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STANDARD SALES TERMS & CONDITIONS

 

STANDARD TERMS & CONDITIONS
All Sales Are Subject to the Following Terms & Conditions 

All sales made by BORRELL USA CORP. (“BORRELL”) are made on the followings terms and conditions notwithstanding anything to the contrary in Buyer’s purchase orders or any other document received from the Buyer.

  1. MADE TO ORDER: The machinery and equipment to be sold by BORRELL are manufactured once the order has been placed (manufactured to order), such that they cannot be used by for other orders. No order may be cancelled without the written consent of BORELL, and the cancellation, if accepted by BORRELL, will subject Buyer to pay at least 80% of the full order.

  2. ACCEPTANCE: No contract between BORRELL and Buyer shall be valid until Buyer's order has been accepted by BORRELL. Acceptance of Buyer's order is expressly conditioned on Buyer's agreement to these terms and conditions; any additional or contrary terms in any form of Buyer are hereby rejected unless expressly accepted by BORRELL in writing; and these terms and conditions shall supersede and control any terms and/or conditions, whether oral or written, and are subject to modification only by written agreement signed by BORRELL.

  3. PRICES: Prices quoted herein are on location unless otherwise noted and subject to change without notice. All freight charges are to be paid by Buyer. Prices are exclusive of state, county, local or federal taxes. All taxes, tariffs and/or duties shall be paid by Buyer in addition to the quoted purchase price. Buyer agrees to pay a late payment fee equal to 1½% per month on the outstanding balance if the Buyer does not pay the amount due within thirty (30) days after date of invoice. In the event of a credit sale, the Buyer hereby grants a purchase money security interest in the goods purchased in favor of BORRELL until such time as the purchase price and any late fees have been paid in full.

  4. TERMS: One third (1/3) of the purchase price in cash with order, and balance due prior to shipment, unless other payment terms are expressly accepted by BORRELL in writing.

  5. TITLE/RISK OF LOSS: Title to all machinery and the risk of loss shall pass to the Buyer upon delivery of said machinery to a carrier at BORRELL’s warehouse. Title to and risk of loss of said goods shall pass to Buyer in no other way, notwithstanding any agreement to the contrary, including, but not by way of limitation, any agreement to pay freight, express, or other transportation or insurance charges.

  6. START-UP: The cost of assembly and start-up of the machinery is the Buyer’s responsibility. The Buyer undertakes to provide the necessary auxiliary staff during assembly, even if the latter were carried out by BORRELL. The buildings, warehouses or sores in which the installation of machinery takes place must meet the conditions indicated by BORRELL.

  7. SOFTWARE LICENSE: BORRELL grants the Buyer a personal, non-transferrable, non-exclusive license to use and execute with the systems sold, in such a way as to make the operation of the same possible, in accordance with the specifications. The Buyer undertakes not access to source code of the software or to carry out, either directly or through third parties, derivative work based on the software or any operation which may give rise to derived jobs, adaptations, alternations, modifications, translations, decompilation or decoding of the software or of any of its properties, without the prior written authorization of BORRELL.

  8. FORCE MAJEURE: BORRELL shall not be liable for any defaults, damages, or delays in filling any order caused by condition beyond BORRELL's control, including but not limited to acts of God, strike, lockout, boycott or other labor troubles, war, riot, flood, new governmental regulation, or delays of BORRELL's sellers, subcontractors or suppliers in furnishing machinery, materials or supplies due to one or more of the foregoing or like causes.

  9. INSPECTION: Buyer will inspect all machinery and equipment purchased within five (5) days of delivery to the Buyer. BORRELL will not be responsible for remedying any defects, and Buyer will have no right to reject the merchandise, if Buyer does not notify BORRELL within such five (5) day period. Failure to give such notice on a timely basis shall constitute irrevocable acceptance of the machinery. Buyer, in purchasing the machinery and equipment, agrees upon receipt of the machinery subject to these terms and conditions that it will be Buyer's duty to inspect all machinery not merely for purposes of acceptance but also on a continuing basis; to provide proper safety devices and equipment or means necessary to safeguard any operator from harm for any particular use, operation or set-up of the machine. Buyer also agrees to adequately safeguard each machine and/or all equipment so as to meet all government safety standards which may be imposed from time to time.

  10. WARRANTIES: BORRELL warrants to the Buyer that the machinery being sold will be free from any liens or encumbrances, and that good title to the goods will be conveyed to the Buyer. BORRELL warrants the goods against defects in material and workmanship under normal conditions of usage and service for one (1) year from date of shipment. THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BORRELL’s sole obligation and the Buyer’s sole remedy under this warranty is limited to and shall be fully discharged by repairing or replacing any defective part. BORRELL shall not be responsible for defects or other problems with the machinery which are attributable to (1) incorrect use by the Buyer of the machinery; (2) use or operation without following the normal operation instructions and procedures, (3) alterations, modifications, repairs or other work carried out by persons not associated with BORRELL; (4) failure of the Buyer to adequately maintain any equipment or operating system which the software is installed; (5) abnormal or incorrect conditions of use of the goods or the software (including interruption or anomaly in the electric system); (6) failure cause by using the goods with other incompatible software or hardware; (7) non-fulfillment by the Buyer of the obligations it takes on under these terms and conditions.

  11. LIMITATION ON LIABILITY: BORRELL SHALL NOT BE LIABLE FOR PROSPECTIVE PROFITS OR SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHETHER ANY SUCH CLAIM OR LAWSUIT BE BASED ON TORT, CONTRACT OR OTHERWISE. IN NO EVENT SHALL RECOVERY OF ANY KIND AGAINST BORRELL BE GREATER THAN THE PURCHASE PRICE OF THE SPECIFIC MACHINERY SOLD AND CAUSING THE ALLEGED DAMAGE.

  12. INDEMNIFICATION: Buyer agrees to indemnify BORRELL for, and hold BORRELL harmless from, all liability and expenses based upon bodily injury, property damage or economic loss, arising directly or indirectly in respect to the machinery or the use, failure or transportation thereof, as (1) are caused by the negligent acts or omissions of the Buyer or Buyer's agents; (2) the failure of the Buyer, Buyer's officers, agents or employees to follow manufacturer's instructions, warnings, recommendations; (3) the failure of Buyer, Buyer's officers, agents or employees to comply with federal, state or local laws or regulations applicable to the use of such machinery or equipment, including but not limited the 1970 Occupational Safety and Health Act as amended; (4) all liability and expenses based upon or resulting from any legal theory of strict liability or liability without fault applied to BORRELL or to Buyer or to the original manufacturer of the subject machinery or equipment or to any party who sold such machinery or equipment to BORRELL; or (5) liability and expenses based upon or resulting from any theory of breach of warranty of any kind.

  13. GOVERNING LAW: This sales transaction shall be governed by and construed in accordance with the local laws of the State of California. Buyer's order is deemed accepted in Merced, California. If any provision of these terms and conditions shall be held invalid, illegal, unenforceable or inoperative, the balance of the terms and conditions shall remain in full force and effect as if such provisions had not been included.

  14. JURISDICTION: Any controversy, claim or dispute between the parties, directly or indirectly, concerning these Terms and Conditions or the breach thereof or the subject matter hereof, shall be shall be brought in, and each party agrees to and does herby submit o the jurisdiction and venue of, the appropriate state or federal court located in the County of Merced, California.

  15. ENTIRE AGREEMENT, MODIFICATIONS: These Terms and Conditions constitute the final, exclusive and complete expression of the agreement between the parties. No change in, addition to, or waiver of the terms, conditions, and specifications contained herein shall be a binding obligation on BORRELL unless approved in writing by its authorized representative.

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