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TERMS AND CONDITIONS OF SALE- Page 8
TERMS AND CONDITIONS OF SALE
c.
Exclusions.
Manufacturer shall have no responsibility or obligation if the Term of the Limited Warranty has expired, or for any failure,
defect or damage attributable (in whole or in part) to any of the following:
i.
Failure of the Purchaser to provide proper care and maintenance of the Product.
ii.
Purchaser has not followed the practices set forth in the Owner’s Manual.
iii.
Use of the Product other than for the purpose described above.
iv.
Failure to properly charge the hydraulic system prior to placing grain in the bin on top of the Product and hoses.
v.
Normal wear and tear.
vi.
Unauthorized adjustments, repairs of modifications.
vii.
Accidents, misuse or abuse of the Product.
viii.
Use of the Product to agitate or move any material other than harvested grain.
ix.
Use or placement of the Product anywhere other than the permanent floor of a grain bin.
x.
Damage caused to the Product by contact with a sweep auger.
xi.
Failure to use the Product in accordance with industry standards.
xii.
Failure of the Purchaser to immediately notify Manufacturer of a known defect, failure or non-conformity.
d.
Technical Assistance.
At the request of Purchaser, Manufacturer may, in Manufacturer's sole and absolute discretion, furnish
technical assistance and information with respect to the Product, its placement or installation. MANUFACTURER MAKES NO
WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR ANY PARTICULAR PURPOSE, WITH RESPECT TO TECHNICAL ASSISTANCE OR INFORMATION PROVIDED BY
MANUFACTURER OR ITS PERSONNEL. ANY SUGGESTIONS BY MANUFACTURER REGARDING USE, SELECTION, APPLICATION
OR SUITABILITY OF THE PRODUCTS SHALL NOT BE CONSTRUED AS AN EXPRESS WARRANTY.
7.
Dispute Resolution.
a.
Purchaser agrees to first contact Manufacturer in the event of a dispute or any issue with the Product. Any dispute or controversy
not resolved with informal communication will be resolved by mediation through a mutually acceptable mediator, who shall have
experience in farm products and grain storage. Each party shall equally bear the fees and expenses of mediation, excluding attorney
fees and expert witness fees.
b.
In the unlikely event the dispute is not resolved after both parties have participated in the mediation process in good faith, the
dispute shall be resolved by arbitration in accordance with the rules as agreed upon by the parties. If the parties can’t agree on
the rules, the rules of the American Arbitration Association, as modified by these Terms and Conditions, shall apply. The award of
the arbitrator shall be conclusive and binding upon the parties and enforceable in a court of competent jurisdiction. Each party shall
equally bear the fees and expenses of arbitration, excluding attorney fees and expert witness fees. The arbitration proceeding will
be held in Sioux Falls, South Dakota before a single arbitrator with experience in farm products and grain storage, or if the parties
cannot agree, the arbitrator will be chosen by the South Dakota Department of Agriculture or the Presiding Judge of the Second
Circuit.
c.
Excepted from this process is any legal action that Manufacturer may need to file to protect its confidential information or any trade
secret.
8.
Miscellaneous.
a.
Other Terms.
Terms or conditions contained in any order form or other document submitted by Purchaser that are inconsistent
with, or in addition to, these Terms and Conditions are rejected, objected to and shall be deemed void and of no force or effect.
b.
Cancellation.
Manufacturer reserves the right to cancel any order, in whole or in part, upon breach of these Terms and Conditions or
the bankruptcy, insolvency, dissolution, receivership proceedings of Purchaser, or occurrence of any event causing Manufacturer to
reasonably question the ability of Purchaser to perform.
c.
Security Interest.
To secure the obligation of Purchaser to pay Manufacturer for the Product, Purchaser grants to Manufacturer a
purchase money security interest in all products purchased from Manufacturer, and in all proceeds thereof.
d.
Non-Waiver.
Manufacturer's failure to strictly enforce any particular term or condition contained herein or to exercise any right with
respect to an order shall not constitute a waiver of Manufacturer's right to strictly enforce such terms or conditions or exercise such
right thereafter. All rights and remedies are cumulative and are in addition to any other rights and remedies Manufacturer may have
at law or in equity. Any waiver of a default must be in writing and shall not operate as a waiver of any other default or of the same
default thereafter.
e.
Severability; Construction.
In the event any provision of these Terms and Conditions is determined to be unenforceable in full, that
provision will be enforced to the maximum extent permissible under applicable law, and the other provisions of this document will
remain in full force and effect. In the event the terms of this document conflict with the express terms of an Invoice from the
Manufacturer, the terms of the Invoice shall control.
f.
Notices.
Any notice hereunder shall be in writing and shall be effective on receipt. All requirements of written notice or consent
may be satisfied with an e-mail sent from and to a registered e-mail address used by the applicable party and known to the other to
be valid when sent. The sender shall request a return receipt or an acknowledgement from the recipient that the electronic notice
was
delivered.
g.
Headings.
The descriptive headings contained in this document are inserted for convenience only, do not constitute a part of this
document and shall not affect in any way the meaning or interpretation of these Terms and Conditions.
h.
Governing Law.
The relationship of the parties, together with these Terms and Conditions, shall be governed by and construed
in accordance with the laws of South Dakota, without regard to the conflict of law principles. The parties hereto irrevocably consent
to the jurisdiction of the South Dakota courts, in the Second Judicial Circuit.
i.
Integration.
Except as to the Owner Manual and updates on the Manufacturer web site (www.sumpsaver.com) as referenced therein,
this writing constitutes the entire understanding of the parties and revokes and supersedes all prior agreements between the parties
and is intended as a final expression of their agreement. These Terms and Conditions shall not be modified or amended, and no
waiver shall be effective against the other, except as follows: in writing signed by the parties hereto or in an invoice from the
Manufacturer.
