Terms and Conditions
1) Acceptance of this proposal shall bind “Buyer” to all the terms and conditions of Mechanical Sales, Inc. and or Mechanical SalesIowa, Inc. “Seller” as outlined below.
2) Mechanical Sales, Inc. and or Mechanical SalesIowa, Inc. ("Seller”) is a manufacturers agent representing various suppliers and or manufacturers. All sales and services by seller are governed by these seller standard terms and conditions (“Terms and Conditions”) and the terms and conditions of third-party suppliers of products or services (“SellerSuppliers”) included in the sales and services offered by seller. All terms and conditions proposed by the buyer are expressly rejected unless contained in a written document signed by an officer of the seller. Acceptance of seller’s proposal, submission of orders or receipt of products or services from seller constitutes acceptance of all the terms and conditions stated in these seller terms and conditions and the terms and conditions of seller’s suppliers. In the event of conflict between these terms and conditions and any seller’s supplier terms passed on to buyer, these terms and conditions take precedence.
3) Buyer agrees that acceptance of this proposal constitutes a formal commitment with the seller to purchase the products and/or services outlined in the Scope of Work.
4) Cancellation – Accepted orders may not be cancelled by the buyer without written approval of seller, which may be conditioned upon payment of cancellation fees and recovery of costs incurred.
5) Delays – Seller will not be liable for failure to perform any obligations under these terms and conditions of sale if the failure is a result of Acts of God (including but not limited to fire, flood, earthquake, storm, hurricane, epidemic, pandemic, or other natural disaster),war, invasion, act of foreign enemies, hostilities, terrorist activities, government sanction, blockage, embargo, shutdown, mandated closure, labor dispute, strike, lockout or interruption, and the failure to perform is corrected within a commercially reasonable time after buyer has received written notice from seller regarding the failure to perform.
6) Lead Times – Scheduled lead times are approximate and not guaranteed. Seller will use commercially reasonable efforts to deliver the equipment on or before the estimated delivery date, will notify buyer if the estimated delivery date cannot be honored, and will deliver the equipment and services as soon as practicable. In no event will the seller be liable for any damages or expenses caused by delays in delivery.
7) Shipping terms and risk of loss shall be FOB manufacturer unless stated different on seller’s proposal or order acknowledgment.
8) Payment Terms:
a. Net 30 days from invoice date unless agreed in writing, by seller, prior to acceptance of the proposal/quotation.
b. Finance charges will be assessed and invoiced on any unpaid balance that goes beyond 30 days from date of invoice at the maximum percent allowable by law and buyer agrees to pay finance charges in full within30 days from date of invoice.
c. The buyer waives the right to assert offsets or counterclaims with respect to seller invoices.
d. Quotations are subject to pricing escalation; seller may pass on additional costs from seller suppliers.
e. Prices do not include sales, use, excise or similar taxes or any shipping, delivery, or insurance costs, which are the buyer’s responsibility and may be added to seller’s invoices.
f. Buyer must promptly notify seller of any disputed invoice prior to the payment due date otherwise the claim is waived.
g. Discount Terms: no discounts will be allowed.
h. Retention is not acceptable; finance charges will be assessed as described above on any retained funds and/or unpaid balance beyond Net 30 days from invoice date.
i. Lien waivers and/or releases, when applicable, will not be signed until full payment is received and deposited for all invoices covered by the lien waiver time period.
j. Buyer will be responsible for collection costs(Including attorneys’ fees whether or not suit is commenced) incurred with respect to invoices not paid when due.
9) Seller is hereby granted and shall retain a security interest as to any and all goods and materials sold until all indebtedness to seller is paid in full and until such time seller shall have all rights of secured party as provided by the commercial code having jurisdiction.
10) Title & Risk of Loss - Except with respect to software(for which title shall not pass, use being licensed) title to equipment shall transfer to the buyer upon delivery according to the applicable freight term(FOB Factory). Notwithstanding any agreement with respect to delivery terms or payment of transportation charges, risk of loss or damage with respect to the sale of equipment shall pass from seller to buyer at delivery as defined in this agreement.
11) Installation, field wiring, piping, and all other set up is excluded for all equipment supplied. Any item, component, compliance label or service that is not specifically described in a proposal, submittal, order acknowledgment, or scope of work is not included. Start-up service is not included unless specifically stated as being provided for a particular equipment item.
12) Sales and/or other applicable taxes are not included and will be added at the applicable tax rate when seller’s invoice is issued unless a valid tax exemption certification is received prior to the invoice date. Once an invoice is issued, with sales tax included resulting from the buyer not providing official documentation the purchase was not taxable, it shall not be the seller’s obligation to waive the sales tax in the event the seller has already paid to the taxing authorities. In this situation, the buyer is responsible for reimbursing the seller the full amount of sales tax paid resulting in not receiving a valid sales tax exemption certificate prior to the invoice date.
13) Equipment will not be released for production until seller receives an approved copy of submittals unless buyer issues written approval to do so. Submittal approval by the contractor(s) or architect or engineer shall constitute acceptance and approval of the equipment to be furnished as submitted or duly noted in the approved submittal review documents. Submittal approval shall take precedence in the event of any conflict with the plans and specifications.
14) Equipment and materials will be shipped by each manufacturer in total project quantities whenever possible. The buyer is responsible to properly unload, store, and protect equipment and materials at all times. If buyer has any claim of damages or shortages from the quantities required and/or as shown on shipping papers, seller must be notified by buyer, in writing, at the time of delivery, and have indicated all missing or damaged items on the freight carriers bill of lading. The seller must be given written notice identifying the shortage and/or defective goods, including relevant details.Seller must also be given the opportunity to inspect the allegedly defective goods, and if requested by seller, the allegedly defective goods must be returned to the manufacturer. Failure to give required notice within the time provided, or failure to return allegedly defective goods following seller’s request, constitutes a waiver of all claims against seller.
15) Storage costs of any kind are not included and will be the responsibility of the buyer regardless of where the items are stored. If storage is desired to be at seller’s facility, a separate price and contract must be agreed upon and all storage charges will be invoiced in accordance with the contract. The payment terms noted above will apply to these invoices.
16) In the event there are additional charges by the freight carrier due to the buyer not being ready or able to unload and/or take delivery for any reason, the buyer will be responsible for paying all related charges as outlined in the terms above.
17) Equipment, materials and/or services are offered for buyer’s purchasing consideration only. The seller makes no guarantee that the equipment proposed will be approved by any of the authorized approving entities involved. The seller reserves the right to adjust its price based upon requirements that are brought to its attention after the initial Scope of Work is approved. Seller has prepared its offered and stated price to comply as closely as possible with the technical requirements made available to seller.
18) Product Changes - In the interest of continuous product improvement, seller and seller’s suppliers reserve the right to change specifications and/or design without incurring obligation.
19) Labor and materials required for any service calls that seller is requested to make for the purpose of diagnosing equipment or system operational problems after the equipment has been placed into operation is not included. Any service trip requested after start-up has been performed must be contracted for separately before seller makes any site visit to assist with equipment service or system diagnostics.
20) Pricing given is based upon receiving a written order within 30 days and a written release to production within 90 days from the date of the proposal. Pricing does not include any provisions for escalation. If seller receives an order or a production release authorization after these time periods from the date of the proposal, seller reserves the right to add any and all cost increases that it incurs related to the equipment and materials it has offered and/or agreed to provide.
21) Industry standard warranty is typically for a time period of 18 months from shipment date or 12 months from start-up date, whichever comes first. It’s the buyer’s responsibility to review the manufacturers website for actual warranty coverage of unit(s) purchased. This covers “parts only” for equipment purchased from the seller unless labor warranty is specifically noted within the contract to be different. If any different warranty coverage applies to the equipment, materials and/or services offered herein, it must be stated herein or agreed to in writing, by seller; otherwise, the standard manufacturer warranty shall apply.
22) Limitation of Liability – Seller shall have no liability to any person or entity for, and buyer hereby expressly waives, all indirect, incidental, consequential, special and punitive damages of any description, whether arising out of warranty or other contract, negligence or other tort, or otherwise, including without limitation, foreseeable business losses, loss of profits and reliance damages. The parties expressly agree that the limitations set forth herein are agreed allocations of risk and shall survive the determination of any court of competent jurisdiction that any remedy provided herein fails of its essential purpose. Under no circumstances shall the seller’s liability hereunder for any cause exceed the purchase price paid to seller by the buyer for the product in respect of which the claim is made. No action maybe brought by the buyer against seller after 1 year from the date of delivery of the product or service, and buyer agrees that this provision shall be grounds for dismissal of any suit or claim asserted by buyer after such time.
23) To the fullest extent permitted by applicable law, buyer agrees to indemnify, defend, and hold harmless seller from and against any and all damages, injuries, losses, and harms that seller may incur or suffer arising out of or relating to (a) action or inaction by buyer; (b) any breach of these terms and conditions by buyer; (c) any claim that buyer infringed, or caused seller to infringe, on any third party’s intellectual property rights(including, but not limited to, copyright, trademark and patent rights); and(d) buyer’s violation of any law (individually and collectively, an“Indemnification Claim”). The duty to defend obligation requires buyer to advance and/or promptly reimburse seller for all reasonable attorneys’ fees, costs, and expenses seller incurs in responding to or defending against any indemnification claim. The buyer shall pay such advancement or reimbursement within thirty (30)days of receiving a written request. Seller shall have the right to select its own counsel and to control the litigation or arbitration, and buyer shall cooperate in good faith of such defense.
24) Seller and seller’s suppliers failure to object to the provisions contained in the buyer’s purchase order or other communications shall not be deemed a waiver of these terms and conditions nor acceptance of such buyer provisions. All matters relating to or arising from dealings between seller and buyer will be governed and controlled by the laws of the State of Nebraska, notwithstanding conflict of law provisions. Buyer agrees to bring any claim, cause of action, suit or demand allegedly arising out of or related to the transactions between seller and buyer exclusively in the state or federal courts located in Douglas County, Nebraska. Buyer irrevocably consents to jurisdiction in, and venue of such courts. BUYER IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR IN CONNECTION WITH DEALINGS WITH SELLER.
25) Assignment - Any assignment of this agreement or of any rights or obligations under the agreement without prior written consent of seller shall be void.
26) These terms and conditions supersede all conflicting terms and conditions outlined in any purchase order issued either before or after the seller proposal or order acknowledgment documents unless specifically agreed to, in writing, by seller. If the manufacturer sells and/or invoices the “buyer of record” directly, then the manufacturer’s terms and conditions of sale shall supersede those of seller.