Terms and Conditions
1. INCORPORATION OF TERMS. Any contract created between Buyer and Seller is expressly conditioned upon the terms and conditions (“Terms”) set forth herein. The act of entering such contract shall be deemed conclusive proof that Buyer read these Terms and fully agreed to them.
2. UCC APPLICABLE. Buyer and Seller agree that these Terms apply to a contract for the sale of goods, and that Article II of the Uniform Commercial Code, as adopted in Colorado, shall apply. Notwithstanding the foregoing, if Buyer submits to Seller an acceptance or confirmation that contains terms in addition to or different from the terms in this offer, Seller may opt to construe such acceptance or confirmation as an acceptance of Seller’s offer, but such additional or different terms will not become a part of the contract.Any offer by Seller is expressly conditioned on and subject to availability of such goods,which availability may change from time to time. These Terms shall not be modified except in a writing signed by both parties.
3. AUTHORITY TO CONTRACT. Each party represents and warrants that it has the authority to enter into the contract underlying these Terms.
4. TRANSFER OF OWNERSHIP, DELIVERY, and RISK OF LOSS. Title to the goods,notwithstanding delivery thereof, shall remain in Seller’s name until full payment is received. Buyer assumes ownership of goods upon full payment. Notwithstanding the foregoing, insurance responsibilities and risk of loss shall transfer to Buyer upon SHIPMENT of the goods. Seller assumes no responsibility for any damage during rigging and transportation.
5. AS IS CONDITION. The goods are purchased by Buyer “AS IS.” Seller may, in its sole discretion, repair any goods at Buyer’s place of business. In no event shall Seller be liable to Buyer for any consequential damages, including but not limited to any lost profits; Seller’s Liability is expressly limited to the contract price.
6. WARRANTIES DISCLAIMED. Seller does not make and expressly disclaims any warranty of any kind whatsoever, expressed or implied, concerning the goods, including but not limited to, any warranty of merchantability or fitness for a particular purpose. Any Applicable warranties, expressed or implied, relating to machines manufactured by third parties, shall be enforceable solely against the warrantying third party and not against Seller. Buyer’s acceptance of the goods shall be conclusive proof that Buyer was responsible to and did inspect the goods to determine that they conform to Buyer’s needs and requirements and are safe for use. Buyer further acknowledges that the goods may have come into contact with toxic or hazardous substances regulated under federal, state or local law.
7. WAIVER/INDEMNIFICATION. Buyer hereby waives, releases and discharges Seller from any and all claims (with the exception of claims for breach of these terms) of any and every kind (including but not limited to injury or death of any person or damage to property), which it may have at any time against Seller, its agents or employees, for any reason and to the fullest extent allowed by law. Buyer agrees to indemnify, defend and hold Seller, its agents, and employees, harmless from and against any and all loss, liability,damage, claims, suits or expenses, including attorneys fees, which Seller or any of its agents or employees may suffer arising out of any use whatsoever of the goods, including but not limited to: (a) the failure of Buyer, Buyer’s officers, agents, or employees to follow manufacturer instructions, warnings or recommendations; (b) the failure of Buyer, Buyer’s Officers, agents or employees, to comply with any federal, state, or local laws or regulations applicable to the use of such equipment; (c) any negligence or alleged negligence of Seller or any of Seller’s officers, agents or employees in the sale of the goods; (d) any legal theory of strict liability without fault applied to Buyer, Seller or the original manufacturer of the goods; (e) any theory or breach of warranty of any kind; (f) the presence on or in the goods of any toxic or hazardous substance regulated under federal, state or local law.
8. MISCELLANEOUS.
a. Successors and Assigns: These Terms shall be binding in all respects upon, and shall inure to the benefit of, the parties’ heirs, successors and assigns.
b. Governing Law, Jurisdiction, and Venue: These Terms shall be governed by the law of the State of Colorado. The jurisdiction of the state courts of Colorado shall apply to any action arising out of these Terms. Venue is admitted to be proper in Boulder County, Colorado.
c. Attorneys Fees: In the event of any action or proceeding arising out of these Terms, the prevailing party shall be entitled to recover its reasonable costs andattorneys’ fees, in addition to any other relief to which it may be entitled.
d. Severability: In the event that a court of competent jurisdiction enters a final judgment holding invalid any provision of these Terms, the remainder of these Terms shall be fully enforceable insofar as the primary purpose of these Terms is not frustrated.
e. Integration: These Terms, plus any applicable contract for sale, constitute the entire agreement of the parties with respect to the subject matter herein contained,and a complete merger of prior negotiations and agreements.
f. Waiver: No term or condition of these Terms shall be deemed to have been waived, nor shall there be an estoppel against the enforcement of any provision of these Terms, except by a writing signed by the party charged with the waiver or estoppel. No waiver of any breach of these Terms shall be deemed a waiver of any subsequent breach of the same provision or any other provision of these Terms.
g. Construction: Each party acknowledges that it has reviewed these Terms in their entirety and has had a full and fair opportunity to negotiate such terms. Each party therefore waives all applicable rules of construction that any provision of these Terms should be construed against its drafter, and agrees that all provisions of these Terms shall be construed as a whole, according to the fair meaning of the language used.
h. Counterparts and Telecopies: These Terms may be executed in counterparts, or by copies transmitted by telecopier, all of which shall be given the same force and effect as the original.
