1. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS CONTRACT OR THE BREACH THEREOF, SHALL BE SETTLED BY ARBITRATION IN ACCORDANCE WITH THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION AND JUDGEMENT UPON THE AWARD RENDERED BY THE ARBITRATORS MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.
2. This order shall be binding upon Allied Bakery Equipment and Machine Co., Inc. (herein after referred to as “Seller”) upon the acceptance thereof by Seller. Such acceptance may be indicated by the delivery to the Buyer of a copy of this instrument signed by any authorized representative of Seller, or when it delivers to buyer any of the items ordered.
3. This agreement and the price hereunder do not include: foundations, excavations, chimney connections, fuel lines or tanks, steam lines or return lines, electrical wiring, duct work, plumbing or alterations to the Buyer’s premises or any other work or materials unless herein specifically set forth; or the obtaining of building and installation permits.
4. SELLER WARRANTS THE PROPERTY HEREIN DESCRIBED SUBJECT TO THE FOLLOWING LIMITATIONS AND CONDITIONS:
A. IF THE PROPERTY IS SOLD “AS IS” THEN SELLER DOES NOT WARRANT THAT IT IS OF MERCHANTABLE QUALITY OR THAT IT CAN BE USED FOR ANY PARTICULAR PURPOSE. THE BUYER AGREES TO ACCEPT SAME FREE AND CLEAR OF ANY AND ALL WARRANTIES OF ANY NATURE SORT OF DESCRIPTION, WHETHER OR NOT THE SAME COULD HAVE OBSERVED UPON INSPECTION.
B. IF THE PROPERTY IS SOLD “NEW” OR “USED” THEN THE SOLE AND ONLY LIABILITY OF SELLER SHALL BE TO REPAIR AND REPLACE F.O.B. SELLER’S PLANT ANY EQUIPMENT OR PARTS WHICH UNDER NORMAL USE AND SERVICE PROVE DEFECTIVE IN MATERIAL OR WORKMANSHIP WITHIN ONE YEAR FROM THE DATE OF SHIPMENT PROVIDED THAT THE BUYER GIVES SELLER PROMPT NOTICE OF SUCH ALLEGED DEFECTS AND IF REQUESTED BY SELLER RETURNS THE DEFECTIVE ITEMS PREPAID FOR SELLERS INSPECTION. THIS WARRANTY DOES NOT INCLUDE THE DAMAGE OR DETERIORATION OF MATERIAL FROM ANY SPECIAL OPERATING CONDITION WHICH IS ABNORMAL OR CAUSED BY THE BUYER’S NEGLIGENCE OTHER THAN AS HEREIN SPECIFICALLY SET FORTH. SELLER DOES NOT WARRANT THAT THE PROPERTY IS OF MERCHANTABLE QUALITY OR FIT FOR ANY PARTICULAR PURPOSE.
C. SELLER SHALL NOT BE LIABLE FOR ANY GENERAL, SPECIAL OR CONSEQUENTIAL DAMAGE AND ITS SOLE LIABILITY FOR BREACH OF WARRANTY OR OTHERWISE SHALL BE AS HEREIN SPECIFICALLY SET FORTH, EXCEPT AS HEREIN SET FORTH. THERE ARE NO WARRANTIES, EITHER OF MERCHANTABILITY OR OF FITNESS, WHICH EXTEND BEYOND THOSE AS HEREIN SPECIFICALLY SET FORTH.
5. Seller shall not be liable for any damages sustained by the Buyer due to delay in delivery caused by fire, explosion, war, act of terrorism, insurrection, accidents, strikes, labor disputes, floods, riots, acts of God, or other causes beyond Seller’s immediate and reasonable control. In the event Seller should otherwise fail to deliver within the specified delivery date, or if none be specified, within a reasonable time, then its sole and only liability shall be to return the part of the purchase price received from the buyer.
6. Buyer shall pay, or reimburse Seller, any and all applicable federal, state and local or municipal taxes that may be payable with respect to the sale, use or possession of the property herein sold, regardless of whether or not any of such taxes are itemized in the Sales Order.
7.
A. Unless shown as included in the price on the face hereof, installation charges, if any, will be separate from and in addition to the price of the Equipment and will be billed at Seller’s then current rates therefore, which Buyer agrees to pay promptly upon receipt of invoice.
B. If not specified in this proposal Seller shall have no obligation or responsibility whatsoever hereunder with respect to installation, startup or training.
C. If specified in this proposal that Seller shall supervise the installation, then Seller’s sole obligation shall be to furnish a representative to provide supervisory assistance to Buyer with respect to the installation, and Buyer shall supply at its own expense, all labor and materials.
D. Seller shall, during the installation period instruct Buyer’s personnel in the proper operation and maintenance of the Equipment provided that (a) Seller is obligated hereunder to supervise the installation of the Equipment and (b) Buyer furnished for training qualified operating and maintenance personnel when requested by Seller.
E. If Seller is obligated hereunder to supervise the installation of the Equipment, then Buyer shall, at its own expense: (a) cooperate fully with Seller and its personnel including without limitation the furnishing of (i) free and easy access and agrees to the installation site (ii) all necessary storage areas and (iii) all necessary permits and authority for the work and (b) provide (i) all necessary electrical wiring, refrigeration hook-ups, plumbing, rigging, hoisting and alterations to the building and (ii) all utilities required for the installation, and operation of the Equipment; and (c) eliminate all work and obstructions in and about the installation site when and as requested by Seller.
F. Buyer shall reimburse Seller for any losses or expenses incurred due to delays or interruptions in the installation of the equipment when such delays or interruptions are not caused by any act or omission of Seller.
G. In the event that Seller is obligated hereunder with respect to installation, then Seller shall not be responsible for any loss, liability or charge of whatsoever kind, sort or nature by reason of any delay in the completion of such installation occasioned by unavailability of trained personnel defects in the equipment, unavailability of parts or any other circumstances beyond the immediate control of Seller.
H. Unless otherwise provided, equipment sold herein are sold F.O.B. the place indicated on the face of this sales order. Partial deliveries shall be accepted by the Buyer and paid for at contract prices and terms.
8. The Seller shall have the right, in addition to all others it may possess, at any time, for credit reasons or because of the Buyer’s default or default to withhold shipments, in whole or in part, and to recall equipment in transit, retake same and repossess all equipment which may be stored with the Seller for the Buyer’s account, without the necessity of taking any other proceedings, and the buyer consents that all the equipment so recalled, retaken or repossessed, shall become the absolute property of the seller, provided that the Buyer is given full credit therefore.
9. Buyer agrees to reimburse Seller for any loss incurred by it by reason of any delays in starting the apparatus or completing the work that are not chargeable to Seller; and to reimburse Seller for all expense incurred by Seller for required overtime work not due to Seller’s delay.
10. In the event that this sales order provides for any part of the purchase price to be paid at any future time or in installments, Buyer agrees Seller shall have a security interest in the property sold to secure payment of the unpaid purchase price and buyer agrees to forthwith execute and deliver to Seller forms of security agreements, financing statements, promissory notes, or any other documents and instruments which Seller shall prepare and submit and which shall contain such terms, conditions and finance charges as Seller in its sole discretion shall determine. Upon the failure of Buyer to execute the same upon presentation then the transaction set forth in this sales order shall be deemed a cash sale payable immediately and before delivery. Buyer hereby authorizes Seller to file financing statements at any time with or without the signature of Buyer. Upon any default hereunder, Seller shall have the right and remedies of a secured party under the Uniform Commercial Code.
11. This Sales Order after acceptance by Seller shall not be subject to cancellation in whole or in part by the Buyer except upon written notice thereof sent to Seller by certified or registered mail, return receipt requested, and upon the following terms and conditions.
A. If notice of cancellation is received before Seller commences manufacture, purchasing of component parts, delivery or installation, upon payment to Seller of 25% of the total amount of the sale price specified herein as and for its liquidated damages.
B. If notice of cancellation is received after Seller commences manufacture, purchasing of component parts, delivery or installation, upon
payment to Seller of the entire amount of the sales price specified herein as and for its liquidated damages.
12. In the event that there be a default under this Sales Order by the Buyer, then the Buyer shall be liable for an amount equal to 15% of the amount due hereunder as and for Seller’s attorneys fees in addition to all other damages to which Seller might be entitled.
13. In the event that part of this Sales Order shall be declared void or unenforceable then such parts shall be deemed deterred here from and the balance shall remain unaffected thereby and enforceable according to their terms.
14. This Sales Order contained the entire agreement between the parties and all prior dealings and negotiations are merged herein. This Sales Order may not be cancelled, terminated, (except as herein otherwise provided) modified, altered or amended except in writing and signed by the party to be charged herewith.
15. In the event any legal action be commenced to enforce any provision of this agreement, reasonable attorney fees shall be awarded to prevailing party.