SUMP SAVER LLC | PATENT # 8,920,100 AND PATENTS PENDING
TERMS AND CONDITIONS OF SALE- Page 7
TERMS AND CONDITIONS OF SALE
1.
Acceptance of Terms.
By purchasing or accepting delivery of the Sump Saver / Mighty Mini product supplied by Sump Saver, LLC (“Product”),
Purchaser agrees to be bound by these terms and conditions (the “Terms and Conditions”).
2.
Delivery; Claims.
a.
Shipping.
The Product will be delivered to Manufacturer’s shipping point unless otherwise noted. If shipping and handling charges
are quoted or invoiced, they will include charges in addition to actual freight costs.
b.
Risk of Loss.
Delivery of the Product to the carrier at Manufacturer’s shipping point shall constitute delivery to Purchaser and Pur-
chaser shall bear all risk of loss or damage in transit.
c.
Shipment.
Manufacturer reserves the right, in its sole discretion, to determine the exact method of shipment for any particular ship-
ment and Manufacturer reserves the right to make delivery of multiple orders in installments, all such installments to be
separately invoiced and paid for when due per invoice.
d.
Delays.
Delay in delivery of any Product shall not relieve Purchaser of any obligations to accept remaining deliveries. Specified
delivery dates are estimates only and do not represent a promise by Manufacturer to deliver the Product at a certain date.
e.
Inspection.
Purchaser agrees to immediately inspect the Product received from Manufacturer and to notify Manufacturer
immediately of any claims for shortages, defects or damages. If Purchaser fails to notify Manufacturer within 5 days after
Purchaser has received the Product, Purchaser shall be deemed to have irrevocably accepted the Product.
f.
Allocation.
If the Manufacturer is unable for any reason to supply the total demands for the quantity of Product specified in an
order, Manufacturer may allocate its supply among any or all customers (including Manufacturer’s distributors) on such basis as
Manufacturer may deem fair and practical, without liability.
3.
Payment; Terms.
Purchaser shall make payment to Manufacturer in accordance with the terms of the Invoice.
a.
Deferred Payment Orders.
If for any reason Manufacturer, in its sole discretion, deems the collectability of the purchase price to be
in doubt, Manufacturer may delay or postpone the delivery of the Product and may, at its option, change the terms of payment to
payment in full or in part in advance, with respect to the entire undelivered balance of any order.
b.
Unfilled Order.
In the event of default by Purchaser in the payment of the purchase price or otherwise, Manufacturer may, at its
option, without prejudice to any other of Manufacturer's lawful remedies, defer delivery, cancel the order, or sell any undelivered
Product on hand and apply such proceeds as a credit, without set-off or deduction of any kind, against the agreed upon purchase
price. Purchaser agrees to pay the balance then due to Manufacturer on demand.
c.
Default.
Purchaser agrees to pay all costs, including, but not limited to, reasonable attorney and accounting fees and other expenses
of collection resulting from any default by Purchaser in any of the terms hereof. Invoices remaining unpaid after their due date will
be subject to an interest charge of 1.5% per month (or the maximum rate allowed by law). Purchaser must pay all costs of collection
on unpaid amounts, including (without limitation) attorneys’ fees and related costs.
d.
Taxes.
Purchaser shall be responsible for all applicable use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any
other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured
by the transaction between, with the sole exception of any sales taxes invoiced and collected by the Manufacturer. All
other such charges (if any) must be paid by Purchaser separately and in addition to the prices quoted or invoiced. In the
event Manufacturer is required to pay any such tax, fee or charge, Purchaser shall reimburse Manufacturer therefore; or,
in lieu of such payment, Purchaser shall provide Manufacturer at the time the order is submitted an exemption certificate
or other document acceptable to the authority imposing the tax, fee or charge.
e.
Returns.
Product may not be returned for credit except with prior written permission of the Manufacturer, and then only in strict
compliance with Manufacturer's return shipment instructions. All returns are subject to a 35% restocking fee, must be
returned within 30 days of purchase, and are not eligible for return after installation or if the Product has been charged
with hydraulic fluid.
f.
Price Changes.
Shipment will be made promptly even if prices have been nominally increased, and any price changes will be auto-
matically applied to the invoice. Notwithstanding any price quotation or prices listed by Manufacturer, if at any time prior to delivery
Manufacturer’s costs of materials have increased by 10% or more, then Manufacturer may cancel any accepted but undelivered
orders or condition the continuance of any order to an agreement to a corresponding increase in price.
4.
Use of Sump Saver.
The Product is intended to be installed inside of a commercially constructed grain storage bin with a permanent concrete
floor, and is not to be used for any other purposes. Purchaser represents and warrants that it will:
a.
Not
use the Product for any other purpose or application;
b.
Not
modify the Product;
c.
Not
submerge the Project in any liquid or any substance other than grain;
d.
Notify those involved in using the Product of the risks involved in the use of the Product; and
e.
Not
market, distribute, resell or export the Product.
5.
Limited Warranty.
Commencing on the delivery of the Product to the Purchaser, Manufacturer warrants for the exclusive benefit of the original
Purchaser named on the original Manufacturer invoice, that the Product will be free from defects in material and workmanship.
THIS
WARRANTY IS EXCLUSIVE, AND MANUFACTURER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF ANY THIRD-PARTY PATENT OR INTELLECTUAL
PROPERTY RIGHTS.
MANUFACTURER SHALL NOT IN ANY EVENT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND
RESULTING FROM ANY USE OR FAILURE OF THE PRODUCT, EVEN IF MANUFACTURER HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, COST OF CAPITAL, LOSS OF WORK
IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS, ANY LIABILITY OF BUYER TO A THIRD PARTY,
OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE OR LOSS OCCASIONED BY SUCH PRODUCT INCLUDING, BUT NOT LIMITED TO,
PERSONAL INJURY OR PROPERTY DAMAGE. THE EXCLUSION OF SUCH DAMAGES AND/OR CLAIMS SHALL BE DEEMED INDEPENDENT
OF, AND SHALL SURVIVE, ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY ARISING FROM THE PURCHASE
AND/OR THESE TERMS AND CONDITIONS. MANUFACTURER’S LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO CASE EXCEED THE
CONTRACT PRICE FOR THE PRODUCT THAT GIVES RISE TO THE BREACH. THESE EXCLUSIONS AND LIMITATIONS ON DAMAGES SHALL
APPLY REGARDLESS OF HOW THE LOSS OR DAMAGE MAY BE CAUSED AND AGAINST ANY THEORY OF LIABILITY, WHETHER BASED ON
CONTRACT, INDEMNITY, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY. ALL CLAIMS MUST BE
BROUGHT WITHIN 1 YEAR OF SHIPMENT, REGARDLESS OF THEIR NATURE.
6.
Exclusions from the Limited Warranty.
The limited warranty of Manufacturer to the original Purchaser is subject to these additional terms:
a.
Term.
The Limited Warranty shall apply for a period of 365 days after delivery of the Product.
b.
Exclusive Remedy.
As the exclusive remedy for any nonconformity, defect or failure in the Product for which Manufacturer is
responsible, Manufacturer will, at its option, repair the failure or defect or replace the Product at no cost to Purchaser. If the Manufacturer
replaces the Product with a new one, the Manufacturer will retain the defective one.
