GENERAL
- Unless otherwise expressly agreed in writing by a duly authorized representative of Rotobrush International LLC, a Delaware limited liability company (hereinafter “Rotobrush”), these terms and conditions supersede all other communications and agreements and notwithstanding any conflicting or different terms and conditions in any order or acceptance of Purchaser, all sales and shipments shall be governed exclusively by these terms and conditions. Paragraph headings are for purposes of convenience only. “Products” as used herein shall include products, parts and accessories furnished by Rotobrush. Orders shall be subject to acceptance at Rotobrush’s principal corporate office at 612 East Dallas Road, Suite 400, Grapevine, Texas 76051.
DELIVERY TERMS
- Unless otherwise agreed in a writing signed by Rotobrush, Products are delivered F.O.B. Rotobrush’s Texas factory or warehouse. Where the scheduled delivery of Products is delayed by Purchaser or its customer or by reason of any of the contingencies referred to in Paragraph 5, below, Rotobrush may deliver such Products by moving them to storage and storing them for the account of and at the sole risk of Purchaser. Shipping dates are approximate and are based upon prompt receipt of all necessary information and approvals from Purchaser. Rotobrush reserves the right to make delivery in installments. It is the customer’s responsibility to contact Rotobrush regarding any missing components from their order within 30 days of receipt of their product; otherwise, the customer forfeits their rights to have any missing parts replaced by Rotobrush.
TITLE AND RISK OF LOSS
- The Products sold shall remain the personal property of Rotobrush until fully paid for in cash, and Purchaser agrees, if requested by Rotobrush, to execute a security agreement covering the Products sold and to perform all acts, including but not limited to the execution and filing of UCC-1 financing statements, which may be necessary to perfect and assure retention of title to such Products by Rotobrush. Notwithstanding any agreement with respect to passage of legal title to the Products, risk of loss and damage shall pass to Purchaser and delivery shall be deemed to be complete upon the Products’ arrival at the points set forth in Paragraph 2, above, or upon moving into storage, whichever occurs first.
PAYMENT
- If Purchaser fails to pay any invoice when due, Rotobrush may defer deliveries under this or any other contract with Purchaser, except upon prior receipt of satisfactory security for or cash in payment of any such invoice. Failure on the part of Purchaser to pay invoices when due shall at the option of Rotobrush constitute a default under the Purchaser’s arrangement with Rotobrush and subject Purchaser to termination in addition to all other remedies Rotobrush may have under any Dealership Agreement, these Conditions of Sale, or applicable law. If in the judgment of Rotobrush the financial condition of Purchaser at any time prior to delivery does not justify the terms of payment specified, Rotobrush may require payment in advance or cancel any outstanding order, whereupon Rotobrush shall be entitled to receive reasonable cancellation charges. If delivery is delayed by Purchaser, payment shall become due on the date Rotobrush is prepared to make delivery. Should manufacture be delayed by Purchaser, pro rata payments shall become due if and to the extent required of Rotobrush by its contracts with the manufacturer. All installment deliveries shall be separately invoiced and paid for without regard to subsequent deliveries. Delays in delivery or nonconformities in any installment shall not relieve Purchaser of its obligations to accept and pay for remaining installments.A service charge equal to the lesser of: (i) one and one-half percent (1½%) per month for an annual rate of eighteen (18%) percent, or (ii) the highest rate allowed by law, shall be charged on all overdue accounts of Purchaser with Rotobrush.
FORCE MAJEURE- Rotobrush shall not be liable for loss, damage, detention, or delay, nor be deemed to be in default for causes beyond its reasonable control or from fire, strike or other concerted action of workers, any act or omission of any governmental authority or of Purchaser, compliance with import or export regulations, currency restrictions, insurrection or riot, embargo, delays or shortages in transportation, or inability to obtain necessary engineering talent, labor, material, or manufacturing facilities from usual sources. In the event of delay due to any such cause, the date of delivery will be postponed by such length of time as may be reasonably necessary to compensate for the delay.
LIMITED WARRANTY
- Rotobrush warrants to Purchaser that the Products manufactured by Rotobrush or its affiliates shall be free from defects in material and workmanship for a period of twelve (12) months from the date of purchase to the first user, or eighteen (18) months from the date of purchase from Rotobrush’s factory, whichever occurs first, limited to 30 days from the date of purchase for purchased replacement components, except that Roto-Vision and IC Cam products are warranted as free from defects in material and workmanship for a period of ninety (90) days from the date of purchase to the first user.
Should any failure to conform with this warranty develop prior to or after delivery of the Products during the specified periods under normal and proper use and provided the Products have been properly stored, installed, handled, and maintained by Purchaser and first customer, Rotobrush shall, if given prompt notice by Purchaser, repair or replace such nonconforming Products. Should Purchaser fail to comply in any respect with the provisions of this paragraph, Rotobrush shall have no obligation in respect of the repair or replacement as provided in this paragraph.
Repaired or replaced Products are warranted only for the remainder of the original warranty period above.
When the nature of the defect is such that it is appropriate in the judgment of Rotobrush to do so, repairs will be made at the site of the Product. Replaced Products become the property of Rotobrush.
Repaired or replaced Products are warranted only for the remainder of the original warranty period above.
When the nature of the defect is such that it is appropriate in the judgment of Rotobrush to do so, repairs will be made at the site of the Product. Replaced Products become the property of Rotobrush.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF QUALITY, WRITTEN, ORAL OR IMPLIED, AND ALL OTHER WARRANTIES INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED. Correction of nonconformities as provided above shall be Purchaser’s exclusive remedy and shall constitute fulfillment of all liabilities of Rotobrush (including direct, indirect, special, incidental, or consequential damages), whether in warranty, contract, tort, negligence, strict liability, or otherwise with respect to the quality of the Products delivered hereunder.