The following provisions form part of the quotation as express Agreements between FreightSnap LLC (“Company”) and the Buyer governing the terms and conditions of the sale, subject to modification only in writing signed by the senior executive officer of the Company. In the event of any differences between these terms and conditions and those of Buyer, Buyer acknowledges that notwithstanding anything to the contrary, these terms and conditions shall prevail and Buyer’s signing of this quotation or accepting the goods and services to be delivered hereunder shall be conclusive proof thereof.
1. If the order is under and according to a Company dealer or distributor contract with Buyer in force at the time of acceptance, the provisions of such contract will control, except as expressly otherwise provided on the face hereof.
2. FreightSnap LLC (the “Company”) warrants and agrees that if, within one (1) year after installation or 15 months from date of shipment, whichever occurs first, any part purchased from the Company should fail because of defective material or workmanship in its manufacture, and the Company is notified promptly, in writing, of the nature of the defect, the Company will, (if Buyer’s account with the Company is then and remains current), during normal working hours, repair or replace such part, free of charge, provided the Buyer pays travel expenses to and from the nearest FreightSnap Technical Support Location, or FreightSnap Authorized Distribution Center, or in case of a replacement, shipping expenses from its factory. (Travel charges and shipping expenses incurred during the first 30 days following installation will be paid by the Company.) It is the Company’s sole discretion whether to replace or repair the part covered under this warranty. The Company reserves the right to replace any defective part with a repaired part from its warranty stock. Notwithstanding anything contained herein to the contrary, this warranty is voidable at the discretion of the Company if the product has been installed by anyone other than the Company or an authorized installer of the Company or has been subjected to improper installation, misuse, negligent handling, alteration, accident, or improper repairs or modifications. Any warranties with respect to machinery, apparatus, accessories, articles, or materials not manufactured by the Company shall be limited to those of the respective manufacturer thereof, if any, which the Company may be permitted to pass on to the Buyer. Under this provision, the Company will be deemed to have manufactured only those articles bearing the Company’s nameplate or trademark.
3. Unless and until all sums (however evidenced) payable in respect of the sale and delivery of the goods have been fully paid in money and satisfied:
(a) the goods shall remain strictly personal property, however affixed to realty, title thereof and ownership thereof shall remain in Company’s name; and Buyer shall keep the property insured and free from liens or encumbrances, pay all taxes thereon, make good all loss, damage, or deterioration, and take all steps necessary to preserve the Company’s title, including the execution and filing of all instruments necessary for such purpose.
(b) Company shall have, and in the event of default in the terms hereof, may exercise cumulatively and not in the alternative, all rights and remedies provided by the applicable laws of the jurisdiction, as if expressly herein so provided, and, insofar as permitted by such laws, may declare all sums payable hereunder immediately due and payable, may take possession of the property or any part thereof wherever found, and may sell the same at public or private sale on such terms as it may deem advisable, giving Buyer 10 days written notice of the time and place of the sale, at which Company may bid and become a Buyer, the proceeds of such sale shall be applied, in the order stated, to the costs and the expenses of search, seizure, removal, storage, advertisement, sale, collection and enforcement, to interest on the amount due and unpaid purchase price, and to any other sums owing to the Company by Buyer; any excess shall be remitted to Buyer and the Buyer shall forthwith pay any deficiency.
4. Except as otherwise expressly stated on the face of this acknowledgment: The goods shall be delivered F.O.B. cars, Company’s factory; the prices charged shall be the Company’s prices regularly established at time of shipment, all stated discounts shall apply to list prices; Buyer shall, in addition, pay all shipping and handling charges from factory, or their equivalent, and also taxes on the sale, delivery or use. Nevertheless, in all cases: Company reserves the right to elect terms of payment Prepayment, C.O.D., or Net 30 days after shipment and accounts past due shall bear interest at the highest lawful contract rate, and Buyer shall pay all costs and expenses, including attorney’s fees, incurred in collecting the same.
5. The order is subject to cancellation by Buyer (a) only for standard products not the subject of the second sentence hereof, (b) only prior to shipment or commencement of any site work by or for the Company in connection therewith, and (c) then only on the payment to Company of 20% of the net price as agreed liquidated damages, which Buyer agrees to pay. Orders involving custom product or product to be manufactured or modified for a particular customer or its particular application are not subject to cancellation; any such attempted cancellation shall constitute a breach of contract, entitling the Company to all remedies available to it by law.
6. Shipment date and delays: At the time the order is placed, the Buyer will be notified of the shipping date of the Dimensioner. The Company will manufacture the Dimensioner in order to meet the shipping date. If the Buyer delays the shipment of the Dimensioner by more than five (5) days, within ten (10) working days, prior to the scheduled shipping date, a twenty percent (20%) charge will be assessed to the Buyer. Should the Buyer request delays on orders quoted which involve subcontractors, increases in cost from subcontractors will be borne by the Buyer.
7. THE COMPANY’S WARRANTIES AS SET FORTH HEREIN ARE EXCLUSIVE AND ARE IN LIEU OF, AND BUYER HEREBY WAIVES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.
8. UNDER NO CIRCUMSTANCES SHALL THE COMPANY HAVE ANY LIABILITY FOR LIQUIDATED DAMAGES OR FOR INCIDENTAL, COLLATERAL, CONSEQUENTIAL OR SPECIAL DAMAGES OR FOR THE LOSS OF PROFITS, OR FOR ACTUAL LOSSES OR FOR LOSS OF PRODUCTION OR PROGRESS OF CONSTRUCTION, WHETHER RESULTING FROM DELAYS IN DELIVERY OR PERFORMANCE, BREACH OF WARRANTY, CLAIMS OF INCORRECT WEIGHING, CLAIMS OF OR FOR NEGLIGENT MANUFACTURE, ACTS OF GOD, OR OTHERWISE. THE AGGREGATE TOTAL LIABILITY OF THE COMPANY UNDER THIS CONTRACT, WHETHER FOR BREACH OF WARRANTY OR OTHERWISE, SHALL IN NO EVENT EXCEED THE CONTRACT PRICE. BUYER AGREES TO INDEMNIFY AND HOLD HARMLESS THE COMPANY FOR ALL CLAIMS BY THIRD PARTIES, WHETHER FOR BUSINESS LOSS, PERSONAL INJURY OR OTHERWISE, WHICH EXTEND BEYOND THE FOREGOING LIMITATIONS ON THE COMPANY’S LIABILITY.