All sales by Charlie’s Machine and Supply, Inc., a Colorado Company (hereinafter called “CMS”) of products offered and sold by it shall be subject to the following General Terms & Conditions which shall be deemed incorporated into all orders and offers to purchase submitted to CMS for acceptance and into all of its acceptances and contracts of sale.
GENERAL TERMS AND CONDITIONS FOR SALE CONTRACT
1. Exclusion of Warranties CMS MAKES NO WARRANTY THAT THE PRODUCTS SOLD HEREUNDER SHALL BE MERCHANTABLE OR THAT SUCH PRODUCTS SHALL BE FIT FOR ANY PARTICULAR USE OR PURPOSE. MOREOVER, CMS MAKES NO EXPRESS OR IMPLIED WARRANTIES EXCEPT FOR THE LIMITED WARRANTY OUTLINED IN PARAGRAPH 2. IN ADDITION, NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, MADE BY ANY DISTRIBUTOR, SALES REPRESENTATIVE OR FIELD AGENT OF CMS WHICH IS NOT SPECIFICALLY SET FORTH HEREIN SHALL BE BINDING ON CMS.
2. Warranty CMS warrants that the products provided hereunder shall comply with the manufacturer's written warranty statement for the product. This warranty shall apply only in the continental United States and Canada to the original purchaser of product installed, used, and maintained in accordance with the manufacturer’s provided instructions. For products sold outside of the United States and Canada, Warranty is for replacement of defective components only, up to one year from Date of Purchase.
3. Limitations of Warranty In no event shall CMS be liable for any indirect, special, incidental, consequential or other damages, including but not limited to damage to or loss of property or equipment, lost revenues or profits, or harm to goodwill or business reputation directly or indirectly arising from the sale, handling or use of the product, or from any other cause relating thereto and CMS liability hereunder. CMS shall not be liable to the Buyer for any claims, demands, injuries, damages, actions or causes or action whatsoever based on negligence or strict liability. If, after inspection of the returned products, CMS determines that the defect is a result of misuse, mishandling, installation, abnormal conditions of operation, unauthorized repair or modification, or due to the Buyer’s failure to install, maintain or operate the product in compliance with the written instructions, all expenses incurred by CMS in connection with the replacement or repair of the product shall be for the account of the Buyer. Any product returned to CMS for replacement shall become the property of Charlie’s Machine & Supply.
The Buyer shall be responsible for all costs of shipping, and other related charges in connection with CMS replacement or repair of products. If the products are located outside of the continental United States the Buyer is responsible for the cost of customs clearance and related charges pursuant to the limited warranty.
4. Acceptance States the Entire Contract The sending or emailing of CMS written confirmation by CMS of the Buyer’s order or offer to purchase is an acceptance of the Buyer’s order and intended to embody the complete and exclusive contract of sale in relation to the subject matter herein expressly set forth and shall be binding on either party. The written confirmation of CMS of the Buyer’s order is an acceptance on the condition that the terms and conditions set forth herein shall apply and together with Charlie’s Machine & Supply’s confirmation shall constitute the complete agreement between the parties. Any provisions or condition of the Buyer’s order forms or verbal or other understandings or agreements which are in any way in conflict or in addition to these terms and conditions shall not be binding on Charlie’s Machine & Supply, and shall not be applicable, unless expressly agreed to in writing by CMS herewith or hereafter. Buyer shall be deemed to have assented to the exclusive terms and conditions hereof unless objection by the Buyer hereto in writing has been received by CMS at its office in Colorado within ten (10) days after receipt of the CMS’ written confirmation by the Buyer, or if a shipment has been requested in less than said ten (10) days, then prior to such date of shipment, and in the event of such objection and at CMS option, the written confirmation shall thereupon be revoked and the sale contract terminated.
5. Delivery Shipping dates are approximate and are based upon current and anticipated manufacturing capabilities and upon receipt of all necessary information from the Buyer. CMS reserves the right to make delivery in installments and the contract shall be severable as to each such installment. Delay in delivery or other default in any installment shall not relieve the Buyer of its obligation to accept and pay for remaining deliveries. If delivery of the goods is delayed in transit due to default in payment of the purchase price or to delay in receipt of shipping instructions, document for payment, required inspection, export permit or other cause for which CMS is not responsible, charges for demurrage and storage shall be paid by the Buyer. All claims for a delay in delivery shall be deemed waived unless presented to CMS in writing within thirty (30) days after the delivery of each shipment. Unless otherwise indicated on the front side of the invoice, all shipping and insurance charges, any duty and all taxes related to the Buyer’s order shall be paid by the Buyer. Claims for damages in transit must be asserted against the carrier. Within seven (7) days after receipt of shipment, the Buyer must report to CMS any shortage or damage not due to the carrier, otherwise claims for such shortage or damage will be deemed waived.
6. Force Majeure Fulfillment of this order is contingent upon the availability of materials. CMS shall not be liable for any delays in delivery, or the nonperformance, in whole or in part, caused by the occurrence of any contingency beyond the control of either CMS or suppliers of CMS,
including but not limited to one or more of the following causes: fires; destruction of plant; strike; lockout; dispute with workers; epidemic; flood; accident; delay in transportation; war (whether declared or undeclared); insurrection; riot; blockade; embargo; act, demands or requirements of the United States, or the county in which or through which delivery is to be made, or of any state or territory thereof, or of any court or judge; or any other cause whatsoever, whether similar or dissimilar to those herein before enumerated. The existence of any such cause or causes of delay shall extend the time of performance by the time or times measured by any such cause or causes of delay. If delivery is not completed with sixty (60) days after the date stipulated in the acceptance of the order due to any said causes, either CMS or the Buyer may cancel this contract on thirty (30) days’ notice to the order. If any contingency occurs, CMS reserves the right to allocate production and deliveries among its customers.
7. Acceptance of Orders Orders and offers to purchase received by or on behalf of CMS are subject to acceptance only at its offices in Colorado. No CMS distributor, sales representative, or field agent has authority to accept orders or make contracts of sale on behalf of CMS.
8. Cancellation. Countermand and Return of Goods Orders accepted by CMS cannot be canceled or countermanded or shipments deferred or goods returned except with prior written consent from CMS office in Colorado, and upon any terms that will indemnify CMS against all losses resulting therefrom, including the profit on any part of the order that is canceled. When CMS authorizes the return of goods, the Buyer shall prepay the shipping charges on such returned goods unless otherwise explicitly stated by CMS in its written return authorization.
9. Taxes The sales price stipulated in this contract does not include any sales, use, excise, or other tax. If any such tax is imposed by law on the Buyer on account of this sale and CMS or its suppliers are obligated to collect and pay such tax, the amount of such tax paid by CMS or its suppliers shall be reimbursed to it by the Buyer forthwith in addition to the purchase price.
10. Title and Risk of Loss Unless otherwise indicated by CMS, title to, ownership, and the right to possession of the merchandise sold by this contract, and risk of loss, shall pass to the Buyer at the time of delivery to the Carrier or the Buyer, whichever first occurs. lf, however, payment of the purchase price is not contemporaneous with, does not precede delivery of the merchandise to the carrier or the Buyer; the Buyer agrees at CMS’ request to execute, acknowledge and record appropriate financing statements so as to perfect a security interest in the products in favor of CMS, including but not limited to a UCC Form 1204 – Retail installment Contract or the execution of the contract of conditional sale containing the provisions of these terms and conditions of sale and additional customary provisions as CMS shall deem proper. If payment of the purchase price is not contemporaneous with, or does not precede delivery of the goods to the carrier or the Buyer, title to the merchandise shall not pass from CMS to the Buyer until the payment of the full purchase price.
11. Claims by the Buyer Claims for any shortages or defects made by the Buyer against CMS shall be made in writing to CMS within seven (7) days after receipt of the shipment, except for defects covered by the warranty in paragraph 2 above, which shall be made in writing within seven (7) days after discovery thereof.
12. Applicability of United Nations Conventions With regard to international sales, the United Nations Convention of Contracts for the International Sale of Goods shall not apply to the purchase and sale of products hereunder.
13. General Provisions Any cause of action arising from these terms and conditions of sale, or breach of it, must be commenced within one (1) year after the cause of action occurs. CMS reserves the right to correct any stenographic or clerical errors in any of the writings issued by it. Except as otherwise set forth herein, the terms and conditions of sale and any description in the confirmation document constitute a complete and exclusive statement of the terms and conditions of the sale of the products by CMS to the Buyer. There are no other promises, conditions, understandings, representations or warranties. These terms and conditions of sale may be modified only in a writing signed by Charlie’s Machine & Supply. No waiver of any right will be effective against CMS unless supported by consideration and expressly stated in the writing signed by CMS, and the failure of CMS to enforce any right will not be construed as a waiver of CMS’ right to performance in the future. The Buyer may not assign any rights to, or delegate any performance owed under these terms and conditions of sale without the written consent of CMS. CMS shall have the right to credit toward the payment of any monies that may become due CMS herein under any sums which may now or hereafter be owed to the Buyer by CMS. The validity and performance in all matters relating to the interpretation and effect of these terms and conditions of sale and any amendment hereto shall be governed by and construed in accordance with the internal laws (and not the laws of conflict) of the State of Colorado. All disputes arising in connection with these terms and conditions of sale shall be resolved by Mediation and if not resolved in that manner then through arbitration by three arbitrators with such arbitration administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (including its Streamlined Arbitration Rules and Procedures where applicable) or the American Arbitration Association in Colorado and damages will be determined in such arbitration. Punitive damages shall not be recoverable. Judgment on the arbitration award may be entered in any court having jurisdiction. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The Buyer shall pay CMS all fees, costs and expenses of CMS reasonably incurred in the enforcement of CMS’ rights under or with respect of these terms and conditions of sale including, without limitation, reasonable attorney‘s fees.