Terms Of Service
1. ORDERS SUBJECT TO ACCEPTANCE: All orders are subject to acceptance in writing by Leer Inc. or Carroll Coolers, Inc., as set forth on the face of this invoice (hereinafter the Seller).
2. ENTIRE AGREEMENT: Unless Buyer and Seller have entered into a separate written supply agreement, this invoice is intended by Seller and the Buyer as a final and exclusive expression of their agreement with respect to the goods shown on the face of this invoice, and no course of dealing or usage of trade or course of performance shall be relevant to explain or supplement any term expressed in this agreement. Buyer is hereby notified of Seller’s objection to any terms inconsistent herewith and to any additional terms proposed by Buyer in any purchase order or in accepting the offer to sell and such terms shall not become a part of this agreement unless accepted in writing by Seller. Neither Seller’s subsequent lack of objections to any such terms, nor the delivery of goods and services contemplated by this offer to sell shall constitute or be deemed an agreement by Seller to such terms. Buyer’s acceptance of goods from Seller constitutes an acceptance of the terms and conditions hereof (and those contained in any Seller acknowledgment previously delivered to Buyer).
3. PRICE: Prices are subject to change by Seller at any time and from time to time, prior to shipment, to reflect actual increases in the cost and expense Seller may experience. In addition to the prices stated in any quotation, Buyer shall pay to Seller an amount equal to all taxes and other charges imposed by any government agency or authority whether by present or future enactment, upon the manufacture, sale, shipment, delivery or use of the products sold hereunder, which taxes or charges Seller is or shall be required or permitted to pay or collect.
4. ALLOCATION OF RISK: The goods shall be shipped F.O.B. Seller’s plant unless otherwise specified on the reverse side hereof. Title to and possession of all goods sold hereunder shall pass to Buyer on delivery to a common or contract carrier and such goods shall be at the risk of Buyer from and after such delivery. Seller reserves the right to specify the routing on all shipments to Buyer. Seller is authorized to ship the goods under a reservation. Tender of a Bill of Lading shall operate as tender of the goods.
5. SHIPPING DATES: The goods sold hereunder will be shipped at the earliest practicable schedule date of Seller unless specific shipping dates were agreed to in writing by Seller.
6. FORCE MAJEURE: Seller shall not be liable for any damages, direct or consequential, arising out of any delay in delivery, or failure to deliver any of the goods sold hereunder, if such delay or failure to deliver is due to a cause beyond Seller’s reasonable control including but not limited to an Act of God, explosion, accident, fire, drought, flood, strike, insurrection, riot, war, orders of a federal, state or local government unit, transportation, power, labor, material shortage or the default of a supplier. In the event of any such delay in delivery, Buyer shall accept all goods sold hereunder which either have been completed or are in process at the time such cause of delay commences provided Seller makes delivery within a reasonable time after termination of such cause. If, because of any such event, Seller is unable to supply the total demand for its goods to all of its customers, Seller may allocate its available supply of goods among itself and all of its customers, including those not under contract, on such basis as it determines to be equitable, without obligation to purchase similar goods from other sources
7. PAYMENT: The Buyer shall make payment in full and in cash at the time of delivery for the goods sold hereunder unless otherwise set forth on this face of this invoice. Buyer shall not take any deductions against the amount shown on Seller’s invoice. If Buyer fails to pay any invoice when due, or fails to accept shipments as scheduled, Seller may, without prejudice to other remedies, either defer further shipments until the default is corrected or cancel the unfilled portion of the order and of any or all other orders. If the financial responsibility of Buyer shall in the judgment of Seller become impaired at any time, Seller may refuse to make shipment hereunder unless Buyer makes cash payment or provides security satisfactory to Seller. Buyer failure to pay in accordance with the terms of this invoice will void warranties.
8. (A) MERCHANDISER DIVISION PRODUCTS WARRANTY: Seller warrants all merchandiser products and component parts under normal use and service to be free from defects in material and workmanship for a period of one (1) year (not to exceed one (1) year and ninety (90) days from date of original shipment) and repair labor for ninety (90) days after first date of operation. The ice merchandiser compressor is warranted for five (5) years from date of original shipment for repair labor. Labor charges shall only include standard straight time labor hours at site of product installation and shall exclude charges for travel time, mileage or premium charges. ALL PARTS AND LABOR CHARGES SHALL BE AUTHORIZED BY SELLER PRIOR TO REPAIR OR REPLACEMENT OF PRODUCTS OR PART(S). Seller’s obligation under this warranty shall be limited to repair or replacement of any product or part(s) with freight charges prepaid, which prove(s) defective within the applicable warranty period. Seller shall not be responsible for any other charges incidental to the repair or replacement or product or part(s) covered by this warranty. Seller reserves the right to inspect detective product or part(s) and may at Seller’s discretion require return of product or part(s) to Seller’s factory for inspection and with freight prepaid at customer expense. Any defective product or part(s) to be returned and replaced must be identified with a return authorization number obtained from Seller. The determination as to defect shall be made in Seller’s sole judgment. This warranty applies only to products installed in United States.
(B) WALK-IN DIVISION PRODUCTS WARRANTY: Seller warrants all walk-in coolers, freezers, enclosures and component parts under normal use and service to be free from defects in material and workmanship, for a period of one (1) year (not to exceed one (1) year and ninety (90) days from date of original shipment) The compressor is warranted for thirty (30) days for repair labor. Labor charges shall only include standard straight time labor hours at site of product installation and shall exclude charges for travel time, mileage or premium charges. ALL PARTS AND LABOR CHARGES SHALL BE AUTHORIZED BY SELLER PRIOR TO REPAIR OR REPLACEMENT OF PRODUCTS OR PART(S). Seller’s obligation under this warranty shall be limited to repair or replacement of any product or part(s) with freight charges prepaid, which prove(s) defective within the applicable warranty period. Seller shall not be responsible for any other charges incidental to the repair or replacement or product or part(s) covered by this warranty. Seller reserves the right to inspect defective product or part(s) and may at Seller’s discretion require return of product or part(s) to Seller’s factory for inspection and with freight prepaid at customer expense. Any defective product or part(s) to be returned and replaced must be identified with a return authorization number obtained from Seller. The determination as to defect shall be made in Seller’s sole judgment. This warranty applies only to products installed in United States.
C) ADDITIONAL FOUR (4) YEAR COMPRESSOR WARRANTY: At an additional charge or if reflected on this invoice, Seller warrants to the original purchaser the refrigeration compressor for a period of four (4) years beginning after one (1) year from original shipment. The four-year warranty, when purchased, covers the replacement of the compressor only. The refrigerant and labor is expressly excluded from This warranty. Contact factory for proper replacement procedures.
(D) TEN (10) YEAR LIMITED PANEL WARRANTY: Seller warrants to the original purchaser, the foamedin- place polyurethane panels, to be free from defects in material and workmanship under normal use and service for a period of ten (10) years from the date of original installation by an authorized representative. This warranty is void if the panels have been moved from the original site and reinstalled.
(E) GENERAL PROVISIONS APPLICABLE TO ALL WARRANTIES AND PRODUCTS: Seller shall not be liable for any breach of any express warranty set forth above unless Seller is informed immediately upon the discovery of defective part(s). The warranties described above are not assignable and shall operate only in favor of the original buyer/user. These warranties shall not apply to any goods, or any part thereof, which may have been subject to any damage in transit, accident, negligence, abuse or misuse, unauthorized alteration or repair, acts of nature or failure to follow any of Seller’s manuals or instructions; if in Seller’s sole judgment, such act, omission or event has detrimentally affected the physical condition, use or operating qualities of the product. SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, BY REASON OF LAW, STATUTE OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE. ALL IMPLIED WARRANTIES ARE HEREBY DISCLAIMED. SELLER SHALL NOT BE LIABLE FOR LOSS OF GOODS, MERCHANDISE OR OTHER PROPERTY, OR LOSS OF PROFITS, RESULTING FROM PRODUCT DEFECTS.
9. INDEMNIFICATION: Buyer agrees to defend, hold harmless and indemnify Seller against all claims, costs, and expenses whether in contract or in tort; made by persons other than Buyer arising out of the possession, use misuse or improper storage or handling of the goods sold hereunder including actual attorney fees and Buyer agrees to hold harmless and indemnify Seller against the costs and expenses including attorney fees paid by Seller in a lawsuit against Buyer, of whatsoever nature, arising from, incurred with respect to, or growing out of: (a) Buyer’s failure to keep, perform and observe the terms and conditions of this Agreement including, but not limited to, Buyer’ failure to timely pay; (b) Buyer’s designs, specifications, or requirements, or (c) Buyer’s tortious act or omission. Further, Buyer agrees to indemnify and save Seller harmless from any loss or damage to property and from injuries to persons relating in any way to the use of car(s), truck(s) and barge(s) used for the delivery of goods while such vehicles are in the Buyer’s possession.
10. INFRINGEMENT: Buyer agrees to determine whether any words, designs or devices which Buyer instructs Seller to incorporate in or imprint or place on the goods sold hereunder may infringe on any patent, trademark or copyright, notwithstanding that Seller may be consulted as to, or may perform, art or design work or other special services in connection with the order. Buyer will indemnify Seller against all expenses, losses judgments and decrees arising from each claim of infringement.
11. PRODUCT CHANGES: Seller reserves the right, at any time, and from time to time, and without providing prior notice to Buyer, to make design, specification, composition and other changes or modification in or to its goods, and any goods so changed or modified shall be considered standard goods in fulfillment of Seller’s obligation.
12. TERMINATION: In the event voluntary or involuntary bankruptcy, receivership, insolvency or reorganization proceedings involving either party or its property, or the assignment of all or substantially all of the assets of either party for the benefit of creditors, the other party may terminate its obligations hereunder by giving written notice of such termination which shall become effective upon the giving of such notice. If Buyer cancels an order or any part thereof, Buyer agrees to assume liability for all costs incurred by Seller in processing the order to the time of receipt of Buyer’s notice of cancellation. Such liability of Buyer shall be in addition to all other remedies Seller may have against Buyer.
13. INSPECTION AND LIMITATION OF LIABILTY: Buyer shall inspect and test goods delivered hereunder for damage, defect or shortage, immediately upon receipt at Buyer’s plant or such other location as determined by Buyer and provide Seller notice of such damage, defect or shortage within ten (10) days of receipt. All claims for any cause whatsoever whether based on contract, negligence or other tort, strict liability breach of warranty or otherwise, shall be deemed waived unconditionally and absolutely unless Seller, receives written notice of such claim not later than ninety (90) days after Buyer’s receipt of the goods as to which such claim is made. Any cause of action that Buyer may have against Seller and which may arise under this contract must be commenced within one (1) year after the cause of action has accrued. SELLER SHALL NOT BE LIABLE FOR SPECIAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL SELLER’S LIABILITY FOR ANY WARRANTY CLAIM OR FOR ANY BREACH OF CONTRACT CLAIM OR FOR ANY OTHER CLAIM BY BUYER AGAINST SELLER WHETHER BASED ON CONTRACT, TORT, STATUTE OR OTHER LEGAL THEORY EXCEED THE CONTRACT PRICE OF THE GOODS SOLD HEREUNDER WITH RESPECT TO WHICH SUCH CLAIM ARISES.
14. CAR, TRUCKS AND BARGES: Buyer agrees to unload railroad cars, trucks (and barges) furnished by Seller within the free time specified by tariff’s on file with applicable regulatory bodies and to pay any charges resulting from its failure in this regard directly to the common carrier upon receipt of invoice therefore. Buyer assumes full responsibility for use and condition of cars, trucks and barges while in buyer’s possession. Buyer further agrees to report to Seller promptly any damage which may be sustained by the car(s), truck(s) or barge(s) in Buyer’s possession.
15. WAIVER EFFECT ON FUTURE BREACHES: No claim or right of Seller arising out of breach of this agreement by Buyer can be discharged or released in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is in writing and signed by Seller. Waiver by Seller or a breach by Buyer of any provision of this agreement shall not be deemed a waiver of future compliance and such provisions shall remain in full force and effect.
16. ASSIGNMENT AND DELIGATION: No right or interest in this contract shall be assigned by Buyer without the written permission Seller and no delegation of any obligation owed by Buyer to Seller shall be made without the written permission of Seller. Such permission shall not relieve Buyer from its obligations or from any liability for breach or from any duty to perform. Any attempted assignment or delegation other than in compliance with this agreement shall be void for all purposes.
17. AMENDMENT: No agreement or understanding to cancel, terminate or modify this contract shall be binding on Seller unless in writing and signed by Seller.
18. SECURITY INTEREST: In the event, Buyer makes payment for the goods other than in cash at time of delivery pursuant to paragraph 7 above, Buyer hereby grants Seller a purchase money security interest in the goods, the documents relating to the products, and all proceeds and products of the foregoing, wherever located, to secure the debt, obligations and liabilities of the Buyer to Seller arising out of, or in connection with, the purchase of the goods from Seller. Buyer authorizes Seller to sign and execute on behalf of and in the name of Buyer and/or agrees to execute, on demand, Financing Statement, Security Agreements or other documents which Seller deems necessary or appropriate to perfect its purchase money security interest and agrees to pay all costs of filing such statements or instruments.
19. APPLICABLE LAW: This transaction shall be governed by, and this agreement shall be construed and enforced in accordance with the laws of the State where Seller is located as shown on the front of this Invoice.
20. SEVERABILITY: If any provision, clause or part or the application thereof under certain circumstances is held invalid, the remainder of this agreement or the application of said provision, clause or part under other circumstances shall not be affected thereby.
21. NOTICE: Any notice hereunder shall be deemed given if and when deposited in the United States mail, postage prepaid, addressed to the other party at the address herein.
22. FORUM AND JURISDICTION: Buyer agrees that the Circuit Court located in the City, County, and State where Seller is located as shown on the front of this Invoice, or the United States District Court for the District where Seller is located, as the case may be, shall have exclusive jurisdiction over any action or proceeding brought or maintained by Seller or Buyer respecting any controversy or claim arising under, or growing out of, Seller’s relationship with Buyer, and Buyer hereby irrevocably consents and submits to the personal jurisdiction of such courts. Buyer agrees that any judgment rendered against it and entered in any such courts may be executed against its property in any jurisdiction. Buyer irrevocably waives, to the fullest extent permissible by law, any objection which it may now or hereafter have to any suit, action or proceeding arising out of, or relating to, its relationship with Seller being brought or maintained in the aforementioned courts, and hereby further irrevocably waives any claim that any such suit, action or proceeding borough or maintained in such jurisdiction has been brought, or is being maintained, in an inconvenient forum.