Terms & Conditions of Sales
EQUIPMENT SALE AGREEMENT
This Equipment Sale Agreement (this “Agreement”) is dated as of [DATE] and is executed by Provisur Technologies LLC a Delaware limited liability company (“Provisur”), and [CUSTOMER] (the “Customer”). This Agreement refers to and incorporates by reference the proposal delivered by Provisur to Customer on or before the date hereof and agreed to between the parties (the “Proposal”). This Agreement shall apply exclusively to the sale of all Equipment and services supplied by Provisur. Any terms or conditions submitted, proposed, or stipulated by the Customer, whether in a purchase order, acknowledgement, specification, correspondence, electronic portal, or any other document or communication, are expressly rejected and shall be of no force or effect.
1.Firm Order. Customer agrees to purchase from Provisur, and Provisur agrees to sell to Customer, the equipment identified and described in the above-referenced Proposal (the “Equipment”) on the terms and conditions set forth in this Agreement. The Equipment will have the specifications, including operating capacity, sizes and parameters set forth in the Proposal (the “Specifications”).This Agreement is a firm order and not subject to cancellation or termination, except with the prior written consent of Provisur. In addition to all remedies of Provisur at law or in equity, upon cancellation or termination of this Agreement without the prior written consent of Provisur, Provisur shall be entitled to retain all amounts previously paid by Customer to Provisur under this Agreement, it being acknowledged that such amounts are only a partial representation of all damages that will be suffered by Provisur in the event of such termination or cancellation. Notwithstanding any termination or cancellation, to the extent that provisions in this Agreement impose obligations that by their terms extend beyond the duration of this Agreement, such provisions shall survive as necessary to affect their purposes. Without limitation of the foregoing, Sections 7, 10F, 11, 12, 14 and 15 of this Agreement shall survive any cancellation or termination.
2. Delivery; Risk of Loss. Unless otherwise specified in the Proposal, Delivery is EXW (Ex-Works) Incoterms® 2020, Provisur’s plant. At Customer’s request and expense, Provisur will provide bracing, crating, and other protection and will arrange for shipment as Customer’s agent. Customer will pay shipping costs, insurance, and freight immediately upon presentation of verified invoices. Risk of loss or damage to the Equipment passes to Customer upon delivery to the common carrier at Provisur’s plant. All pricing stated in the Agreement reflects the foregoing delivery terms. Any stated delivery dates are approximate only and subject to change depending on the manufacturing requirements of the Equipment and availability of transport. Customer waives and releases any claims against Provisur for delays in delivery caused by Customer manufacturing requirements and transportation.
3. Storage and Delay Charges. In the event that shipment of the Equipment is delayed beyond the scheduled delivery date due to any act or omission of Customer, including but not limited to failure to provide shipping instructions, failure to make payment when due, or failure to take delivery, Provisur shall have the right to store the Equipment at Customer’s expense. Customer shall be responsible for all related costs incurred by Provisur, including but not limited to reasonable storage fees, handling charges, insurance, and any other associated costs. Risk of loss shall pass to Customer in accordance with Section 2, notwithstanding any such delay. Provisur’s right to receive such costs is in addition to and not in limitation of any other remedies available under this Agreement or at law or in equity.
4. Site; Utilities; Permits. At Customer’s request, Provisur will inspect the proposed installation site, will review site plans with the Customer, and will advise Customer in matching Provisur Equipment to the Customer’s processing system. Customer, however, is responsible for selection of the final site (“Site”), selection of Equipment meeting Customer’s needs, matching Provisur Equipment to the Customer’s processing system, installation of the Equipment and the condition of the Site, including adequate flooring, drainage, HVAC, lighting, and utility connections, and for any electricity, steam, gas, compressed air, water, or other services required for proper installation and operation of the Equipment. Customer will obtain any permits, licenses, or approvals required by any governmental code, regulation, or ordinance regarding the transport, import, export, installation or use of the Equipment.
5. Price.
A. In consideration for the Equipment and other obligations of Provisur set out in this Agreement, Customer shall pay Provisur the amount specified in the Proposal (together with any other amounts required to be paid by Customer under this Agreement, including, without limitation, taxes, duties, packing costs, shipping and freight), payable in accordance with the payment schedule and terms identified in the Proposal. Delays in shipment caused by Customer may result in reasonable price adjustment by Provisur to reflect increased costs. All amounts shall be paid in the currency set forth in the Proposal, without set-off or counterclaim. A late charge of 1-1/2% per month, or the highest rate permitted by law, whichever is lower, will be added to all past due amounts. Provisur reserves the right to halt shipment of the Equipment, in whole or in part, in the event of any delinquency in payment for any prior order or shipment. If Provisur is required to place a claim for collection for amounts past due from Customer, in addition to all other remedies available at law or in equity, Customer will be liable for reasonable attorneys’ fees, collection and court costs incurred by Provisur.
B. Should Customer request and Provisur agree in writing to any change in the Proposal (for reasons including, without limitation, scope, parts or equipment to be purchased, design considerations, timing or manner of shipment, implementation, application work or services to be provided or any other item Provisur reasonably determines to materially affect the performance of this Agreement), such change request will be initiated by the execution and delivery of a change order (“Change Order”) in form substantially the same as attached hereto as Annex C. The Change Order shall be effective only upon written confirmation from Provisur and payment of any amounts owed by Customer upon acceptance of the Change Order.
6. Taxes. Customer will pay any sales, use, consumption, VAT, excise, duties, import fees or other taxes (including taxes measured by receipts from this transaction) imposed by any taxing authority and required to be paid or collected by Provisur or Customer as a result of Equipment or any other products or services provided to Customer under this Agreement; provided that Customer will not be liable for any tax levied upon or measured by the net income of Provisur. Any amount identified by Provisur as a sales or other tax is provided as an estimate only, and such designation shall not limit Customer’s obligations under this paragraph.
7. Title; Security Interest. Subject to Section 9B, title to the Equipment passes to Customer upon delivery to the common carrier at Provisur’s plant. Until payment in full of all amounts due from Customer to Provisur hereunder, Customer hereby grants to Provisur a purchase money security interest in such Equipment, parts, proceeds, and accessories, to secure payment of such amounts. In the event that, subsequent to payment in full of amounts due hereunder, Customer purchases additional parts or accessories from Provisur, Customer hereby grants to Provisur a purchase money security interest in such parts and accessories to secure payment therefor. Customer authorizes Provisur to file or record this Agreement or copy thereof or any UCC statement showing Provisur’s interest in the Equipment and all other collateral in all jurisdictions determined advisable by Provisur, and Customer will execute any document confirming such interest as may be requested by Provisur. Customer will not encumber the Equipment with any mortgage, lien, pledge or other attachment prior to payment in full. Provisur may enter Customer’s premises to inspect the Equipment and, if Customer defaults under this Agreement, to repossess and remove the Equipment. Customer will not move the Equipment from the premises in which it was first installed until payment in full of all amounts due hereunder. Customer and Provisur agree that the Equipment is personal property, and it shall retain that character no matter if or how affixed or attached to any structure. Provisur warrants that it has good title to the Equipment and transfers same to Customer free of any liens or encumbrances other than the foregoing security interest.
8. Documentation. Provisur will provide Customer one complete set of documentation required to maintain and operate the Equipment, including operating instructions and service and maintenance manuals (the “Documentation”). Provisur or its third party licensors retain all right, title and interest in such Documentation and grants to Customer only a non-exclusive, non-transferable (except as set forth below) license to use the Documentation for Customer’s internal business purposes in connection with the use of the Equipment and make a reasonable number of copies solely as required for such internal use. The license to the Documentation is transferable only as a part of a permanent sale or transfer of the Equipment, and only if the recipient agrees to the terms of this Agreement. Additionally, Customer agrees to execute, all such documentation as Provisur reasonably requires (the “Customer Sign-Off”, an illustrative example of which is attached hereto as Annex D) upon the delivery, installation, commissioning, or start of commercial production (in each case, as may be provided for in the Proposal) in order to demonstrate acceptance of the Equipment and the initiation of any relevant Warranty Period (as further defined in Section 10). The Customer Sign-Off may include agreement that checklist items have been completed, the Equipment meets all quality requirements, and operator training has been completed.
9, Proprietary Rights; Software License.
A. The use of all computer software products (“Software”) included in the Equipment, whether developed by Provisur or a third party, shall be governed by the End User License Agreement (“EULA”) set forth on Annex A.
B. Provisur retains all right, title, and interest in and to all copyright, trademarks and other intellectual property rights in the Equipment, the Equipment Documentation and the Software and in and to any customization, improvement, invention or other modification developed by Provisur, in whole or in part, under this Agreement (“Provisur Development”). No license is granted to Customer regarding any Provisur Development except as specifically set forth herein and Customer hereby assigns to Provisur any right, title, or interest that Customer may have to any Provisur Development.
10, Limited Warranty.
A. New Equipment: If New Equipment is found to be defective in material or workmanship for a period of one year from the date of installation (but no longer than the earlier of fourteen (14) months from the date of shipment pursuant to this Agreement or 2200 hours of operation, hereafter “Warranty Period”) then Provisur will replace (ex-works, Provisur’s plant) or repair such defective component, at its option and expense, provided that Customer promptly sends Provisur written notice of the defect and establishes that the New Equipment has been installed, maintained and operated in accordance with the Specifications. For parts, tooling and sub-assemblies manufactured by Provisur that form part of the New Equipment but are sold separately from the New Equipment, the Warranty Period will be ninety (90) days. No warranty is provided for normal wear and tear of common wear parts such as grinder orifice plates, knives, centering pins, bushings, seals, belts or blades.
B. Remanufactured Equipment: If Remanufactured Equipment is found to be defective in material or workmanship for a period of six months from the date of installation (but no longer than the earlier of seven (7) months from the date of shipment pursuant to this Agreement or 1100 hours of operation, hereafter “Warranty Period”) then Provisur will replace (ex-works, Provisur’s plant) or repair such defective component, at its option and expense, provided that Customer promptly sends Provisur written notice of the defect and establishes that the Remanufactured Equipment has been installed, maintained and operated in accordance with the Specifications. For parts, tooling and sub-assemblies manufactured by Provisur that form part of the Remanufactured Equipment but are sold separately from the Remanufactured Equipment, the Warranty Period will be ninety (90) days. No warranty is provided for normal wear and tear of common wear parts such as grinder orifice plates, knives, centering pins, bushings, seals, belts or blades.
C. For those products or parts for which Provisur received written notice from Customer of a warranty claim during the Warranty Period and for which Provisur has confirmed the propriety of such claim, Customer’s sole and exclusive remedy for breach of these warranties is the repair or replacement (ex-works, Provisur’s plant), at Provisur’s option and expense, of the defective products or part, or else at Provisur’s election, return thereof and refund of the purchase price therefor.
D. Provisur’s warranties extend only to Customer and are not assignable to or assumable by any subsequent purchaser, in whole or in part, and any such attempted transfer shall, unless first approved in writing by Provisur, render all warranties provided hereunder null and void and of no further force or effect. Provisur’s warranty obligations are contingent on Provisur being allowed to inspect the installation, operation, and routine maintenance of the Equipment during the Warranty Period at reasonable times and on reasonable notice to Customer to insure that the same are being operated in accordance with the Specifications, provided, however, that no such inspection by Provisur, or failure to so inspect, shall relieve Customer of its obligation to operate the Equipment in accordance with the Specifications.
E. No warranty or representation is made that the Equipment or parts comply with the provisions of the Occupational Safety and Health Act of 1970, as amended, or any regulations issued thereunder, or any other foreign or domestic laws or regulations. Any implied warranty to such effect is expressly disclaimed. Compliance with such laws is the sole responsibility of Customer.
F. The warranties set forth above are inapplicable to and exclude any defect, damage, or malfunction resulting from (i) normal wear and tear, (ii) misuse, negligence, or modification of the Equipment or any component by any person other than Provisur or its agents, (iii) repair service provided by any person other than Provisur or its agents, (iv) failure by Customer to follow installation or operating manuals or instructions or operation of the Equipment other than in accordance with Specifications, (v) failure of parts or components or services not provided by Provisur, or (vi) any other cause outside Provisur’s reasonable control. THE WARRANTIES SET FORTH ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Any production data or statistics regarding the Equipment, or any representations or descriptions regarding the Equipment contained in brochures, advertisements, or catalogs, are approximate only and are not guaranteed, and will not create any warranty or other obligation. Without limiting the foregoing, no promise or confirmation of fact (including, without limitation, statements regarding the capability or performance of the Equipment), other than as explicitly set forth in this Agreement or in an amendment hereto executed by an authorized Provisur employee, shall constitute a warranty by Provisur or give rise to any liability or obligation of Provisur.
G. Service/Equipment Maintenance: To the extent that Customer requests, and Provisur in its discretion elects to provide, any maintenance or other services, such services will be provided at Provisur’s standard service rates in effect at the time. For all such services, Customer will pay all reasonable travel expenses and reasonable living expenses for the Provisur personnel providing such services. Minimum service call is two hours plus expenses. Spare parts delivered to Customer remain property of Provisur until Customer has made full payment to Provisur. Not in limitation of anything contained herein, no warranty or representation is made by Provisur with respect to work performed in connection with service calls, whether or not the Equipment is within the foregoing Warranty Period. Provisur’s sole warranty obligations with respect to the Equipment are specifically described in Section 10.
11. Indemnification.
A. Provisur will defend, indemnify, and hold harmless Customer, its officers, employees, authorized agents and affiliates (“Customer Indemnified Parties”) from and against any and all liability, claims, suits, damages, judgments, costs, and expenses, including court costs and reasonable attorneys’ fees (collectively, “Losses”), incurred by Customer Indemnified Parties resulting from any claim, suit or demand by any third party that the Equipment or Documentation (collectively “Provisur Products”) infringes any patent or copyright protected under the laws of the jurisdiction to which the Equipment was originally shipped under this Agreement. Customer will notify Provisur of any such claim, suit, or demand promptly upon receiving notice thereof, and will, at Provisur’s expense, provide Provisur with available information and cooperate in the defense of the claim. Provisur will defend or settle at its expense any and all such claims, including any settlement negotiations or appeals. If, at any time Provisur determines in its discretion that Customer’s use of any Provisur Product is likely to be enjoined or restricted, Provisur may elect at its expense (i) to secure for Customer the right to use the Provisur Product, (ii) to replace the Provisur Product with another product reasonably acceptable to Customer, or (iii) to accept return of the Provisur Product and refund to Customer the then-current fair market value of the Provisur Product determined in Provisur’s sole discretion based on the current re-sale value of equipment similar to the Equipment with specifications similar to the Specifications of an age and wear and usage experience similar to the Equipment.
B. Customer will indemnify, and hold harmless Provisur, its officers, employees, authorized agents and affiliates (“Provisur Indemnified Parties”) from and against any and all Losses resulting from any claim, suit or demand by any third party for injuries to or deaths of persons or loss of or damage to property arising out of (i) use of the Equipment by Customer, (ii) use of facilities, services, materials, data, or information not provided by Provisur, or (iii) compliance by Provisur with any request or instruction by Customer, except to the extent caused by the gross negligence or willful misconduct of Provisur. Provisur will notify Customer of any such claim, suit, or demand promptly upon receiving notice thereof, and will keep Customer advised of the status thereof.
12. Risk Allocation. PROVISUR WILL NOT BE LIABLE FOR AND CUSTOMER HEREBY WAIVES AND RELEASES ANY CLAIMS AGAINST PROVISUR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST SALES, REVENUES OR PROFIT, LOSS OR RETURN OF OR DAMAGE TO PRODUCT, LOSS OF FACILITIES, INVENTORY, WORK-IN-PROCESS, OR TIME AND MATERIALS, OR LOSS OF PROSPECTIVE ECONOMIC ADVANTAGE, ARISING FROM ANY PERFORMANCE OR FAILURE TO PERFORM BY PROVISUR OR ITS EMPLOYEES OR SUBCONTRACTORS UNDER THIS AGREEMENT, FROM THE BREACH OF ANY WARRANTY HEREUNDER, OR OTHERWISE ARISING UNDER OR IN ANY WAY RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER PROVISUR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PROVISUR’S LIABILITY FOR ANY FAILURE OF PERFORMANCE OR OTHER BREACH OF THIS AGREEMENT, FOR ANY BREACH OF ANY WARRANTY HEREUNDER, OR OTHERWISE ARISING UNDER OR IN ANY WAY RELATING TO THIS AGREEMENT, EXCEED THE EQUIPMENT PRICE ACTUALLY PAID BY CUSTOMER FOR THE EQUIPMENT FROM WHICH SUCH LIABILITY ARISES (OR, IN THE EVENT SUCH LIABILITY DOES NOT ARISE IN CONNECTION WITH ANY SPECIFIED ITEM OF EQUIPMENT, THE TOTAL EQUIPMENT PRICE ACTUALLY PAID BY CUSTOMER HEREUNDER), AND CUSTOMER HEREBY WAIVES AND RELEASES ANY CLAIMS AGAINST PROVISUR AND/OR ITS AFFILIATES IN EXCESS OF SUCH AMOUNTS.
13. Force Majeure. Neither party will be liable for delays in or suspension of performance (other than the obligation to pay for services rendered and goods sold and delivered) caused by acts of God or governmental authority, strikes or labor disputes, civil disturbances, riots, embargoes, sabotage, accident, flood, fires, natural disasters or other loss of manufacturing facilities, lack of adequate fuel, power, raw materials, labor, or transportation facilities, breach by suppliers of supply agreements, or any other cause, whether similar or dissimilar, beyond the reasonable control of that party.
14. Dispute Resolution.
A. All disputes arising between the parties concerning the validity, construction or effect of this Agreement, or the rights and obligations created under either of them, shall be brought before a conciliation committee of executives representing both parties which shall, within two (2) weeks after being informed of the dispute, attempt to work out a recommendation for settlement of the dispute and transmit such recommendation to both parties for due consideration.
B. Any dispute which cannot be settled amicably by conciliation as provided above shall be fully and finally determined by arbitration administered by the American Arbitration Association in accordance with its International Arbitration Rules. The number of arbitrators shall be one. The place of the arbitration shall be Chicago, Illinois, USA. The language of the arbitration shall be English. The award in such arbitration shall be final and enforceable in any court of competent jurisdiction. Notwithstanding the foregoing, the provisions of this Section do not prevent any party from requesting injunctive or conservatory measures from the courts. The prevailing party in any dispute under this Agreement shall be entitled to reimbursement of all of its costs, fees and expenses incurred in connection therewith, including court costs, attorneys’ fees and arbitrator fees.
15. General.
A. This Agreement supersedes all prior oral or written representations, communications, or agreements between the parties regarding the subject matter of this Agreement which have not been incorporated specifically herein (including, without limitation, any purchase order, proposal letter or other form), and, together with any attachments, constitutes the final and entire understanding of the parties, regarding the subject matter of this Agreement. This Agreement may be amended only by written agreement of the parties executed by their authorized representatives. No waiver by either party of any default or breach by the other party will operate as or be deemed a waiver of any subsequent default or breach. Provisur may assign this Agreement to a parent, affiliate, or financial concern. This Agreement may not be otherwise assigned in whole or in part, and any such assignment will be void and of no force or effect. Subject to the foregoing, this Agreement shall inure to the benefit of the parties and their permitted successors and assigns.
B. The headings of the Sections and the subsections of this Agreement are inserted for convenience of reference only and shall not constitute a part hereof. The language of this Agreement shall be English. The parties have participated, or had the opportunity to participate in, the negotiation and drafting of this Agreement or requested, or had the opportunity to request, amendments to this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement. In the event any provision of this Agreement shall be deemed to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The parties agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect of the invalid provision. Except as expressly set forth herein, this Agreement is for the sole benefit of the parties hereto, and nothing herein expressed or implied shall be construed to give any other person or entity any rights hereunder. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The signature of any party to any counterpart shall be deemed a signature to, and may be appended to, any other counterpart.
C. This Agreement, and any dispute arising under or with respect to this Agreement, will be governed in accordance with the internal laws of Illinois, U.S.A. The parties hereby consent to the exclusive jurisdiction and venue of the state and federal courts in Chicago, Illinois, U.S.A. The parties hereby waive the right to contest the jurisdiction and venue of said courts located in Chicago, Illinois, U.S.A. and consent to service of process by registered mail, return receipt requested or by any other means provided by Illinois law. The parties hereby agree to exclude application of the United Nations Convention on Contracts for the International Sale of Goods (1980).