TERMS & CONDITIONS OF SALE For and in consideration of the sale and/or delivery by Enolgas USA, Inc. (hereinafter referred to as “Seller”) of the products, parts and accessories indicated herein (collectively, the "Equipment") to the entity identified herein (hereinafter referred to as “Purchaser”), Purchaser and Seller enter into and agree to the terms and conditions of this Purchase and Sales Agreement.
1. Price and Shipping Date: The price, time and manner of payment, and the shipping dates of the equipment provided for in this Agreement are set forth hereinabove. Purchaser promises to pay to the Seller the agreed price set forth.
2. Terms of Payment: Purchaser shall pay the total purchase price, and any unpaid portions thereof, as specified at the top of this Agreement in the space indicted, but no later than on or before the actual delivery date of the Equipment. Any dispute regarding non-conformity of the equipment shall not be a basis Buyer to delay or suspend any payments due to Seller. In the event purchaser fails to make payment by the date required, it shall pay interest at the prevailing rate of interest per month on all amounts due from the due date until payment date. In addition, Seller may cancel this Purchase Agreement and all payments previously made by Purchaser on account thereof shall be retained by Seller as liquidated damages and Purchaser shall have no right to return of same or any part thereof. Purchaser agrees to pay all costs and expenses incurred in collecting delinquent accounts, including legal fees. If purchaser is not domiciled in the United States, payment of the purchase price shall be secured by a letter of credit in an amount not less than the purchase price from a financial institution and in form and content acceptable to Seller prior Seller performing its obligations hereunder.
4. Price Adjustment and Specification Changes: All prices are subject to adjustment provided that Seller shall give Purchaser notice of any adjustment at least thirty (30) days prior to the date of adjustment, and provided further that Purchaser may cancel any item, the price of which is increased, by giving notice to Seller within ten (10) days after receipt of Seller's notice of such increase.
5. Terms and Conditions: The receipt by Purchaser of this Agreement shall constitute acceptance of these terms and conditions by the Purchaser. This Agreement expressly limits acceptance to the terms and conditions stated herein. Any additional or different terms or conditions proposed by Purchaser are unacceptable to Seller, are unacceptable to Seller, are expressly rejected by Seller and shall not become a part of this agreement.
6. Delivery and Acceptance; Title: Delivery and price quotations for equipment shall be free on board (F.O.B.) Seller’s location. Delivery to and acceptance by Purchaser shall be deemed to occur from such point the equipment is received by Purchaser, Purchaser's designee, or to the common or contract carrier designed by Seller or Purchaser. Seller reserves the right to modify the quantity of shipments in order to suit standard packaging lots. Buyer agrees to accept the equipment, even in case of partial or anticipated delivery. Title shall pass at time of delivery. Purchaser assumes all responsibilities for the transportation of goods, including the cost of transportation, obtaining insurance, and the risk of damage or loss from the point of such delivery. Acceptance of delivery on the part of Purchaser shall be deemed a waiver of Purchaser's right to hold the Seller liable for any loss or damage to the Equipment.
7. Delays and Defaults: In the event of Seller's failure for any cause, other than an excusable delay as hereinafter described, to deliver the Equipment, in the manner provided in this Purchase Agreement, within ninety (90) days of the Projected Delivery Date specified on the reverse side hereof, Purchaser may cancel this Purchase Agreement, in which event the sole liability of Seller shall be the return of any payment on the purchase price upon Purchasers return of any Equipment that is in its possession or control. Any excusable delay shall include but are not limited to difficulties in securing materials, parts or any other essential elements necessary to the manufacture or delivery of the Equipment, or a delay which is caused by circumstances beyond Seller's control, including, but not limited to acts of God or of the public enemy, fires, floods, epidemics, quarantine restrictions, strikes, embargo, war or other causes beyond Seller's control occurring in, or in connection with, the manufacture or delivery of the Equipment. Seller shall not be liable in any way for failure of delay in making delivery of the equipment in the event of an excusable delay. In the event of an excusable delay, seller’s time to deliver shall be extended by the period of such delay. In the event of an excusable delay in excess of one hundred eighty (180) days, either party may cancel the undelivered portions of this Purchase Agreement and the sole liability of Seller shall be for the return of any payments on such undelivered portions.
8. Changes: The Seller reserves the right at any time to direct changes in any one or more of the following: (a) method of shipment or packing; or (b) time and/or place of delivery. If such changes cause an increase or decrease in the cost of the equipment sold under this Agreement, an equitable adjustment shall be made and the Agreement modified in writing accordingly. Purchaser's changes, whether made pursuant to this Article or by mutual agreement, shall not be binding upon Seller, except when confirmed in writing by Seller.
9. Assignment: This Agreement or any interest hereunder shall not be assigned or transferred by Purchaser without the prior written consent of the Seller.
10. Taxes: Purchaser agrees to pay, in addition to the contract price set forth on the reverse side hereof, any sales or use taxes, any excise tariffs, and any similar taxes or charges (other than income taxes) levied or assessed upon the sale of the equipment or parts thereof, or otherwise applicable to this transaction whether imposed on Purchaser, Seller or any other entity and whether imposed at the time of delivery, or sale or thereafter.
11. Warranty: The warranty, if any, on the Equipment shall be as indicated with the Equipment in its packaging or, in the absence of such warranty, as otherwise published from time to time on Seller’s website. The features, dimensions, performance, prices and other data provided by Seller in, for example, its catalogues, on its website, price lists or other illustrative material, are indicative indications only and are not binding and do not create any warranty or guarantee, express or implied, unless expressly set forth in an order confirmation signed by Seller.
12. Infringement: The Seller does not warrant that the Purchaser shall be free from any claim of third persons for patent infringement or wrongful use of any patent, trademark, trade secret, or copyright by reasons of sale or use of any goods, merchandise, software, or data furnished hereunder.
13. Defense and/or Indemnity: Seller does not and will not, and Purchaser hereby waives any obligation of Seller to (whether such obligation is based in law, contract, or equity), defend, indemnify, and or hold harmless Purchaser from or against any claim asserted against Purchaser for any matter, cause or thing whatsoever arising out of or otherwise related to the Equipment.
13. Binding Effect; Entire Agreement, Modification: This Purchase Agreement is binding upon Purchaser and Seller and their heirs, personal representatives, successors and permitted assigns. This Purchase Agreement sets forth the entire agreement of the parties with respect to the purchase and sale contemplated hereby, and this Purchase Agreement may not be modified except by a writing signed by Purchaser and Seller. This agreement supersedes all prior communications, discussions, and agreements, oral, electronic or written, all of which are deemed incorporated and merged herein.
14. Modification of Agreement: This Agreement contains all the agreements and conditions of sale between the parties hereto and no course of dealing or usage of the trade shall be applicable unless expressly incorporated in this Agreement. The terms and conditions contained in this Agreement may not be added to, modified, superseded or otherwise altered except by a written modification signed by an authorized representative of Seller and delivered by Seller to Purchaser, notwithstanding any terms and conditions that may be contained in any acknowledgment, purchase order, or other form executed by the Purchaser.
15. Confidential Relationship: Purchaser shall treat as proprietary and confidential all specifications, drawings, blueprints, designs, nomenclature, samples, models, business plans, pricing, markets, or other information supplied by Seller regarding the equipment sold hereunder. Any drawing or technical document regarding the Equipment disclosed to Buyer remains the exclusive property of Seller and may not be used by Buyer, any may not be copied, reproduced, transmitted or communicated to third parties unless authorized in writing by Seller.
16. Cancellation: A. Seller reserves the right to cancel this Agreement: (1) if the Purchaser shall become insolvent or make a general assignment for the benefit of creditors; or (2) if a petition under any bankruptcy act or similar statute is filed by, on behalf of or against the Purchaser; or (3) if the Purchaser fails to make payment for the equipment within the time specified in this Agreement; or (4) if the Purchaser fails to perform any of its obligations hereunder or so fails to make progress so as to endanger performance of this Agreement; or (5) if Purchaser's financial condition shall become in the reasonable opinion of seller, such as to endanger completion of performance by Purchaser of its obligations under this Agreement. B. In the event Seller cancels this Agreement in whole or in part, in accordance with this section, the Purchaser shall be liable to Seller for any and all expenses incurred by Seller in regard to this Agreement. In addition, Seller may keep any and all payments made by Purchaser as liquidated damages. C. The rights and remedies of Seller provided in this Section shall not be exclusive, and shall be in addition to any other rights and remedies provided by law or this Agreement.
17. Termination for Convenience: Seller shall have the right to terminate this Agreement in whole or in part at any time, and from time to time, by written or facsimile notice effective upon receipt by Purchaser of such notice, even though Purchaser is not in breach of any obligation hereunder. Upon such cancellation or reduction, Seller shall have no further obligation with respect to this Agreement (other than to return any down payment made by Purchaser). Cancellation shall not be deemed a waiver of Seller's rights to demand performance by the Purchaser of any obligation of the Purchaser pursuant hereto, accrued up to the date of cancellation or modification, nor shall Seller be liable to the Purchaser or any other person or entity for damages of any kind, including but not limited to incidental or consequential damages.
18. No Waiver of Conditions: Seller's failure to insist upon strict compliance with any of the provisions herein shall not be deemed to be a waiver of any such right, and waiver of a right under this Agreement shall not constitute a waiver of any other right or waiver of any other default under this Agreement.
19. Relationship of Parties; No License: Seller and Purchaser are independent contracting parties and nothing in this Agreement shall make either party the agent or legal representative of the other for any purpose whatsoever, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other. Nothing herein shall constitute or create any franchise, purchase, or license agreement or relationship whatsoever. Buyer may not use any patents, trademarks or copyrighted material of Seller, without the Seller’s prior express written consent.
20. Severability, Enforcement, Jurisdiction: If any term of this Agreement is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such term shall be deemed reformed or deleted, but only to the extent necessary to comply with such statute, regulation, ordinance, order or rule, and the remaining provisions of this Agreement shall remain in full force and effect. Seller shall be entitled to recover its actual attorney fees incurred in enforcing or preserving its rights. This agreement shall be deemed to have negotiated and entered into in Brescia, Italy. Any and all claims or disputes arising out of or otherwise relating to this agreement shall be governed and construed in accordance with Italian law only, and the parties expressly acknowledge and irrevocably agree that the sole and exclusive venue for and jurisdiction over any such matter shall be the courts of Brescia, Italy to the exclusion of the courts of any other place.
21. Miscellaneous: This agreement does not obligate Seller to sell any other products, parts and/or accessories to Buyer or to accept any subsequent purchase order from Buyer for any other products, parts and/or accessories, and/or does not limit the Seller in any manner from selling products, parts and/or accessories to any other person or entity in any geographic location. Further, nothing herein shall obligate the Buyer to purchase from Seller any other products, parts and/or accessories, and/or limit the Buyer from purchasing and reselling similar products, parts and/or accessories from or to any other person or entity