TERMS & CONDITIONS OF SALE & DELIVERY
1. These Terms and Conditions May Change. Bole Machinery, Inc. reserves the right to update or modify these Terms & Conditions at any time without prior notice.
2. Governing Terms. All products and services offered for sale by Bole Machinery, Inc., (“BOLE”) are sold subject to the Terms & Conditions
stated herein. Except as expressly agreed by an authorized representative of Bole in writing, no other terms and conditions,
including any terms and conditions attached to, or contained in, Buyer’s request for quotation, acknowledgement, purchase order, or other documentation shall apply. Buyer’s acceptance of the products or services delivered by Bole shall constitute an affirmation by Buyer that the Terms & Conditions set forth herein govern the purchase and sale of goods or services. THE TERMS OF THIS CONTRACT SHALL SUPERSEDE ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS PROPOSED BY BUYER OR CONTAINED ON BUYER’S PURCHASE ORDER OR ANY DOCUMENT OR INSTRUMENT SUBMITTED BY BUYER
3.Conclusion of Agreement.
3.1 Our offers are submitted without obligation. We reserve the right to sell goods without prior notice.
3.2 Diagrams, dimensioned drawings and similar illustrations submitted with our offers are approximations only and do not oblige us in any
manner. We reserve the right to make any changes that we deem necessary.
3.3 The contractual Agreement is concluded when we send our written order confirmation to the Customer. It is solely authoritative for the scope and execution of the order.
3.4 The Customer shall, prior to the conclusion of the Agreement, inform us of statutory, official and any other regulations that relate in particular to the execution of delivery, the installation and assembly of the goods, and their operation; to health and safety at work; to foreign-exchange controls with regard to export and/or import transactions; and in general inform us of any and all regulations that may delay or impede the issuance of permits and licenses in due time.
4. Drawings and Documents. Offers, projects, and corresponding drawings, descriptions, illustrations, samples, forms and similar that we submit are our intellectual property and may not be stored electronically, copied or duplicated nor brought to the attention of third parties in any way and also may not be used for the completion of works or components without our written permission. They must be returned immediately upon request if the order is not executed.
5. Payment Terms and Prices. For domestic and international customers, payment is due at the time of shipment without any set off or deduction. BOLE may offer limited open account terms to domestic customers. If an open account has been granted to a domestic customer, the invoice payment is to be received within the period of days agreed to from the date of invoice FOB (EXWORKS) plant in Stow, OH, USA. The due date is printed on the invoice. BOLE will charge 1.5% interest per month (18% per year) on all invoices not paid in full by the due date. In the event BOLE incurs any costs, expenses or attorney fees as a result of customer’s failure to timely pay invoices, customer shall be responsible for all such costs, expenses and attorney fees. BOLE reserves the right to alter or suspend credit or change credit terms based solely on BOLE’s discretion. BOLE objects to and is not bound by any terms or conditions on Buyer’s order which attempt to impose on BOLE any terms or conditions at variance with BOLE’s terms and conditions. BOLE.’s prices are subject to change without notice. Unless otherwise stated, all quotations from BOLE are firm for a period of 60 days. Such prices quoted do not include federal, state or local taxes, VAT, customs, transportation costs or surcharges, or duties; all of which shall be paid by Buyer. BOLE participates in the national Streamlined Sales Tax Program “SST” thus agreeing to collect state and local sales tax in the US jurisdictions participating in SST program. A Sales Tax Exemption Certificate is required on tax exempt orders prior to shipment.
6. Limited Warranty. BOLE provides two-year warranty to the original purchaser, one-year service labor warranty and for screw & barrel 6-month warranty, from date of machine acceptance. BOLE products will be free from defects in materials and workmanship for a period of one year after the date BOLE ships such products. If any BOLE products are found to be defective in material or workmanship during the applicable warranty period, BOLE’s entire liability, and Buyer’s sole and exclusive remedy, shall be the repair, replacement or return of purchase price as determined in BOLE’s sole discretion. BOLE shall not be liable for any costs, expenses or damages, whether direct or indirect, associated with the installation, operation, removal or re-installation of any defective product. All shipping and freight costs are the responsibility of the Buyer. BOLE’s limited warranty shall not be effective or actionable unless Buyer complies with all installation and operating instructions furnished by BOLE, or if the products have been modified or altered without the written consent of BOLE ,or if such products have been subject to a BOLE recall, or if subject to Buyer dent, misuse, mishandling, tampering, negligence or improper maintenance. Any warranty claim must be submitted to BOLE in writing within the stated warranty period and as soon as such alleged defect is known to Buyer. Warranty repairs may be performed at BOLE’s factory at BOLE’s sole discretion with the transportation cost of returning material to be repaired or considered for replacement under warranty to be the obligation of Buyer.
7. Limited Warranty Disclaimer. BOLE’s limited warranty is made in lieu of all other express or implied warranties, and BOLE DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING OUT OF THE COURSE OF DEALING OR OF PERFORMANCE, CUSTOM OR USAGE OF TRADE.
8. Limitation of Liability Disclaimer. BOLE SHALL NOT, UNDER ANY CIRCUMSTANCE, BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUE OR BUSINESS) OR DAMAGE OR INJURY TO PERSONS OR PROPERTY IN ANY WAY RELATED TO THE MANUFACTURE OR THE USE OF ITS PRODUCTS. THE EXCLUSION APPLIES REGARDLESS OF WHETHER SUCH DAMAGES ARE SOUGHT BASED ON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT, OR ANY OTHER LEGAL THEORY, EVEN IF BOLE MACHINERY, INC. HAS NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
9. Ownership of Work. BOLE shall be the owner of all intellectual property (IP) created for Buyer under this agreement or any purchase orders. BOLE shall be the exclusive owner of all ownership rights in such products created under such purchase order or agreements. Buyer agrees to not reverse engineer or in any other way copy such products provided hereunder.
10. Retention of Ownership (Legal Title)
10.1 The objects in the deliveries remain BOLE’s property until satisfaction of all the Buyer’s payment obligations resulting from our business relationship (goods subject to retention of title).
10.2 The Buyer is not permitted to pledge or assign our goods that are subject to retention of the title. Resale is only permitted for re-sellers in the normal course of business and only on condition that sellers in the normal course of business and only on condition that the re-seller
received payment from his customer or includes the condition that the ownership is only transferred to the customer if he or she has fulfilled his or her payment obligations. In the event of processing or connection of our goods subject to retention of title our legal title extends to the product within the framework of the statutory possibilities.
10.3 In the event of seizure, confiscation or other action by third parties the Buyer must inform us of the action immediately.
10.4 If, when goods are delivered abroad, statutory laws of the country where the goods are located govern the retention of ownership, the Buyer shall be obliged to take every step necessary to legally assert BOLE’s retention of ownership (e.g., by attaching marks, effecting entry in public registers, or similar measures). If the laws of the country in which the delivered goods are located do not allow a retention of
ownership but does permit BOLE thereof to reserve other rights with regard to such goods, then BOLE shall be entitled to exercise any and all such rights. Should the Buyer fail to fulfill his obligation under this clause, then we shall be entitled either to withhold undelivered goods
until the Buyer provides proof that he has fulfilled his obligation, or to rescind the Agreement immediately.
10.5 In the event of the violation of Buyer obligations, particularly delayed payment or infringement of obligations, BOLE is entitled to
reclaim the goods irrespective of other rights. The Buyer is obliged to surrender the goods that are subject to retention of title. The
reclamation or assertion of the retention of ownership does not represent withdrawal from the Agreement except if this is expressly stated.
11. Shipments and Cancellations. All statements of prospective date of shipments are estimated. BOLE accepts no liability for any losses or for general, special, or consequential damages arising out of delays in delivery. Firm orders that have been accepted are subject to
cancellation, or changes in specifications only on the basis of BOLE being reimbursed for the costs incurred. The Buyer shall specify the method of shipment. If no method is specified, BOLE will determine the best compromise between delivery times and transportation costs and will ship accordingly. All transportation costs of products or material shipped from BOLE or returned to BOLE will be the obligation of the Buyer. Cancellation by Buyer cannot be effective except on terms which will indemnify Seller from loss of the order. Buyer’s proposed terms as to such indemnity and not as to other matters relating to cancellation are accepted, if they fulfill this condition. Orders for special material are not subject to cancellation. No material (except defective material) will be taken back and credited or replaced except upon written consent from an authorized representative of BOLE and upon terms and conditions agreed upon by BOLE in writing.
12.1 The goods shall be packed in the manner usual and customary in the trade to protect them, under normal conditions, against the effects of the elements
12.2 Special requests with regard to the packing of the goods must be communicated to BOLE in due time. Such notification shall be deemed to be in due time if the request can be satisfied without any delay or difficulty. Should the notification regarding the special manner of packing not be communicated in due time or should the requested packing entail considerable additional work or expense, then BOLE shall be entitled to refuse the request in writing. Such refusal shall not affect the Buyer’s obligations to effect payments.
12.3 Packing shall be invoiced separately and shall not be returned to us.
13. Returns. Authorization, in the form of a Returned Material Authorization number (RMA#) and shipping instructions for the return of any product must be obtained by the Buyer from BOLE Returned materials will be accepted only if BOLE’s RMA form has been completed, authorized in advance, and transportation pre-paid. Any expense incurred to restore goods to a saleable condition will be deducted from the credit to be issued covering the return unless the cost is covered by the warranty. Special goods or obsolete designs differing from the current standard product are not subject to return for credit. Final determination as to whether a product is defective or in warranty rests
14. Risk of Loss. Unless otherwise agreed in writing by BOLE, delivery will be made, and title will pass to Buyer at the point of shipment. The
transportation expenses shall be paid by the Buyer. Risk of loss or damage shall fall upon the Buyer. The Buyer assumes full responsibility to apply for any shipment insurance deemed necessary and to file any claims for loss or damage with the carrier.
15. Freight and Insurance
15.1 The Buyer shall, at his own risk and expense, arrange for the transport of the goods. If the freight carrier is commissioned by BOLE because this was agreed with the Buyer, then the Buyer is still responsible for correct securing of the delivery during transport from one facility to the other to prevent sliding off, slipping or tipping any mechanical action from outside and similar. If the Buyer does not provide exact shipping regulations, then we will select the mode of transport.
15.2 The Buyer shall, without delay, register and document any complaints regarding the transport of the goods with the last freight carrier upon receipt of the goods or the corresponding freight documents. The Buyer shall further be obliged to file, without delay, any claims for damage in transport with the freight carrier in accordance with the terms of the contract of carriage or shipment and to notify us of such claim(s) at the same time.
15.3 The Buyer shall be obliged to procure insurance coverage in the amount of the value of the goods to be delivered for the shipment from
our works to the point of delivery. Should BOLE be contractually obliged to procure such insurance coverage, the costs and risks thereof shall nonetheless be borne by the Buyer, and BOLE shall in no case be liable for any damage incurred in transit.
16. Relationship. The relationship between the parties is as an independent contractor. As such, neither party is an employee, agent or representative of the other party nor has the power to bind the other party. Each party is responsible for its own taxes.
17. Confidentiality. Confidential Information means information that is not known to the general public and proprietary to BOLE and material to BOLE’s business or that BOLE is obligated to treat as proprietary or confidential including, but not limited to, BOLE’s business operations, customers, contacts, developers, pricing information, employee information, drawings, plans, specs, database, data, know how,
discoveries, production methods or any other confidential information. BOLE /Buyer acknowledges and agrees that such information is confidential, greatly affects the success of the business of BOLE and that BOLE’s Buyer will not disclose or use any such Confidential Information outside of the current transaction with BOLE.
18. Waiver. Failure by BOLE to exercise any rights under these Terms and Conditions or any order shall not be deemed a waiver of any future rights.
19. Governing Law. All orders in this agreement shall be construed and enforced in accordance with the laws of the state of Ohio with exclusive judicial venue for any such conflicts being in Cuyahoga County, Ohio, U.S.A.
20. Assignment. Buyer shall not assign its rights or its obligations under this Contract without written consent of BOLE. These terms and conditions apply to your purchase and use of all products from BOLE MACHINERY, INC. (“BOLE”). By ordering such products you agree to these Terms & Conditions.
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BOLE Machinery Inc. 4706 Hudson Drive Stow, OH 44224