ACCEPTANCE: This order, and if applicable, a security agreement and UCC-1 financing form, contain all of the terms and conditions of the purchase and sale between QEI Corporation (“Seller”) and the Purchaser with respect to the goods specified on the face hereof (“Equipment”). The execution and mailing to Purchaser of the Seller’s standard form of acknowledgement shall be deemed to be Seller’s acceptance hereof. Provided, however, that such acceptance by seller is conditioned upon agreement by the parties hereto with respect to acceptable financial arrangements. Accordingly, the banking by Seller or other disposition of funds paid by Purchaser to Seller, or the disposition by Seller of any trade-in Equipment offered by Purchaser to Seller hereunder, shall not constitute acceptance of this contract by Seller. This order together with the above-mentioned acknowledgement and, if applicable, a security agreement and UCC-1 financing form (hereinafter collectively referred to as the “Contract”), shall constitute the entire Contract between the parties and may be changed only by written agreement between the parties.
PRICES AND TAXES: (a) All prices with respect hereto are F.O.B. Williamstown, New Jersey, USA, or shipping point(s). (b) Except as may be expressly stated in Seller’s quotation, all prices are exclusive of State and local sales, use, occupation, gross income, value-added, privilege, import, excise and similar taxes and duties or charges imposed on Purchaser. If Seller is at any time required to pay or collect any such taxes, duties or fees in respect of the order or the performance of work there under, Seller will invoice the customer separately for such taxes, duties and fees to the extent they were not included in the Price of the Contract. (c) Seller may adjust the price of any of the equipment covered by this order to Seller’s current price in effect immediately prior to shipment except that, in the case of equipment manufactured by Seller, this order is accompanied by a down payment of at least 20% of the total price of the equipment described herein and shipment is made within 90 days after Seller’s acceptance of this order.
PAYMENT: (a) The full purchase price of the Equipment stated on the face side hereof shall be paid in United States currency by the Purchaser within the time agreed upon thereon. (b) Notwithstanding any of the provisions contained herein, if in the judgment of Seller, either before or after manufacture or delivery of the Equipment, the financial condition of Purchaser is such as to indicate inability to pay its obligations, including those hereunder, as they mature, Seller, upon giving written notice to Purchaser, may require payment of any portion of the balance due hereunder outstanding up to and including payment in full prior to delivery of the Equipment or within ten (10) days after giving such notice, irrespective of the terms of payment stated herein. In the event Purchaser fails to pay promptly, any payment due to Seller pursuant hereto, Seller may at its option cancel delivery of the remainder of the order. Such cancellation shall not excuse Purchaser from any payments due hereunder for Equipment previously delivered.
DELIVERY: (a) “Delivery” of the Equipment to the Purchaser as defined herein shall be deemed to take place upon the acceptance of the sooner of either: (i) delivery by Seller of the Equipment to the common carrier; or, (ii) acquiring possession of the Equipment by the Purchaser. (b) In the event the Seller delays or cancels delivery pursuant to subsections 3(b) or 10(a) herein, Seller shall not be liable for the delays or failure to deliver any or all of the Equipment purchased hereunder. (c) Partial shipments by Seller shall be permitted. (d) Except as permitted in subsections 2(d) and 4(g) herein, Purchaser may not cancel the Contract except upon the written consent of the Seller. (e) If Purchaser delays delivery, payments are to be made as though delivery had been made as specified and the Equipment shall be at Purchaser’s risk and shall be stored by Seller at Purchaser’s expense. (f) Seller’s obligations hereunder are subject to delays or cancellation incidental to labor difficulties, fires, casualties, calamities and accidents, acts of God, acts of a public enemy, component failures on test, failure or delay by common carrier or other transportation difficulties, inability to obtain equipment, materials or qualified labor sufficient to timely fill its orders, governmental interference or regulations, and other causes beyond Seller’s control. In such instances Seller may apply or prorate shipments of its products to or among its customers as in its judgment is reasonable in the circumstances, and shall not be deemed to have breached the Contract due to delays or failure to fulfill its obligations hereunder occasioned thereby. (g) If shipment of any item is delayed for more than one year beyond the shipping date specified on the face hereof, by reason of any of the circumstances enumerated in subsection 4(f) above, either party may terminate the Contract as to any such items by written notice to the other whereupon Seller shall either: (i) issue a credit to Purchaser’s account hereunder in an amount equal to an equitable portion of the total Contract price without interest; or, (ii) if the total Contract price has been paid, Seller shall refund to Purchaser an equitable portion thereof, without interest. If other equipment has been accepted by Seller as part payment and is not available for return to Purchaser, then Seller shall pay to Purchaser the net proceeds received by Seller from its disposition of such equipment. (h) The Seller will use its best efforts to meet the time for delivery specified on the face hereof, but does not assume a firm obligation for delivery at that time.
DAMAGE AND RISK OF LOSS: (a) Unless otherwise specified herein, all costs of shipment of Equipment to and from Purchaser shall be the Purchaser’s responsibility. Purchaser shall be responsible for any loss or damages to the Equipment upon delivery at Seller’s shipping point, notwithstanding the fact that the Seller may have selected the carrier. (b) IT IS AGREED THAT IF THE SELLER BREACHES ANY WARRANTY NOT WAIVED HEREIN, THE PURCHASER’S EXCLUSIVE REMEDY FOR SUCH BREACH IS REPAIR OR REPLACEMENT OF ANY PART OR EQUIPMENT THAT FAILS TO CONFORM TO THE WARRANTY. (c) Except as provided in subsection 5(b) above, Purchaser agrees that any claims it may have relating to, or arising out of, or resulting from any Equipment purchased hereunder, shall be made solely against the manufacturer thereof and hereby waives any claims against Seller for Equipment purchased hereunder but not manufactured by Seller. For such purpose, Seller agrees to assign Purchaser, after appropriate request, any rights Seller may have against the manufacturer relating to such claims. (d) In no event shall the Seller be liable for special, indirect or consequential damages. Seller’s liability on any claim for loss, cost, damage, expense or other liability arising out of or connected with the Contract or any obligation resulting there from, or the manufacture, sale, delivery, resale, repair or use of any product covered by the Contract (including but not limited to, loss or liability arising from breach of contract) shall in no case exceed the unit price of such equipment or part thereof involved in such claim. Purchaser agrees to indemnify Seller and hold Seller harmless against all third party claims, losses and judgments, for any cause whatsoever, except those asserted by Seller’s employees, arising out of or resulting from the installation, operation or use of the Equipment.
PRODUCT WARRANTY (LIMITED): All equipment designed and manufactured by QEI Corporation is warranted against defects in workmanship and material that develop under normal use within a period of one (1), two (2), or three (3) years (check warranty supplied with product) from the date of original shipment subject to the following conditions and limitations: (a) the purchaser is not in default under his contract of purchase. (b) The sole responsibility of QEI Corporation for any equipment not conforming to this warranty shall be, at QEI’s option: (i) To repair or replace such equipment or otherwise cause it to meet the represented specifications either at the purchaser’s installation or upon return thereof f.o.b. Williamstown, New Jersey, as directed by QEI Corporation; or (ii) to demonstrate that the equipment has no defect in workmanship or material and that it meets the represented specifications, in which event all expenses reasonable incurred by QEI Corporation in so demonstrating, including but not limited to cost of travel to and from the purchaser’s installation, and subsistence, shall be paid by purchaser to QEI Corporation. (c) In case of any equipment thought to be defective, the purchaser must, within seven (7) days notify QEI Corporation, in writing, giving full particulars as to the defects. Upon receipt of such notice, QEI Corporation will give instructions respecting the shipment of the equipment, or such other manner as it elects to service this warranty as above provided. (d) Equipment shall not be deemed to be defective if, after examination by QEI Corporation, the equipment evidences damage from moisture, temperature, lightning, improper handling, installation, operation, accident, or abuse. (e) Equipment, accessories, tubes, and batteries not manufactured by QEI Corporation are subject to only such adjustments as QEI Corporation may obtain from the supplier thereof. (f) This warranty extends only to the original purchaser and is not assignable or transferable. (g) QEI Corporation further guarantees that any radio transmitter described herein will deliver specified radio frequency power output at the antenna lead when connected to a suitable load, but such guarantee shall not be construed as a guarantee of any definite coverage or range of said apparatus. (h) NO OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL BE APPLICABLE TO ANY EQUIPMENT SOLD BY QEI CORPORATION, AND NO REPRESENTATIVE OR OTHER PERSON IS AUTHORIZED BY QEI CORPORATION TO ASSUME FOR IT ANY LIABILITY OR OBLIGATION WITH RESPECT TO THE CONDITION OR PERFORMANCE OF ANY EQUIPMENT SOLD BY IT, EXCEPT AS PROVIDED IN THIS WARRANTY. THIS WARRANTY PROVIDES FOR THE SOLE RIGHT AND REMEDY OF THE PURCHASER AND QEI CORPORATION SHALL IN NO EVENT HAVE ANY LIABILITY FOR CONSEQUENTIAL DAMAGES OR FOR LOSS, DAMAGE, OR EXPENSE DIRECTLY OR INDIRECTLY ARISING FROM THE USE OF EQUIPMENT PURCHASED FROM QEI CORPORATION.
SERVICING WARNING: The Equipment may be dangerous if improperly handled or serviced. In the event that repair, maintenance or servicing need to be performed on the Equipment, Purchaser should contact Seller immediately. Seller shall not be liable for any damages or injuries occurring in connection with maintenance, servicing or repair work on the Equipment done by persons other than Seller or its duly authorized representatives.
INSTALLATION: Purchaser is responsible for installation of the Equipment including preparation and maintenance of all Equipment, materials or services necessary for the operation of the Equipment not provided for herein.
LEGAL PROCEEDINGS: In the event of legal proceedings arising out of or resulting from the Contract, in addition to any other recoveries, the prevailing parties shall be entitled to recover all costs relating thereto including but not limited to reasonable attorney’s fees.
TITLE AND REMEDIES: Irrespective of and in addition to any of the provisions contained herein: (a) Until full payment of all obligations of Purchaser hereunder (whether represented by notes, open account judgment, or otherwise), Seller reserves title to all of the Equipment furnished hereunder, or hereafter in connection therewith, whether or not the same is attached to the realty, and the same shall be considered as personal property and subject to the Purchase Money Security interest of Seller hereby granted by Purchaser. (b) In addition to and in no way limited by the provisions hereof, and subject and in addition to the terms of any security agreement between Seller and Purchaser, if Purchaser defaults in paying or performing any of its obligations, hereunder, or becomes subject to insolvency, receivership or bankruptcy proceedings, or makes an assignment for the benefit of creditors, or any of the Equipment is misused or substantially damaged, or Purchaser, without the prior written consent of Seller, sells, transfers, leases or mortgages the same, or moves it to another site, or any lien is placed hereon, or other persons have or acquire an interest therein, or it is seized or attached by the process of law, then in any such event Purchaser shall be deemed to be in default hereunder. In the event of a default hereunder by Purchaser, Seller may, at its option, with or without notice, treat all amounts owing hereunder by Purchaser regardless of maturity date, to be immediately due and payable, (subject to such credits as are required by law in order to enforce this Contract), refuse subsequent deliveries, if any, hereunder; and repossess the Equipment previously delivered to Purchaser. In the event Seller chooses to repossess Equipment delivered to Purchaser hereunder, Seller may also: (i) Upon such notice, if any, as required by law, keep the Equipment as its own, free from any claim on the part of Purchaser, retaining as compensation for the use or decrease in value of the Equipment all payments made thereon by Purchaser; or, (ii) Within four (4) months of such repossession, upon giving Purchaser not less than fifteen (15) days advance written notice of Seller’s intention in that regard (or such periods as may be required by law), sell the same for the account of Purchaser either at public sale (at which Seller may bid) or at private sale, whereupon the net proceeds of sale, after paying Seller’s costs and expenses in repossessing, transporting, reconditioning, storing and selling the equipment, shall be applied on the unpaid balance of the obligations of Purchaser hereunder and the surplus, if any, shall be returned to Purchaser. Provided, however, that in the event a deficiency remains, Purchaser shall continue liable to Seller therefore. In exercising any of the remedies aforesaid, Seller shall give such other and additional notices as are required by law. (c) In any proceedings or action relating to a default by Purchaser, Seller shall be reimbursed (if permitted by law) for attorney’s fees and costs incurred by it in respect thereof. (d) No remedy herein provided for shall be applicable where not permitted by law. (e) When requested by Seller, Purchaser shall duly acknowledge the Contract, and execute, acknowledge, and deliver to Seller, in Seller’s usual form, a supplement hereto, chattel mortgage, supplemental security agreement, financing statement, or other additional appropriate instrument which Seller may require to constitute the Equipment as the unencumbered security for the obligations of Purchaser hereunder, or to enable Seller to comply with all applicable filing or recording laws.
INSURANCE: Purchaser shall maintain an insurance policy on the Equipment with such company as Seller shall approve against fire and extended coverage perils in an amount equal to the full value of the Equipment, with any loss thereon first payable to Seller. Purchaser shall maintain such insurance until full payment hereunder shall have been made to Seller. Seller may, in the event that Purchaser defaults in its obligations hereunder, obtain or maintain such insurance and any costs to Seller incurred thereby shall be reimbursed by Purchaser. Purchaser shall, as soon as reasonably practical, provide Seller with a copy of the insurance policy, certificate of insurance or such other satisfactory proof of its compliance with the terms hereof as deemed necessary by the Seller.
GENERAL PROVISIONS: (a) Purchaser hereby authorizes Seller, or its assignees, where permitted by applicable state law, to sign and file financing statements in order to perfect the security interest of Seller hereunder. (b) The Contract expresses the entire agreement of the parties, and any change hereto must be made in writing. No term, representation or warranty, expressed or implied, not herein set forth shall bind Seller. (c) The waiver by Seller of any breach or any term, condition or covenant herein shall not be deemed a waiver of any other breach or any other term, condition, or covenant. Section headings herein are for convenience and shall not be deemed to be among the terms, conditions or covenants herein. (d) Seller, before or after acceptance hereof, is authorized to insert in this Contract as a part hereof, the serial or other identification numbers of the Equipment described herein, and the maturity dates of the promissory notes herein provided for. Model nomenclature and the mechanical and electrical design of equipment described herein is subject to change without notice. (e) Any or all of Seller’s rights or obligations hereunder may be assigned by Seller without notice to Purchaser and may be exercised by an assignee thereof. Purchaser shall not assert against any transferee either of this Contract or of promissory notes any defense other than actual payment setoff equity, or counterclaim, which Purchaser may have or claim against Seller. Purchaser acknowledges that Seller uses varying trade styles and names in those jurisdictions in which it does business. (f) Each provision of this contract is severable and, in the event that any one or more thereof may be declared invalid, the remainder shall nevertheless remain in full force and effect. (g) The acceptance of any payments after the specified due dates thereof shall not constitute a waiver of Purchaser’s obligation to make future payments on the specified dates. Seller may apply any amounts paid by Purchaser pursuant to this Contract to any indebtedness owing by Purchaser to Seller on account thereof or otherwise. (h) The Contract shall be governed by the laws of the State of New Jersey.
