fees and other costs incurred in that action or proceeding, in addition to any other relief to which that party may be entitled.
BTS CRANE PARTS INC