Terms and Conditions
[Shipping and Sales Tax]
[Terms and Conditions]
HUTCHISON WESTERN DIVISION
Buyer acknowledges that this contract is governed and controlled by the following terms and conditions and in the event of any conflict between the terms hereof and the terms of any other writing between the parties, the following shall control:
1. Credit. This contract is subject to Buyer’s establishing credit satisfactory to Seller’s credit department showing Buyer’s ability to make payments in accordance with the terms of the contract.
2. Terms. This contract contains the entire agreement between the Buyer and Seller, and merges and supersedes any other negotiations or representations. The terms hereof may not be varied in any manner and in the event Buyer’s acceptance or purchase order states terms additional to or different from the terms set forth herein, this contract shall be deemed notification of objection to such additional and/or different terms and a rejection thereof. Buyer shall notify Seller of any terms herein which are not acceptable before any purchase order or other form of acceptance is delivered to Seller. In the event of any inconsistency between the terms hereof and Buyer’s acceptance or purchase order, upon Seller’s commencement of performance in pursuance of this order, these terms control, and Buyer assents to them in full, except where the Seller’s corporate officer has expressly amended these terms in writing.
3. Errors. Stenographic and clerical errors are subject to correction. Claims for defective goods, designs or services, or for shortages, errors or allowances must be made in writing within five days from date of invoice. Buyer shall pay the full amount invoiced, regardless of errors, omissions, defects, allowances, or shortages. Seller shall adjust for them by credit memorandum or return check.
4. Delivery and Returns. The delivery and completion dates specified are estimated and are contingent upon the ability of Seller to procure materials or merchandise within the time stated. Seller shall not be liable for any failure to deliver or delay in delivery of any or all of the goods purchased pursuant to this agreement.
Unless Buyer has specified that no backorders shall be made, Seller will order from its suppliers any goods which it does not have at the time of the order. Buyer agrees to pay for any such goods, when they are delivered or tendered to Buyer.
Goods may not be returned without Seller’s specific written permission. Returned goods must be accompanied by Seller’s invoice and must be in the same condition as when delivered by Seller. Unless defective, all returns are subject to a minimum 25% handling charge and all transportation costs.
5. Price and Freight. Unless otherwise provided on the face hereof, all prices of goods are f.o.b. cars or truck at Seller’s plant designated on the reverse side hereof. All prices herein quoted are subject to changes in manufacturer’s list prices in effect at date of shipment. Unless otherwise stated the freight rate in effect on shipment date shall be paid by Buyer. Buyer shall pay all switching and transportation charges in addition to actual freight, and when delivery is via Hutchison carriers, stop over charges will be assessed in accordance with Hutchison’s rate schedule in effect at the time of delivery. Payment of all monies due under this invoice shall be made upon receipt of this invoice unless otherwise stated.
6. Taxes. Buyer agrees to pay by remittance to Seller any and all present or future sales, use, excise, or similar taxes applicable to the sale of the goods and services provided by Seller. In the event a question arises to whether the transaction is taxable, Buyer agrees to remit to Seller the amount of tax, pending specific ruling, and to accept such ruling as final unless Buyer thereafter desires to contest the same at its own expense.
7. Limited Warranty. Hutchison, Incorporated (“Hutchison Western”) warrants its products for 30 days from the date of delivery against defects in materials and workmanship, except that all goods and services sold pursuant to terms and specifications in special quotation will be in accordance with such specifications. The warranty applies only to products manufactured by Hutchison Western when used for their ordinary and intended purpose in their original, unaltered condition. Except as otherwise required by law, the warranty extends only to the customer who purchases the product directly from Hutchison Western. The warranty is limited to the repair or replacement of defective parts or product. To obtain warranty service, you must notify Hutchison Western of the defect and return the product f.o.b. Seller’s plant designated on the reverse side hereof within 30 days of the date of invoice by Seller. Failure to submit a written claim and return defective work to Seller prepaid within 30 days from the date of invoice by Seller shall relieve Seller of obligations under this paragraph 7.
Seller makes no warranties whatsoever as to any finished part or component sold which is not manufactured by Seller. If such part or component is covered by a manufacturer’s or supplier’s warranty and such warranty may be executed to the purchaser, purchaser shall make all claims for breach of warranty to such manufacturer in the manner specified by the manufacturer of the equipment with copy of claim to Seller.
All used, secondary or freight damaged articles are sold AS IS and WITH ALL FAULTS.
THE LIMITED WARRANTY IS THE SOLE AND EXCLUSIVE REMEDY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED AND HUTCHISON WESTERN SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL OR OTHER DAMAGES, WHETHER IN AN ACTION BASED ON CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, PROPERTY DAMAGE, PERSONAL INJURY, DEATH, NEGLIGENCE, STRICT OR PRODUCTS LIABILITY, MISREPRESENTATION, FAILURE TO DISCLOSE, FAILURE OR DELAY IN MAKING DELIVERY, OR FAULTY DESIGN OR ENGINEERING), EXCEPT (i) THE EXCLUSION ON CONSEQUENTIAL DAMAGES SHALL NOT APPLY IN THE EVENT OF INJURIES TO PERSONS IN THE CASE OF CONSUMER GOODS, AND (ii) WHERE CIRCUMSTANCES CAUSE THE LIMITED WARRANTY OR THE EXCLUSION OF CONSEQUENTIAL DAMAGES TO FAIL OF ITS ESSENTIAL PURPOSE, THE PURCHASER SHALL BE ENTITLED TO CONSEQUENTIAL DAMAGES IN AN AMOUNT NOT TO EXCEED THE PURCHASE PRICE OF THE PRODUCT. THE ABOVE IS IN LIEU OF ANY OTHER WARRANTY OF ANY KIND AND ALL PRIOR DISCUSSIONS AND ALL OTHER VERBAL OR WRITTEN STATEMENTS ARE SUPERSEDED BY THE TERMS OF THIS LIMITED WARRANTY.
8. Limitation of Warranty. IN NO EVENT SHALL SELLER BE RESPONSIBLE TO BUYER OR ANY OTHER PERSON FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER IN AN ACTION BASED ON CONTRACT OR TORT (INCLUDING NEGLIGENCE, STRICT OR PRODUCTS LIABILITY, MISREPRESENTATION, AND FAILURE TO DISCLOSE). SELLER WILL NOT BE LIABLE IN ANY MANNER WHATSOEVER FOR ANY DAMAGES RESULTING FROM THE INSTALLATION OR USE OF GOODS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
9. Buyer’s Labor. Buyer shall not furnish any material nor perform any labor or service at Seller’s expense at any time without first procuring advance written consent of Seller.
10. Collection. If suit is brought by Seller for collection of any amount due under this contract, Buyer agrees to pay all costs of collection, including all attorneys’ fees.
11. Severability. If any provision of this agreement is declared invalid by any tribunal, the remaining provisions of the agreement shall not be affected thereby.
12. Governing Law and Jury Waiver. This agreement and performance hereunder shall be governed by the laws of the state of Colorado. The parties agree on behalf of themselves and any person claiming by or through them that the sole and exclusive jurisdiction and venue for any litigation arising from or relating to this agreement or the subject matter hereof shall be an appropriate state or federal court located in Denver, Colorado. In any action concerning this agreement, the Seller shall be entitled to its reasonable costs and expenses incurred in connection therewith, including, but not limited to, attorneys’ fees. Buyer hereby waives and disclaims any right to have any action pertaining to the subject matter of this contract tried to a jury and agrees that any such action shall be tried to a Judge in the venue set forth herein.