TERMS & CONDITIONS

STANDARD TERMS AND CONDITIONS OF SALE

The relationship between Customer and MacQueen Equipment, LLC, and its affiliated and related companies, divisions, subsidiaries, officers, directors, employees and agents (collectively “COMPANY”) for the purchase of any goods, materials, merchandise, services, items or products (collectively “Products”) covered in any sales or purchase orders, quotations, instruments or agreements tendered by the parties is conditioned upon the terms and conditions contained in this instrument, any written quotes from the COMPANY and any invoices issued by COMPANY, all as they may be amended and supplemented from time to time (collectively “Agreement”). Any additional or different terms or conditions proposed by Customer are objected to and will not be binding upon, nor have any force or effect on COMPANY, unless specifically accepted in writing and signed by an authorized representative of the COMPANY.

TERMS OF ACCEPTANCE: COMPANY’s acceptance of Customer’s order or offer is expressly made conditional on Customer’s assent to the additional or different terms and conditions of this Agreement, which supersede any and all terms and conditions contained in any purchase order or other instrument tendered by Customer. This Agreement shall become a binding contract either when acknowledged, signed and delivered by Customer to COMPANY, or at COMPANY’s option, when Customer shall have given to COMPANY specifications, delivery dates, shipping instructions or instructions to bill and hold as to all or any part of the Products therein described, or when Customer has received delivery of the whole or any part thereof, or when Customer has assented to this Agreement or taken such other action which recognizes the existence of a contract.

TAXES: COMPANY shall not be liable for any tax, excise or other governmental charge imposed upon the sale, transportation or any use of any Products sold hereunder and any such charges shall be the sole and exclusive responsibility of Customer. If Customer is tax-exempt, Customer shall provide COMPANY with evidence of such status.

PRICING: Notwithstanding anything to the contrary contained in any sales or purchase orders, quotations, instruments or agreements tendered by Customer, the price to be paid for any and all Products provided by COMPANY to Customer shall be the COMPANY’s list price in effect as of the date of delivery of the Products to the Customer, and not the list price at the time the purchase order is tendered by the Customer.

CREDIT: If the financial responsibility of Customer becomes impaired or unsatisfactory to COMPANY, advance cash payment or satisfactory security shall be given by Customer upon demand by COMPANY, and shipments of Products and provision of services may be withheld until such payment or security is received.

COMPANY’S RIGHT TO REJECT, RESCIND OR CANCEL: COMPANY shall have the right to rescind all or part of any quotation, offer, order, instrument or this Agreement if: (a) Customer breaches or fails to perform any of its obligations under this Agreement, including failure to timely pay for any Products delivered hereunder or pursuant to any other Agreement between COMPANY and Customer; (b) Customer becomes insolvent; (c) proceedings are instituted by or against Customer under any federal or state bankruptcy or insolvency laws; or (d) Customer ceases operations.

CUSTOMER’S CANCELLATION: COMPANY reserves the right to charge back to the Customer all costs incurred from either cancellation or any changes on the order plus a restocking fee of 15% of order value. In addition, any orders cancelled prior to two weeks of original requested delivery will be non-cancellable.

PAYMENT TERMS: Customer agrees to make payments on the terms set forth in the sales quote and agrees to pay the amount set forth on all invoices issued by COMPANY. In addition to the purchase price, Customer shall assume and pay all taxes, however designated, levied or based on such price of the Products or on this Agreement, including, but not limited to, state and local sales, use, privilege or excise taxes based on gross revenue, and any taxes or amounts in lieu thereof paid or payable by COMPANY in respect of the foregoing, exclusive, however, of taxes on net income. Unpaid delinquent balances will be assessed a late fee charge equal to the lesser of eighteen percent (18%) per annum or the maximum rate allowed by applicable law, and will continue to accrue each month on unpaid balances until paid in full. Customer shall have no right of deduction or set off against sums due COMPANY for Products which have either been delivered or which COMPANY has undertaken to deliver.

TITLE AND RISK OF LOSS: Unless otherwise set forth in writing in the sales quote, upon delivery of the Products and COMPANY’s receipt of acknowledgment of acceptance of the Products signed by Customer, title to the Products transfers to Customer. Customer assumes all risk and liability for loss, damage or injury to the person or property of Customer or other arising out of use or possession of any Products sold hereunder. COMPANY retains a security interest in all Products delivered hereunder until COMPANY receives payment in full for all outstanding invoices issued to Customer. COMPANY’s remedies for non-payment of its invoice shall include, in addition to all other remedies provided by law, the right to repossess any Products in the possession of Customer. Customer shall surrender such Products upon demand to COMPANY or COMPANY’s agent. If any Products sold hereunder are damaged or destroyed in whole or in part, for any reason, while in the possession of or being used by Customer or any carrier, and before payment in full therefore, and COMPANY suffers any loss by virtue thereof, then Customer agrees to indemnify and hold COMPANY harmless for any such loss. If any such loss is covered by insurance to which Customer is a beneficiary and/or by recourse by Customer against any other party, then any such claim and any proceeds payable respect thereof shall automatically vest in COMPANY.

INSPECTION: Customer shall make any and all examinations and inspections regarding the quality of any Products delivered hereunder immediately upon receipt by Customer, and failure of Customer to give notice of any claim within ten (10) days after the receipt of such Products shall be an unqualified acceptance of said Products and a waiver by Customer of any and all claims with respect to such Products. If notice of a claim is provided to COMPANY within such ten (10) day period, Customer’s remedies for defective or nonconforming Products shall be limited solely to replacement of such defective or nonconforming Products or, at the election of COMPANY, to return of the Products and repayment of the price.

WARRANTIES: UNLESS OTHERWISE EXPRESSLY STATED IN WRITING TO CUSTOMER FROM THE COMPANY, COMPANY WARRANTS ONLY THAT THE PRODUCTS ARE AS DESCRIBED HEREIN, AND NO OTHER EXPRESS WARRANTY IS MADE WITH RESPECT TO THE PRODUCTS. EXCEPT FOR WARRANTIES OF THE EQUIPMENT MANUFACTURER, THE PRODUCTS SOLD HEREUNDER ARE PURCHASED BY CUSTOMER “AS IS.” COMPANY HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND CUSTOMER ASSUMES ALL RISK WHATSOEVER AS TO THE RESULT OF THE USE OF THE PRODUCTS PURCHASED. LIMITATION OF CLAIMS: IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE FOR OR HAVE ANY DUTY FOR INDEMNIFICATION OR CONTRIBUTION TO THE OTHER PARTY FOR ANY CLAIMS FOR INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, TREBLE OR LIQUIDATED DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUDING STRICT LIABILITY AND NEGLIGENCE) OR OTHERWISE, SUCH AS, BUT NOT LIMITED TO, LOSS OF USE, REVENUE, PROFIT, BUSINESS OPPORTUNITY AND THE LIKE, OR DEPRECIATION OR DIMINUTION IN VALUE, EVEN IF COMPANY HAD BEEN ADVISED, OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. NO CLAIM OF ANY KIND, WHETHER AS TO PRODUCTS DELIVERED OR FOR NON-DELIVERY OF PRODUCTS, SHALL BE GREATER IN AMOUNT THAN THE PURCHASE PRICE OF THE PRODUCTS IN RESPECT OF WHICH SUCH CLAIM IS MADE.

INDEMNIFICATION: TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS COMPANY, ITS EMPLOYEES, AGENTS, AND REPRESENTATIVES, FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES, CAUSES OF ACTION, CONTROVERSIES, LIABILITIES, FINES, REGULATORY ACTIONS, SEIZURES, FORFEITURES, LOSSES, SUBROGATION CLAIMS BY CUSTOMER’S INSURERS, COSTS AND EXPENSES (INCLUDING, BUT NOT LIMITED TO ATTORNEYS’ FEES, EXPERT WITNESS FEES AND LITIGATION OR ARBITRATION EXPENSES), WHETHER BASED ON STATUTORY OR COMMON LAW, TORT (INCLUDING NEGLIGENCE) OR CONTRACT LAW, OR OTHERWISE, WHETHER FOR PERSONAL INJURY, PROPERTY DAMAGE, OR OTHER CLAIMS, ARISING FROM OR IN CONNECTION WITH:

1. THE ACTS OR OMISSIONS OF THE CUSTOMER AND CUSTOMER’S EMPLOYEES, AGENTS OR REPRESENTATIVES;
2. THE SPECIFICATIONS PROVIDED BY CUSTOMER;
3. THE BUSINESS RELATIONSHIP BETWEEN THE PARTIES;
4. THE PRODUCT’S USE BY THE CUSTOMER’S CUSTOMERS OR OTHER THIRD PARTIES;
5. THE CUSTOMER’S BREACH OF THIS AGREEMENT; AND/OR
6. THE CUSTOMER’S USE, MODIFICATION OR ALTERATION OF THE PRODUCTS,

INCLUDING BUT NOT LIMITED TO ANY ENVIRONMENTAL LAW CLAIMS (COLLECTIVELY “CLAIMS”). THIS OBLIGATION TO INDEMNIFY, DEFEND, AND HOLD HARMLESS SHALL SURVIVE TERMINATION OR EXPIRATION OF THIS AGREEMENT AND SHALL APPLY WHETHER OR NOT IT IS ALLEGED THAT COMPANY IN ANY WAY CONTRIBUTED TO THE CLAIMS OR IS LIABLE DUE TO A NON DELEGABLE DUTY. NOTWITHSTANDING THE FOREGOING, THE CUSTOMER SHALL NOT HAVE ANY INDEMNITY OBLIGATION TO THE COMPANY WITH RESPECT TO ANY CLAIMS THAT RESULT SOLELY FROM THE NEGLIGENCE OF COMPANY AND THIS INDEMNITY PROVISION DOES NOT PURPORT TO INDEMNIFY COMPANY SOLELY FOR ITS OWN NEGLIGENCE TO THE EXTENT SUCH INDEMNIFICATION IS CONTRARY TO LAW. CUSTOMER, FOR ITSELF AND ITS INSURERS, EXPRESSLY WAIVES ANY AND ALL LIMITATIONS OR LIABILITY CAPS, IF ANY, ON CUSTOMER’S CONTRIBUTION LIABILITY TO COMPANY, AND ANY AND ALL STATUTORY OR COMMON LAW LIEN RIGHTS OR CLAIMS AGAINST COMPANY, ARISING FROM ANY APPLICABLE WORKERS COMPENSATION OR DISABILITY ACTS, WHICH CUSTOMER MIGHT OR COULD ASSERT AGAINST COMPANY OR COMPANY’S INSURERS IN THE EVENT OF THE PERSONAL INJURY OR DEATH OF CUSTOMER’S EMPLOYEES, REPRESENTATIVES OR AGENTS. WITHOUT LIMITING THE FOREGOING, CUSTOMER, FOR ITSELF AND ITS INSURERS, ALSO WAIVES ANY CLAIMS, LIENS OR OTHER RIGHTS IT MAY HAVE AS A RESULT OF BEING SUBROGATED TO ANY RIGHTS OF ITS EMPLOYEES, REPRESENTATIVES OR SERVANTS.

INSURANCE: In event of loss of Product purchased, Customer and COMPANY mutually waive their rights of subrogation and recovery against each other, their officers, agents, employees, or other persons under their control, to the extent they are insured or are required to carry insurance, and to extent said loss is paid by insurance.

FORCE MAJEURE: COMPANY shall have no liability or obligation to Customer of any kind, for any failure or delay including, but not limited to, any failure or delay in delivering Products, as a result of causes, conduct or occurrences beyond COMPANY’s reasonable control, including, but not limited to, commercial impracticability, fire, flood, act of war, terrorism, civil disorder or disobedience, act of public enemies, problems associated with transportation (including car or truck shortages), acts or failure to act of any state, federal or foreign governmental or regulatory authorities, labor disputes, strikes, shortages in materials or supplies, or failure of suppliers to make timely deliveries of materials, Products or services to COMPANY. In the event of a shortage of Products and/or delay in shipment or delivery occasioned by a force majeure event, Company may allocate the available Products in such a manner as Company determines in its discretion among its Customers, its own internal users, and its affiliates, without liability to Customer therefor.

ACCELERATION OF INDEBTEDNESS: If Customer is in arrears with respect to any prior dealings or transaction with COMPANY then, notwithstanding anything in this Agreement to the contrary, any indebtedness hereunder shall automatically become due and payable in full without any notice from COMPANY to that effect.

WAIVER: No claim or right arising out of breach of this Agreement can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. Waiver by either COMPANY or Customer of a breach of the other of any provision of this Agreement shall not be deemed a waiver of future compliance therewith, and such provision shall remain in full force and effect.

GOVERNING LAW, JURISDICTION AND VENUE: This Agreement shall be construed under and governed by the laws of the State of Delaware, without giving effect to the conflicts or choice of law provisions thereof. Any and all disputes arising relating to this Agreement shall be settled in the state or federal courts located in the State of Delaware, and each party hereto by execution of this Agreement or acceptance of the Products, consents to the exclusive exercise of jurisdiction and venue over any matter arising in connection with this Agreement in said Court(s).

ATTORNEYS’ FEES: In the event of any dispute, arbitration or litigation between the parties hereto involving this Agreement or the respective rights of the parties hereunder, the party who is unsuccessful shall pay to the successful party reasonable attorneys’ fees, court costs and expenses of such dispute, arbitration, or litigation incurred by such successful party.

MISCELLANEOUS: If any provision of this Agreement is held to be invalid for any reason, the other terms and conditions hereunder shall remain in full force and effect, and such provision shall be enforced to the fullest extent permitted by law. All rights granted to COMPANY herein shall be in addition to and not in lieu of COMPANY’s rights by operation of the law and the COMPANY’s remedies under this Agreement shall be cumulative. This Agreement shall inure to the benefit of and be binding upon both Customer and COMPANY, their legal representatives, successors and assigns, except as otherwise limited herein. IN THE CASE OF CONFLICT BETWEEN THIS AGREEMENT AND ANY OTHER INSTRUMENT ENTERED BY THE CUSTOMER AND COMPANY, THE TERMS AND CONDITIONS OF THIS AGREEMENT SHALL PREVAIL. THIS PROVISION, AND EACH AND EVERY OTHER PROVISION OF THIS AGREEMENT MAY NOT UNDER ANY CIRCUMSTANCES BE MODIFIED, CHANGED, AMENDED OR PROVISIONS HEREUNDER WAIVED VERBALLY, BUT MAY ONLY BE MODIFIED, CHANGED, AMENDED OR WAIVED BY AN AGREEMENT IN WRITING EXECUTED BY COMPANY.