General Terms and Conditions
I. Terms of Agreement. Seller’s acceptance of any offer by Purchaser to purchase products or services from Seller is expressly conditional upon the Buyer’s assent to all the terms and conditions herein, including any terms additional to or difference from those contained in any Purchase Order or other offer to purchase. The products or services listed on the front of this document will be furnished by Seller solely on the terms on the front page and on this page of this document (the “Agreement”).
III. Conclusion of Sale. Orders will be processed only with an approved purchase order number or credit card number from the Buyer. Seller reserves the right to refuse any order. The terms of payment specified or otherwise quoted to Buyer are subject to the approval of Seller’s credit department. If Buyer fails to fulfill said terms or if Seller has any doubt as to Buyer’s financial responsibility, Seller may decline to make further deliveries except against cash or satisfactory security.
III. Buyer’s Cancellation of Sale and Returns. Once an order is placed with and accepted by Seller, the order can be cancelled only with Seller’s consent and upon terms that will indemnify Seller against loss, including without limitation, Buyer’s payment of return freight costs and a restocking fee. Seller will accept a return of any unused standard products (part or other goods) within 30 days after shipment from the factory. All product returns require a Return Authorization number, which is provided by Seller; returns without a Return Authorization number will not be accepted. Credit will only be issued for authorized returns of unused parts or other goods. Buyer shall pay a restocking fee of 15% of the purchaser price. Credit memos will be honored for up to 6 months after the credit memo date. Seller reserves the right to refuse, in its sole discretion, the return of any goods which have been damaged or altered in any manner.
IV. Seller’s Cancellation of Sale. Seller may cancel any order in whole or part prior to shipping without penalty.
V. Prices. Prices are effective on the date of the current price list. All prices are subject to change without notice. Orders will be invoiced at the prices in effect on the day the order is received. Prices are exclusive of all city, state and federal excise taxes, including without limitation, taxes on manufacture, sales, receipts, gross income, occupation, use and similar taxes. Wherever applicable, any tax or taxes will be added to the invoice as a separate charge to be paid by Buyer.
VI. Delivery. All equipment, merchandise, goods, materials, etc. identified herein (the “Goods”), will be delivered to Buyer FOB Seller’s premises unless otherwise specified. Insurance shall be affected and the cost thereof shall be borne by the Buyer as from delivery. Prepayment of allowance of freight by Seller shall not affect this provision. Seller shall not be liable for any injury, loss or damage resulting from the handling or use of the Goods after delivery TO THE CARRIER. Seller may select a common carrier but shall not be responsible for loss after delivery to that carrier. Claims for damaged and lost Goods in a shipment may not be deducted from the invoice, nor may payment be withheld while awaiting adjustment on such claims. Unless declared binding by special written agreement, dates of delivery are considered as indications only, which the Seller shall reasonably try to meet. Under no circumstances shall delayed deliveries entitle the Buyer to any remedy other than the cancellation of the sale. Seller reserves the right to make partial shipments. Claims for shortages in quantity or for non-conforming Goods shall be deemed waived unless made in writing to Seller within 10 days after delivery. Buyer waives all claims for any cause after any part of the Goods has been changed in any manner from its original condition. Seller will not be liable for any loss or damages resulting from delays in delivery beyond its control, and in no event, will Seller be liable for any special, incidental or consequential damages (including, but not limited to lost profits), inspection costs or increased cost of the Buyer regarding such orders.
(a) Force Majeure. Any delays in or failure of performance by Seller shall not constitute default or give rise to any claims for damages if and to the extent such delays in or failures of performance are caused by events of force majeure. Force majeure events shall include but shall not be limited to acts of God, the enactment, issuance or operation of any municipal, county, state or federal law, ordinance or executive, administrative or judicial regulation, order or decree, any local or national emergency or unusual condition, acts of war, civil unrest, epidemic or pandemic, sabotage, fires, floods, earthquakes or other physical disasters, strikes or other industrial actions, breakage or failure of plant machinery or equipment and any other causes which are not within the control of Seller and which, by the exercise of reasonable diligence, Seller is unable to foresee or prevent.
VII. Manuals and Inspection; Training and Knowledge of Operation of Goods. Buyer warrants and represents that Seller has furnished Buyer with owner’s manuals containing the operating and maintenance instructions for the Goods. Buyer further warrants and represents that Buyer, and all employees or other persons acting on behalf of Buyer who will operate the Goods has, prior to such operation of the Goods, receive sufficient training on, and knowledge of, the Goods to properly and safely operate the Goods. Buyer understands that safe operation of the Goods requires observing the operating and service instructions contained in the manuals, and Buyer warrants and represents that Buyer, and all employees or other persons acting on behalf of Buyer will operate the Goods under the operating and service instructions. Buyer further acknowledges Buyer’s duty to inspect the Goods prior to use thereof, and to notify Seller of any defects within 10 days after receipt thereof.
VIII. Reservation of Security Interest in Unpaid Goods. Seller retains a purchase money security interest in all Goods delivered to Buyer until receipt of payment in full. If Buyer fails to pay Seller for the Goods, Seller may exercise all remedies available under the Uniform Commercial Code in effect in Ohio.
IX. Warranty. (a) Hoists. Seller warrants that all hoists will be free of defects in workmanship and labor for 24-months from date of purchase, unless such defects are caused by misuse or abuse by Buyer and provided Seller’s recommended maintenance schedule has been adhered to. Buyer will provide maintenance records upon request. Seller’s warranty includes repair or replacement of defective parts and required labor. Seller’s warranty does not cover decals, cleaning, wear parts and annual inspections.
(b) Gear trains. Seller warrants that all gear trains used in normal service and under the maintenance recommendations and safety warnings in the gear train owners instruction manual against defects in material and workmanship for 36 months from the date of purchase. If a gear train is defective in material or workmanship during the warranty period, then Seller shall repair or replace it.
(c) All Other Goods. Seller warrants it will, free of charge for 30 days after invoice to the Buyer, repair or replace, at the nearest service Center of Seller, transportation charges prepaid by Seller, any of Seller’s Goods, which are defective in material or workmanship and make any mechanical adjustment required in any such defective part, subject however, to the terms and conditions in this Agreement.
(d) Seller Approval Required. These Warranties set forth all of Seller’s responsibilities regarding the Goods. Date of purchase must be documented by the purchase invoice. Without proof of purchase no warranty service will be provided. Maintenance and service records may be required. Buyer must contact Seller before having warranty work performed. All warranty claims and work are subject to the approval of the Seller. All warranty repairs of hoists or gear trains will be performed at authorized Sky Climber repair centers with prior approval of Seller’s Warranty Department. Seller will arrange and pay for freight to and from the repair center for authorized repairs.
X. Limitation of Warranty. NO WARRANTY OR GUARANTEE, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR ANY PURPOSE, IS MADE UNLESS THE SAME IS EXPRESSLY SET FORTH ON THE FRONT OF THIS DOCUMENT.
XI. Conditions and Exclusions. All warranties apply only in favor of the original Buyer under an original purchase from Seller or any authorized Dealer of Seller. Proof of purchase is required. Warranties are void unless the goods are (1) used under normal and proper conditions and (2) handled, maintained, lubricated and installed in accordance with the instructions and manuals issued by seller. All Warranties are void and do not apply if damage, deterioration or malfunction results from (1) accident, misuse, abuse, neglect, or negligence (2) fire, water, lightning, power fluctuation, or other acts of nature (3) unauthorized product modification (4) alteration, repair or attempted repair by anyone who is not an authorized technician of Seller (5) lack of reasonable care or (6) the affixing of any attachment not provided or approved by Seller.
XII. Sole and Exclusive Remedy. Seller’s obligation to repair or replace, at Seller’s option, any defective part as set forth in Section IX is intended to be the sole and exclusive remedy of Buyer under this Agreement. If this sole and exclusive remedy fails of its essential purpose, Seller will return the purchase price to Buyer, less the reasonable value of Buyer’s use of the Goods.
XIII. Exclusion of Damages. SELLER HEREBY EXCLUDES AND IN NO EVENT SHALL BE LIABLE TO BUYER FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS.
XIV. Notice of Incident. Buyer shall notify Seller in writing of any incident or claim involving the Goods within 5 business days after the incident or claim. If Buyer fails to notify Seller of any incident or claim involving the Goods within the time set forth in this Section XIV, Seller’s liability for the incident or claim, including without limitation Seller’s warranty, shall be null and void and Seller shall have no further obligation regarding the Goods.
XV. Indemnification. Buyer agrees to indemnify and hold Seller harmless, and to defend Seller at Buyer’s expense, from and against all liability, fines, suits, claims, demands, actions, costs and expenses (including reasonable attorney fees and costs, including costs of expert witnesses) of any kind or nature, including without limitation, damage to property or injury to, or death of, any person, arising out of or attributable to the (i) failure to operate the Goods or any part thereof in accordance with the owner/instruction manuals (ii) tampering, alteration, neglect, negligence, misuse or abuse of the Goods or any part thereof (iii) unauthorized product modification (iv) failure to follow maintenance, lubrication, safety, and handling instructions (v) alteration, repair or attempted repair of the Goods or any part thereof by anyone who is not an authorized technician of Seller (vi) lack of reasonable care or (vii) the affixing of any attachment not provided by Seller. Seller may elect to defend any such action brought against Seller on its own behalf without impairing or reducing Buyer’s indemnification obligations. Seller agrees to indemnify and hold Buyer harmless, and to defend Buyer at Seller’s expense, from and against all liability, fine, suits, claims, demands, actions, costs and expenses of any kind or nature, arising out of or attributable to the gross negligence or willful misconduct of Seller in effectuating the transactions contemplated by this Agreement.
XVI. Payment Terms. Net cash – 30 days after date of invoice. Interest at the rate of 1-1/2% per month, or the highest charge permitted by law, whichever is less, may be charged on all balances outstanding for over 30 days. Seller retains the right to place Buyer’s account on credit hold. In addition, in event of non-payment, Buyer shall pay all costs incurred by Seller in enforcing its rights under this Agreement. Whenever prepayment, in part or in full, is required, the Seller shall not be obligated to manufacture or prepare the delivery until such prepayment is received.
XVII. Jurisdiction, Venue and Governing Law. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Ohio. The Parties irrevocably and unconditionally submit, for themselves and their property, to the exclusive jurisdiction of any State of Ohio court or federal court of the United States of America sitting in Columbus, Ohio and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or for recognition or enforcement of any judgment. BUYER AND SELLER IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
XVIII. Delay Not a Waiver. No delay or failure by Seller to exercise any rights, and no partial or single exercise thereof, will constitute a waiver of such rights or of any other rights. Any waiver of any term of this Agreement must be in writing and signed by the party to be charged by a waiver.
XIX. Severability. If any provision contained herein or any word, phrase, clause, sentence or other portion thereof should be held to be unenforceable or invalid for any reason, such provision or portion thereof shall be modified or deleted in such a manner to make the terms contained herein, as modified, legal and enforceable to the fullest extent permitted under applicable laws. Buyer and Seller expressly authorize any court of competent jurisdiction to enforce any such provision or portion thereof or to modify any such provision or portion thereof in order that any such provision or portion thereof shall be enforced by such court to the fullest extent permitted by applicable law.
XX. Mediation; Arbitration. Except where injunctive relief is sought, if any dispute, claim or controversy arising between Seller and Buyer in connection with this Agreement, Seller and Buyer each agree to make a good faith effort to resolve the issues, prior to taking any legal action by submitting to non-binding mediation conducted by a recognized, neutral, third-party professional mediation service acceptable to both parties. Seller and Buyer shall equally bear the costs of such mediation. If Seller and Buyer, after participating in such mediation, cannot resolve the dispute, claim or controversy, Seller and Buyer each agree that they shall submit the dispute, claim or controversy to binding arbitration in the Columbus, Ohio metropolitan area and under Commercial Arbitration Rules of the American Arbitration Association.
XXI. Entire Agreement; Amendment. This Agreement represents the entire agreement between Seller and Buyer and supersedes all prior negotiations, representations, or agreements, either written or oral. This Agreement may not be amended except in writing and signed by Seller and Buyer. If any provisions contained herein conflict with provisions in any purchase order, invoice, proof of purchase, or any other document or writing, or any other agreement, whether written or oral, between Buyer and Seller, then to the extent of such conflict, this Agreement shall control.
XXII. Notices. Any notices required or permitted hereunder shall be personally delivered to Seller or mailed to Seller at 1800 Pittsburgh Drive, Delaware, OH 43015 or to Buyer at the address on the front page of this Agreement, via certified mail, or by nationally recognized overnight carrier with proof of delivery, postage or carries charges prepaid in full. Such notices shall be deemed as received (i) on the date personally delivered if delivery is made by hand delivery or, on the next day, if sent by overnight delivery by a nationally recognized delivery company or (ii) on the day received if mailed via certified mail with postage prepaid. Either party may change the address for notices by a notice delivered as set forth in this section.
XXIII. Binding Effect. This Agreement shall inure to the benefit of, and shall be binding upon, Seller and Buyer, and the respective successors and assigns.