Terms and Conditions

TERMS AND CONDITIONS OF SALE

1. Applicability. These Terms and Conditions of Sale (these “Terms”) are the only terms that govern the sale of any machine, equipment, components, parts, and/or accessories identified for purchase (the “Products”) in the invoice to which these Terms are attached or in which these Terms are referenced (the “Invoice”) by the seller named in the Invoice (“Seller”) to the buyer named in the Invoice (“Buyer”). The Invoice and these Terms constitute the entire agreement between Buyer and Seller on or relating to the Products, and become legally binding on the date of Buyer’s execution of the Invoice, or the date of any other manifestation of Buyer’s assent, whichever is earlier (the “Effective Date”). In the event of inconsistency between the Invoice and these Terms, the Invoice controls. These Terms may only be amended in writing.
2. Price. All prices are in U.S. dollars. Seller may make commercially reasonable adjustments to the prices listed in the Invoice to account for any cost increases beyond Seller’s control, including changes in foreign exchange rates. Buyer shall pay all such prices and applicable taxes, including but not limited to any sales and use tax, tariffs, value added tax, and similar fees or taxes assessed by governmental authorities. If Seller pays any such taxes, Seller shall add them to the Invoice and Buyer shall reimburse Seller. Buyer shall pay interest on all late payments at the rate of two percent (2%) per month.
3. Security Interest. Buyer hereby grants to Seller a security interest in the Products to secure all payments Buyer owes Seller under these Terms or the Invoice, and authorizes Seller to file and record a UCC-1 or analogous record to perfect that security interest.
4. Timing. Shipping, delivery, and installation dates referenced in the Invoice represent estimates. Buyer understands that overseas manufacturing, shipping, customs, ground transportation, and other factors may affect these estimated dates. Commercially reasonable variation in these dates does not constitute breach of these Terms or nonconformity.
5. Freight Arrangements. Buyer understands that Buyer is responsible for arranging all freight transportation with a freight broker or transportation company and that Seller has no involvement, influence, or control over these arrangements. Buyer understands that Seller is not a freight broker or transportation company and is not responsible for arranging domestic transportation of the Products. Seller may provide Buyer a “best practices” sheet for transporting Products, but Buyer is solely responsible for ensuring those practices are followed. BUYER FURTHER UNDERSTANDS AND AGREES THAT IN NO EVENT SHALL SELLER BE HELD LIABLE FOR FREIGHT ARRANGEMENTS OR TRANSPORTATION OF THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY FAILURE TO FOLLOW “BEST PRACTICES,” AND BUYER SHALL INDEMNIFY SELLER FROM AND AGAINST ANY AND ALL CLAIMS RELATING THERETO.
6. Preinstallation Preparations. Buyer shall perform all necessary preinstallation work according to the preinstallation specifications Seller provides Buyer either in the Invoice, or after acceptance of these Terms (the “Preinstallation Work”). Buyer shall hire and pay third parties, as may be necessary, to perform the Preinstallation Work at its own expense. Buyer acknowledges that Seller is not a licensed contractor for the Preinstallation Work and is not responsible for inspecting or verifying the correctness thereof.
7. F.O.B. Point. In the event that Products are delivered to a different port than identified in the Invoice because of circumstances beyond Seller’s control, Buyer shall accept such Purchases f.o.b. the different port. Buyer is responsible for any additional domestic overland freight charges arising from a change in port.
8. Inspection. Buyer shall immediately inspect all Products upon tender or delivery and shall provide written notice of any nonconformity to Seller within five (5) calendar days of inspection. Upon receipt of such notice, and notwithstanding any other deadlines in these Terms or in the Invoice, Seller shall have a reasonable amount of time to remedy any actual nonconformity by substitution, by repair, or otherwise.
9. Transfer of Title/Ownership. Notwithstanding possession of the Products, Seller retains all title and ownership of the Products until Buyer has paid Seller all amounts owed under these Terms and the Invoice in full, including any applicable interest. Only when all such amounts are paid does title and ownership of the Products transfer to Buyer.
10. Safety, Operation, Use and Maintenance. Buyer is fully and solely responsible for: (1) ensuring that Products are set up, configured, and operated only by trained operators using proper safety devices and equipment, and safe operating procedures; (2) ensuring that all operators of Products are properly trained; (3) ensuring that Products are used only within capability ranges and on approved materials; (4) ensuring that setup, use, and operation of the Products complies with all applicable government and industry safety and operation standards; (5) compliance with all applicable government, commercial, and industry electrical codes and standards; and (6) performing maintenance according to the Maintenance Instructions Seller provides to Buyer in conjunction with delivery, tender, or installation of the Products.
11. Service. Buyer shall pay Seller, at Seller’s then-current rates, for all work, demonstrations, installation, start-up, use or operation instructions, maintenance, and repairs (“Service”) of any Products, including but not limited to Seller’s hourly rates and overtime as appropriate, costs (e.g., rigging equipment, tools, supplies), travel, per diem, and any other incidentals. If certain Service is explicitly included as part of the Invoice, Buyer has no obligation to pay Seller for that specific Service.
12. Limited Warranty. Seller warrants the Products to be free from defective material and workmanship for the period of time specified in the Invoice, which begins on the date of tender or delivery (“Warranty Period”) to Buyer (the “Limited Warranty”). Any of the following voids this Limited Warranty: (1) failure to properly perform the Preinstallation Work; (2) improper setup, operation, maintenance, conditions, or treatment of any Products giving rise to defective performance; (3) regular use of Products for more than eight (8) hours per day; (4) change in ownership or possession of Products; and (5) repair, alteration, or modification of any kind to Products, other than by Seller or with Seller’s written approval. During the Warranty Period, upon written notice to Seller of any defective material or workmanship covered by this Limited Warranty, Seller shall, within a commercially reasonable period of time, repair or replace, at its sole discretion, a defective Product or Product component, and this repair or replacement is Buyer’s sole remedy under the Limited Warranty. Notwithstanding anything in these Terms, the Invoice, or otherwise to the contrary, this Limited Warranty DOES NOT cover cutting tools, dies, consumables, or other similar Products. THIS LIMITED WARRANTY IS IN LIEU OF ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. This Limited Warranty applies only to Products that are new and purchased directly from Seller. There is no warranty of any kind for used Products.
13. Damages Limitation. Damages and remedies for which Seller may be found liable for any breach of these Terms or the Invoice are limited to the amounts Buyer paid under these Terms and the Invoice and do not include, under any theory of recovery, any (a) incidental, special, punitive, consequential or indirect damages or (b) damages resulting from lost sales, business, profits, data, opportunity, or goodwill. Buyer understands and agrees that but for this limitation of damages, Seller would charge Buyer a much higher price for Products to offset the risk to Seller.
14. Indemnification. Buyer shall indemnify Seller for any third-party claims against Seller arising out of or relating to these Terms or the Invoice, including but not limited to costs of defense, attorney fees, damages, and judgments.
15. Insurance. At all times after Buyer takes possession of the Products, and until Buyer has made full payment under these Terms and the Invoice, Buyer shall maintain, with an insurance carrier reasonably acceptable to Seller, insurance sufficient to cover loss of or damage to the Products (including but not limited to during shipping, transportation, or rigging). Buyer shall provide proof of such insurance to Seller upon Seller’s request.
16. Confidentiality. The terms of this Agreement, including but not limited to pricing, are confidential and Buyer shall not disclose them to any third party without the prior written consent of Seller. Buyer shall take reasonable steps to maintain this confidentiality.
17. Governing Law and Disputes. The laws of the State of Utah (without giving effect to its conflicts of law principles) govern all matters arising under or relating to these Terms or the Invoice, including torts. Buyer and Seller shall litigate all such matters in the state or federal courts having jurisdiction over Salt Lake County, Utah, and all appellate courts therefrom, and consent to the jurisdiction of those courts. The prevailing party in all such matters shall pay the non-prevailing party’s costs and reasonable attorney fees arising out of or relating to all such matters.
18. Force Majeure. A “Force Majeure Event” means any act, event, or circumstance, whether foreseen or unforeseen, that meets all of the following tests: (1) The act, event, or circumstance prevents a party, in whole or in part, from performing any obligation under this Agreement or satisfying any condition to any obligation of the other party under this Agreement; (2) The act, event, or circumstance is beyond the reasonable control of and not the fault of the nonperforming party; and (3) The nonperforming party has been unable to avoid or overcome the act, event, or circumstance by the exercise of reasonable diligence. In the case of a Force Majeure Event, both parties are excused from performance under this Agreement, until the time when the Force Majeure Event no longer exists; except that a Force Majeure Event never excuses Buyer’s obligations to make payments under these Terms or the Invoice when due to Seller, under any circumstances.

01/01/2017 – Revised 05/24/2024