1. Controlling Provisions: This document constitutes the entire Agreement between the parties and contains all the terms and conditions of sale; no course of dealing or usage of the trade shall be applicable unless expressly incorporated herein. These terms and conditions may not be added to, modified, superseded or otherwise altered by a written modification signed by the Louis Allis (hereafter known as “LA”) president. All terms and conditions contained in any prior oral or written communication, including without limitation Buyer’s purchase order, which are different from or in addition to the terms and conditions herein are hereby rejected and shall not be binding. All transactions shall be governed solely by the terms and conditions contained herein.
2. Payment Terms: Credit terms to be discussed at the time of quotation issuance or purchase order issuance. Minimum order is $250.00. All orders under $1,000.00 must be paid in full prior to shipment. All special builds require a deposit to be determined on an individual basis. All new customers (no prior credit history) with Louis Allis will be required to pay 50% deposit on first-time orders. Payment terms for existing customers are based on prior credit history. Orders shipped outside of the United States must be paid in full prior to shipment. Standard credit terms (net 30) may be available after full credit review.
3. Remedies of Seller: Upon default by the Buyer, Buyer agrees to reimburse LA all attorney fees and court costs incurred by LA in connection therewith. Buyer agrees that any of the following shall constitute an event of default which shall enable LA, at its option, to cancel any unexecuted portion of an order to exercise any right or remedy which it may have by law: (a) the failure of Buyer to perform any term or condition contained herein; (b) any failure of Buyer to give required notice; (c) the insolvency of Buyer or its failure to pay debts as they mature; (d) an assignment by Buyer for benefit of its creditors; (e) the appointment of a receiver for Buyer or for the material covered by this order or the filing of any petition to adjudicate Buyer bankruptcy; (f) the death, incompetence, dissolution or termination of existence of Buyer; (g) failure by Buyer to provide adequate assurance of performance within ten (10) days after a justified demand by LA; or (h) if LA in good faith believes that Buyer’s prospects of performance under this Agreement is impaired. All rights and remedies of LA herein are in addition to, and shall not exclude, any rights or remedies that LA may have by law. In the event it becomes necessary to incur any expense for collection of any overdue account, reasonable collection charges, including reasonable attorney’s fees will be added to the balance due and Buyer shall pay such charges.
4. Warranty and Limitations of Liability: LA warrants the equipment and material listed on the face hereof against defective materials or workmanship under normal use and operation for the period of one year. If any product or service provided proves to be defective, Buyer must notify LA, in writing, of the defect within thirty (30) days of its discovery and establish that: (1) the materials or equipment has been maintained in its original installation and operated within the limits of normal usage; (2) the material or equipment has not been disassembled by Buyer; (3) the material or equipment has been in the continuous possession of the Buyer and (4) the defect did not result in any manner from the intentional or negligent action of inaction of Buyer, its agents of employees. The Buyer must return the defective material or equipment to LA’s shop in Warrior, Alabama, transportation charge prepaid, for inspection. If LA determines at its sole discretion that conditions (1) through (4) have not been met, then this warranty shall not cover the alleged defect. This warranty is limited to Louis Allis Distributors and /or their end user and is not assignable or otherwise transferable. This warranty is expressly in lieu of and excludes all other warranties, expressed or implied (including the warranties of merchantability and fitness of any products or goods for a particular purpose) and of all other obligations and liabilities on LA’s part. LA neither assumes nor authorizes any person to assume for LA any other liability in connection with the sales of LA’s materials or equipment. This warranty shall not apply to any materials or equipment which has been repaired, disassembled or used outside of LA’s shop in any way so as in LA’s sole judgment to affect its workability or reliability, nor which has been subjected to misuse, negligence, acts of God or accident of any description. LA makes no warranties whatsoever in regard to merchandise, equipment, parts, materials or accessories not of LA’s own manufacture. Buyer agrees that LA’s liability under the warranty shall be limited exclusively to the remedies or repair and/or replacement of any defective or non-conforming goods or materials, and that such repair and/or replacement shall be the Buyer’s sole and exclusive remedy. In no event shall LA or any subsidiary or division thereof be liable for incidental, consequential or other damages or losses resulting from a breach of this warranty including, without limitation, labor costs, loss of profits, loss of use of other equipment, third party repairs, personal injury, emotional or mental distress, freight expense, improper performance of work, penalties of any kinds, loss of service of personnel, or failure of equipment to comply with any federal, state or local laws. Buyer shall bring no action for any breach of this warranty more than one (1) year after the purchase of the equipment or materials. LA reserves the right to make any changes in design, additions to and improvements in its product without imposing any obligation upon itself to install them on its product previously manufactured or repaired. No equipment will be warranted by LA if installed or stored outdoors, unless the factory nameplate or such equipment designated it for “outdoor” use. All motors sold in Electrically Okay condition are warrantied to operate and comply with the standard nameplate rating, but no warranty is given or implied as to the motor’s mechanical condition. A customer should always assume the Electrically Okay apparatus will need some level of servicing or overhauling. A customer has 1 week from date of receiving the motor to claim the motor is not “Electrically Okay”.
5. Indemnification: The Buyer shall at its own expense apply for and obtain any permits and inspections required for installation and/or use of the products. LA makes no promise or representation that the products or services will conform to any federal, state or local laws, ordinances, regulations, codes or standards, except as particularly specified and agreed upon in writing by LA. LA’s products are not for use in or with any nuclear facility unless specifically so stated by LA in writing. LA shall not be responsible for any losses or damages sustained by the Buyer or any other person as a result of improper installation or misapplication of the products. Buyer shall defend, indemnify and hold harmless LA and its agents and employees against any loss, damage, claim suit liability, judgment or expense (including, without limitations, attorney’s fees) arising out of or in connection with any injury, disease or death of persons (including, without limitations, Buyer’s employees and agents) or damage to or loss of any property or the environment, or violation of any applicable laws or regulations resulting from or in connection with the sale, transportation, installation use or repair of the products by Buyer or of the information design, services, or other work supplied to Buyer, whether caused by the concurrent and/or contributory negligence of Buyer, LA, or any of their agents, employees, or suppliers. The obligations, indemnities and covenants contained in this paragraph shall survive the consummation or termination of this transaction.
6. Delivery: LA will make a good faith effort to complete delivery of the products as indicated by LA in writing, but LA assumes no responsibility or liability and will accept no back charge for loss or damage due to delay or inability to deliver, whether or not such loss or damage was made known to LA. LA shall have no liability for LA’s non-performance caused by acts of God, war, labor difficulties, accidents, inability to obtain materials, delays of carriers, contractors or suppliers or any other causes of any kind whatsoever beyond the control of LA. Under no circumstances shall LA be liable for any special or consequential damages or loss, damage, or expense (whether or not based upon negligence) arising directly or indirectly from delays or failure to give notice of delay.
7. Shipments: All products are shipped and title passes F.O.B. Shipping Point. Risk of Loss shall transfer to Buyer upon delivery of goods to common carrier, Buyer or Buyer’s representative. The cost of any special packaging or special handling caused by Buyer’s requirements or request shall be added to the amount of the order. If Buyer causes a shipment delay, or if LA ships or delivers the products erroneously as a result of inaccurate, incomplete or misleading information supplied by Buyer or its agents or employees, storage and all other additional costs shall be assumed solely by Buyer. No claim for shortages or shipping errors will be allowed unless made in writing seven (7) days of receipt of a shipment. Buyer should make claims for products damaged or lost in transit to the carrier, as LA’s responsibility ceases upon delivery to the carrier.
8. Governing Law and Severability: This transaction shall be governed in all respects by the laws of the State of Delaware (excluding choice of law provisions) and all actions commenced shall be brought in a court of competent jurisdiction residing in Blount County, Alabama. If any provision hereof is held to be illegal, invalid or unenforceable under any present or future laws, such provision shall be fully severable and the terms and conditions herein shall be constructed and enforced as if such illegal, invalid or enforceable provision had never been made a part hereof. The retaining provisions herein shall remain in full force and effect and shall not be affected by such illegal, invalid or unenforceable provisions or by their severance wherefrom.
9. Set-Off and Non-Waiver: Buyer shall not be entitled to set-off any amounts due Buyer against any amount due LA in connection with this transaction. LA’s failure to insist upon the strict performance of any term or condition herein shall not be deemed a waiver of any of LA’s rights or remedies hereunder, nor of its right to insist upon the strict performance of the same or any other term herein in the future. Waiver of any term or condition shall not be valid unless amended in writing and signed by LA’s president.
10. No Assignment: Purchaser’s obligations are not transferable or assignable by operation of law, change of control or ownership, or otherwise, without prior written consent of Seller.