Terms & Conditions
1. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania.
2. Integrated Agreement. This Agreement together with quotation provided by Seller and invoice provided by the Seller contain all of the terms and conditions of the Agreement between Berks Plant Design & Maintenance, Inc. ("Seller") and the Buyer. If, however, any of the terms or conditions of any such quotation and invoice conflict with the terms or conditions herein, the terms and conditions of provided herein shall apply and shall supersede those contained in of the quotation or invoice.
3. Buyers Terms Rejected. Any terms and conditions offered, proffered or proposed by the Buyer are hereby rejected and such terms shall be excluded. Buyer acknowledges and agrees that the terms contained herein shall apply. Any order from a customer will only be accepted by Buyer under the terms and conditions set forth herein.
4. Uniform Commercial Code. Except as otherwise provided herein, this agreement shall be governed by and construed in accordance with the Uniform Commercial Code--Sales. Wherever the term "Uniform Commercial Code" is used, it shall be construed as meaning the Uniform Commercial Code as adopted in the Commonwealth of Pennsylvania as effective and in force on the date of this agreement.
5. Identification of Machinery. It is agreed that the identification of the items of machinery that are the subject of the quotation and this agreement ("Machinery") shall not be deemed to have been made until both the Buyer and Seller have agreed that the Machinery is set aside and appropriated for the performance of this contract. Buyer agrees to pay for and accept the items of machinery described in the quotation and invoice, the terms of which are incorporated herein. Should conditions render unavailable, at reasonable cost, any material, product or machinery required in this agreement, Seller may, at its discretion, supply a substitute of suitable value and utility or terminate Seller's obligation hereunder upon notification to Buyer.
6. Time of Delivery. Buyer shall have the right to specify the date of delivery, but in no event shall the date specified be before the date provided for delivery in the quotation and shall not be later than 45 days after project completion. Delivery shall be made during regular business hours on the date specified.
7. Place of Delivery. The Machinery will be delivered to Seller F.O.B. Sellers loading dock located at Shoemakersville, PA, uncrated unless expressly provided in the quotation.
8. Notification of Delivery. As soon as the Machinery being sold under this contract is ready, the Seller will notify Buyer as to completion and the dates and times at which the Buyer may take delivery after inspection, as provided herein.
Price and Payment
9. Price. The price of the Machinery is set forth in the accepted quotation and invoice, which supersedes any other document. Unless otherwise provided in the quotation, the price shall not include storage or installation. Quotations unless accepted shall automatically expire sixty (60) days from the date issued unless sooner terminated.
10. Refusal of Delivery or Order Cancellation. If Buyer refused to accept delivery of any goods tendered for delivery hereunder, then Seller, without prejudice to Seller's other remedies, may either store or cause such goods and machinery to be stored (at the standard storage fee of $7.50 per square feet per month), for Buyer's account, and at Buyerâ€™s costs, risk and expense or sell such goods and machinery (without notice to Buyer) at Sellers discretion and hold Buyer liable for any difference between the contract price for such goods and machinery and the price for which such goods or machinery are resold less the costs and expense of such resale, including shipping and brokerage costs. In the event of cancellation of an order, Seller will be entitled to a cancellation charge not to exceed its cost plus anticipated profit. Liability for damage to any Machinery in storage will be assumed by Buyer and will be the responsibility of Buyer. Seller assumes no liability for any Machinery in storage.
11. Payment. Payment is due as provided in quotation and invoice from the Seller. No setoff, discount or allowance will be made unless specifically agreed to by Seller in writing. In the event the Buyer fails to comply with terms of payment, the Seller reserves the right to cancel this and any other order or contract without prejudice to the Sellers's rights to recover any monies owed or owing to the Seller. The parties agree that all payments still owing after the due date will bear interest at the annual rate of twelve percent (12%).
12. Nonpayment. Buyer agrees that if Seller institutes litigation to collect any outstanding billings or other amounts, that Seller shall be entitled to a reasonable attorneys' fee of 25% of the total amount due, or actual attorneys' fees, whichever is greater, plus all costs. Buyer further agrees that venue and jurisdiction of any such case shall be in the State or Federal Courts located in Pennsylvania.
Inspection and Rejection
13. Condition. As provided in quotation or invoice, Seller has informed Buyer that the Machinery being sold to Buyer is supplied in a specific manner, these being defined both privately in the quotation and publicly defined on any company information located on web, all social media, brochures, advertisements. Machinery shall be delivered in the condition as provided in the quotation. Except as provided herein, no promises or warranties relating to the Machinery has been made by Seller.
14. Inspection. Buyer shall make a careful inspection of the Machinery at the Seller's place of business during normal business hours any time prior to the time of delivery. Buyer's failure to give written notice of any type of claim within five business days of delivery shall constitute an unqualified acceptance of the Machinery and a waiver of all claims with respect thereto.
15. Nonconforming Machinery. If after inspection, the Buyer intends to reject all or part of the shipment or Machinery as nonconforming, the Buyer must send written notification of the rejection to the Seller. The notice must state the basis of the alleged nonconformity of the Machinery and describe the portion of the shipment or Machinery being rejected.
16. . Procedure as to Rejected Machinery. On receipt by Seller of notification of rejection by Buyer, the Seller shall be permitted to inspect the Machinery for nonconformity. If Machinery is confirmed by Seller as being nonconforming, Seller will arrange for the shipment of the Machinery at Seller's expense to Seller's place of business and will ship replacement conforming Machinery within 180 days of the notice of said confirmation unless the Buyer notifies the Seller that it intends to terminate this agreement. In such an event, Buyer shall only be entitled to receive any money is has paid to Seller on account of such nonconforming Machinery.
17. Procedure as to Abandoned Machinery: On receipt by Buyer of notification regarding preparedness of machinery or goods to be delivered by Seller, Buyer must advise Seller as to Buyer's intentions under contract to inspect and take delivery in a timely manner. If Buyer does not maintain or establish communication with Seller (constituting breach of contract), the Machinery will be stored on Buyer's behalf for a period of up to 3 months before the standard storage fee of $7.50 per square feet per month is assessed against Buyer.
In the event Buyer fails to comply with terms of payment and delivery, this non-compliance shall constitute an unqualified acceptance of the Machinery and a waiver of all claims with respect thereto. In the event that Machinery is stored for a period of 1 (one) year on Buyer's behalf and Buyer continues to fail to comply with terms of payment and delivery as per above, Seller may dispose of the abandoned Machinery in any manner Seller sees fit. In such an event, Buyer is in no way entitled to receive any money or other compensation with regard to the abandoned piece(s) of machinery.
Disclaimer of Express Warranty
18. Warranty. Subject to the terms contained herein, the Seller warrants that all items of machinery (except for machinery delivered â€œas is) will be in condition provided in the quotation at the time of delivery. THERE ARE NO EXPRESS WARRANTIES BY SELLER OTHER THAN THOSE SPECIFIED HEREIN, NO WARRANTIES BY SELLER SHALL BE IMPLIED OR OTHERWISE CREATED UNDER THE UNIFORM COMMERICAL CODE, INCLUDING BUT NOT LIMITED TO WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
19. Limitation on Damages. No claim of any kind against Seller, whether as to goods or machinery delivered or furnished or for non-delivery of or failure to furnish goods or machinery whether or not based on negligence, shall be greater than the price or charge for the item in respect to which such claim is made. In no event shall Seller be liable to the Buyer or to any other person or entity for any consequential damages, punitive damages, special damages, loss of profits, business or good will or any other direct or indirect loss or damage. Seller shall not be liable here under to any person or entity other than Buyer. Buyer assumes all responsibility for the results of using machinery or goods delivered in any manufacturing process.
20. Indemnification. Buyer shall indemnify and hold harmless the Seller and their agents and employees from and against all claims, damages, losses and expenses, including attorney's fees, arising out of this agreement or the described supply of labor or materials, provided that any such claim is attributable to bodily injury, sickness, disease or death or injury to or destruction of tangible property, including the loss of use resulting therefrom, caused in whole or in part by any negligent act or omission of Buyer, any subcontractor, employee, agent or anyone else directly or indirectly employed by any of them or by any third person, regardless of whether or not it has been caused in part indemnified hereunder.
(a) The obligation of Seller hereunder shall be modified or excused as the case may be, for reasons of Act of God, war, governmental law or regulations, strikes or lockouts, fire, breakdown of machinery, whether in it own business enterprise, or if for any other cause beyond Seller's control, the goods cannot be delivered or their delivery becomes delayed in whole or in part. In the above instances, time for delivery shall be extended for the period of the delay caused, with the proviso, however, that either party may cancel in writing the undelivered portion of the order or contract if the delay exceeds six (6) months from the delivery date originally confirmed by Seller. In no event shall Seller become liable in the aforesaid instances to Buyer or any third party for consequential damages or business loss.
(b) Any contract and notice given hereunder may be assigned, transferred or negotiated by Seller, or the time for the making of any payment due hereunder by Buyer may be extended by Seller without derogation of any of the rights of Seller or its assigns. Waiver by any party of any default shall not be deemed a waiver of any subsequent default.
(c) This contract may not be assigned by Buyer without prior written consent of Seller.
(d) Any dispute arising under the contract herein shall be brought in the State or Federal Courts located in Pennsylvania. Buyer and Seller agree to waive trial by jury in any action or other such proceedings arising out of or relating to the goods or this contract.
(e) If for any reason a provision of the contract is legally invalid, then in such event the rest of the contract shall remain in full force and effect.
(f) Any amendment to any contract or contracts shall require the consent in writing of both parties.
(g) The terms and conditions contained herein shall govern in any instance where they conflict with the provisions of any forms used by Buyer. By accepting quotation and purchasing equipment, Buyer agrees that the transaction is bound by the standard terms and conditions outlined above.
(h) This agreement shall be binding upon placing this order and any other related orders and Seller (Berks Plant Design and Maintenance, Inc.) to inure to the benefit of its parties and their respective heirs, executors, administrators, legal representatives, successors, and assigns when permitted by this agreement.
Berks Plant Design & Maintenance, Inc. reserves the right to change these Terms and Conditions at any time without notice.