Terms and Condition for Würth Baer's Sale of Machinery

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The following Terms & Conditions (“Terms & Conditions”) apply to all sales by Würth Baer Supply Co. (“Seller”), including, but not limited to, sales by its Machinery Division, including but not limited to, Akins Machinery, Hermance Machine Company, J&G Machinery, to the buyer (“Customer") of machinery, machine components, and replacement parts (each of such products is referred to below individually and collectively as “Machinery”).

Customer’s Acceptance of Machinery. Customer will promptly accept Seller’s tender of delivery of the Machinery. Customer will promptly acknowledge delivery of the Machinery in writing. Unless Seller otherwise agrees in writing, Customer will be deemed to have accepted the condition of the Machinery upon the earliest of the following events: (i) if installation is to be provided by Seller pursuant to its written agreement to do so, then immediately after Seller reasonably determines installation to be complete; (ii) if Seller has not agreed in writing to install the Machinery, then upon tender of delivery of the Machinery to Customer; or (iii) ten (10) days after Seller notifies the Customer that the Machinery is ready to be delivered.
Delay in Delivery. If Customer requests a delay in the Machinery shipping date or delivery, or fails or refuses to take delivery, Customer will pay Seller for all costs and expenses incurred by Seller arising out of, relating to, or resulting from such delay or failure. If, prior to Seller’s tender of Machinery to Customer, Customer requests that shipping be delayed by more than thirty (30) days after the original shipping date, Seller may cancel the sale and retain any amounts paid on account as security for any damages that Seller may incur or sustain as the result of such failure or delay.
Risk of Loss. Risk of loss regarding the Machinery will pass from Seller to Customer when Seller tenders or holds the Machinery at Customer’s request. Customer will insure the Machinery against “all risks” (subject to normal exclusions) from the time the risk of loss passes to Customer. Customer will provide evidence of insurance to Seller upon request.
Customer Indemnity. Seller will not be liable for, and Customer shall defend, with counsel acceptable to Seller, indemnify and hold harmless Seller from and against, any claims, causes of actions, suits, proceedings, costs, fees, damages, penalties, losses, liabilities and expenses, including, but not limited to, attorneys’ fees, arising out, relating to, or resulting from: (i) Customer’s breach or default of any obligation owed by Customer to Seller, or (ii) the use or operation of the Machinery by or for Customer, its agents, contractors, successors or assigns, or (ii) acts or omissions by Customer, its agents, contractors, successors or assigns. If Customer or other user uses Machinery purchased from or through Seller in an application or as a component of any other product or service, Customer has the responsibility and agrees to determine the suitability of the Machinery purchased by testing or other means, and to determine that the application or end product or service meets all applicable industry standards for safety, durability, and performance, and Customer’s contractual obligations. If Customer uses Machinery purchased from or through Seller in an application or end-product, and their use results in damage or harm to the person or property of Customer or others, Customer shall indemnify and hold harmless Seller for all costs, claims, damages, and expenses, including, but not limited to, attorneys’ fees, arising out of or resulting from such use, whether arising out of breach of warranty or contract, tort, or other grounds. Customer also shall indemnify and hold Seller harmless from all costs and expenses, including, but not limited to, attorneys' fees, suffered or incurred by Seller in enforcing any of the provisions of these Terms & Conditions, or in defending itself from any claim that the Machinery, or any application or use of the Machinery, did not perform as expected. If Customer or other user of Machinery initiates a legal action against Seller, and Customer or such other user does not prevail, Customer will indemnify Seller for all costs and expenses, including, but not limited to, attorneys' fees, incurred by Seller.
Terms of Payment. Customer will pay when due all amounts payable to Seller. Customer’s obligation to pay all amounts due will be secured by the Machinery and Customer hereby grants to Seller, a purchase money first-priority security interest in the Machinery. Seller may file Uniform Commercial Code Financing Statements perfecting and preserving its security interest. Seller will have all rights of a secured party under Illinois law regarding the Machinery, and Customer will execute and file any documents requested by Seller to evidence and preserve Seller’s security interest in the Machinery.

Unless Seller otherwise agrees in writing, payment is due prior to delivery of the Machinery to Customer All orders are subject to approval by Seller’s credit department.
Unless Seller otherwise agrees in writing, the purchase price of Machinery does not include federal, state, or other taxes. Customer will pay all privilege, occupation, personal property, sales, excise, use, and other taxes applicable to the sale, purchase, storage, installation, erection, use or ownership of the Machinery, irrespective of whether such taxes are invoiced by Seller. Seller reserves the right to change prices on Machinery prior to shipment.
Seller reserves the right to ship COD. Seller reserves the right to require full payment before any shipment or delivery. If Seller determines, at any time in its sole discretion, that the credit of Customer or of any person or entity providing credit support for Customer’s obligations to Seller is or becomes impaired, or there is any reason to doubt the enforceability or sufficiency of any agreement, instrument or document supporting Customer's obligations to Seller, Seller may, in addition to other rights provided by applicable law, declare immediately due and payable any and all amounts owed by Customer to Seller, and to suspend and/or cancel further shipments, revoke any credit extended to Customer, require cash payment, and/or require additional security satisfactory to Seller.
If, after Customer submits a purchase order or Seller confirms a purchase order, Seller incurs increased costs due to higher duties, import charges, tariffs, or other related expenses affecting the Machinery, the purchase price shall be increased accordingly. Customer shall be liable for, and promptly pay Seller for, the amount of such increases.

Warranty and Limitation of Liability.
1. Unless Seller otherwise agrees in writing, all Machinery is SOLD "AS IS", “WITH ALL FAULTS", WITHOUT RECOURSE. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND RELATING TO MACHINERY OR OTHER PRODUCTS PURCHASED FROM OR THROUGH SELLER. SELLER HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES OF NON-INFRINGEMENT OF ANY PATENT OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, AND ANY WARRANTIES IN RELIANCE UPON COURSE OF DEALING OR USAGE OF TRADE. Customer waives all claims against Seller arising out of, relating to, or resulting from defective or non-conforming Machinery purchased from or through Seller, including, but not limited to, any claims for lost or delayed production or profits, and Customer shall assert all claims for breach of warranty, strict liability, tort, or otherwise, relating to Machinery against the manufacturer of the Machinery. Customer’s sole and exclusive remedy for defective or non-conforming Machinery shall be for the repair or replacement of defective Machinery by the manufacturer in accordance with the manufacturer’s warranty, if any. Seller does not represent or warrant that any manufacturer will honor any warranty.
2. If Customer makes a warranty claim that proves to be invalid, then Customer will reimburse all of Seller’s costs and expenses in connection with the investigation and attempted repair based on such claim and any work performed by Seller.
3. THE REMEDIES SET FORTH IN THIS SECTION 6 ARE THE SOLE REMEDIES OF CUSTOMER FOR ANY FAILURE OF SELLER TO COMPLY WITH ITS OBLIGATIONS HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY BREACH OF WARRANTY. Correcting any issue under Section 6 will constitute complete fulfillment of all the obligations and liabilities of Seller to Customer arising out of, relating to, or resulting from Customer’s purchase or use of the Machinery, regardless of whether a claim is based in contract, tort (including, but not limited to, negligence, strict liability, or otherwise), or other legal theory. Seller will not be liable to Customer or any person claiming any right through Customer for any special, indirect, incidental, punitive, or consequential damages or lost profits.
4. THE WARRANTIES SET FORTH IN THIS SECTION 6 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED.
5. No returns of Machinery, whether claimed to be non-conforming or otherwise, are permitted without Seller's prior written authorization.
Default. If Customer defaults in any of its obligations to Seller, Seller may suspend its obligations to Customer without liability and may exercise all rights and remedies Seller may possess at law, in equity, or as provided herein. Customer shall pay all Seller’s costs and expenses, including, but not limited to, reasonable attorney's fee, of collecting any amount not paid when due hereunder and of otherwise enforcing these Terms & Conditions.
Performance. Seller shall not be liable for failure of Machinery to perform. Seller shall not be liable for delay in its performance or if its performance is prevented under this Agreement if any obligations of Seller to Customer is prevented or delayed due to acts of God or nature, war, terrorism, riot, civil unrest, fire, labor trouble (including, but not limited to, strikes, lockouts and labor shortages), failure of computer systems to operate properly, failure of network systems to operate properly, destruction or loss of electronic records or data, plant shutdowns, loss of control of computers, network systems or electronic records or data due to cyber-intrusion or cyber-terrorism, unavailability of products, materials or components, unavailability of or delays in transportation, insufficient production capacity, unavailability or shortage of products, explosion, accident, pandemics such as but not limited to Covid-19, epidemics or other health related delays, compliance with governmental requests or executive orders, laws, regulations, compliance with acts of civil authority, orders or actions, or any circumstance or cause beyond Seller’s control. Seller may, without liability, allocate and distribute orders for Machinery and other products among Customer and other persons and in such proportions as Seller, in its sole discretion, determines.
Assignment. This sale and purchase of Machinery and the terms of sale and purchase will inure to the benefits of Seller’s successors and assigns. Customer may not assign its rights or obligations regarding the Machinery, these Terms & Conditions or other agreement between Seller and Customer without the prior written consent of Seller.
Waiver. No waiver by either party of any breach or obligation of the other party will constitute a waiver of any other prior or subsequent breach of obligation.
Governing Law; Jurisdiction. The validity, performance, construction, and effect of these Terms & Conditions shall be governed by Illinois law. All purchases by Customer are deemed made in Illinois and performance of all of Seller’s obligations shall be deemed to be made in Illinois. All legal actions related to Machinery or other products purchased from or through Seller shall be litigated only in a court located in Lake County, Illinois, or Cook County, Illinois. Customer consents and submits to the jurisdiction of any state or federal court located in Lake County, Illinois, or Cook County, Illinois. Customer hereby waives any right it may have to transfer, change, or object to venue in Lake County, Illinois, or Cook County, Illinois. Notwithstanding the foregoing, Seller may initiate any action to collect any amounts owed Seller by Customer in any such courts, or in any state or jurisdiction where there is personal jurisdiction over Customer or where Customer may have property.
Severability. If a court of competent jurisdiction will find any provision of these Terms & Conditions to be invalid, illegal, or enforceable, such finding will not affect any other provision of these Terms & Conditions or render any such other provision of these Terms & Conditions unenforceable in any other jurisdiction.
Entire Agreement. These Terms & Conditions and any other written agreement between Seller and Customer expressly regarding the Machinery, constitutes the entire agreement between Seller and Customer regarding the Machinery, and supersedes all prior discussions, negotiations, and/or agreements between them. Statements regarding capacity, quality, suitability, application, use or performance, made by Seller’s employees, agents, or representatives, shall not be considered a representation or warranty by Seller, and are not binding on Seller. Any additional, inconsistent, or different terms or conditions contained in Customer's purchase order or other documents submitted to Seller by or on behalf of Customer at any time, whether before or after the date hereof, are hereby expressly rejected and shall be deemed a material alteration (and not a rejection) of these Terms & Conditions. These Terms & Conditions shall be deemed accepted by Customer without any such additional, inconsistent, or different terms and conditions. Notwithstanding the foregoing, Seller’s Privacy Notice (https://www.baersupply.com/v2/wbsc/legal/privacy) and the Website Usage Terms and Conditions (https://www.baersupply.com/v2/wbsc/legal/usage) are also binding on Customer.
Communication. Customer acknowledges and expressly consents to Seller's use of an automatic telephone dialing system, emails, faxes, or text messages to Customer for any business purpose including, but not limited to, confirming, or updating information, Customer’s information, collections of accounts receivable, marketing of Seller’s products or services, status of deliveries and delivery address confirmation.
Product Depictions. Photographs, illustrations, other depictions, specifications, and content advertised, promoted, or otherwise presented by Seller (collectively “Materials”) are compiled from photographs, illustrations, other depictions, specifications, and content furnished by the manufacturers of Machinery and other products. Seller assumes no responsibility and does not make any representations or warranties as to the accuracy of any such Materials. Seller does not verify the accuracy of any such Materials or the function or use of any of Machinery or other products sold by or through Seller. Seller does not assume responsibility for any photographs, illustrations, other depictions, specifications, and content furnished directly or indirectly by manufacturers. All Materials are for the sole purpose of identification, and Seller does not represent that Machinery or other products will necessarily conform to the Materials. While Seller uses reasonable efforts to populate its print and online catalogs with high quality images and accurate content, the color and depiction of products on Seller’s website are subject to the settings and hardware of the computer used to display them. Any digital or printed copy of an image from Seller’s website should be used as a guide, not as a sample or guaranty.
Technical Service and Installation. Before Seller’s technicians depart for Customer’s site, Seller must receive Customer’s written confirmation that the site preparations specified in any applicable agreement between Seller and Customer regarding the Machinery have been completed. If installation is delayed because the installation site is not ready, then Seller may delay and reschedule the installation. Upon Seller’s request, Customer will provide Seller with a Certificate of Insurance evidencing Customer’s insurance coverages including, but not limited to, liability and workers' compensation insurance reasonable under the circumstances.
Miscellaneous. The headings of the various sections in these Terms & Conditions are inserted for convenience of reference only and do not define, limit, or construe any provision of any such section or other provision of these Terms & Conditions. Seller reserves the right to unilaterally modify or amend any portion of these Terms & Conditions at any time without prior notice, and such changes will be effective for Machinery and other products sold by it after such change is made. The version of these Terms & Conditions in effect on the date and time of the Customer’s purchase of Machinery supersedes all prior versions of these Terms & Conditions with respect to such Machinery. Seller reserves the right to unilaterally modify or amend any portion of these Terms & Conditions at any time without prior notice. The current version of these Terms & Conditions and any modifications or amendment supersede all prior versions of these Terms & Conditions.

Terms and Conditions for Würth Baer's Sale of Machinery