TERMS AND CONDITIONS OF SALE
DEFINITIONS: Where the context permits, the following words shall have the meanings indicated.
“Equipment? means all goods, materials, chattels, equipment and machinery to be provided pursuant hereto.
“HASTINGS? means Hastings HVAC, Inc.
CONTRACT: HASTINGS offers to sell the Equipment specified herein upon the terms and conditions and at the price(s) and with the delivery date(s) stated herein.
This offer is not an acceptance of any offer by BUYER to purchase Equipment. HASTINGS rejects any offer to purchase Equipment previously made by BUYER and hereby gives notice of its rejection of any offer to purchase Equipment subsequently made by BUYER. This offer is subject to and conditioned upon acceptance by BUYER within thirty (30) days from the date of this offer unless sooner revoked prior to acceptance. BUYER shall indicate its acceptance of this offer by verbal acceptance, by executing and returning the attached acknowledgment or any other written acceptance or confirmation, by directing HASTINGS to commence work on the Equipment in any manner, by accepting the Equipment, or by making payment for all or any part thereof.
These Terms and Conditions of Sale, together with the HASTINGS quotation documents attached hereto, shall constitute the entire agreement of the parties and may not be modified except by a written change order issued by HASTINGS. No prior representations, inducements, promises or agreements between the parties, oral or written, not embodied herein shall be of any force or effect and any said prior representations, inducements, promises, or agreements are hereby revoked and superseded. No terms stated by BUYER in ordering or offering to purchase Equipment or in accepting or acknowledging this offer or otherwise shall be binding except as expressly incorporated herein by HASTINGS and BUYER is hereby notified of HASTINGS’ objection to and rejection of additional or different terms in BUYER’S purchase order, acknowledgment, or other forms. THIS OFFER IS EXPRESSLY LIMITED TO ACCEPTANCE UPON THE TERMS AND CONDITIONS CONTAINED HEREIN.
TERMS OF PAYMENT: Prices are subject to change without notice and do not include federal, state, or local sales, use, excise, or other taxes, fees, customs, or duty which will be for BUYER’S account.
All prices are F.O.B. factory and payment shall be check in advance of shipment or COD, unless an “Open Account" can be arranged. All invoices on an “Open Account" basis shall become due upon receipt and payable within thirty (30) days following the issue date of the invoice. Delinquent accounts are subject to interest at the rate of 18% APR, but not in excess of the maximum rate permitted under applicable law.
HASTINGS, at its option, shall have the right to deliver Equipment by installments, each installment to be invoiced at the time of shipment and to be paid for in accordance with the terms and conditions hereof. Until each delivered installment is paid for as aforesaid, HASTINGS shall have no obligation to deliver further installments.
HASTINGS may stop work and cease delivery of the Equipment hereunder in the event BUYER does not have or maintain credit satisfactory to HASTINGS. In such event, BUYER shall pay for all Equipment on a cash in advance basis.
HASTINGS shall have the right to decline any request(s) for field service, to include factory start-up service, if the original equipment invoice has not been paid in full, to include any applied interest, nor shall any warranties be applied or provided until the same terms of payment have been complied with.
COMPLETION AND SHIPMENT: The completion and shipment dates specified herein are estimates only and are neither warranted nor guaranteed by HASTINGS.
DESIGN AND CONSTRUCION: HASTINGS shall have the right to change specifications, ratings, dimensions, design, arrangement, manufacture, construction, or
any other element of the Equipment and to substitute materials or components thereof without notice or obligation to BUYER except as set forth in Warranty.
TITLE, RISK OF LOSS, AND INSURANCE: All equipment shall be shipped F.O.B. factory with full risk or loss passing to BUYER, upon shipment by HASTINGS therefrom. HASTINGS shall retain title to all Equipment until paid for in full in cash and HASTINGS may, at its option, repossess the same upon BUYER'S breach of Terms of Payment. HASTINGS shall have the right of access to or entry upon BUYER’S premises, in order to effect said repossession. From the date of shipment until the invoice is paid in full, BUYER shall provide and maintain at its expense, for HASTINGS’ benefit, insurance adequate to fully protect HASTINGS’ interest in the Equipment against loss of any nature and HASTINGS shall be a named insured under said insurance.
At HASTINGS’ option, BUYER agrees to execute a security agreement, Uniform Commercial Code financing statement (UCC-1), and any and all other documents
satisfactory to HASTINGS, and to cooperate with HASTINGS in every regard, in order to secure payment for the Equipment.
WORKMANSHIP AND MATERIALS: The work performed by HASTINGS’ personnel and Equipment manufactured by HASTINGS’ shops are warranted against defects in materials and workmanship for a period of one (1) year from the date of shipment, F.O.B. factory. Should any such defect appear in such workmanship or Equipment during the terms of this Warranty, HASTINGS shall, upon timely
notification, BUYER’S return of the allegedly defective Equipment to HASTINGS’ factory freight prepaid, and an opportunity to inspect the Equipment and verify the defect, at its option repair or replace the defective Equipment, F.O.B. factory, or refund the price of the allegedly defective Equipment.
With respect to portions of the Equipment manufactured by vendors, suppliers, and subcontractors of HASTINGS and supplied as a components or part of the Equipment furnished hereunder, BUYER accepts the benefit of the warranties, if any, provided by such vendors, suppliers, and subcontractors in lieu of any liability, obligation, or warranty, of any nature whatsoever, on the part of HASTINGS with respect thereto.
PERFORMANCE: Air capacities, heating output capacities, and cooling output capacities, if specified herein by HASTINGS, are warranted for a period of ninety (90) days from the date of startup, but in no event longer than six (6) months from the date of shipment, F.O.B. factory, provided the Equipment is properly installed and maintained, used for the purpose intended, and used and tested in accordance with the instructions of HASTINGS during said period. Should any
nonconformity with this warranty appear in such Equipment during the term of this Warranty, HASTINGS shall, upon timely notification, BUYER’S return of the allegedly nonconforming Equipment to HASTINGS’ factory freight prepaid, and an opportunity to inspect the Equipment and verify the nonconformity, at its option repair or replace the nonconforming Equipment, F.O.B. factory, or refund the price of the Equipment found not to conform with Warranty provisions.
LIMITATION OF WARRANTIES AND REMEDIES: The provisions, and in particular the technical and numerical provisions relating to the Equipment supplied hereunder, which appear in this offer, any quotation, the specifications, drawings, proposal documents, sales literature and any other documents are descriptive only and are not guarantees or warranties, nor are they guaranteed or warranted unless expressly stated so to be.
BUYER’S right to enforce the above warranties is conditioned upon full payment of the Equipment and the Equipment being properly installed, properly maintained, used for the purpose intended, and used in accordance with the instructions of HASTINGS. Failures and defects due to normal wear and tear, corrosion, erosion, action of chemicals, fires, and acts of God are excluded from the above warranties.
HASTINGS shall not incur any liability of any nature whatsoever arising from any breach of its express warranty obligations set forth herein in excess of the cost of repair or replacement of defective or nonconforming Equipment at HASTINGS’ factory. HASTINGS shall not be responsible or incur any liability for any backcharges or monies expended by BUYER for any purpose whatsoever unless HASTINGS issues written authorization to BUYER for said backcharges or
expenditures, in which event HASTINGS’ responsibility or liability shall be limited in accordance with the express terms of said authorization. HASTINGS shall not be responsible or incur any liability for the labor or cost hereof necessary to remove, transport, or install original or replacement Equipment that has been repaired or replaced pursuant to this Warranty.
The foregoing warranties and remedies for breach thereof are exclusive and conditioned upon timely notification by BUYER. They are given by HASTINGS and accepted by BUYER in lieu of any and all other remedies, warranties, and guarantees, express or implied, and IN LIEU OF ANY WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES SHALL HASTINGS BE RESPONSIBLE OR LIABLE FOR ANY LOSS, COST OR DAMAGES ARISING FROM ANY SOURCE WHATSOEVER, INCLUDING NEGLIGENCE, IN EXCESS OF THE PURCHASE PRICE PAID BY BUYER FOR THE SPECIFIC EQUIPMENT WHICH GIVES RISE TO THE LOSS, COST, OR DAMAGE.
UNDER NO CIRCUMSTANCES, WHETHER ARISING IN CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL HASTINGS, ITS AGENTS, SUBCONTRACTORS, VENDORS, AND THE EMPLOYEES OF EACH BE RESPONSIBLE OR LIABLE FOR LOSS OF PROFIT, LOSS OF OPERATING TIME OR LOSS OF, OR REDUCTION IN USE OF, ANY FACILITIES (INCLUDING EXISTING FACILITIES) OR ANY PORTION THEREOF, INCREASED EXPENSE OF OPERATION OR MAINTENANCE, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES.
PATENTS: In the event the Equipment furnished by HASTINGS hereunder is held to constitute an infringement of any patent or violation of any trade secret and its use is enjoined, HASTINGS, within reasonable time and at its own expense, will at its option either (i) secure for BUYER the right to continue using such Equipment by suspension of the injunction or by procuring for BUYER a license or otherwise, (ii) replace such Equipment with non-infringing Equipment, (iii) modify such
Equipment so that it becomes non-infringing or (iv) remove such Equipment and refund the sums paid therefor. The foregoing states the sole and exclusive liability of HASTINGS with respect to patent infringement or trade secret violation. In any instance where suit for patent infringement or trade secret violation is instituted, BUYER shall immediately advise HASTINGS thereof and permit HASTINGS the right, at its option, to participate in and direct the defense thereof.
The preceding paragraph shall not apply to any Equipment, or any part thereof, manufactured to BUYER’S design. As to such equipment or part, HASTINGS assumes no liability whatsoever for patent infringement. BUYER shall indemnify HASTINGS against all claims of patent infringement arising out of HASTINGS’ manufacture of goods in accordance with BUYER’S specifications.
DELAY: HASTINGS shall not incur or be responsible or liable for any liability of any nature whatsoever for any delay in, or failure of, completion and shipment of the Equipment or any loss, cost, or damage arising therefrom if such loss, cost, damage, delay, or failure is attributable in whole or in part to any cause or causes beyond the reasonable control of HASTINGS. These causes include, but are not limited to, any act of God, or the public enemy; compliance with any order, decree, or request of any governmental authority; act of declared or undeclared war; public disorder; rebellion, sabotage, fire; flood; explosion; accident; riot; delays in transportation; strike; labor difficulty or other concerted act of workmen, whether direct or indirect; inability to obtain necessary fuel, material, or equipment from normal sources of supply; production set-aside; declaration of national emergency; mobilization of industry whereby material and labor required for completion of the Equipment hereunder are allocated or controlled; or any other cause not within the control of HASTINGS or which HASTINGS is unable to avoid by exercise of reasonable care. Upon the occurrence of any such delay, the estimated time for completion and shipment of the equipment shall be extended for a time equal to the delay time reasonably attributable to the cause.
CANCELLATION: This order may be cancelled by BUYER only upon payment of reasonable charges, based upon expenses already incurred and commitments made by HASTINGS and upon HASTINGS’ anticipated total profits. Cancellation charges on completed items will be 100% of the selling price.
HASTINGS reserves the right to manufacture ahead of its estimated shipping schedule whenever it deems necessary and such advance manufacture shall not void BUYER’S responsibility for cancellation as herein provided.
ASSIGNMENT: BUYER may neither assign, in whole or in part, BUYER’S interest herein without the prior written consent of HASTINGS.
WAIVER: HASTINGS’ waiver of any breach by BUYER of any of the provisions contained herein shall not constitute a waiver of any other breach of the same or any other provision. HASTINGS’ rights and remedies under any provision contained herein shall be in addition to and not in substitution of limitation of any other rights and remedies available to HASTINGS under applicable law.
GOVERNING LAW: This offer and any resulting contract is to be interpreted in accordance with, and its administration and performance governed by, the laws of the State of Nebraska. The parties hereto agree that Hastings, Nebraska shall be the forum for any cause of action filed in any court of law or equity.
HEADINGS AND SEVERABILITY: Any headings preceding the text of the several articles hereof are inserted solely for convenience of reference, shall not constitute a part hereof, and shall not otherwise affect the meanings, content, effect, or construction hereof. In the event that any provision contained herein or the application thereof to any person or circumstance shall to any extent be invalid or unenforceable, the remaining provisions hereof and the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each provision hereof, notwithstanding said invalidity or unenforceability, shall remain valid and enforceable to the fullest extent permitted by law.
HASTINGS HVAC, INC .• 3606 Yost Avenue • Hastings, Nebraska 68901-1966