TERMS & CONDITIONS OF SALE
All orders for products and drawings furnished in connection therewith (hereinafter collectively called "products") manufactured or supplied by Bonfiglioli USA shall be subject to these terms and conditions of sale. No modifications or additions hereto will be binding unless agreed to in writing by an authorized officer of Bonfiglioli USA.
Price quotations by Bonfiglioli USA are subject to change without notice. All products sold are subject to price in effect at time of shipment.
Prices do not include Sales, Use, Excise or other taxes payable to any governmental authority in respect of the sale of Bonfiglioli USA's products. The purchaser shall pay the amount of any such taxes or shall reimburse Bonfiglioli USA for the amount thereof that Bonfiglioli USA may be required to pay.
Unless otherwise provided, terms of payment are 30 days net from date of invoice for purchasers whose credit is approved. Bonfiglioli USA reserves the right to charge interest on any balance outstanding at 2% per month (or fraction thereof) or as Bonfiglioli USA shall determine, up to the maximum rate allowed by law, from the date payment is due to the date payment is actually received. Pro rata payments shall become due as shipments are made. If shipments are delayed by or at the request of the purchaser, payment shall become due when Bonfiglioli USA is prepared to make shipment. If the cost to Bonfiglioli USA of products is increased by reason of delays caused by the purchaser, such additional cost incurred by Bonfiglioli USA shall be paid by the purchaser. Bonfiglioli USA may, if it deems itself insecure by reason of the financial condition of purchaser or otherwise, require full or partial payment in advance and is a condition to the continuance of production or shipment on the terms specified herein.
No order or other offer shall be binding upon Bonfiglioli USA until accepted in writing by an authorized officer of Bonfiglioli USA.
Bonfiglioli USA will not accept changes in specification unless such changes are requested in writing and agreed to in writing by an authorized officer of Bonfiglioli USA and the purchaser agrees to pay, if necessary, in addition to the original purchase price a sum so set by Bonfiglioli USA.
Any order when placed with and accepted by Bonfiglioli USA not subject to cancellation unless agreed to in writing by an authorized officer of Bonfiglioli USA. Cancellations are subject to reasonable charges based upon expenses already incurred and commitments made by Bonfiglioli USA.
Any indicated dates of delivery are approximate only, but Bonfiglioli USA will attempt to meet them where possible. Bonfiglioli USA shall not be liable for delays in manufacturing or delivery or failure to manufacture or deliver due to any event in the nature of force majeure or any cause beyond Bonfiglioli USA's reasonable control. Bonfiglioli USA will not be bound by any penalty clause contained in any specification or order submitted by the purchaser unless such clause is agreed to in writing by an authorized officer of Bonfiglioli USA. Delivery of products shall be made FOB Bonfiglioli USA’s factory unless otherwise agreed to in writing by an authorized officer of Bonfiglioli USA.
Bonfiglioli USA shall indemnify and hold harmless the purchaser against all claims or actions that are instituted against the purchaser on the grounds that the purchaser has infringed the patent rights of others by using, reselling, or promoting the sale or resale of Bonfiglioli USA's products, provided that Bonfiglioli USA shall not be obligated hereunder if:
a) The purchaser fails to give Bonfiglioli USA prompt notice of any such claim or actions, or
b) Such claims or actions against the purchaser are based wholly or in part on the existence or operation of any complete installation or apparatus incorporating Bonfiglioli USA's products as components and which is designed by the purchaser or its customers.
10. REGULATORY LAWS OR STANDARDS
Bonfiglioli USA makes no representation that its products conform to state or local ordinances, regulations, codes or standards except as may be otherwise agreed to in writing by an authorized officer of Bonfiglioli USA.
Bonfiglioli USA, Inc. (“Bonfiglioli”) warrants that the products of its Mobile and Industrial Business Units (“products”), when properly installed, and used in accordance with the applicable procedures and instructions, will be free from all material defects in workmanship and materials for a period of one year commencing on the invoice date for the applicable product. If, during the warranty period, any products do not conform to the foregoing warranty, as verified by Bonfiglioli, and provided Customer follows the procedures specified in this policy, the nonconforming products will be replaced or repaired, at Bonfiglioli’s discretion, free of charge, FOB Bonfiglioli’s shipping dock, Hebron, Kentucky. The warranty period for the products shall not be extended due to the replacement or repair of nonconforming products. Equipment and accessories purchased from a third party and incorporated into any products by Bonfiglioli are warranted only to the extent of the third party’s or the original manufacturer’s warranty, if any, for such equipment and accessories.
Warranty Exclusions: Any failure of the products to conform as warranted due to the items listed below is not covered by the warranty under this Policy:
• negligent or improper use of the products
• force majeure (for example, but not limited to: vandalism, lightning, water damage, power surges, storms, fire) and
• influence of outside elements
• damage due to transport or installation, when not carried out by or on behalf of Bonfiglioli
• Customer’s interventions, repair attempts, or modifications to the products
• operation beyond specified environmental conditions for the products, in particular insufficient ventilation
• non-compliance with applicable regulations
• incorrect design and inappropriate electrical connections
• operation with defective protections
• maintenance not being executed according to the operating instructions
Claim Procedure: If any products fail to conform as warranted, Customer must contact Bonfiglioli for an RMA, Return Material Authorization, and Customer shall ship the products to Bonfiglioli in Hebron, Kentucky, transportation charges prepaid, for Bonfiglioli’s inspection. Customer will issue Bonfiglioli an open purchase order to cover labor charges incurred in connection with the inspection. The total amount of such charges will be credited to Customer’s account if Bonfiglioli determines that the nonconformity is covered by the warranty. Bonfiglioli shall replace or repair the covered nonconforming products and shall deliver the replacement or repaired Products to the freight forwarder as soon as reasonably practicable. The replacement or repaired products shall be shipped to Customer FOB, Bonfiglioli shipping dock Hebron, Kentucky.
Disclaimers and Limitations: EXCEPT AS EXPRESSLY STATED IN THIS POLICY, BONFIGLIOLI MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING ANY MATTER WHATSOEVER. BONFIGLIOLI SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTY ARISING FROM A COURSE OF DEALING OR PERFORMANCE OR FROM USAGE OF TRADE.
IN NO EVENT SHALL BONFIGLIOLI BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST REVENUE, OR LOST SAVINGS, INCURRED BY CUSTOMER OR ANY THIRD PARTY, EVEN IF BONFIGLIOLI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Customer by acceptance of delivery of the Products assumes all liability from the consequences of the use or misuse of the Products by Customer, its employees, or others.
No contract to purchase goods from Bonfiglioli USA may be assigned by the purchaser without prior agreement in writing by an authorized officer of Bonfiglioli USA.
13. SECURITY INTEREST
Unless and until the products are fully paid for, Bonfiglioli USA reserves a security interest in them to secure the unpaid balance of the price and all other obligations of the purchaser to Bonfiglioli USA however arising. The purchaser hereby grants Bonfiglioli USA a power of attorney to execute and file on behalf of purchaser all necessary financing statements and other similar documents required to protect the security interest granted herein.
14. DAMAGES; LIMITATION
In the event of breach of this agreement by Bonfiglioli USA, the rights of the purchaser are limited to the amount therefore paid to Bonfiglioli USA for the goods. THE PURCHASER SHALL HAVE NO RIGHT TO CONSEQUENTIAL OR INDIRECT DAMAGES, WHETHER FOR INJURES TO PERSON, PROPERTY OR OTHERWISE.
If the purchaser defaults In performing any of its obligations to Bonfiglioli USA under this agreement, or any other agreements, Bonfiglioli USA may, at its option and without incurring any liability thereby, elect to terminate this agreement or to terminate any or all other agreements with the purchaser or to terminate this agreement together with any or all such other agreements. Furthermore, Bonfiglioli USA shall have a right to all damages sustained, including loss of profits.
If the purchaser shall be insolvent or cease doing business or be the subject of any proceedings under any bankruptcy, insolvency, reorganization or arrangement statute or law, such act shall at the option of Bonfiglioli USA be deemed a default under this agreement, and Bonfiglioli USA may elect to cease performing and cancel this agreement with respect to any products not delivered or received prior to the election. All of the foregoing shall be without prejudice to recovery by Bonfiglioli USA of damages for work performed and for loss of profits and material and products delivered.
The provisions of this agreement shall be governed and construed in accordance with the laws of the State of Kentucky. These terms and conditions set forth the entire understanding and agreement of the parties hereto in respect to the subject matter hereof, and all prior undertakings between the parties hereto, together with all representations and obligations of such parties in respect to such subject matter, shall be superseded by and merged into this agreement. No provisions hereof shall be waived, changed, terminated, modified, discharged or
rescinded, orally or otherwise, except by a writing signed by the party to be charged by any such waiver, change, termination, modification, discharge, or rescission. No waiver of any breach of any provision of this agreement shall constitute an amendment or modification of this agreement, or any provision thereof. If any provision of this agreement shall be held to be unenforceable or inapplicable in any way or respect, such holding shall not affect the enforceability of any other provision of this agreement under any other circumstances. The provisions of this agreement shall bind and inure to the benefits of the parties hereto and their respective heirs, executors, administrators, successors and (subject to any restrictions on assignment hereinabove set forth) assigns. In the event unspecified redress or commitments develop not covered above, terms of the Uniform Commercial Code under the laws of Kentucky will be construed as being effective as they may pertain.