The New Equipment or New Parts quoted herein (“New Products”) MAY be subject to certain express warranties of that MANUFACTURER. Any MANUFACTURER’S New Product is subject to a warranty if any, SOLELY BY THE MANUFACTURER. CUSTOMER, BY ACCEPTING THIS QUOTATION/OFFER TO SELL, ACKNOWLEDGES THAT CUSTOMER HAS READ, UNDERSTANDS AND ACCEPTS MANUFACTURER’S WARRANTY (WARRANTIES) APPLICABLE TO THE MANUFACTURER’S NEW PRODUCTS.
If equipment or parts other than New Products (“Used Products”), are being quoted herein, such Used Products are sold on an AS-IS basis, without any warranty whatsoever, except as may be expressly stated on the face hereof.
Cleveland Brothers’ Warranties
Cleveland Brothers gives, in respect to the New Products of Cleveland Brothers (i.e., exchange components or assemblies rebuilt by Cleveland Brothers) sold, and work performed, under the terms of this Quotation/Offer to Sell “Work” — SUBJECT TO CUSTOMER’S ADHERENCE TO CUSTOMER’S RESPONSIBILITIES, AS PROVIDED IN THE PARAGRAPH SO TITLED BELOW — the following express warranties:
- Cleveland Brothers warrants the labor involved in any Work to be free from workmanship deficiency that will cause the Product to be defective as follows:
- Flat rate or quoted fixed price Work is warranted for one hundred eighty (180) days from the date such Work is completed;
- Time and material hourly Work is warranted for ninety (90) days from the date such Work is completed; and
- Special terms expressly stated on the face hereof;
- Cleveland Brothers warrants any New Products of Cleveland Brothers that are used in any Work — for one hundred eighty (180) days from the date such Work is completed — to be free from defects in materials and workmanship;
- If any Work fails to conform to these warranties, Cleveland Brothers will, at a location of Cleveland Brothers’ choice and during Cleveland Brothers’ normal working hours, replace any defective parts or correct any deficiencies in workmanship if such defects in parts or deficiencies in workmanship are verified by the inspection of an authorized Cleveland Brothers employee. Such replacement of parts or correction of deficiencies in workmanship will be initiated as soon, after verification, as manpower and necessary parts and equipment are available to Cleveland Brothers.
Disclaimer of other Warranties
THE WARRANTIES CLEVELAND BROTHERS GIVES IN THE IMMEDIATELY PRECEDING PARAGRAPH ARE EXCLUSIVE. CLEVELAND BROTHERS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY AND SPECIFICALLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR YEAR 2000 COMPLIANCE.
Safety and Health Standards
Use of the Products ordered herein may require Customer to comply with various federal, state or local laws, rules, regulations, or safety codes including, but not limited to, the Occupational Safety and Health Act (“OSHA”), current regulations and standards applicable under OSHA (“OSHA Standards”) and the Federal Coal Mine Health and Safety Act of 1969 (“Coal Mine Act”). Customer acknowledges that Cleveland Brothers has instructed Customer that the Products ordered herein may require certain additional safety guards and devices before it can be used in compliance with the dictates of applicable federal, state or local laws, rules, regulations or safety codes (including OSHA Standards and the Coal Mine Act). CUSTOMER HEREBY ASSUMES THE ENTIRE RESPONSIBILITY FOR THE INSTALLATION OF SUCH SAFETY GUARDS AND DEVICES AS FEDERAL, STATE OR LOCAL LAWS, RULES, REGULATIONS OR SAFETY CODES (INCLUDING OSHA, THE OSHA STANDARDS AND THE COAL MINE ACT) MAY DICTATE, NOTWITHSTANDING THAT CLEVELAND BROTHERS MAY NOT PROVIDE SUCH GUARDS OR DEVICES WITH THE PRODUCTS ORDERED HEREIN. CUSTOMER HEREBY RELEASES CLEVELAND BROTHERS AND CLEVELAND BROTHERS’ OFFICERS, AGENTS AND EMPLOYEES FROM ANY AND ALL CLAIMS ARISING FROM ANY USE OF THE PRODUCTS ORDERED HEREIN IN VIOLATION OF THE DICTATES OF ANY FEDERAL, STATE OR LOCAL LAWS, RULES, REGULATIONS OR SAFETY CODES (INCLUDING OSHA, THE OSHA STANDARDS AND THE COAL MINE ACT).
Disclaimer of Tort Liability
Customer specifically understands and agrees that Cleveland Brothers, and Cleveland Brothers’ officers, agents and employees, shall not be liable in tort — whether based on negligence, strict liability, or any other theory of tort liability — for any action or failure to act in respect to the manufacture, preparation for sale, sale, delivery or servicing (including the entrance of Cleveland Brothers personnel onto purchaser’s property for delivery, service or for any other purpose) of the Products quoted herein, or for any action or failure to act in respect to the workmanship involved in, or Products used in, any Work. IT IS THE PARTIES’ INTENT AND THE INTENT OF THIS PROVISION TO ABSOLVE AND PROTECT CLEVELAND BROTHERS AND CLEVELAND BROTHERS’ OFFICERS, AGENTS AND EMPLOYEES FROM ANY AND ALL TORT LIABILITY.
Exclusive Remedy and Exclusion of Consequential Damages
Customer specifically understands and agrees that Customer’s sole and exclusive remedy for breach of warranty, defective Work, tortious conduct or any other cause of action against Cleveland Brothers or Cleveland Brothers’ officers, agents or employees, if any, shall be as provided in the express warranties contained in the paragraph above titled “Cleveland Brothers’ Warranties.” CUSTOMER SPECIFICALLY UNDERSTANDS AND AGREES THAT NO OTHER REMEDY (INCLUDING BUT NOT LIMITED TO CLAIMS FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, FOR ANY CAUSE WHATSOEVER, OR INJURY TO PERSONS (INCLUDING DEATH RESULTING THEREFROM) OR PROPERTY OR ANY OTHER CONSEQUENTIAL, ECONOMIC OR INCIDENTAL LOSS) SHALL BE AVAILABLE TO HIM.
- Customer will at all times operate and maintain the Products in accordance with the instructions outlined in the Maintenance and Operation Instruction Book furnished at time of purchase.
- Any damage to the Products that results from Customer’s continued use of the Products after a defect has been recognized by Customer is Customer’s sole responsibility and Cleveland Brothers has no responsibility to repair or correct any damage that results from Customer’s continued use of the Products after a defect has been recognized by Customer.
- Customer shall be liable to Cleveland Brothers for all expenses incurred by Cleveland Brothers if servicemen are called to the job by the Customer and Customer refuses to permit the requested work to be performed.
- Customer shall make payment for all Products and/or all Work in accordance with the credit and payment policies of Cleveland Brothers that are in effect at the time the Products are sold or the Work is performed.
- Customer grants Cleveland Brothers the right to operate Customer’s equipment for purposes of testing or inspecting the Product at Cleveland Brothers’ location or at Customer’s location.
Other Terms and Conditions
1. Offer and Acceptance:
This Quotation/Offer to Sell is not an acceptance of the terms and conditions of any prior or subsequent offer or order of Customer and any such terms and conditions are expressly rejected. This Quotation/Offer to Sell is an offer by Cleveland Brothers to Customer.Customer, by accepting this Quotation/Offer to Sell, accepts Cleveland Brothers’ offer contained herein and such acceptance of this offer is expressly limited to its terms.Any subsequent submission of an order or similar document to Cleveland Brothers covering the Products or Work quoted herein also constitutes an unqualified acceptance of this offer notwithstanding terms and conditions in said order or other document to the contrary. Under no circumstances shall any terms and conditions of Customer’s business forms that are inconsistent with the terms and conditions of this Quotation/Offer to Sell become part hereof. Upon acceptance, this Quotation/Offer to Sell shall become the final written expression of agreement between Cleveland Brothers and Customer, constituting the entire contract between Customer and Cleveland Brothers and superseding all previous communications, either verbal or written. This Quotation/Offer to Sell may be modified only by a writing signed by a corporate officer of Cleveland Brothers. Reference herein to any order or other communication is only for the purpose of identifying the Products or Work ordered. Notwithstanding the foregoing, Cleveland Brothers reserves the right to correct minor errors and omissions committed by Cleveland Brothers’ employee while completing this Quotation/Offer to Sell. This right to correct includes, but is not limited to, sales tax, freight, insurance, filing fees, spelling, serial numbers, legal name, payment dates, etc. Such errors will be unilaterally corrected by Cleveland Brothers.
The price of the Products and Work quoted herein, as stated above, is subject to change without notice. The actual sales price of the Products and Work shall be Cleveland Brothers’ price in effect at the date of acceptance. If transportation charges are not included in the price of the Products and Work, as quoted above, the same shall be paid by Customer upon delivery. Transportation charges shall include all switching, spotting, drayage, demurrage and other transportation charges or taxes incurred at destination. Customer shall pay, in addition to the sales price applicable at the time of delivery, all excise, privilege, occupational, sales, use, personal property and other taxes, whenever due, and in the event the same are paid by Cleveland Brothers, Customer will reimburse Cleveland Brothers for the cost thereof forthwith upon demand by Cleveland Brothers.
3. CUSTOMER’S CREDIT:
This Quotation/Offer to Sell contemplates a security interest in the Product, is subject to Cleveland Brothers’ approval of Customer’s credit on the actual delivery date, and Cleveland Brothers reserves the right to restrict the contract resulting from the acceptance hereof to a cash sale or to specify all credit terms and the security to be given for the extension of credit. Customer shall sign such security documents and financing statements as required by Cleveland Brothers. If Customer fails to make payments in accordance with the terms of the contract resulting from this Quotation/Offer to Sell, Cleveland Brothers may at its election defer any further shipments under such contract or terminate this Quotation/Offer to Sell and the contract resulting from the acceptance hereof and in any such case Customer waives all claims against Cleveland Brothers.
4. LATE PAYMENT AND/OR NONPAYMENT BY CUSTOMER:
In the event that the invoice applicable to the Products and/or Work described herein is not paid by Customer by said invoice’s due date, Customer shall pay a late/service charge of up to 3% of the total invoice amount for each month that said invoice remains unpaid. In the event of nonpayment by Customer, the cost incurred by Cleveland Brothers in collecting the indebtedness, including attorneys’ fees and expenses, with interest at the maximum rate allowed by law from date of expenditure, shall be added to the principal amount of the indebtedness owed to Cleveland Brothers.The remedies provided by this paragraph are not exclusive and Cleveland Brothers may elect other remedies at law or in equity.
5. RISK OF LOSS:
All risk of loss or damage to the Products shall pass to Customer upon delivery by Cleveland Brothers to a carrier for shipment.
6. RISK OF LOSS:
LAWS GOVERNING — EXCLUSIVE VENUE — STATUTE OF LIMITATIONS — AND SEVERABILITY: This Quotation/Offer to Sell shall be governed by and construed under the laws of the Commonwealth of Pennsylvania notwithstanding delivery by Cleveland Brothers in a state other than Pennsylvania. Any suit by Cleveland Brothers may be brought in the United States District Court for the Western District of Pennsylvania at Pittsburgh or the Court of Common Pleas of Allegheny County, Pennsylvania. The Customer hereby knowingly and for due consideration agrees to the jurisdiction of the United States District Court for the Western District of Pennsylvania at Pittsburgh or the Court of Common Pleas of Allegheny County, Pennsylvania and waives all rights to contest the jurisdiction of these Courts. Any suit by Customer for breach of contract, for any alleged tortious conduct or any claim whatsoever brought in law or equity must be filed within one year from the date the cause of action accrued or be forever barred. Any such suit by Customer must be brought in the United States District Court for the Western District of Pennsylvania at Pittsburgh or the Court of Common Pleas of Allegheny County, Pennsylvania. If any provision of this Quotation/Offer to Sell shall for any reason be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision hereof, but this Quotation/Offer to Sell shall be construed as if such invalid or unenforceable provision had never been contained herein.
7. SECURITY INTEREST:
Without waiving any rights to elect to proceed under applicable lien laws, the Customer grants a security interest in the Products furnished hereunder until the agreed price has been fully paid in United States currency; and in the event of a default in payment, Cleveland Brothers shall have all rights of repossession and other rights available to a secured party under the applicable laws. Customer will pay all costs of filing any financing, continuation or termination statement with respect to the purchase money security interest created hereby, and Cleveland Brothers is hereby irrevocably appointed Customer’s attorney in fact to do all acts and things which Cleveland Brothers may deem necessary to perfect and continue the perfection of its purchase money security interest in the Product.