Terms & Conditions of Sale
The following Terms and Conditions are to be considered an integral part of the Agreement.
The sale of finished products (“Products”) and the provision of shop or field services (“Services”) by L&H Industrial, Inc. (“Seller”) to Buyer hereunder are subject to these Terms and Conditions. Seller’s acceptance of Buyer’s order is limited to Buyer’s acceptance of these Terms and Conditions and is expressly made conditional on Buyer’s assent to any additional or different forms and conditions contained herein. No modifications of, or additions to, these Terms and Conditions will be valid unless expressly agreed to in writing by an authorized officer of Seller. Seller considers any provisions in conflict with these Terms and Conditions contained in any prior or subsequent order or communication from Buyer to be material and hereby objects to any such provisions. Buyer’s acceptance of any Products or Services covered by these Terms and Conditions shall constitute acceptance of these Terms and Conditions.
2. ENTIRE AGREEMENT:
These Terms and Conditions, together with the payment terms, descriptions of Products or Services, Buyer’s name and address and any other information or terms and conditions specifically stated in Buyer’s offer or sales order acknowledgment constitute the entire agreement (the “Agreement”) between Seller and Buyer with reference to the subject matter hereof. Any purchase order issued by Buyer shall be deemed to be for the record keeping convenience of Buyer and confirm these Terms and Conditions and not add to, delete from, or change these Terms and Conditions.
Prices quoted by Seller are exclusive of all taxes including federal, state and local use, sales, property, import/export, or similar taxes, and Buyer shall pay all such taxes in full or shall reimburse Seller for any such taxes paid by Seller (except taxes levied on Seller’s income).
4. PAYMENT TERMS:
Unless stated otherwise in this Agreement, payment in full is due thirty (30) days from Buyer’s receipt of Seller’s invoice. E-mail or faxed invoices shall be allowed and receipt shall occur on the date the invoice is e-mailed or faxed. Hard copy of the invoice will be mailed to Buyer for confirmation purposes only. Buyers outside of the United States or Canada must pay by wire transfer. Other Buyer’s payments are to be made by mail or wire transfer pursuant to the following instructions:
L&H Industrial, Inc.
913 L&J Court
Gillette, WY 82718
By wire transfers and ACH requests please contact L&H Industrial Credit Specialist
International wire transfer: SWIFT WFBIU6S
5. EXCUSABLE DELAY:
Seller shall not be liable for any delay in delivery or failure to perform any of its obligations if such delay or failure is caused by circumstances beyond the control of Seller’s or Seller’s sources of supply, including but not limited to fires, floods, acts of God, acts of terror, acts of war, government restrictions, material shortages, strikes, work stoppages or lock-outs, epidemics, accidents, or transportation delays irrespective of whether such contingency is specified herein or is presently occurring or anticipated.
Unless expressly stated otherwise in this Agreement, all domestic shipments are FOB Seller’s plant or warehouse and title and all risk of loss with respect to any goods shipped shall pass to Buyer when such goods are delivered to the carrier at such plant or warehouse. Unless expressly stated otherwise in this Agreement, all international trade shall comply with INCOTERMS 2010, the specific trade term and code that will apply to be determined at time of sale. All trade transactions governed by INCOTERMS 2010 shall confer title to Buyer when any goods are delivered to the carrier at Seller’s plant or warehouse. All delivery dates are estimates of approximate dates of delivery and do not constitute guaranty of delivery on such dates.
Rev 2 April 17, 2015
Cancellation of orders for Products or Services shall require written notification from the Buyer. Upon receipt of such cancellation notice, Buyer shall (i.) For completed Products or Services, take delivery of the completed Products and Services and make payment to Seller at the order price. (ii) For uncompleted Products or Services, Seller shall require Buyer to take delivery of all or part of Product or Services at the order price representing the stage of completion, or pay Seller the amount of the order price representing the stage of completion (iii) For Products or Services which Seller has on firm order, Buyer shall either take an assignment of Seller’s right under the order or pay the cost of settling or discharging Seller’s obligation under the order.
Subject to limitations and restrictions, Seller may permit the return of parts that have been delivered to and accepted by Buyer per Seller’s Parts Return Policy, providing that such returns were not otherwise subject to the terms of this section. A copy of the Parts Return Policy is available upon request. Seller’s rights and remedies under this section shall not be exclusive and are in addition to any other rights and remedies provided by law.
Seller offers a limited warranty for Services and Products as defined in “Limited Warranty for Specific Mining Products” and “General Limited Warranty Provisions” documents. These documents are available upon request.
THIS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9. WARRANTY REMEDIES:
Buyer’s sole and exclusive remedy for non-conformance of Services or Products shall be the re-performance of any nonconforming Services or Products, providing the Seller is given written notice within the warranty period. Seller shall not be liable for any other expense connected with correction or re-performance of any Service or for any special, extraordinary, incidental, or consequential damages. Buyer’s sole and exclusive remedy for a failure of Seller’s Product due to defects in material and workmanship during the warranty period, at the Seller’s election, shall be repair or replacement of the defective Product at the Seller’s plant or warehouse.
To request the provisions of this remedy, Buyer must provide a written notice to Seller within the warranty period, establish the dates of purchase, installation and removal from service, document operating hours, and provide a description of the claimed defect. Seller reserves the right to demand return of the claimed defective Products to its plant or warehouse for inspection at Buyer’s expense. Should Seller agree that a Product might not be reasonably returned due to size or complexity; the same shall be cleaned and presented to an authorized Seller’s representative for complete inspection. The limited warranty shall not include any transportation charges, or costs of disassembling or installation, equipment downtime, or any liability for direct, indirect or consequential damages or delay.
10. NON-DISCLOSURE AND CONFIDENTIALITY:
Buyer acknowledges and agrees that in the course of conducting business with Seller, Buyer may become exposed to proprietary, confidential, sensitive, non-public, or trade secret information that may include but not limited to Proposals, Drawings, Prints, Specifications, Trade Secrets, and other Technical Data (“Confidential Information”), Buyer shall hold Confidential Information in strict confidence and shall not directly or indirectly disclose Confidential Information to any third party or make use of Confidential Information, except as ordered by any court or any other government body of competent jurisdiction; provided however that Buyer shall give Seller prior written notice of any such disclosure and shall cooperate with Seller if Seller seeks a protective order or similar protection as Seller may deem appropriate to preserve the confidential nature of such information. The restrictions contained in this section are necessary for the protection of the business and goodwill of Seller and are considered by Buyer to be reasonable for such purposes. Buyer agrees that any breach of this section will cause Seller substantial and irrevocable damage and therefore in the event of any such breach, in addition to such other remedies which may be available, Seller shall have the right to specific performance and injunctive relief, as well as attorneys’ fees and costs, for enforcing this section. Buyer agrees to take all necessary steps to ensure that all of its employees and subcontractors who would be exposed to the Confidential Information are aware of this section and fully comply with the restrictions set forth herein.
Seller shall indemnify and hold harmless the Buyer, its officers, directors, employees, and agents from and against any claim (including costs, litigation expenses, attorney’s fees and other expenses) for personal injury to or death of any person or damage to property by whomsoever owned, to the extent caused by the negligent acts or omissions of the Seller, its agents or employees arising out of the sale, installation, use or provision of Products or Services hereunder. Buyer shall indemnify and hold harmless the Seller, its officers, directors, employees and agents from and against any claim (including costs, litigation expenses, attorney’s fees and other expenses) for personal injury to or death of any person or damage to property by whomsoever owned, to the extent caused by the negligent acts or omissions of the Buyer, its agents, or employees arising out of the sale, Rev 2 April 17, 2015
Appr: AMH installation, use or provision of Products or Services hereunder. Insurance recoveries or policies, warranties, or other obligations of Buyer under this Agreement shall not in any way limit this indemnity.
12. LIMITATION OF LIABILITY:
Buyer acknowledges that the price is predicated on the enforceability of the following limitation of liability, that the price would be substantially higher if Seller could not limit its liability as herein provided, and Buyer accepts this limitation of liability in exchange for such lower price.
SELLER SHALL HAVE NO LIABILITY TO BUYER WITH RESPECT TO THE SALE OF PRODUCTS OR PROVISION OF
SERVICES HEREUNDER FOR LOST PROFITS OR FOR SPECIAL, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL
DAMAGES OF ANY KIND WHETHER ARISING IN CONTRACT, TORT, PRODUCT LIABILITY OR OTHERWISE, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH LOST PROFITS OR DAMAGES. IN NO EVENT SHALL SELLER BE LIABLE TO
BUYER FOR ANY DAMAGES WHATSOEVER IN EXCESS OF THE PRICE OF PRODUCTS SOLD AND SERVICES PROVIDED
HEREUNDER. SHOULD THE WARRANTY PROVISION OF THIS CONTRACT BE DETERMINED TO FAIL OF ITS ESSENTIAL
PURPOSE FOR ANY REASON, THE PARTIES AGREE THAT ALL LIMITATIONS OF LIABILITY FOR INCIDENTAL AND
CONSEQUENTIAL DAMAGES WILL REMAIN IN EFFECT.
13. GOVERNING LAW:
This transaction shall be deemed to have been made and entered into and shall be construed and enforced in accordance with the laws of the State of Wyoming, USA. All terms of domestic trade, which are defined in the Uniform Commercial Code, as adopted in the State of Wyoming shall have the same meaning herein as in such Code. All terms of international trade are governed by INCOTERMS 2010. At seller’s option, any disputes concerning the rights or obligations of the parties hereto shall be resolved by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association (or in the event of a sale of a Customer located outside of the United States, in accordance with the International Chamber of Commerce Rules of conciliation and arbitration) with any proceedings to be held in Gillette Wyoming, USA. The award shall be final, and the parties expressly concede jurisdiction to any tribunal competent to enforce such awards. The failure of seller to insist upon strict performance of any of the terms and conditions stated herein shall not be considered a continuing waiver of any such terms or conditions or any of Seller’s rights hereunder.
Unless otherwise stated in this Agreement, Seller and Buyer acknowledge and agree that the failure of either party to enforce any term of the Agreement shall not constitute a waiver of any rights or deprive either party of the right to insist thereafter upon strict adherence to that or any other term of the Agreement, nor shall a waiver of any breach of the Agreement constitute a waiver of any preceding or succeeding breach. No waiver of any provision of the Agreement, unless expressively stated otherwise in the Agreement, shall be valid and binding unless it is in writing and signed by the party against whom it is sought to be enforced.
The Agreement shall be enforceable to the fullest extent allowed by law. If any provision of the Agreement shall be found to be null, unlawful, void, or inoperative for any reason, such provision shall be struck from the Agreement and otherwise the Agreement shall continue in full force and effect.
16. NO THIRD PARTY BENEFICIARIES
Nothing in this Agreement, expressed or implied, is intended to or shall confer any rights, remedies, or benefits upon any person, including without limitation, any affiliate, employees, representatives, contractors, or agents of Buyer, other than the parties hereto and their respective successors or permitted assigns.
Notwithstanding the expiration, termination, or completion of the Agreement, any duty or obligation which has been incurred and which has not been fully observed, performed, or discharged, and any right, unconditional or conditional, which has been created and has not been fully enjoyed, enforced, or satisfied (including but not limited to the duties, obligations and rights, with respect to payment, confidentiality, insurance, warranty, and indemnification) shall survive such expiration, termination, or completion until such duty or obligation has been fully observed, performed, or discharged and such right has been enforced, enjoyed, or satisfied.