Terms And Conditions

GENERAL.  Champion Machinery, Inc., and Champion Machinery Midwest, Inc., (each herein after referred to as "Champion Machinery") and Purchaser are entering into this Agreement for the purchase and sale of the subject used machinery and/or other goods set forth on the front page hereto (hereinafter referred to as “Goods”). Unless otherwise provided herein, any accessories not set forth herein are not part of this Agreement and shall not constitute “Goods.”
PRICE. Except for any taxes set forth on the front page, all prices set forth in this Agreement are exclusive of any taxes including, but not limited to, excise, sales, use property, transportation or occupational taxes and such other like taxes related to the sale or use of the Goods, now and hereafter imposed, together and with all penalties and expenses. Purchaser shall be responsible for collecting and/or paying any and all taxes whether or not they are stated in any invoice for goods shipped. Purchaser shall indemnify and hold Champion Machinery free and harmless from and against the imposition in payment of such taxes. Champion Machinery at its option, may, at any time separately bill the Purchaser for any taxes not included in Champion Machinery’s invoice and Purchaser shall promptly pay said taxes, or in lieu thereof, shall provide Champion Machinery with a tax exemption certificate acceptable to taxing authorities. Unless otherwise specified herein, all prices are exclusive of rigging, inland freight, insurance and other costs or expenses relating to the shipments of the Goods from the location of inspection of Goods by Purchaser (hereinafter “Point of Inspection/Shipment”, as designated on the front page hereof) to the destination designated by Purchaser on the front page hereof for shipment, (or any intermediate destination) which costs shall be the sole responsibility of Purchaser. In the event Champion Machinery shall make arrangements for such inland transportation, all costs and expenses relating to such inland transportation, including but not limited to rigging, freight and insurance, shall be for the account of Purchaser and shall be paid by Purchaser to Champion Machinery upon presentation of Champion Machinery’s invoice or other request for payment therefore. In the event delivery of the Goods, or any part thereof, is delayed due to the fault of the Purchaser, any and all additional costs or expenses incurred by Champion Machinery resulting form such delay in delivery shall be chargeable to and paid by the Purchaser.
TERMS AND PAYMENT.  Unless otherwise noted on the front page hereof, payment in full shall be made by the Purchaser to Champion Machinery no later than 48 hours prior to the time in which Champion Machinery reasonably anticipates commencing the disconnection of the Goods at their then location. Champion Machinery shall provide reasonable advanced notice to the Purchaser of the anticipated date for such commencement of disconnection. Payment shall be by bank wire transfer, certified or cashier’s check.
DELIVERY AND FORCE MAJEURE
. Any delivery or shipping date given is an estimated date only. Champion Machinery’s obligations hereunder, including, but not limited to, its obligation to deliver the Goods, is subject to delays incident to labor difficulties, fires, casualties and accidents; acts of the elements; acts of God; transportation difficulties; delays by common carrier; failure by Prior Owner to sell or surrender possession or otherwise cooperate with Champion Machinery; delays by common carriers; inability to obtain equipment, materials or components or qualified labor sufficient to timely perform part or all of this Agreement; and governmental regulations or other like causes beyond the control of Champion Machinery. In the event of any such delays, the delivery of the Goods shall be correspondingly extended, subject to the right of Champion Machinery to cancel this Agreement for the reasons set forth in paragraph 7 below. Title of the Goods shall pass when the Goods are placed in possession of a carrier at the Point of Inspection/Shipment for shipment to the destination designated on the front page hereof (or any intermediate destination). All risk of damage or loss to the Goods upon or after leaving the Point of Inspection/Shipment is assumed by the Purchaser and such damage or loss shall not operate in any way to release Purchaser from any of its obligations. NOTWITHSTANDING ANY PROVISION CONTAINED IN THIS AGREEMENT TO THE CONTRARY, CHAMPION MACHINERY SHALL NOT BE RESPONSIBLE OR LIABLE TO PURCHASER FOR ANY LOSS OR DAMAGE WHATSOEVER RESULTING FROM CHAMPION MACHINERY’S DELAYED PERFORMANCE IN SHIPMENT AND DELIVERY OF THE GOODS, INCLUDING BUT NOT LIMITED TO, LOSS OF INCOME AND/OR PROFITS, INCIDENTAL, SPECIAL AND CONSEQUENTIAL DAMAGES.
INSTALLATION. Unless otherwise stated herein, Purchaser at its sole cost and expense shall furnish such materials, labor and equipment as may be necessary, and shall be solely responsible for the erection, assembly and installation of the Goods. Purchaser shall also be solely responsible for providing a suitable foundation, and adequate compressed air, water, gas, and power supply to the appropriate connections on the Goods. In the event that Champion Machinery, at Purchaser’s request, performs any labor or supplies any goods materials in connection with such installation, then Purchaser shall promptly pay, in addition to the Sales Price and other charges for which Seller is responsible, Champion Machinery’s reasonable charges and expenses incurred in connection therewith.
SALE “AS-IS, WHERE-IS”.
  UNLESS OTHERWISE STATED HEREIN, THE GOODS ARE BEING SOLD “AS-IS, WHERE-IS”. THERE ARE NO WARRANTIES GIVEN WHATSOEVER. ANY WARRANTIES EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE CREATED UNDER APPLICABLE LAW INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED AND EXCLUDED. IN NO EVENT SHALL CHAMPION MACHINERY, ITS PARENTS, SUBSIDIARIES, ASSIGNS OR AGENTS, BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, DOWNTIME, OR FAILURE TO MEET PURCHASER CONTRACTS, WHETHER OR NOT CAUSED BY OR RESULTING FROM THE NEGLIGENCE OF CHAMPION MACHINERY, UNLESS SPECIFICALLY PROVIDED HEREIN. UNLESS OTHERWISE STATED HEREIN, CHAMPION MACHINERY SHALL NOT BE RESPONSIBLE FOR ANY REPAIR, REPLACEMENT, OR MATERIAL CHARGES RELATING TO THE GOODS. PURCHASER REPRESENTS THAT IT HAS HAD THE OPPORTUNITY TO INSPECT THE GOODS AND HEREBY AGREES TO ACCEPT THE GOODS UPON THEIR RELEASE FOR SHIPMENT IN THEIR THEN EXISTING CONDITION.
PRECONDITIONS
.  The Parties hereto understand that the Goods, which are the subject of this Agreement, involve or include used machinery. The Parties further understand that Champion Machinery has or may purchase the subject used machinery from the prior owner thereof (“Prior Owner”). Such Goods may currently be in the possession of the Prior Owner. Any obligation of Champion Machinery hereunder shall be preconditioned upon and subject to the Prior Owner’s selling and/or surrendering possession of the Goods to Champion Machinery with good title, free and clear or all liens, and otherwise cooperating with Champion Machinery sufficient to enable Champion Machinery to timely perform any obligations set forth herein. In the event that the Prior Owner fails to sell or surrender possession of the Goods to Champion Machinery with good title free and clear of all liens, or to otherwise cooperate with Champion Machinery so that Champion Machinery is unable to timely perform its obligations hereunder, then Champion Machinery may, by sending written notice to Purchaser, cancel this Agreement. Upon or shortly after Champion Machinery’s canceling of this Agreement without cause on the part of Purchaser, Champion Machinery shall then return any and all deposits or payments received from Purchaser in connection with the purchase of the Goods; and Champion Machinery shall then have no further obligation or liability to Purchaser under this Agreement whatsoever.
MACHINE USE
.  Purchaser acknowledges that the Goods involved herein are used Goods which were neither designed nor manufactured by Champion Machinery. As Champion Machinery does not know the specific application of the Goods by Purchaser, Purchaser acknowledges that it is Purchaser’s responsibility to provide, and to require all employees to use, appropriate safety devices and equipment for the particular application or use intended by the Purchaser, so as to protect the operator and others from harm, and to comply with all federal, state and local government laws, rules and regulations related to safety standards and all industry safety standards. It shall be the Purchaser’s responsibility to provide all the means that may be necessary to effectively protect all employees from serious bodily injury, and to cause their employees to use all appropriate safety devices, guards and proper safe operating procedures. If Purchaser fails to comply with such provisions of this paragraph or the applicable standards or regulations aforementioned, Purchaser shall indemnify and save Champion Machinery harmless from and against any and all claims, losses or damages arising there from.
INDEMNIFICATION
.  In addition to other obligations of Purchaser to indemnify as contained herein, Purchaser agrees to indemnify, hold harmless and defend Champion Machinery from and against any and all claims, liabilities or losses arising out of any use whatsoever of the Goods, including but not limited to, (1) claims involving or alleging improper or negligent design, maintenance, construction, re-construction, repair, alteration or modification of the Goods; (2) the failure of Purchaser, Purchaser’s officers, agents or employees to comply with federal, state or local laws or regulations applicable to the use of such Goods, including but not limited to, the 1970 Occupational Safety and Health Act, as amended and the fair Labor Standards Act of 1938, as amended; (3) claims involving allegations of failure, negligent or otherwise, on the part of any person or entity to equip said Goods with safety devices as required by federal, state, or local government statutes, rules or regulations, or as is customary in the trade; (4) claims involving or alleging breach of any expressed or implied warranties, including but not limited to the implied warranty of merchantability, fitness for purpose, or safety of the Goods; (5) liability, loss or damages, claims, demands, costs or judgments based upon or resulting from any legal theory of strict liability or liability without fault applied to the Purchaser or to Champion Machinery or to the original manufacturer of the Goods or to any person, firm or entity; and (6) claims relating to representations, specifications, documentation or information provided to Purchaser by the Prior Owner or obtained by Champion Machinery from the Prior Owner and provided to Purchaser. PURCHASER SHALL NOT RELY ON ANY SUCH REPRESENTATIONS, SPECIFICATIONS, OR DOCUMENTATION AND SHALL CONDUCT ITS REASONABLE INVESTIGATION AND INSPECTION TO ASCERTAIN ANY NECESSARY INFORMATION PURCHASER MAY REQUIRE. CHAMPION MACHINERY SHALL NOT BE LIABLE WITH REGARD TO ANY CLAIM RELATING, DIRECTLY OR INDIRECTLY, TO ANY SUCH REPRESENTATIONS, SPECIFICATIONS OR DOCUMENTATION.
SECURITY INTEREST
.  In order to secure any obligations now or hereinafter owing to Champion Machinery, whether under this document or otherwise incurred, Purchaser hereby grants to Champion Machinery, and Champion Machinery hereby retains, a continuing purchase money security interest in all of the Goods sold and delivered by Champion Machinery to the Purchaser, whether presently in the possession of the Purchaser or hereafter acquired, and all spare parts and components therefore, together with any and all proceeds of sale or other disposition of the Goods, including but not limited to, cash, accounts, contract rights and chattel paper, and Champion Machinery shall have all other remedies of a secured party under the Uniform Commercial Code.
MISCELLANEOUS PROVISIONS.  (a) This Agreement constitutes the entire Agreement between Champion Machinery and Purchaser and supersedes any and all prior agreements, correspondence, quotations or understandings heretofore in force between the Parties. There are not agreements between Champion Machinery and Purchaser with respect to the Goods herein except those specifically set forth and made part of this Agreement. Unless the Purchaser accepts these terms and conditions, any offer from the Purchaser to purchase the Goods is hereby rejected. Acceptance of this Agreement is limited to the terms, conditions, specifications and prices set forth herein. Any additional terms, conditions and/or prices are rejected by Champion Machinery unless expressly agreed to in writing by Champion Machinery. (b) If any term or condition or part of this Agreement is held invalid, the remaining terms and conditions of this Agreement shall not be affected thereby. (c) This Agreement may be modified, cancelled or rescinded only by the written agreement of both Parties executed by their duly authorized agents. (d) No claim arising out of any breach of this Agreement may be discharged in whole or in part by waiver or renunciation of such claim unless such wavier or renunciation is in writing and signed by the Parties hereto. (e) This Agreement may not be assigned without the express written consent of the Parties hereto. Any attempt of assignment of rights or delegation of duties shall be void. (f) All rights available to Champion Machinery under the Uniform Commercial Code, except as specially limited or excluded herein (even though not specifically enumerated herein), are expressly reserved to Champion Machinery as remedies available in the event of default of the Purchaser. (g) This Agreement shall be deemed to have been made in the State of South Carolina, and shall be construed according to the laws of that state. Purchaser consents to the jurisdiction of any court of general, jurisdiction located within Lancaster County and the State of South Carolina with respect to any legal proceedings arising out of this Agreement, and agrees that the mailing to the purchaser at the address shown on the front page by certified mail, return receipt requested of any process shall constitute lawful and valid service of process in any such proceeding, suit or controversy. Purchaser shall bring any legal proceeding arising out of this Agreement only in the federal or state courts located in the Lancaster County and the State of South Carolina. In the event Purchaser institutes any legal proceedings in any other court other than a court located in the Lancaster County and the State of South Carolina, it shall assume all of Champion Machinery’s costs in connection therewith, including, but not limited to, reasonable attorney’s fees. (h) EACH PARTY HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN OR AMONG THEM RELATING TO THE SUBJECT MATTER OF THE TRANSACTION CONTEMPLATED HEREBY AND THEIR RELATIONSHIP BEING ESTABLISHED.