Terms & Conditions
ALL WEIGH AUTOMATION LLC TERMS AND CONDITIONS:
1. Acceptance: By placing an order, the Buyer agrees to be bound by these Terms and Conditions. Any terms proposed by the Buyer that conflict with or supplement these Terms are rejected unless accepted in writing by the Seller. All orders are subject to final approval and acceptance at the home office of Seller. Acceptance of Buyer’s order is expressly conditional upon the terms and conditions of purchase, other than those stated herein, which shall be effective unless expressly accepted by Seller, and noted on the face of the proposal. Any sign of Buyer’s purchase order or purchase order number will be for reference purposes only and will not constitute acceptance of any provisions in Buyer’s purchase order. If Buyer objects to any of the terms or conditions herein contained, Buyer shall give Seller prompt, conspicuous notice of such objection, specifying the clause to which objection is being made. Otherwise, these terms and conditions will be deemed acceptable.
2. Delivery: Any delivery date specified shall be approximate only. Seller shall not be liable for any delays in or failure of delivery caused by strikes, accidents, fires, delays of carrier, traffic regulations or other causes beyond Seller’s reasonable control, and in no event shall Seller be liable for consequential damages (including loss of profits or liability of the Buyer to its customers or third persons) or incidental damages arising out of a delay or failure of delivery.
3. Payment: All invoices payable in St. Louis Park, Minnesota in U.S. Dollars. Accounts 45 days past due will be placed on hold, and no further services, shipments, or work will be provided until full payment is received.
4. Taxes: Sales and use taxes which are presently or may hereafter be imposed by any taxing authority are not included in the price of the product and if such taxes are not separately stated and collected at time of payment of sales price, Buyer will hold Seller harmless from payment thereof.
5. Cancellation and Return: The proposal, when accepted, is binding upon the Buyer and Seller and cannot be canceled after the product is completed and ready for shipment. The contract cannot be canceled or modified after the product is in process of development or manufacture, but not ready for shipment, except on terms agreed to by Seller which include protection against any loss, including loss of the benefit of the agreement. Seller may, at its option, cancel the agreement, if the Buyer shall fail to make payment in accordance with the terms and provisions of this agreement or any similar agreement with Seller, and the Buyer waives any cause of action and right to any offset or counterclaim against Seller by reason of such cancellation. Equipment which is not standard or made to Buyer’s specifications is not subject to return at the Buyer’s option. Other equipment manufactured as determined by Seller may be returned for credit subject to a restocking charge of thirty-five percent (35%) of the sale price of items returned, but only on the following conditions: Buyer must first obtain Seller’s written consent; all transportation costs, incoming and outgoing, must first be paid by the Buyer; items returned must be new and in unused condition, and they must be returned within thirty (30) days of delivery to Buyer.
The Buyer agrees to allow extra charges for any changes authorized by Buyer.
6. Price Adjustment and Cancellation Policy: If Buyer fails to provide necessary specifications, instructions, or direction regarding the equipment within thirty (30) days from the date of Seller’s initial request, Seller reserves the right, in its sole discretion, to adjust the quoted price to reflect any increased costs, including but not limited to material, labor, or market fluctuations. Buyer acknowledges and agrees that such price adjustment shall not constitute grounds for cancellation of the order. In the event Buyer elects to cancel the purchase after such adjustment or otherwise fails to proceed with the order, Buyer shall remain liable for a restocking fee equal to thirty-five percent (35%) of the total order value, which Buyer agrees is a reasonable estimate of Seller’s damages and costs incurred.
7. Insurance: Until full payment has been made, Buyer shall ensure the Property fully, for the benefit of Seller, commencing at the time the Property reaches Buyer’s care, custody and control. Seller accepts risk of transportation.
8. Storage Fee for Delayed Delivery/Pickup: If Buyer fails to take possession of the equipment within fourteen (14) calendar days following completion and readiness for delivery, Seller may, at its sole discretion and without waiving any other rights or remedies, arrange for storage of the equipment at Buyer’s sole cost and expense. Buyer shall be liable for all charges incurred during the storage period, including but not limited to storage fees, transportation costs to and from storage, handling costs, insurance premiums, and any other related expenses. Such charges shall accrue beginning on the fifteenth (15th) day after completion and shall continue until the equipment is shipped or collected by Buyer. Buyer’s obligation to pay storage fees shall not relieve Buyer of its duty to make payment for the equipment in accordance with the terms of this Agreement. Risk of loss or damage to the equipment shall transfer to Buyer as of the date the equipment was completed and ready for delivery.
9. Security Interest: Buyer hereby grants to Seller a continuing security interest in and to all goods described herein, together with all accessions, additions, substitutions, and improvements thereto, as collateral to secure the full and timely payment and performance of all obligations owed by Buyer to Seller, whether now existing or hereafter arising, pursuant to the Uniform Commercial Code or any other applicable law. Buyer covenants and agrees to execute, deliver, and file such financing statements and other instruments as Seller may, in its sole discretion, deem necessary or appropriate to perfect, maintain, or enforce Seller’s security interest in said collateral, wherever located. In the event of Buyer’s default in payment or performance of any such obligations, Seller shall have and may exercise all rights and remedies of a secured party under applicable law, including, without limitation, the right to repossess and dispose of the collateral.
10. Software: With respect to any software products incorporated in or forming a part of the equipment hereunder, Seller and Buyer intend and agree that such software products are being licensed and not sold, and that the words “purchase”, “sell” or similar or derivative words are understood and agreed to mean “license”, and that the word “Buyer” or similar or derivative words are understood and agreed to mean “licensee”. Notwithstanding anything to the contrary contained herein, Seller or its licensor, as the case may be, retains ownership of and title to all software products provided hereunder.
Seller hereby grants to Buyer a royalty-free, non-exclusive, nontransferable license, without power to sublicense, to use software provided hereunder solely for Buyer’s own internal business purposes on the hardware products provided hereunder and to use the related documentation solely for Buyer’s own internal business purposes. This license terminates when Buyer’s lawful possession of the equipment provided hereunder ceases, unless earlier terminated as provided herein. For purposes of Section 117 of the Copyright Act of 1976, as amended, and for all other purposes, Seller will be considered the owner of the software products and related documentation provided hereunder and any copies thereof, and of all copyright, trade secret, patent, trademark and other intellectual property rights therein. Buyer agrees not to sell, transfer, license, loan or otherwise make available to third parties the software products and related documentation provided hereunder. Buyer may not modify, enhance or otherwise change or supplement the software products provided hereunder without Seller’s prior written consent. The source code for the software products supplied hereunder will not be disclosed to Buyer, and Buyer may not disassemble, de-compile or reverse engineer the software products supplied hereunder. Buyer agrees to hold in confidence the software products and related documentation supplied hereunder and not to disclose or make available in any form the same, except to Seller’s and Buyer’s employees and agents. Seller will be entitled to terminate this license if Buyer fails to comply with any term or condition herein. Buyer agrees, upon termination of this license, immediately to return to Seller all software products and related documentation provided hereunder and all copies and portions thereof.
Certain software products furnished by Seller may be owned by one or more third parties and licensed to Seller. The parties expressly acknowledge and agree that any such third-party software provided under this Agreement is sublicensed to Buyer, that all right, title, and interest in and to such software shall remain vested in the respective third-party owners, and that such third parties shall have the right to directly enforce Buyer’s obligations hereunder to protect their proprietary interests in said software.
11. Default and Remedies of Seller: In the event that Buyer fails to promptly pay any obligation to Seller when due, becomes insolvent, ceases to conduct business as a going concern, or if any petition for bankruptcy, arrangement, or reorganization is filed by or against Buyer and remains undismissed for thirty (30) days, or if a receiver or trustee is appointed for Buyer, or if Buyer breaches any provision of this Agreement, Buyer shall be deemed in default hereunder. Upon such default, all unpaid amounts shall, at Seller’s sole option, become immediately due and payable in full. Seller shall thereupon have all rights and remedies of a secured party under Article 9 of the Uniform Commercial Code and any other applicable law, including, without limitation, the right to recover any deficiency remaining after disposition of the collateral, for which Buyer shall remain fully liable. Seller may require Buyer to assemble and deliver the collateral to a location designated by Seller that is reasonably convenient to both parties. Seller shall provide Buyer with reasonable notice of the time and place of any public sale of the collateral or the time after which any private sale or other disposition thereof will occur. Unless otherwise required by law, such notice shall be deemed reasonable if mailed, postage prepaid, to Buyer’s address at least ten (10) days prior to the scheduled sale or disposition. All expenses incurred by Seller in retaking, holding, preparing for sale, and disposing of the collateral, including reasonable attorney’s fees and legal costs, shall be borne by Buyer. Applicable Law: The sales agreement is made and entered into in the state of Minnesota, and all parties agree that it be construed in accordance with the laws of the State of Minnesota.
12. Abandoned Equipment and Forfeiture of Deposit: If Buyer fails to provide direction regarding delivery, pickup, or disposition of equipment within sixty (60) days after completion, Seller may, at its sole discretion and without further notice, deem the equipment abandoned. In such event, Seller shall have the right to dispose of, resell, or otherwise handle the equipment in any manner Seller deems appropriate. Buyer expressly agrees that any deposit or prepayment made shall be forfeited to Seller as liquidated damages and not as a penalty. Buyer shall remain liable for any outstanding balance and all costs incurred by Seller in connection with storage, handling, and disposal of the equipment. Seller’s rights under this provision are in addition to any other rights or remedies available under applicable law.
13. Safety Disclaimer and Risk Assessment Responsibility: While the All Weigh Automation machine/equipment/system has been designed with safety in mind, it may not address every possible operating condition, application, or unforeseen scenario. It is the responsibility of the customer to conduct a comprehensive risk assessment specific to your intended use, environment, and integration of the equipment. This assessment should identify any additional hazards and ensure that all applicable safety standards, regulations, and local requirements are fully met.
14. Service Charges: All Weigh Automation provides phone support to customers at no charge; however, service calls exceeding one hour for a single issue will be billed at our standard hourly service rate.
15. Warranty and Disclaimer of Warranty: All Weigh Automation LLC (Seller) warrants to the extent of the purchase price that it will repair or, at its option, replace F.O.B. Seller’s factory, equipment or parts of its manufacture because of defects in material or workmanship. Seller’s liability hereunder shall extend only to defects of which Seller has had written notice within 365 days of the date of initial shipment and is contingent upon the Buyer’s returning to Seller, on Seller’s request, the defective items to point of repair or manufacture or other point reasonably directed by Seller, freight prepaid and is contingent on buyer completing and submitting the appropriate written warranty claim. No warranty is made with respect to:
(a) failure not reported to Seller within the warranty period; (b) failure or damage due to misapplication, lack of proper maintenance, abuse, improper installation or abnormal conditions of temperature, moisture, dirt or corrosive matter or any other condition outside of normal operating conditions; (c) failure through normal usage or otherwise of heater elements, switches, stainless steel or Teflon coated brand or other similar expendable parts; or (d) failure due to improper installation or other work that may be performed by the distributor or others on the equipment, (e) parts subject to replacement as wear parts
In the event Buyer fails to allow Seller access to the equipment or parts for the purpose of inspection or repair, at such times as are reasonably requested by Seller, then this warranty shall be void and Seller shall have no further liability.
Seller SHALL NOT be liable for any LOSSES, COSTS, FORFEITURES OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS OR LIABILITY OF THE BUYER TO ITS CUSTOMERS OR THIRD PERSONS) WHETHER DIRECT OR INDIRECT, WHETHER OR NOT RESULTING FROM OR CONTRIBUTED TO BY ANY DEFAULT OR DILIGENCE OF SELLER, ITS AGENTS, EMPLOYEES, OR SUBCONTRACTORS, WHICH MIGHT BE CLAIMED AS A RESULT OF THE USE OR FAILURE OF THE PRODUCT.
THIS WARRANTY IS GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED. SELLER HEREBY EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. No representative or other person is authorized to assume for Seller any obligation or liability in connection with the sale of the product covered by this agreement, unless such obligation or liability is made in writing and signed by an officer of the Seller.
16. Warranty Exclusion Upon Payment Default: If Buyer retains possession of the equipment but fails to remit full payment in accordance with the agreed terms, and such failure continues beyond the applicable due date, Seller shall have no obligation to provide any warranty coverage, whether express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose. Buyer acknowledges and agrees that any warranty previously offered shall be deemed null and void upon Buyer’s default in payment. Seller reserves all rights and remedies available under applicable law, including the right to recover any outstanding amounts and enforce its security interest in the equipment.
17. Complete Agreement: This document constitutes the entire agreement between Buyer and Seller upon acceptance thereof by All Weigh Automation LLC. Clerical errors are subject to change.