highest quality machinery and service in the industry
TERMS AND CONDITIONS
GENERAL. The term “Agreement” means these Terms and Conditions together with all documents specifically referenced herein and any written purchase order, contract or agreement which attaches, incorporates or otherwise references these Terms and Conditions. Buyer desires to purchase the Equipment as more fully described on the front of this Agreement (the “Equipment”) at the price or prices set forth therein (the “Purchase Price”). Upon the execution of this Agreement by Buyer, this shall become a binding contract and Extrusion Machinery and Equipment. (“Broker”) shall attempt to procure such Equipment and arrange for the purchase of the same by Buyer. Buyer agrees and acknowledges that notwithstanding Broker’s agreement to attempt to procure the Equipment, Broker shall in no way be liable to Buyer for lost profits, opportunities or otherwise in the event that Broker is unable to procure the Equipment or the acquisition of the Equipment by Buyer does not occur for any reason. Buyer acknowledges and agrees that Broker does not represent itself to be the Owner and that Buyer is purchasing the Equipment directly from Owner through Broker, pursuant to the escrow arrangements described herein, and that Broker is acting as an independent contractor. Notwithstanding anything herein to the contrary, Buyer shall not directly or indirectly discuss with the owner of the Equipment (the “Owner”) or attempt to negotiate a reduction in the Purchase Price of the Equipment directly with the Owner; and if the Equipment is not acquired by the Buyer as herein provided, Buyer shall not purchase or attempt to purchase the Equipment, either directly or indirectly, from Owner. The aforesaid restrictions upon Buyer shall continue notwithstanding the expiration of the term of this Agreement.

INSPECTION. Upon locating the Equipment, Broker will, at Buyer’s request, arrange a time for Buyer to inspect the Equipment at reasonable times and places. Buyer shall bear all of its costs incurred in conducting the inspection including, but not limited to, the cost of travel to and from the inspection site. Buyer agrees to adhere to any rules or regulations imposed by Owner regarding the inspection of the Equipment. Buyer acknowledges that it is solely responsible for ascertaining the condition of the Equipment and confirming that the Equipment meets Buyer’s requirements.

DELIVERY. Unless otherwise agreed to in writing, Buyer shall be responsible for shipping, insurance and other similar costs and shall bear the risk with respect to any loss or damage to the Equipment during rigging and transportation from Owner's place of business. In no event shall Broker be liable for any fees, loss or damage caused by or in connection with any delay in delivery of the Equipment or any other cause. Buyer shall prepare the premises and proper size openings to receive the Equipment, and except when specifically stated to the contrary, Buyer shall furnish and install, where required and in accordance with all applicable laws and codes, the following: lighting, water, sewer and drain connections, steam supply and exhaust connections, cutting and patching, foundation, electric wiring, and all permits, certificates of inspection and fees thereof.

COMMUNICATIONS. Buyer agrees that it will not discuss the Purchase Price or any other terms hereof with Owner or anyone other than Broker. All notices delivered hereunder shall be in writing.

WARRANTIES. THE ONLY WARRANTY PROVIDED TO BUYER IS SUPPLIERS and/or SUPPLIER’S STANDARD WARRANTY (“SUPPLIER WARRANTY”) WHICH IS BEING PASSED THROUGH TO BUYER BY PMG. BUYER ACKNOWLEDGES THAT IT HAS RECEIVED A COPY OF THE SUPPLIER WARRANTY. BUYER SHALL LOOK ONLY TO SUPPLIER WARRANTY FOR RELIEF. PMG SHALL NOT BE LIABLE TO BUYER FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES OR LOSS UNDER ANY CIRCUMSTANCES, REGARDLESS OF CAUSE AND REGARDLESS OF THE THEORY OF LIABILITY ASSERTED BY BUYER, WHETHER CONTRACT, TORT OR OTHERWISE. BUYER ACKNOWLEDGES THAT IT HAS DECIDED TO PURCHASE THE EQUIPMENT BASED UPON ITS OWN ASSESSMENT OF THE EQUIPMENT. BUYER ACKNOWLEDGES AND AGREES THAT PMG HAS NOT MADE ANY STATEMENTS OF FACT CONCERNING THE EQUIPMENT, AND BUYER HAS NOT RELIED UPON ANY STATEMENT BY PMG IN DECIDING TO PURCHASE THE EQUIPMENT. BROKER SHALL NOT BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT OR OTHER DAMAGES TO ANY PERSON OR ENTITY REGARDLESS OF CAUSE AND REGARDLESS OF THE THEORY OF LIABILITY ASSERTED BY BUYER, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD PARTY CLAIMS AGAINST BUYER. BUYER ACKNOWLEDGES THAT IT HAS DECIDED TO PURCHASE THE EQUIPMENT BASED UPON ITS OWN ASSESSMENT OF THE EQUIPMENT. BUYER ACKNOWLEDGES AND AGREES THAT BROKER HAS NOT MADE ANY STATEMENTS OF FACT CONCERNING THE EQUIPMENT, AND BUYER HAS NOT RELIED UPON ANY STATEMENT BY BROKER IN DECIDING TO PURCHASE THE EQUIPMENT. COMPLIANCE WITH OCCUPATIONAL SAFETY AND HEALTH ACT: Broker makes no warranty that the machine meets the requirements of the Occupational Safety and Health Act (OSHA). Buyer is solely responsible for compliance with OSHA and all other federal, state and local environmental and worker health and safety laws, regulations, orders and standards.

PAYMENT TERMS. All funds and documents for the purchase and sale of the Equipment shall be placed in escrow with Broker. Buyer agrees to pay 100% of the Purchase Price prior to shipment. Broker shall obtain a bill of sale from the Owner in a form reasonably acceptable to Buyer. Upon receipt of the full Purchase Price, Broker shall make the necessary disbursements from the escrow account, deliver the bill of sale to Buyer, and retain any balance remaining in the escrow account as compensation for its services rendered hereunder. The equipment will remain on the market up to the day the full Purchase Price is received in escrow.

 
TERMS AND CONDITIONS
LATE PAYMENTS: If Buyer does not make full payment when due, Buyer shall pay a two percent (2%) delinquency charge on any unpaid balance of the Purchase Price for each additional 30 day period, or any portion thereof, that elapses before full payment is made. In such event, Buyer shall also pay reasonable costs of collection, including attorneys’ fees and legal expenses. PMG reserves the right to file a UCC with the State.

CANCELLATION CHARGE: Unless otherwise agreed, Buyer may cancel all or any part of the order only by written notice received by Broker no later than forty-five (45) days before the scheduled shipping date. Any payments or deposits made by Buyer prior to cancellation shall be nonrefundable. Additionally, upon cancellation, Buyer will be invoiced for and pay to Broker as liquidated damages a cancellation charge equal to one hundred forty percent (140%) of Broker’s and Owner’s full costs, as determined solely by Broker and Owner, respectively, in accordance with their standard accounting practices and including any burden and overhead costs incurred by Broker, Owner or any of their affiliates.

TAXES: The Purchase Price does not include Federal, State or local sales, excise, use or other taxes, which may be applicable to the Equipment, which tax or taxes will be added to the priceif Broker or Owner has the legal obligation to collect the same and will be invoiced to and paid by Buyer, unless Buyer provides Broker with a proper tax exemption certificate. In the event Broker is required to pay any such tax or similar charge, Buyer shall promptly reimburse Broker therefore.

SECURITY INTEREST. Broker hereby reserves a purchase money security interest in the Equipment and any and all additions and accessions thereto, and the proceeds thereof, in the amount of the Purchase Price. In the event of default by Buyer on any of its obligations, Broker will have the right to repossess the Equipment without liability to Buyer or any third party. In such event, Buyer agrees to make the Equipment available to Broker so that Broker can repossess it without a breach of the peace. This security interest will be satisfied by payment in full. Broker may file with appropriate authorities at any time a financing statement and/or chattel mortgage to perfect Broker’s security interest. Buyer shall cooperate fully with Broker to execute such other documents and to accomplish such filings and/or recordings thereof as Broker may deem necessary.

FORCE MAJEURE. Broker and Owner shall not be liable for any delay in performance or nonperformance due to war, fire, flood, acts of God, acts of third parties, acts of governmental authority or any agency or commission thereof, accident, strikes, and other causes beyond the reasonable control of Broker and Owner, including but not limited to those interfering with transportation.

INDEMNIFICATION. Buyer agrees to indemnify, defend and hold harmless Broker, its officers, directors, employees, successors and assigns, from and against any and all losses, costs, damages and expenses arising directly or indirectly from (i) any act or omission of Buyer; and/or (ii) Buyer’s breach of any obligation set forth herein.

CONFIDENTIALITY. At all times, Buyer will (i) maintain the confidentiality of any information disclosed by Broker whether or not identified as “confidential” upon disclosure (“Confidential Information”); (ii) not disclose or permit the disclosure of any Confidential Information to any person other than its employees for whom such knowledge is essential for performance of the Agreement; and (iii) not use Confidential Information except for performance of the Agreement. Buyer will immediately notify Broker of any disclosure of any Confidential Information that is not permitted by this Agreement and will be responsible for the disclosure or other misuse of Confidential Information. Broker makes no representation or warranty of any kind, express or implied, with respect to any Confidential Information. Broker may, at its sole discretion, elect at any time, by written notice to Buyer, terminate Buyer’s further use of Confidential Information and Buyer shall immediately return to Broker all Confidential Information and copies thereof and erase any digitally held Confidential Information. Termination by Broker will not affect Buyer’s continuing obligations in this Section. CANCELLATION. Broker will have the right to cancel this Agreement, in whole or in part, if Buyer fails to comply with or fulfill at any time any of the terms and conditions of this Agreement, or with Broker’s shipping and billing instructions, or if, in Broker’s opinion, the credit or ability of Buyer to perform this Agreement becomes impaired.

INDEPENDENT CONTRACTOR/SAFETY. Broker is and will remain an independent contractor of Owner. No employee, agent, or representative of Broker or its subcontractors will be deemed to be an employee of Owner. Buyer will provide all safeguards, and take all precautions, necessary in connection with the Equipment sold hereunder to prevent the occurrence of any accident, injury, death, loss, or damage to any person or property and will be solely responsible therefor. Buyer warrants that all Equipment delivered hereunder will be received in a safe, proper, and workmanlike manner and in compliance with all applicable codes, regulations, laws, standards, and specifications.

GOVERNING LAW; VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without regard to conflicts of law principles. The parties agree that any lawsuit, action, claim, or legal proceeding involving, directly or indirectly, and arising out of or related to this Agreement, shall be brought exclusively in the Cuyahoga County Court of Common Pleas or the U.S. District Court for the Northern District of Ohio. The parties expressly consent to the jurisdiction and venue of these two forums and agree not to raise any objection to any lawsuit, action, claim, or legal proceeding brought in either of these two forums. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. ATTORNE YS’ FEES . Reasonable attorneys’ fees and costs will be awarded to the prevailing party in the event of any litigation directly or indirectly arising out of, under or in connection with this Agreement.

ENTIRE AGREEMENT. This Agreement embodies the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous letters, agreements, and understandings concerning the Equipment. This Agreement may not be amended without the prior written consent of Broker.