Bucher Municipal North America, Inc. Standard Terms and Conditions of Sale
1. Terms and Conditions of Sale.
The following are the standard Terms and Conditions of Sale (the “Terms and Conditions”) of Bucher Municipal North America, Inc. (“Bucher”). These Terms and Conditions apply to the sales of all products (including but not limited to wholegoods and spare parts) by Bucher (collectively, the “Equipment”) to the original purchaser who purchases such Equipment whether such original purchaser is a distributor or direct retail purchaser (collectively, “Buyer”). All sales of Equipment by Bucher to Buyer will be subject to these Terms and Conditions, unless Bucher expressly agrees otherwise in a document signed by an authorized Bucher management team member. Bucher’s customer service and technical service personnel do not have authority to change, modify or alter these Terms and Conditions.
2. No Other Terms and Conditions.
Buyer agrees that these Terms and Conditions, along with, in the case of authorized Bucher distributors, the other provisions of the General Sales Manual, are the only terms and conditions that will apply to any sale of Equipment by Bucher. Bucher expressly objects to and rejects any new or different terms or conditions that may be provided by Buyer or contained in any of Buyer’s purchasing documents, including but not limited to Buyer’s purchase orders, confirmations or other documents. Any conditions, negotiations, or understandings which are not contained in these Terms and Conditions or, in the case of authorized Bucher distributors, the other provisions of the General Sales Manual, shall have no force or effect unless made in writing and signed by an authorized Bucher representative. Bucher’s offer to sell the Equipment is expressly limited to these Terms and Conditions, and Buyer acknowledges and agrees that Buyer has made an unqualified acceptance of these Terms and Conditions.
3. Purchase Price; Taxes.
(a) Purchase Prices. For authorized Bucher distributors, purchase prices will be as stated in Bucher’s current distributor price list. All prices are stated and shall be payable in U.S. dollars. All purchase prices exclude costs for shipping, and Buyer is solely responsible for all shipping costs. Bucher determines the prices for the Equipment, and may change and modify such prices in its discretion from time to time.
(b) Taxes. Bucher’s prices for the Equipment do not include any federal, state, provincial, municipal, or local property, license, privilege, business, occupation, stamp, documentary, transfer, sales, use, excise, gross receipts, or other similar taxes or customs duty or fee. Buyer agrees to promptly pay and hold Bucher harmless from and against all taxes, duties or fees assessed against or in connection with the Equipment purchased by Buyer.
4. Payment Terms; Credit Policy.
(a) Payment Terms. Payment terms are 100% of invoice amount due 30 days from the date of invoice. For deliveries or sales to Buyers outside the U.S., Bucher reserves the right to require payment by letter of credit or other secured form of payment acceptable to Bucher. Buyer agrees to pay a late payment charge of 1-1/2% per month, or the maximum amount allowable by law, on all amounts not paid in full when due, payable on Bucher’s demand. Buyer may not set off amounts due to Bucher against claims it may have against Bucher. If Buyer fails to pay Bucher any amount when due, or if Buyer defaults in the performance of its duties or obligations under these Terms and Conditions, or if there are multiple instances of late payments by Buyer, Bucher may elect to do any or all of the following: (i) declare immediately due and payable all Buyer’s obligations to Bucher; (ii) declare Buyer ineligible to place orders on open account or condition further purchases on payment with cash or credit card or by C.O.D. payment; (iii) change or refuse credit terms with respect to any further purchases; (iv) suspend or discontinue any pending orders; (v) decline further business with Buyer; (vi) repossess any Equipment; and/or (vii) pursue any other available remedies at law or in equity. Buyer agrees to reimburse Bucher for all costs and fees incurred in collecting amounts due from Buyer or repossessing the Equipment, including without limitation, attorneys’ fees and court costs. If orders are suspended or delayed due to past due invoices, such orders may be classified as “new orders” and re-entered into the shipping queue when the account is brought current.
(b) Financing. Buyer’s purchase of Equipment shall be subject to the terms and conditions of Bucher’s current Credit Policy, a copy of which will be made available to Buyer upon written request. Buyer is required to obtain its own financing prior to placing orders for Equipment.
5. Title; Default.
(a) Title. Title to Equipment together with the risk of loss and responsibility of carrying insurance shall pass to Buyer upon Buyer’s payment in full for such Equipment. Prior to the time title to Equipment purchased hereunder passes to Buyer, Buyer will (i) ensure that such Equipment remains in new, unused and undamaged condition (regardless of whether the Equipment is in the possession of Buyer, Buyer’s carrier, or any other person or entity); and (ii) provide Bucher with access to the Equipment, upon request, to enable Bucher to inspect and/or remove such Equipment. In addition, Buyer will be responsible for, and will indemnify and hold Bucher harmless from and against, any damage that occurs to Equipment after delivery Effective January 1, 2019 pursuant to Section 6 below and before title to the Equipment passes to Buyer as set forth in this Section 5.
(b) Default. Buyer will be in default hereunder whenever any one or more of the following events occurs: (i) a default in the prompt payment of any obligations to Bucher; (ii) a default by Buyer of any other covenant, condition, or term stated in these Terms and Conditions; (iii) the filing by or against Buyer of a bankruptcy or similar petition; or (iv) the discontinuance of Buyer’s business as a going concern for more than thirty (30) days. Upon such a default, Bucher will have, in addition to other remedies that may be available to Bucher, the right to declare all indebtedness of Buyer to Bucher immediately due and payable without notice to Buyer, and no delay or omission in exercising any right accruing upon any default shall impair any such right, or shall be construed to be a waiver of any such default or any acquiescence therein.
6. Delivery; Orders.
(a) Generally. Bucher will deliver the Equipment EXW (INCOTERMS 2010) Bucher’s facility at 105 Motorsports Road, Mooresville, North Carolina 28115 (the “Facility”). Buyer shall be solely responsible for picking up, or arranging for the pick-up of, Equipment ordered hereunder.
(b) Orders. Buyer’s purchase orders must be made in writing, in a form acceptable to Bucher, and must contain a purchase order reference number. Orders may be faxed to Bucher or e-mailed to Bucher at the appropriate fax number or e-mail address identified on Bucher’s website (located at www.buchermunicipal.us). Bucher reserves the right to reject any orders for any reason in its discretion. Orders or change orders mutually-agreed in writing by the parties will be subject to all provisions of these Terms and Conditions, whether or not the order or change order so states.
(c) Canceled Orders. Orders canceled prior to shipment will, in Bucher’s discretion, be subject to a breakdown and handling charge as assessed by multiplying the amount of time needed to complete the task by Bucher’s then-current standard hourly labor rate for this task.
(d) Add-on Orders; Change Orders; No Order Consolidation. Unless otherwise agreed in writing by Bucher, all orders are considered to be separate orders and will be processed accordingly (and no add-on orders will be allowed). Bucher may allow order changes, but reserves the right to refuse any order change for any reason, including but not limited to shipping constraints or excessive change requests. Unless otherwise agreed in writing by Bucher, all order changes will be inserted at the back of the shipping queue every time there is a change, irrespective of when the original order was placed. Bucher will not consolidate orders.
(e) Order Fulfillment. Unless otherwise agreed in writing by the parties in connection with a particular order, orders will be shipped only when they are completed.
(f) Delivery Dates. Delivery dates given by Bucher are based on prompt receipt of all necessary information regarding the order and subject to availability of the Equipment items ordered. Bucher will use reasonable efforts to meet such delivery dates, but does not guarantee that it will meet such dates (unless a firm delivery date is specifically agreed in writing by the parties in connection with a particular order). Unless otherwise agreed in writing by the parties in connection with a particular order, (i) the failure by Bucher to meet any delivery date does not constitute a cause for cancellation and/or for damages of any kind, and (ii) time for delivery shall not be of the essence.
7. Shipment. All shipping requests must be made in writing or designated on the order. Buyer may request to pick up the Equipment, or Bucher’s customer service may assist Buyer in arranging for shipping upon Buyer’s request. Buyer’s failure to designate its shipping preferences will allow Bucher to schedule and select a carrier in its discretion on behalf of Buyer and at Buyer’s expense. All shipments (except pick-up loads) will be billed to Buyer on a Pre-Pay and Add shipment basis. The freight charges will be included as a line item on Bucher’s invoice to Buyer, and Buyer agrees to pay such freight charges.
8. Claims Process; RGAs. Any goods subject to return, for any reason, must first have a Returned Goods Authorization (“RGA”) number issued by Bucher. Authorized returns will be accepted by Bucher only on a freight prepaid basis. In the event Bucher elects to pre-pay for freight, Bucher may elect to take a credit against Buyer’s account or be reimbursed by Buyer. If an RGA request is approved, Buyer may return Equipment for a credit only and such credit will be issued on the following terms: Only stock items are returnable and must be in the original carton or wrapping, undamaged and with no missing parts; Buyer will be required to pay a 25% handling charge, plus any refurbishing charges, in connection with the return of any item, unless the item was shipped in error by Bucher or is the subject of a valid warranty claim (in which case such handling and refurbishing charges will not apply); all returns must be shipped to Bucher at the Facility (or such other location as may be designated by Bucher from time to time), on a freight prepaid basis; and the RGA number must be clearly marked on the outside of the item being returned and on the packing list. If Buyer does not follow this return policy, Bucher may refuse to receive the returned items or may ship them back to Buyer at Buyer’s expense. All warranty returns are also subject to the conditions and contained in Bucher’s Limited Warranty.
9. Compliance with Laws. Buyer agrees to comply with all laws and regulations applicable to the purchase, transport, use, storage, sale, lease and/or disposal of the Equipment including, without limitation, to the extent applicable, the U.S. Export Administration Act and all regulations thereunder, U.S. antiboycott laws, and the U.S. Foreign Corrupt Practices Act.
10. Limited Warranty. All sales of Equipment are subject to Bucher’s limited warranty for that Equipment as in effect from time to time (the “Limited Warranty”). Bucher reserves the right to modify the Limited Warranty Effective January 1, 2019 from time to time in its discretion. A copy of Bucher’s current Limited Warranty is available in the Owner’s Manual for the Equipment. Buyer may also contact Bucher’s Customer Service Department for additional copies of Bucher’s Limited Warranty. Bucher may also make its Limited Warranty available on its website at www.buchermunicipal.us.
11. No Other Warranties; Limitation of Damages. BUCHER’S LIMITED WARRANTY IS THE EXCLUSIVE WARRANTY FOR THE EQUIPMENT, AND THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE DISCLAIMED. THE REMEDIES DESCRIBED IN BUCHER’S LIMITED WARRANTY ARE EXCLUSIVE. IN NO EVENT SHALL BUCHER BE LIABLE FOR INCIDENTAL, COMPENSATORY, CONSEQUENTIAL, INDIRECT, SPECIAL, OR OTHER DAMAGES. BUCHER’S AGGREGATE LIABILITY WITH RESPECT TO A DEFECTIVE PRODUCT AND THESE TERMS AND CONDITIONS SHALL BE LIMITED TO THE MONIES PAID TO BUCHER FOR THAT DEFECTIVE PRODUCT. Some states do not allow such exclusions or limitation of incidental and consequential damages, so the above limitation or exclusion may not apply to Buyer.
12. Force Majeure. Bucher shall not be responsible for delay in delivery or failure to fill orders or other default or damage where such has been caused by an act of God, war, major disaster, terrorism, third-party criminal acts, insurrection, riot, flood, earthquake, fire, strike, lockout or other labor disturbance, delay by carriers, shortage of fuel, power, materials or supplies, operation of statutes, laws, rules or rulings of any court or government, demand for goods exceeding Bucher’s available supply or any other cause beyond Bucher’s control. In the event of any delay in delivery, failure to fill orders or other default or damage caused by any of the foregoing, Bucher may, at its option and without liability, prorate its deliveries, cancel all or any portion of these Terms and Conditions to the extent affected by the event of force majeure and/or extend any date upon which performance is due hereunder.
13. Governing Law; Forum. These Terms and Conditions and all related transactions shall be governed by and construed according to the internal laws of the State of Delaware, without reference to its choice of law principles. Neither these Terms and Conditions nor sales hereunder shall be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
14. Severability; Waiver. Bucher reserves the right to correct clerical or similar errors relating to price or any other term shown in these Terms and Conditions. Any failure by Bucher to require performance of any provision of these Terms and Conditions will not operate as a waiver to require strict performance of the provision at a later time, or prevent Bucher from taking other action in the future. Whenever possible, each provision of these Terms and Conditions will be interpreted to be effective and valid under applicable law, but if any provision is deemed invalid or unenforceable, the remaining provisions will be enforceable unless removal of that provision so materially alters the risks and benefits to either party that enforcement would be substantially unfair, and in that case, the parties agree promptly to negotiate a substitute provision to restore each party as closely as possible to the risks and benefits originally assumed.
15. No Assignment. Buyer may not assign these Terms and Conditions or any rights or obligations hereunder without the prior written consent of Bucher.
16. Reservation of Rights. Bucher reserves for itself all rights not expressly granted in these Terms and Conditions, including, without limitation, the rights to add, delete and modify the Equipment, set and modify its prices for the Equipment, adopt, modify and enforce policies and programs related to the Equipment (including, without limitation its Terms and Conditions of Sale and Limited Warranty), and to control the brand image and use of the trademarks associated with the Equipment.