(1) AGREEMENT OF SALE. Customer accepts these Standard Terms and Conditions by signing and returning Seller’s Quotation, by sending a purchase order in response to the Quotation, or Customer’s instructions to Seller to begin work, including shipment of Equipment or performance of Services.  Upon Customer’s acceptance, and subject to signature by Seller’s authorized representative, Seller’s Quotation and these terms and conditions shall constitute the entire agreement relating to the Equipment and Services covered by the Quotation (the “Agreement”).  No terms, conditions or warranties and no agreement or understanding, oral or written, in any way purporting to add to or modify such terms and conditions whether contained in Customer’s purchase order or shipping release forms, or elsewhere, shall be binding on Seller unless hereafter made in writing and signed by Seller’s authorized representative.  Customer is hereby notified of Seller’s express rejection of any terms inconsistent with or in addition to the terms and conditions herein.  Neither Seller’s subsequent lack of objection to any other terms, nor the delivery of Equipment or performance of Services, shall constitute an agreement by Seller to any other terms than those provided herein.

 

(2) TERMINATION OR MODIFICATION.  Accepted orders may be cancelled or terminated by Customer only with Seller’s express written consent.  All modifications to this Agreement must be by written agreement signed by both parties. Any changes in specifications, quantities, schedules, materials or services requested by Customer shall be subject to an equitable adjustment in the contract price, time of performance, or both.  If cancellation or modification is allowed, Customer agrees to pay to Seller all expenses incurred and damage sustained by Seller on account of such cancellation or modification, plus a reasonable profit.

 

(3) PRICE, SHIPMENT, AND PAYMENT.  All price quotations expire thirty (30) calendar days from the date of this Quotation unless otherwise stipulated. Prices of Equipment scheduled for shipment more than six (6) months or subject to tariffs imposed after the date of Customer’s order shall be subject to price escalation. Price and delivery is F.O.B. point of manufacture, unless otherwise provided.  Unless otherwise agreed to in writing by Seller, and subject to the approval of Seller’s Credit Department, all payments are due net thirty (30) days from the date of invoice with no discounts or retainages.  Seller may, at its sole option, have the right to make any delivery under this Agreement payable on a cash or payment guarantee before shipment basis.  In the case of export sales, unless otherwise agreed to in writing by Seller, all payments are to be made by means of a confirmed irrevocable letter of credit.

 

(4) TAXES. All prices exclude state and local use, sales or similar taxes, all of which shall be the responsibility of Customer.  Such taxes, if applicable, will appear as separate items on the invoice unless Customer provides a tax exemption certificate that is acceptable to taxing authorities.

 

(5) DELIVERY.  The delivery dates(s) provided by Seller for the Equipment is only an estimate and is based upon prompt receipt of all necessary information from Customer.  Seller shall not be responsible for delays in delivery regardless of the cause.  Seller reserves the right to ship in advance of any Customer request dates, except those dates stipulated “Not Before.” Seller shall not be liable for damages by reason of failure to deliver the whole or any installment of the Equipment occasioned by causes beyond Seller or its suppliers or subcontractor’s reasonable control, including but not limited to strikes, fires, accidents, shortages of labor or materials, embargoes, delays in transportation, or compliance with government agency or official requests.  If Customer causes Seller to delay shipment or completion of the Equipment, Seller shall be entitled to any and all extra cost and expense resulting from such delay.

 

(6) RISK OF LOSS.  Risk of loss transfers to Customer upon delivery in accordance with this Agreement.

 

(7) SECURITY AGREEMENT.  Title to the Equipment will remain in Seller until all indebtedness of the Customer is fully paid in cash. As security for the full payment of the price for the Equipment and Services, Customer hereby (a) grants to Seller a security interest in and (b) authorizes Seller to execute and file financing statements pertaining to, the Equipment and all proceeds thereof.  The termination of this Agreement shall not be construed as termination of the security interest hereunder. The Equipment shall remain personal property and retain its character as such no matter in what manner affixed or attached to any structure or property.  Until the price for the Equipment and Services is paid in full, Customer shall keep the Equipment free of all liens, taxes, encumbrances, seizure or levy and shall not sell, loan or otherwise transfer possession of the Equipment without the written permission of Seller.  In the event of attachment or execution being levied against the Equipment, the bankruptcy of the Customer or any default by Customer in payments due to Seller, Seller, in addition to all other rights and remedies available to it, may seize the Equipment and all payments made to the date of such repossession shall be considered as rent for the Equipment. 

 

(8) LIMITATIONS OF LIABILITY. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE MAXIMUM LIABILITY, IF ANY, OF SELLER FOR ALL DAMAGES IS LIMITED TO AN AMOUNT NOT TO EXCEED THE PRICE OF THE PARTICULAR DEFECTIVE EQUIPMENT OR SERVICES. IN NO EVENT SHALL SELLER HAVE ANY LIABILITY FOR LOSS OF PROFITS, LOSS OF USE, DELAYS, OR ANY INDIRECT, SPECIAL, OTHER CONSEQUENTIAL OR INCIDENTAL DAMAGES WHETHER BASED ON WARRANTY, CONTRACT, INDEMNITY, BREACH OF AN OBLIGATION TO REPAIR, REPLACE, OR OVERHAUL, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. In the event Customer claims Seller has breached any of its obligations under this Agreement, Seller may in its sole discretion request the return of the Equipment and tender to Customer the purchase price paid by Customer, and in such event, Seller shall have no further obligation to Customer. If Seller so requests the return of the Equipment, the Equipment shall be redelivered to Seller in accordance with Seller’s instructions and at Seller’s expense.  The remedies contained in this Agreement shall constitute the sole and exclusive recourse of Customer against Seller for damages arising out of or related to the sale of the Equipment or performance of Services. 

 

(9) PATENTS. With respect to Equipment or parts therefor manufactured or produced in accordance with designs or design information supplied by Customer, Customer shall indemnify and save harmless Seller and any manufacturer from which it acquires such Equipment, and their successors and assigns, against all loss, damage, liability, claims and actions for actual or alleged infringement of any letters patents, trademark or corresponding rights relating to the manufacture and sale of such Equipment.

 

(10) JURISDICTION/ATTORNEYS’ FEES/JURY WAIVER.

   (a) GOVERNING LAW & VENUE.  This Agreement shall be governed by the laws of the State of Mississippi.  With respect to any dispute, claim or controversy arising under, out of, in connection with or relating to this Agreement, the Equipment, or Services (“Dispute”), each party irrevocably consents to and submits to the exclusive jurisdiction and venue of the United States District Court for the Southern District of Mississippi (Northern Division), or the Circuit Court of the Madison County, Mississippi.

   (b) ATTORNEYS’ FEES.  In the event Seller brings suit to collect any amounts due from Customer relating to the sale of the Equipment or the Services, Seller shall be entitled to recover its cost of collection including reasonable attorney fees, costs and expenses incurred in collecting such amounts, including any appeal thereof. 

   (c) JURY TRIAL WAIVER.  TO THE FULLEST EXTENT PERMITTED BY LAW, SELLER AND CUSTOMER HEREBY KNOWINGLY AND VOLUNTARILY WAIVE ANY RIGHTS THAT EITHER OF THEM MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY DISPUTE DESCRIBED IN SUBPARAGRAPH (a) ABOVE.

 

(11) SOFTWARE LICENSE. To the extent software is provided by Seller under the Agreement, Customer agrees that such software may only be used in accordance with the terms and conditions of the software license agreement that accompanies the software.  Customer agrees not to directly or indirectly decompile, disassemble, reverse engineer or otherwise derive the source code for the software.  If Customer is a U.S. Government agency, Customer acknowledges that the software licensed under the Agreement is a commercial item that has been developed at private expense and not under a Government contract.  The Government’s rights relating to the software are limited to those rights applicable to Customers as set forth herein and is binding on Government users in accordance with Federal Acquisition Regulation, 48 C.F.R. Section 227.7202-1 for defense agencies.

 

12) ASSIGNMENT.  The right to any moneys due or to become due hereunder may be assigned by Seller, and upon receiving notice of such assignment Customer shall make payments as directed.

 

(13) Warranty.  Seller warrants that all Equipment will be free from defects in materials and workmanship for one year from the date of shipment. This warranty applies only if Equipment was properly specified by Customer or its agents or contractors, and if the Equipment is properly installed, maintained, and operated under normal conditions.  This warranty does not apply to damage caused by corrosion, abrasion, abnormal use or misuse, misapplication, or normal wear and tear.  This warranty will be void with respect to equipment that is subject to unauthorized repairs or modifications.  Seller makes no warranty as to goods manufactured or supplied by others.  This warranty is subject to any limitations in Seller’s quotation and may not be modified except by a written instrument signed by the President or Vice President of Seller.  THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.

 

(14) MISCELLANEOUS

   (a)  CHANGES OF CONSTRUCTION AND DESIGN:  In the event Customer requests changes or modifications to the Equipment or performance characteristics of the Equipment, Seller reserves the right to change or revise the construction and design of its Equipment, without liability or obligation, and Customer agrees to bear the expense of meeting any changes or modifications made after Seller accepted Customer’s order.

   (b)  INSTALLATION:  If installation by the Seller is included within the Seller’s Quotation, Customer shall provide all of the following at its own expense and at all times pertinent to the installation: i) free, dry, and reasonable access to Customer’s premises; and (ii) proper foundations, lighting, power, water and storage facilities reasonably required.

   (c)  INSURANCE:  Customer agrees to insure the Equipment in an amount at least equal to the purchase price against loss or damage from fire, wind, water, or other causes.  The insurance policies are to be made payable to Seller and Customer in accordance with their respective interest, and when issued are to be delivered to Seller and held by it.  Failure to take out and maintain such insurance shall entitle Seller to declare the entire purchase price to be immediately due and payable and shall also entitle Seller to recover possession of said goods.

   (d) COMPLIANCE WITH LAWS: Seller’s obligations are subject to the export administration and control laws and regulations of the United States.  Customer shall comply fully with such laws and regulation in the export, resale or disposition of the Equipment.  Quotations or proposals made, and any orders accepted by Seller from a Customer outside the United States are with the understanding that the ultimate destination of the Equipment is the country indicated therein.  Diversion of the Equipment to any other destination contrary to the United States is prohibited.  Accordingly, if the foregoing understanding is incorrect, or if Customer intends to divert the Equipment to any other destination, Customer shall immediately inform Seller of the correct ultimate destination.

   (e) SEVERABILITY.  If any provision of this Agreement conflicts with any statute or rule of law of any jurisdiction wherein it may be sought to be enforced, then such provision shall be null and void to the extent that it may conflict therewith, but without invalidating the remaining provisions hereof.

   (f)  ENTIRE AGREEMENT.  This Agreement, together with any attendant prints and specifications, shall constitute the complete and exclusive agreement between the parties, and it is expressly understood and agreed that no promises, provisions, terms, warranties, conditions, guaranties or obligations whatsoever, either expressed or implied, other than as herein set forth or provided for shall be binding on either party.  In entering this Agreement, Customer is not relying upon any statements or representations not contained herein.  No additional or different terms set forth in any of Customer’s purchase orders, acknowledgements or other forms of correspondence shall be of any force or effect.

   (g)  Execution by Facsimile or Electronic Mail.  This Agreement may be executed and delivered by exchange of facsimile copies showing the signatures of Seller and Customer and those signatures need not be affixed to the same copy or delivered by exchange of email showing the signatures of Seller and Customer and those electronic signatures need not be affixed to the same attached document.

   (h)  Notices.  All notices, requests, demands, designations, consents or other communications provided for herein or which shall be made pursuant hereto shall be in writing and shall be deemed to have been given and received when delivered by registered or certified United States mail, postage prepaid, return receipt requested, to Customer at the address to which this Quotation is addressed and to Seller at the address shown on Quotation.