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TERMS
<br />By purchasing or financing the equipment listed on page 1 (collectively, “Products”), Purchaser hereby agrees to the preceding and following terms (collectively, the “Terms”).
<br />1. ACCEPTANCE. All sales are subject to availability of Products. Seller may accept or reject
<br />this agreement and will not be required to give any reason for rejection. Seller rejects any
<br />terms submitted by Purchaser not contained herein. Purchaser may issue a purchase order
<br />for administrative purposes only, and any terms in any purchase order are rejected, not binding
<br />on Seller, and are of no force.
<br />2. TAXES. Purchaser agrees to pay all taxes, assessments, licenses, and governmental
<br />charges of any kind resulting on account of Purchaser’s purchase, possession, or use of
<br />Products.
<br />3. FINANCING. If Purchaser finances Products, Seller’s acceptance of this agreement is
<br />subject to the approval of Seller’s or Purchaser’s lender, and Purchaser shall sign any security
<br />agreement and financing statement required by such lender.
<br />4. ADDITIONAL DOCUMENTATION. On Seller’s request, Purchaser shall, at its sole
<br />expense, sign and deliver all such further documents and instruments, and take all such further
<br />acts, necessary to give full effect to this agreement or otherwise required by Seller. If Purchaser
<br />fails to sign and deliver such documents or instruments to Seller, the entire balance of the
<br />purchase price will, upon Seller’s tender of performance and at Seller’s option, become
<br />immediately due and payable.
<br />5. SECURITY INTEREST. To secure Purchaser’s prompt and complete payment of any
<br />present and future indebtedness of Purchaser to Seller under this agreement, or any document
<br />or instrument signed in connection with this agreement, Purchaser hereby grants Seller a
<br />security interest, in Products, wherever located, whether now existing or hereafter arising from
<br />time to time, and all accessions thereto and replacements or modifications thereof, as well as
<br />all proceeds (including insurance proceeds) of the foregoing. Purchaser acknowledges that
<br />the security interest granted under this Section 5 is a purchase-money security interest under
<br />applicable law. Seller may file a financing statement to perfect the security interest, and
<br />Purchaser shall sign any statements or other documents necessary to perfect Seller’s security
<br />interest. Purchaser also authorizes Seller to sign, on Purchaser’s behalf, statements or other
<br />documentation necessary to perfect Seller’s security interest. Seller may exercise all rights and
<br />remedies of a secured party under applicable law.
<br />6. TITLE AND RISK OF LOSS; DELIVERY. Title and risk of loss to Products passes to
<br />Purchaser upon Delivery. “Delivery” occurs upon Seller’s delivery of the Products to the carrier
<br />in the event of shipment, or Purchaser’s receipt of Products at Seller’s location.
<br />7. SHIPMENT. Seller shall deliver Products FOB at the location specified on Page 1.
<br />Purchaser shall pay all shipping charges and insurance costs.
<br />8. INSURANCE. Upon Delivery, and at all times thereafter while there is any balance due
<br />under this agreement, Purchaser shall, at its own expense, have and keep Products insured
<br />against loss by fire, theft, collision, vandalism, and any other hazard as Seller may require by
<br />an insurance company acceptable to Seller and in an amount no less than the balance due
<br />under or in connection with this agreement. On Seller’s request, Purchaser shall provide Seller
<br />with a certificate of insurance from Purchaser’s insurer evidencing the coverages specified in
<br />this Section. Purchaser shall provide Seller with 10 business days’ advance notice in the event
<br />of cancellation or a material change in its policy.
<br />9. BILL AND HOLD. If Purchaser requests to be billed prior to Delivery, in its sole
<br />determination, notwithstanding any provisions to the contrary herein, Purchaser assumes all
<br />risk of ownership and liability for Products as of the date of the invoice, including insuring
<br />Products in accordance with Section 8. Purchaser shall indemnify, hold harmless, and defend
<br />Seller and its parent, officers, directors, partners, members, shareholders, employees, agents,
<br />affiliates, successors, and permitted assigns against any loss or damage to Products between
<br />the invoice date and the date and time of Delivery. Purchaser acknowledges, other than
<br />Delivery, the transaction with respect to Products is complete, and there are no outstanding
<br />obligations preventing Delivery.
<br />10. DAMAGES; MAXIMUM LIABILITY. IN NO EVENT WILL SELLER BE LIABLE FOR
<br />INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, ENCHANCED, INDIRECT, OR
<br />PUNITIVE DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION OF VALUE,
<br />ARISING OUT OF OR RELATING TO THIS AGREEMENT OR PRODUCTS, REGARDLESS
<br />OF: (A) WHETHER THE DAMAGES WERE FORESEEABLE; (B) WHETHER OR NOT
<br />SELLER WAS ADVISED OF THE POSSIBILITY OF DAMAGES; AND (C) THE LEGAL OR
<br />EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) ON WHICH THE CLAIM IS
<br />BASED. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR
<br />RELATED TO THIS AGREEMENT OR PRODUCTS, WHETHER ARISING OUT OF OR
<br />RELATED TO BREACH OF CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL
<br />OF THE AMOUNTS PAID TO SELLER UNDER THIS AGREEMENT. THE FOREGOING
<br />LIMITATIONS APPLY EVEN IF PURCHASER’S REMEDIES UNDER THIS AGREEMENT
<br />FAIL THEIR ESSENTIAL PURPOSE.
<br />11. WARRANTY LIMITATIONS. Limited Warranties do not apply where Products: (a) are
<br />subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper
<br />installation, improper handling, abnormal physical stress, abnormal environmental conditions,
<br />or use contrary to any instructions issued by Seller or manufacturer; (b) have been
<br />reconstructed, repaired, or altered by any persons other than Seller or its authorized
<br />representative; or (c) have been used with any third-party product, hardware, or product that
<br />has not been previously approved in writing by Seller. Notwithstanding anything in this
<br />agreement to the contrary, Seller’s liability under any Limited Warranty is discharged, in
<br />Seller’s sole discretion and at its expense, by repairing or replacing any defective Products, or
<br />crediting or refunding the price of any defective Products, less any applicable discounts,
<br />rebates, or credits.
<br />12. WARRANTY DISCLAIMER. EXCEPT FOR THE LIMITED WARRANTY IDENTIFIED ON
<br />PAGE 1, NEITHER SELLER NOR ANY PERSON ON SELLER’S BEHALF HAS MADE OR
<br />MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, INCLUDING
<br />ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
<br />PURPOSE, AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WHETHER ARISING
<br />BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR
<br />OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. PURCHASER
<br />ACKNOWLEDGES IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY
<br />MADE BY SELLER, OR ANY OTHER PERSON ON SELLER’S BEHALF, EXCEPT AS
<br />SPECIFICALLY DESCRIBED ON PAGE 1.
<br />13. TRADE-IN EQUIPMENT. Purchaser assigns, sells, transfers, and conveys title of
<br />any trade-in equipment described on Page 1 (“Trade-In Equipment”) to Seller. Purchaser
<br />represents to Seller that Purchaser is the lawful owner with full authority to sell and
<br />transfer Trade-In Equipment, and that the Trade-In Equipment is free of all liens,
<br />encumbrances, liabilities, and adverse claims of every nature except as noted on Page
<br />1. Purchaser shall indemnify, hold harmless, and defend Seller against all claims and
<br />demands of all persons who claim any interest to Trade-In Equipment. This Bill of Sale
<br />on Trade-In Equipment will be effective as of the time of Delivery to Purchaser of the
<br />replacement Products purchased hereunder, or at such earlier time that Seller obtains
<br />physical possession of the Trade-In Equipment. All trade-ins are subject to Trade-In
<br />Equipment being in “As Inspected Condition” by Seller at the time of Delivery of
<br />replacement Products.
<br />14. DATA AND PRIVACY. Seller and its partners, affiliates, subsidiaries, and third
<br />parties, including but not limited to manufacturers, dealers, and service providers
<br />(collectively, “Seller Parties”), collect and share information relating to products, services,
<br />and customers as detailed in Seller’s Privacy Statement located at
<br />www.zieglercat.com/privacy as well as applicable manufacturers’ statements, which are
<br />hereby incorporated into this agreement by this reference. Manufacturers’ statements
<br />may be updated at any time without notice. Products equipped with telematics or other
<br />tools, applications, or devices to assess information, such as machine locations,
<br />operating hours, health of equipment, and basic utilization (collectively “Telematics”),
<br />whether manufactured by Caterpillar or by other companies, collect and transmit
<br />information to Seller Parties with a legitimate business reason to access the information,
<br />including but not limited to providing services and support, developing new products and
<br />services, personalizing user experiences, improving products, or compliance with legal
<br />obligations. Purchaser understands that Telematics may have been activated on
<br />Products by Seller or the manufacturer, and may be subject to or required by specific
<br />manufacturer user agreements available to Purchaser upon request. Purchaser
<br />consents to the collection, use, storage, processing, sharing, and disclosure of such
<br />information by Seller Parties in accordance with this agreement, Seller’s Privacy
<br />Statement, and applicable manufacturers’ statements.
<br />15. INTELLECTUAL PROPERTY. All intellectual property rights in the Products,
<br />including patents, trademarks, internet domain names, works of authorship, expressions,
<br />designs, and design registrations, whether are not copyrightable, trade secrets, and all
<br />other intellectual property rights related to or associated with Products (collectively,
<br />“Intellectual Property”) are the sole and exclusive property of manufacturer. Purchaser
<br />will not acquire any ownership interest in any Intellectual Property Rights under this
<br />agreement. If Purchaser acquires any Intellectual Property Rights in or relating to any
<br />Products by operation of law or otherwise, these rights are deemed and are hereby
<br />irrevocably assigned to manufacturer or its licensors, as the case may be, without further
<br />action by either party.
<br />16. ENTIRE AGREEMENT; AMENDMENT. Purchaser may not revoke its purchase of
<br />Products. The order will not be binding upon Seller until it is accepted in writing by an
<br />authorized representative of Seller. This agreement, including the purchase order
<br />transaction terms on page 1, constitutes the entire agreement of the parties with respect
<br />to the subject matter hereof and supersedes all prior and contemporaneous
<br />understandings, agreements, representations, and warranties, written and oral,
<br />regarding such subject matter. No modification of this agreement is effective unless it is
<br />in writing and signed by each party.
<br />17. FORCE MAJEURE. Seller will not be liable to Purchaser, and will not be deemed to
<br />have breached this agreement, for any failure or delay in performing any term of this
<br />agreement, to the extent the failure or delay is caused by or results from acts beyond
<br />Seller’s control, including acts of God, flood, fire, earthquake, explosion, war, invasion,
<br />hostilities, terrorist threats or acts, riot or other civil unrest, requirements of law,
<br />embargoes or blockades, actions by any governmental authority, national or regional
<br />emergencies, labor stoppages or slowdowns or other industrial disturbances, delays in
<br />manufacture, supply shortages, or shortages of adequate power or transportation
<br />facilities (collectively, “Force Majeure Events”). Any Force Majeure Event that has an
<br />adverse effect on Seller’s ability to perform will absolve Seller from any liability to
<br />Purchaser.
<br />18. DISPUTES. Purchaser shall pay Seller’s legal fees, court costs, and any other costs
<br />of recovery incurred in enforcing the terms of this agreement. This agreement is
<br />governed by and to be construed in accordance with the laws of the State of Minnesota,
<br />without regard to its principles of conflicts of law. If legal action is brought to enforce this
<br />agreement, the Federal District Court of Minnesota (4th Division) or Hennepin County
<br />District Court (4th Judicial District) will be the exclusive jurisdiction and venue for said
<br />action unless Seller, in its sole discretion, commences proceedings in a different
<br />jurisdiction or venue.
<br />19. UCC. All terms used but not defined in this agreement that are defined in the
<br />Minnesota Uniform Commercial Code, as amended from time to time (the “UCC”) have
<br />the meanings set forth in the UCC, and such meanings will automatically change at the
<br />time any amendment to the UCC, which changes such meanings, becomes effective.
<br />20. COUNTERPARTS. This agreement may be separately signed by Seller and
<br />Purchaser in any number of counterparts, each of which, when signed and delivered, will
<br />be deemed to be an original, and all of which will constitute the same agreement.
<br />21. ELECTRONIC SIGNATURES. Purchaser agrees that the Electronic Signatures
<br />(whether digital or encrypted) included in this agreement are intended to authenticate
<br />this writing and have the same effect as manual signatures. “Electronic Signature” means
<br />any electronic sound, symbol, or process attached to or logically associated with a record
<br />and executed and adopted by a person with the intent to sign the record, including
<br />facsimile or email electronic records, in accordance with the Uniform Electronic
<br />Transactions Act, Minnesota Statutes 325L.01–325L.19, as amended from time to time.
<br />A signed copy of this agreement delivered by facsimile, email, or other means of
<br />electronic transmission is deemed to have the same legal effect as delivery of an original
<br />signed copy of this agreement.
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<br />ver. 2/25/2020 PRODUCT PURCHASE AGREEMENT 2 of 2
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