CROWN EQUIPMENT CORPORATION
TERMS AND CONDITIONS OF SALE
1. OSHA Regulations
Employers of operators of lift trucks are required to follow applicable OSHA regulations (see Section 1910.178). Crown will provide a copy of the OSHA regulations upon request.
2. Operator Training
Buyer understands that OSHA requires that operators of its lift trucks be trained, evaluated and certified as competent to safely operate the particular model truck used in the performance of the job. Buyer understands this obligation and will only permit properly trained and certified operators to use lift trucks. At Buyer’s request, Crown will provide information on the training material and resources available through its Training Department.
The terms and conditions on both sides of this form shall be the complete and exclusive terms and conditions applicable to the agreement between Crown and Buyer. Crown shall not be bound by Buyer’s Terms and Conditions unless expressly agreed to in writing. In the absence of written acceptance of these Terms and Conditions by Buyer, either accep¬tance of or payment for the equipment shall constitute Buyer’s acceptance of these Terms and Conditions. Any different or additional terms or conditions in any order, proposal, ac¬knowledgment form, or any other document of Buyer are hereby deemed material alter¬ations and are null and void and superseded by these Terms and Conditions.
Prices as quoted are in U.S. dollars and are firm for thirty (30) days from the date of Crown’s Quotation. Thereafter, they are subject to change without notice to the prices pre¬vailing at time of acceptance. Prices are F.O.B. Carrier’s equipment at our factory and are exclusive of all taxes–federal, state or local. If Crown is required to pay or collect any tax or duty owed by Buyer, such payment or collection shall be added to the price. If there is a delay in completion or shipment of order, due to any change requested by Buyer, or as a result of any delay on Buyer’s part in furnishing information necessary for completion of the order, the price initially agreed upon at time of acceptance is subject to change.
Notwithstanding anything in these Terms and Conditions to the contrary, Crown reserves the right, at the time of order, to charge Buyer a surcharge on each unit of equipment ordered by Buyer, to cover increased commodity costs, duties, tariffs or other related items, in each case, which have impacted Crown. If Buyer does not agree to pay such surcharge, Crown reserves the right to cancel the applicable order.
6. Delivery Date
The promised delivery date is the best estimate possible, based upon current and anticipated factory loads, of when the equipment will be shipped. Crown shall have no liability for lost profits or incidental or consequential damage due to delays. If any contin¬gency beyond the control of Crown occurs that prevents Crown from shipping the equipment on time, Crown may allocate production and delivery among Crown’s customers without liability.
Payment shall be net 10 days date of shipment unless otherwise agreed to in writing. Production, shipment, and delivery shall at all times be subject to the approval of Crown’s credit department. Crown reserves the right at any time to modify or withdraw credit terms without notice and to require guarantees, security, or payment in advance of the amount of the credit involved. If Crown at any time doubts Buyer’s financial responsibility, Crown may decline to make shipments hereunder except upon cash payment in advance or receipt of security or other proof of responsibility satisfactory to Crown.
Title to all equipment shall remain in Crown until the complete purchase price and all additional costs and charges, as adjusted, are paid by Buyer. Crown shall retain a security interest in, and right to repossess, any such equipment until it is paid in full. Risk of loss shall pass to Buyer upon delivery to Carrier.
Any change order by Buyer will not be considered effective until mutual agree¬ment has been reached between the Buyer and Crown as to the effect of any changes in prices, delivery, and other conditions of the order.
10. Inspection and Notice of Defect
Unless otherwise specified, the equipment to be fur¬nished hereunder shall be subject to Crown’s standard inspection at the place of manufac¬ture. If inspection by the Buyer at the place of manufacture is provided for, Buyer’s inspectors shall be deemed agents of Buyer to accept the equipment on Buyer’s behalf regardless of deviation from formal specifications. Notice of any defects or claims of any nature (except warranty) must be made within 30 days of delivery.
Returns will not be accepted for any reason without Crown’s prior written authorization. If Crown does provide written authorization of a return, Buyer shall be responsible for paying all return shipping costs, as well as any handling, restocking and related fees associated with the return, as determined by Crown in its sole discretion.
12. Warranty by Crown
Crown’s standard published warranties in effect at the time of ship¬ment for the particular equipment shall apply. THESE WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
13. Limitation of Liability
In the event Buyer claims that Crown has breached any of its obliga¬tions under this agreement, whether in warranty or otherwise, Crown may request and re¬quire return of the equipment and refund the Buyer’s purchase price upon Crown’s receipt of the returned equipment. If Crown so requests the return of the equipment, the equipment shall be redelivered per Crown’s instructions at Crown’s expense. In such event, Crown shall absolutely have no further obligation to Buyer except to refund the purchase price. THE REMEDY PROVIDED FOR IN THIS PARAGRAPH SHALL CONSTITUTE THE SOLE RECOURSE OF BUYER AGAINST CROWN FOR BREACH OF ANY OF CROWN’S OBLIGATIONS UNDER THE AGREE¬MENT, WHETHER THE CLAIM IS MADE IN TORT, CONTRACT, OR IN ADMIRALTY, INCLUDING CLAIMS BASED ON WARRANTY, NEGLIGENCE OR OTHERWISE. Any cause of action against Crown arising out of this agreement must be brought within one year after the cause of action has accrued.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL CROWN BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, NOR SHALL CROWN’S LIABIL¬ITY FOR ANY CLAIMS OR DAMAGE ARISING OUT OF OR CONNECTED WITH THE SALES AGREE¬MENT WITH BUYER, OR THE MANUFACTURE, SALE, DELIVERY, OR USE OF THE EQUIPMENT EXCEED THE PURCHASE PRICE THEREOF.
14. Patent, Trademark or Copyright Infringement
Crown warrants that the equipment pur¬chased hereunder shall be delivered free of rightful claims for infringement of any United States patent or trademark, provided, however, that where equipment is manufactured from patterns, plans, drawings, or specifications furnished by Buyer, Buyer shall indemnify Crown against and save harmless Crown from all loss, damage, and expense arising out of any suit or claim against Crown for infringement of any patent, trademark, or copyright because of Crown’s manufacture of such equipment or because of the use or sale of such equipment by any person. At Crown’s option, upon receipt from Crown of written notice of any such suit or claim, Buyer shall appear in and assume the defense of the litigation.
15. Proprietary Information–Confidentiality
Any specifications, drawings, plans, notes, in¬structions, engineering notices, or technical data of Crown furnished to Buyer shall be deemed to be incorporated herein by reference the same as if fully set forth.
Crown shall at all times retain title to all such documents, and Buyer shall not disclose such to any third party without Crown’s prior written consent. Upon Crown’s request, Buyer shall promptly return to Crown all such documents and copies thereof.
Crown may terminate this agreement upon immediate written notice to Buyer on the happening of any of the following events: (a) Failure of Buyer to accept delivery of equipment or to pay any indebtedness to Crown when due, accompanied by a failure within ten (10) days after demand therefor, to fully pay the same or provide assurance of payment satisfactory to Crown; (b) Failure by Buyer to honor any promise on Buyer’s part contained in this agreement or to perform any of its obligations under this agreement, other than the payment of any indebtedness to Crown, after Buyer shall have been notified by Crown of such failure and in Crown’s opinion shall have failed to correct the same within thirty (30) days after receipt of such notice; (c) Repetition by Buyer of a failure which is the same or substantially the same as the one previously corrected by Buyer after notice as provided in subparagraph (a) above; (d) The material inaccuracy of any information set forth in any appli¬cation, claim, schedule, certificate, or other document heretofore or hereafter furnished by Buyer to Crown; and (e) If Buyer shall cease to function as a going concern, or makes an assignment for the benefit of creditors, or any proceeding under any federal or state bank¬ruptcy, receivership, or insolvency laws is instituted by or against Buyer, or the liquidation, dissolution, merger, or consolidation of Buyer occurs, or a receiver or trustee for Buyer or any of its assets or property is appointed or applied for. Termination shall not release or affect, and this agreement shall remain fully operative as to, any obligations or liabilities incurred by Buyer prior to the effective date of such termination; provided, that all indebtedness of Buyer to Crown shall become immediately due and payable on the effective date of termination without demand, and Crown may deduct from any sums it owes to Buyer sums owed by Buyer to Crown. Any orders received from Buyer, whether or not accepted by Crown, which have not been shipped prior to Buyer’s receipt of notice of termination or the effective date of termination or expiration, whichever shall occur first, shall only be shipped C.O.D. or cash in advance.
Unless otherwise agreed to in writing, all tooling shall remain the property of Crown.
18. Government Contract Conditions
If Buyer’s purchase order contains a U.S. government contract number and orders products to be used in the performance of the contract, those clauses of applicable U.S. government procurement regulations mandatorily required by fed¬eral statute to be included in U.S. government subcontracts shall be incorporated herein by reference.
In the event Buyer modifies the equipment sold hereunder without the ex¬press written consent of Crown, or Buyer fails to implement any changes in the equipment directed by Crown, Buyer agrees to indemnify, defend, and hold Crown harmless from any and all claims, demands, suits, costs, and expenses incurred thereby, whether in contract, tort, or otherwise resulting from such failure.
Buyer’s rights and obligations hereunder may not be assigned or delegated without the prior written consent of Crown. Crown may freely assign its rights and obliga¬tions. This agreement shall be governed by and construed in accordance with the Uniform Commercial Code as adopted by Ohio under which jurisdiction Buyer consents. This agree¬ment supersedes all prior written or oral agreements with respect to the subject matter hereof. The invalidity of any part of these Terms and Conditions shall not affect the validity of the remaining provisions. All claims or suits against Crown must be made within one (1) year of the date the cause of actions occurred (regardless of when they were discovered) or be forever barred. No waiver shall be effective against Buyer unless Buyer agrees to same in writing. Paragraph headings found herein are for convenience only and are not to be consid¬ered in interpreting any of the provisions hereof.
Crown shall not be liable for any default or delay in performance if caused, directly or indirectly, by acts of God; war; force of arms; fire; the elements; riot; labor dis¬putes; picketing or other labor controversies; sabotage; civil commotion; accidents; any gov¬ernmental action, prohibition or regulation; delay in transportation facilities; shortage or break¬down of or inability to obtain or non-arrival of any labor, material, or equipment used in the manufacture of the equipment; failure of any party to perform any contract with Crown rela¬tive to the production of the equipment; or from any cause whatsoever beyond Crown’s control, whether or not such cause be similar or dissimilar to those enumerated. Crown shall promptly notify Buyer of the happening of any such contingency and of the contemplated effect thereof on the manufacture and delivery of the equipment.