1. PAYMENT. Unless a credit application is submitted and approved, full payment is required before shipment. If credit is approved, terms of payment are net thirty (30) days from the date of invoice. If, in the Seller’s opinion, the financial condition of the Buyer at any time or any other circumstance does not justify the incurrence of production costs or shipment on the terms specified, the Seller may require partial or full payment in advance.
2. DELIVERY & SHIPMENT. Unless otherwise stated in the quotation, transfer of title and risk of loss for shipments will transfer EXW at the time of shipment in Lincoln, Nebraska. Equipment is packaged in “Best commercial practice.” Certain equipment and delivery locations will require additional crating beyond BinMaster standard, the cost of which will be added to invoice at buyer’s expense. Buyer shall bear the expense of all other packaging. If buyer fails to specify a mode of shipment, seller will select a reasonable mode of transportation. All costs of shipment, including duties, tariffs, and taxes, are the responsibility of the Buyer. Seller shall not be liable for loss or damage of any kind resulting from delay or inability to deliver on account of flood, fire, strike, labor troubles, riot, civil disturbances, accidents, acts or orders or regulations of civil or military authorities, shortages of materials, or any other cause or causes (whether or not similar in nature to any of these enumerated) beyond Seller’s control.
3. QUOTATION AND PRICES. Quoted prices are firm for Ninety (90) days and are subject to change without notice after expiration of this period.
4. TAXES. The quotation does not include any applicable sales, use, revenue, excise, or any other taxes unless they are specifically stated. Seller will collect any such taxes that it is required to collect, unless Buyer provides to Seller a sales and use tax exemption certificate.
5. LIMITED EQUIPMENT WARRANTY. Products manufactured by Seller are warranted for a period of one (1) year from date of shipment against defective materials and workmanship. No warranty is given if the product has been subject to misuse, accident, negligence, or improper transportation, handling, installation, storage, use, maintenance, or application or if the product has been repaired or altered except by Seller or except with Seller’s prior written authorization. SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IS HEREBY DISCLAIMED AND EXCLUDED. This limited warranty does not extend to labor charges or other costs related to the removal and/or replacement of defective products. Any technical advice or services furnished by Seller with respect to the products is given without charge, and Seller assumes no obligation or liability for the advice given or results obtained, all such advice being given and accepted at Buyer’s risk. If the products are being acquired for resale, Buyer will make, in connection with any such resale, only those warranties contained herein and will indemnify Seller and its officers, directors, agents, employees, affiliates, successors, and assigns against any claims, causes of actions and judgments which arise from any representations, warranties, or agreements made by or entered into by Buyer, other than those contained herein.
6. LIMITATION OF LIABILITY. SELLER’S SOLE LIABILITY AND OBLIGATION FOR A BREACH OF THE WARRANTY OR ANY OTHER PROVISIONS OF THESE TERMS AND CONDITIONS SHALL BE TO REPAIR OR REPLACE THE SPECIFIC NONCONFORMING PRODUCTS OR TO CREDIT OR REFUND THE PURCHASE PRICE ACTUALLY PAID FOR SUCH NONCONFORMING PRODUCTS, AS SELLER MAY ELECT. SELLER’S LIABILITY ON ANY CLAIM, WHETHER GROUNDED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), ANY THEORY OF STRICT LIABILITY OR OTHERWISE, OF ANY KIND FOR ANY LOSS OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM THESE TERMS AND CONDITIONS OR THE PERFORMANCE OR BREACH HEREOF OR THE PRODUCTS OR THEIR PERFORMANCE OR USE IS LIMITED SOLELY AND EXCLUSIVELY TO THE REMEDIES PROVIDED ABOVE AND NO OTHER RIGHT OR REMEDY WILL BE AVAILABLE TO BUYER OR TO ANY PERSON OR ENTITY. SELLER WILL IN NO EVENT BE LIABLE TO ANY PERSON OR ENTITY FOR ANY INDIRECTS, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ANY PENALTIES OF ANY KIND, ANY LOSS OF PROFITS OR ANY OTHER ECONOMIC LOSS, WHETHER OR NOT FORESEEABLE, TO ANY PERSON, PROPERTY OR ENTITY, IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE PRODUCTS, WHETHER GROUNDED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), ANY THEORY OF STRICT LIABILITY OR OTHERWISE.
7. LIMITATION OF CLAIMS. In addition to Buyer’s inspection obligation set forth in Section 9 hereof, and notwithstanding any custom of trade or course dealing between Seller and Buyer, failure of Buyer to give notice of any claim for breach of warranty within ninety (90) days after a product is shipped by Seller (which the parties agree is a reasonable time), or during any applicable warranty period, shall constitute an unqualified waiver by Buyer of all claims with respect thereto, including the right to receive a refund of or credit for the purchase price or repair or replacement of the products.
8. ASSUMPTION OF RISK. Buyer assumes all risk and liability whatsoever for any and all injuries (including death), losses or damages to persons or property or otherwise resulting from or arising in connection with Buyer’s possession, handling, storage, transportation, use, sale, or other disposition of any products sold hereunder, whether used alone or in conjunction with other products, or incorporated in a finished product, and Buyer agrees to indemnify and hold harmless Seller, its officers, directors, agents, employees, affiliates, successors, and assigns from and against any and all damages (including consequential and incidental damages), costs, claims, suits, judgments, liabilities and expenses (including attorney’s fees) arising out of or in connection with any of the foregoing.
9. INSPECTION. Buyer shall examine each shipment of products hereunder upon its arrival and shall promptly notify Seller in writing of any shortage, loss, or damage apparent under reasonable examination. Failure by Buyer to send such notification to Seller within ten (10) days after Seller ships products (which the parties agree is a reasonable time) shall constitute an absolute and unconditional waiver of all claims for such shortage, loss, or damage.
10. RETURN OF GOODS. In no case may products or parts be returned without Seller’s prior written permission. Products or parts returned under the above Limited Equipment Warranty (Section 5) must be shipped with transportation charges prepaid and must be accompanied by an explanation, reasonably satisfactory to Seller, of the nature of the asserted noncompliance. All other returns must be shipped with transportation charges prepaid and will be subject to a minimum restocking charge of 25%. Only products of standard Seller manufacture will be accepted for return. Products that are specifically modified or produced to the Buyer’s specifications will not be accepted for return.
11. CONTRACT INFORMATION. A binding contract shall not be effective until a written purchase order is received at Seller’s office in Lincoln, NE and accepted in writing by an authorized employee of the Seller at its office. THE TERMS AND CONDITIONS IN SELLER’S QUOTATION OR ACKNOWLEDGEMENT AND THESE STANDARD TERMS AND CONDITIONS OF SALE SHALL GOVERN THE CONTRACT AND ANY DIFFERENT OR ADDITIONAL TERMS IN BUYER’S PURCHASE ORDER, UNLESS APPROVED BY SELLER IN WRITING, ARE HEREBY OBJECTED TO AND REJECTED. BUYER WILL BE DEEMED TO HAVE ACCEPTED THESE STANDARD TERMS AND CONDITIONS OF SALE UNLESS WRITTEN NOTICE OF REJECTION IS RECEIVED BY SELLER WITHIN TEN (10) DAYS AFTER BUYER’S RECEIPT OF THESE STANDARD TERMS AND CONDITIONS OF SALE. IN ANY EVENT, BUYER’S ACCEPTANCE OF DELIVERY OF THE PRODUCTS SOLD HEREUNDER SHALL BE DEEMED TO CONSTITUTE BUYER’S ASSENT TO THESE TERMS AND CONDITIONS AND BUYER’S WAIVER OF ALL TERMS AND CONDITIONS PROPOSED BY BUYER IN WRITING OR OTHERWISE THAT ARE DIFFERENT FROM OR ADDITIONAL TO THOSE SET FORTH IN THESE STANDARD TERMS AND CONDITIONS OF SALE.
12. NO WAIVER. Failure of Seller to object to any terms that now or in the future appear in any document or form of Buyer shall not be construed as a waiver of the provisions of these terms and conditions nor an acceptance of any such term. Seller’s failure or delay in insisting on strict performance of any of these terms or conditions or in exercising any right, power or privilege hereunder, at any time, shall not operate as a waiver of the same, nor shall Seller’s waiver of any breach hereunder constitute a waiver of any other terms, conditions, or privileges, whether of the same or similar type.
13. GOVERNING LAW. These Standard Terms and Conditions of Sale shall be construed and enforced in accordance with the internal laws of the State of Nebraska, without reference to choice of law provisions. Jurisdiction and venue for any lawsuits relating to these terms and conditions and/or sale of products by Seller shall be proper only in the state and federal courts in the State of Nebraska. Buyer hereby consents to service of process by registered or certified mail, return receipt requested, to it at its address set forth in Seller’s records.
14. CUSTOMER SERVICE. The Customer Service Department is open from Monday through Friday, 8:00 a.m. to 5:00 p.m. CST. You may contact the department at:
Toll Free US Only: (800) 278-4241
Direct Dial: (402) 434-9102
Fax: (402) 434-9133
BinMaster Level Controls
Division of Garner Industries
7201 N. 98th St.
Lincoln, NE 68507
P.O. Box 29709
Lincoln, NE 68529