Terms and Conditions
THESE TERMS AND CONDITIONS ARE THE TERMS AND CONDITIONS OF SALE (“TERMS AND CONDITIONS”) FOR ALL PRODUCTS SOLD BY AMERICAN CRANE & TRACTOR PARTS, INC. (“SELLER”). IF THESE TERMS AND CONDITIONS DIFFER IN ANY WAY FROM THE TERMS AND CONDITIONS OF THE PURCHASE ORDER SUBMITTED TO SELLER (“PURCHASE ORDER”), THESE TERMS AND CONDITIONS WILL BE CONSTRUED AS A COUNTEROFFER AND NOT AS AN ACCEPTANCE OF THE PURCHASE ORDER UNLESS BUYER AGREES TO THESE TERMS AND CONDITIONS, WHICH WILL CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES. BUYER’S AGREEMENT TO THESE TERMS AND CONDITIONS WILL BE CONSIDERED GIVEN UPON BUYER’S FAILURE TO OBJECT TO THESE TERMS AND CONDITIONS IN WRITING WITHIN THREE DAYS FROM THE DATE OF ITS RECEIPT OF THEM OR UPON BUYER’S PAYMENT FOR, AND RECEIPT OF DELIVERY OF, THE PRODUCTS.
1. TERMS OF PAYMENT. Unless otherwise specified on the face hereof, payment for Seller’s products is net 30 days from the date of this invoice or shipping ticket in U.S. currency. Late payments will incur a late payment fee of 1.5% per month, or the maximum allowable by law, if less. Buyer will be liable to Seller for all reasonable costs of collection and other enforcement, including reasonable attorneys’ fees and costs.
2. SHIPMENT AND DELIVERY. Deliveries of Seller’s products are Ex Works Seller’s warehouse (Incoterms 2010). Any claims for shortages or damages suffered in transit must be submitted by buyer directly to the carrier. Although Seller will use commercially reasonable efforts to maintain delivery date(s), all shipping dates are approximate and not guaranteed. Seller reserves the right to make partial shipments.
3. RETURN POLICY. Prior approval and a written authorization number must be obtained before any return can be made. Any return made without prior approval and a written authorization number will not be accepted. Products returned for credit must be in new condition and packaged in their original carton or crate (used, discontinued and certain custom made items cannot be returned for credit.) Freight charges must be prepaid on all return shipments.
4. WARRANTY. Seller warrants all of its products to be free from defects in material and workmanship for the periods and under the conditions set forth below:
- NEW PRODUCTS: six months from the date hereof or for the manufacturer’s warranty period, whichever is longer. This warranty will be void if buyer or other user does not properly use the products under normal operating conditions in accordance with the specifications for operation as described by the manufacturer.
- RECONDITIONED OR REBUILT COMPONENTS: six months from the date hereof. This warranty will be void with respect to all new and remanufactured parts, assembled components and major component exchange products if buyer or other user fails to (i) install a new oil cooler and thoroughly clean the oil system, (ii) have the components installed by a factory-trained mechanic, (iii) at the time of installation, make the necessary adjustments and check the pump pressure and the torque converter inlet and outlet pressure, or (iv) record all pressures on the oil sample card and take oil samples at 50 hours and 200 hours or 30 and 90 days, whichever comes first.
- UNDERCARRIAGE COMPONENTS: nine months from the date hereof or 1,200 operating hours from the date of delivery, whichever occurs first. Components covered are limited to chains, rollers, shoes, sprockets, idlers and fasteners. This warranty will be void if buyer or other user (i) fails to mount the track chains with shoes specifically intended for use on the surface on which the machine is operated, and (ii) fails to install the track groups on a machine with undercarriage components not worn out beyond the normal period of use as stipulated by the recommendation of the equipment manufacturer, or (iii) uses the track groups in high impact job sites and conditions such as dry and watered soils containing quartz over 35%, rocky soil, forestry works, demolition, etc. Sprockets, segments and track shoes are covered against breakage only.
Seller will repair, replace, credit, or credit on a pro-rated basis, at Seller’s discretion, any product determined by Seller to be defective during the warranty period, subject to the above conditions and provided that the product is returned in accordance with the return policy described above. Defective products which are replaced become the property of Seller. THE FOREGOING IS BUYER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF A WARRANTY CLAIM. NEITHER SELLER NOR ANY OF ITS AFFILIATES MAKES ANY FURTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SELLER’S PRODUCTS, INCLUDING BUT NOT LIMITED TO, INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
5. LIMITATION OF REMEDY AND LIABILITY. SELLER’S TOTAL LIABILITY UNDER THESE TERMS AND CONDITIONS OR OTHERWISE IN CONNECTION WITH THE SALE OF PRODUCTS, WHETHER IN CONTRACT, IN TORT, FOR INFRINGEMENT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE WILL NOT EXCEED THE PRICE OF THE PRODUCT THAT GIVES RISE TO THE CLAIM AND WHICH HAS BEEN PAID BY BUYER. UNDER NO CIRCUMSTANCES WILL SELLER OR ANY OF ITS AFFILIATES BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, RELIANCE, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF ANTICIPATED PROFITS, RENTAL OF SUBSTITUTE EQUIPMENT, OR OTHER COMMERCIAL LOSS.
6. EXCUSE OF PERFORMANCE. Seller will not be liable for loss or delay, nor be considered in default for non-performance due to acts of God; acts of buyer; war (declared or undeclared); terrorism or other criminal conduct; fire; weather; sabotage; strikes, or labor or civil disturbances; governmental requests, restrictions, laws, regulations, or orders; unavailability of, or delays in, utilities or transportation; default of suppliers or other inability to obtain necessary materials or services; embargoes, or unforeseen circumstances or any other similar or dissimilar events or causes beyond Seller’s reasonable control.
7. GOVERNING LAW AND VENUE. These Terms and Conditions will be governed by and will be construed, interpreted, and enforced in accordance with the laws of the State of Kansas, without reference to principles of conflicts of law. All disputes arising out of or relating to these Terms and Conditions, or otherwise in connection with the sale of the products, will be determined solely by a state court located in Wyandotte County, Kansas or a federal court located in the District of Kansas, and the parties consent to the jurisdiction of those courts. The application of the United Nations Convention on Contracts for the International Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods are expressly excluded.
8. EXPORT CONTROL. Buyer acknowledges that products and related technology sold by Seller are subject to applicable import and export control and trade sanctions laws, regulations, orders and requirements of the U.S. and the jurisdictions in which buyer is established or from which products may be supplied, including without limitation the U.S. Export Administration Regulations (15 C.F.R. Parts 730 to 774) and Foreign Assets Control Regulations (31 C.F.R. Parts 500 to 598). Buyer agrees that it will not use, transfer, release, divert, transship, import, export or re-export the products and related technology except in compliance with those applicable laws, regulations, orders and requirements. If buyer violates any applicable import and export control or trade sanction law, regulation, order or requirement, buyer will indemnify, defend and hold harmless Seller and Seller may, immediately and without notice, terminate any sale of products or any business arrangement or relationship with buyer.
9. ENTIRE AGREEMENT. These Terms and Conditions contain the entire agreement between the parties with respect to the sale of products, and supersede all prior and contemporaneous agreements and understandings, inducements, or conditions, express or implied, oral or written, with respect to the sale of products. The express terms and conditions hereof control and supersede any course of performance or usage of the trade inconsistent with any of these Terms and Conditions.
10. AMENDMENT. These Terms and Conditions may be amended, superseded or waived only by a written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance.
11. NO WAIVER. No failure or delay by a party in exercising any right, power, or privilege hereunder will operate as a waiver of any right, power, or privilege hereunder. No waiver of any default on any one occasion will constitute a waiver of any subsequent or other default. No single or partial exercise of any right, power, or privilege will preclude the further or full exercise thereof.
12. SEVERABILITY. These Terms and Conditions will be considered severable, and the invalidity or unenforceability of any one or more of the provisions hereof will not affect the validity and enforceability of the other provisions hereof.
13. REMEDIES. Except as may otherwise be provided herein, the rights and remedies of the parties with respect to failure of a party to comply with these Terms and Conditions are not exclusive, the exercise thereof will not constitute an election of remedies and the aggrieved party will in all events be entitled to seek whatever additional remedies may be available in law or in equity.
14. BINDING NATURE, ASSIGNMENT. These Terms and Conditions will be binding upon and will inure to the benefit of the parties and their respective successors, assigns, heirs and personal representatives. Buyer may not assign, delegate or transfer to third parties its rights or obligations hereunder without the prior written consent of Seller.
15. NO THIRD PARTY BENEFICIARIES. These Terms and Conditions are intended solely for the benefit of each party and their respective successors, permitted assigns, heirs and personal representatives and it is not the intention of the parties to confer third-party beneficiary rights upon any other individual or entity.
