Standard Terms and Conditions of an Equipment Sale
A. LS Industries' (“LS") “Standard Terms and Conditions Of An Equipment Sale" are an integral part of the Equipment Sale Proposal (for the sale of equipment or services described therein) to which they are attached and which LS submits to the Buyer (“Buyer"). Any contract that may arise from the Proposal, or any modifications or variations thereof, are expressly conditioned on Buyer's assent to these Terms and Conditions, to LS' review, and approval of Buyer's credit. The LS Proposal with the most current date supercedes all previous proposals, offers, agreements, understandings or conversations. Unless otherwise stated herein, Buyer has 30-days from the most current date on the Proposal to notify LS in writing at its Wichita, Kansas headquarters, of Buyer's offer to enter into a contract on the basis of the Proposal. Upon written confirmation from LS to Buyer that is has accepted Buyer's offer, a contract between Buyer and LS shall be formed as specified in the Proposal and its attachments.
A. Unless otherwise agreed, all orders are shipped collect and FOB: 710 E. 17th Street, Wichita, Kansas, 67214, USA. LS' delivery of Equipment to carrier, at point of shipment, shall constitute delivery of such Equipment to Buyer and Buyer shall assume all risk for subsequent loss or damage. LS will ship equipment the most cost effective way or by a carrier of Buyer's choice.
B. Upon delivery of the Equipment by the carrier, Buyer shall inspect Equipment. If there is any damage or shortage, the Buyer must file a freight claim immediately with the carrier company. IF THE EQUIPMENT IS DAMAGED, DO NOT ACCEPT DELIVERY OF THE EQUIPMENT.
C. Buyer, typically, has 15 days to file a claim for concealed damage. If Buyer determines that the carrier company damaged the Equipment, Buyer must request an inspection by the carrier company. Do not discard any of the packaging material. After the inspector determines the amount of the damage claim, it becomes the responsibility of the Buyer to either repair or replace the Equipment in accordance with the Warranty Policy.
A. Any tax imposed on the sale of products shall be the responsibility of the Buyer/Sales Rep. Payment of all taxes of any nature whatsoever (except LS's income tax) and, if applicable, all duties, taxes and charges, are the responsibility of the Buyer/Sales Rep. If, as a result of any such sales, delivery, use, or transfer of Equipment by LS or Sales Rep, any such taxes, duties and charges are levied against LS, then Buyer/Sales Rep agrees to pay such taxes, duties and charges, to prepare all required reports in conjunction therewith, and to reimburse, indemnify, and hold LS harmless from all such taxes, penalties, duties, charges, attorney fees and costs incurred by or levied against LS. LS shall have the right at any time to separately bill the Buyer/Sales Rep for any tax LS may have been requested to pay. The only exceptions are shipments within the state of Kansas: a sales/use tax will be charged unless a valid tax-exempt certificate, prior to shipment, is provided to LS.
A. LS Industries, Inc., (“LS") warrants for a period of twelve months from date of shipment by LS to the original purchaser (“Buyer") that Equipment manufactured by LS will be free from defects in materials and workmanship when installed and operated in accordance with the instructions in the Equipment manual. This Warranty does not cover any failure due to: accident; modification; tampering; abuse; normal wear and tear; shipping damage; deterioration or wear occasioned by chemicals, abrasion, corrosion or erosion; improper erection, operation, or maintenance; abnormal conditions of temperature or dirt; or operation of the Equipment above rated capacities or in an otherwise improper manner.
B. If within the one-year warranty period LS receives written notice at 710 E. 17th Street, Wichita, Kansas, 67214, USA, promptly after discovery by Buyer of any defect in material or workmanship in the Equipment warranted by LS herein, LS shall, at its sole option/discretion, either replace (FOB LS's plant), or repair any defective part(s). If the defective part has a limited useful life, a charge for the replacement part will be prorated according to the amount of wear.
C. LS shall not be responsible for work done, materials furnished, or repairs made by others unless agreed to in writing after the proposed remedies have been made known to it. Buyer agrees to use reasonable care in the operation and maintenance of Equipment provided in accordance with the instructions in the Equipment manual.
DISCLAIMER OF IMPLIED WARRANTIES
D. THE FOREGOING LIMITED WARRANTY IS THE SOLE WARRANTY MADE BY LS. LS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, OF MERCHANT-ABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR OTHERWISE, WHICH EXTEND BEYOND THE FACE HEREOF, AND LS HEREBY DISCLAIMS ALL SUCH WARRANTIES.
E. UNDER NO CIRCUMSTANCES SHALL LS BE LIABLE TO BUYER OR ANY OTHER PERSON FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF USE, LOSS OF TIME, AND LOSS OF GOODWILL, WHETHER ARISING OUT OF BREACH OF WARRANTY, BREACH OF CONTRACT, OR OTHERWISE.
F. Any equipment or components thereof that are not manufactured by LS, carry only the warranties given by the respective manufacturers thereof which warranties, LS will make available to Buyer to the extent permissible without recourse to LS.
A. Unless specified and quoted in the Proposal, the installation of the Equipment will be at the expense of the Buyer.
6. START UP
A. Unless specified and quoted in the accepted Proposal, the set-up of the Equipment will be at the expense of the Buyer. LS will provide the services of a technician for Equipment start up and will bill the Buyer at the rate of $950.00 per day plus expenses: the cost of travel, meals and lodging. Equipment must be installed and ready to run prior to technician's arrival (Two week advanced, written notice is required, received and accepted by LS).
A. Standard Equipment
To purchase Standard Equipment, the Buyer's payment schedule is as follows:
1) A current credit application for the Buyer must be on file.
2) A Deposit of 20% is required and must accompany the signed Equipment Proposal/order before Equipment is scheduled into LS' manufacturing process. Buyer's Purchase Order is acceptable with Deposit but not in lieu of Deposit.
3) Balance Due – Net 30 from date of shipment from LS plant.
4) A 3% Cash Discount will be given when Payment In Full accompanies the signed Equipment Proposal/Purchase Order.
5) Equipment purchased from LS and scheduled for shipment outside of the contiguous United States, requires full payment prior to actual shipment.
B. Non-Standard or Special Equipment
To purchase Non-Standard or Special Equipment, the Buyer's payment schedule is as follows:
1) A current credit application for the Buyer must be on file.
2) A Deposit of 50% of the total sale price is required and must accompany the signed Equipment Proposal/order before Equipment is scheduled into LS' manufacturing process. Buyer's Purchase Order is acceptable with Deposit but not in lieu of Deposit.
3) Prior to shipping, payment equal to 90% of the total sale price is required.
4) Balance Due – Net 30 from date of shipment from LS plant.
5) A 3% Cash Discount will be given when Payment In Full accompanies the signed Equipment Proposal/ Purchase Order.
To purchase Equipment for export (outside of the contiguous United States), the Buyer's payment schedule is as follows:
1) A minimum deposit of 50% is required and must accompany the signed Equipment Proposal/order before Equipment is scheduled into LS' manufacturing process.
2) Equipment purchased from LS and scheduled for shipment outside of the contiguous United States, requires full payment prior to actual shipment.
3) Acceptable forms of payment are Irrevocable Letter of Credit and wire transfers. Buyer's Purchase Order is acceptable with Deposit but not in lieu of Deposit.
1) Customer lease programs are available from LS.
2) Other lease programs (Buyer initiated) must be approved by LS Industries.
3) An approved lease, with receipt of Equipment Purchase Order from lease company, is required and must accompany the signed Equipment Proposal/order before Equipment is scheduled into LS' manufacturing process.
4) A lease on non-standard equipment requires a deposit of 50% of the total sale price of the equipment with the order from either the customer or the leasing company. If customer makes the deposit, it will be refunded to customer when the leasing company pays LS Industries.
Cancellations, Storage, Propretary Material, Change Orders, Compliance of Safety Standards, Validation of Quotations, Bonds, Limitions of Liability, Dust Collection, Choice of Law and Selection Forum, Severability, Governing Law and Attorney Fees
A. Buyer may cancel any Equipment order/contract only upon written notice to LS and only upon such terms as will indemnify and will reimburse LS for all losses resulting there from, including LS' direct costs incurred, overhead, loss of contract profits, costs, and expenses to which LS has become committed for fulfillment of the Equipment order/contract. Completed orders may not be canceled.
A. If Buyer declines or is unable to take delivery of Equipment at time(s) specified in the Equipment Proposal/order/contract, LS may have the equipment stored at Buyer's risk and account. Buyer will pay storage, handling and re handling charges and continue to make payments according to the payment TERMS and CONDITIONS contained in the Equipment Proposal/order/contract.
10. PROPRIETARY MATERIAL
A. All drawings, patterns, specifications and information included in the Equipment Proposal/order/contract, and all information otherwise supplied by LS relating to the design, erection, operation and maintenance of the Equipment is the proprietary and/or confidential material of LS. Buyer shall not disclose such material or information except as required for Buyer to obtain service for the Equipment.
11. CHANGE ORDERS
A. Change Orders received after issuance of an Equipment Proposal/order/contract will be accepted by LS up to the time production commences. Change Orders after production has commenced may cause LS, at its option, to cancel production of the Equipment Proposal/order/contract or invoice the Buyer's account to compensate for lost time, lost revenues and/or inventory restocking costs.
12. COMPLIANCE OF SAFETY STANDARDS
A. It is LS' intention to comply with the Occupational Safety and Health Act of 1970, as LS understands it. However, since interpretations of this Act may vary, LS will not warrant or guarantee that the Equipment complies. LS shall have no obligation and shall not be responsible for any liability arising from violations of safety standards caused by location, operation or maintenance of the Equipment. Furthermore, LS shall not be liable for unauthorized use, combination, or association with any other equipment not manufactured by LS.
13. VALIDATION OF QUOTATIONS
A. Quotation issued by LS is valid for 30 calendar days unless otherwise specifically stated in the body of the quotation.
A. In addition to the price specified in Equipment Proposal (Quotation), Buyer shall pay the cost of any Bonds that Buyer requires LS to obtain.
15. LIMITATIONS ON LIABILITY
A. In no event shall LS be liable for any special, indirect, incidental, consequential, or punitive damages of any character, including loss of productive facilities or equipment, lost profits, property damages, personal injuries, or irrespective of whether claims or actions for such damages are based upon contract, warranty, tort, strict liability or otherwise.
16. DUST COLLECTION
At LS Industries, we strive to determine the proper dust filtration and blow-off requirements of each machine we build. However, each customer's manufacturing facility has different environmental requirements and different requirements on the amount of residual dust that can be discharged after blasting. Since you, as the end user, are better informed to determine these requirements, LS Industries does not assume any responsibility for dust control once a machine has been accepted by you, the customer, after a successful test run at our facility.
17. CHOICE OF LAW AND SELECTION OF FORUM
This agreement and all the rights and obligations hereunder, including matters of construction, validity and performance shall be governed by, construed under, interpreted and enforced in accordance with the laws of the State of Kansas and the exclusive jurisdiction of Sedgwick County, Kansas.
In the event any paragraph, term, condition or portion thereof shall be found to be illegal or void as being against public policy, such paragraph, term, condition, or portion thereof shall be stricken and the remainder of this document shall stand as the original.
19. GOVERNING LAW
A. The parties specifically consent to the exclusive jurisdiction of the State and Federal Courts located in Sedgwick County, Kansas and any legal action taken by either party involving this contract shall be filed and decided by the respective court in Sedgwick County, Kansas. This contract shall be governed, construed, and interpreted according to the laws of the State of Kansas.
20. ATTORNEY FEES
A. If any party commences an action against the other to enforce any of the terms hereof or due to a breach by either party, the losing or defaulting party shall pay to the prevailing party reasonable attorneys’ fees incurred in the prosecution or defense of such action.