Standard Terms and Conditions of Sale

Standard Terms and Conditions of Sale

General Interpretation
I.             In these conditions:
These Standard Terms and Conditions of Sale are referred to herein as "Terms and Conditions." AgriPower, Inc., AgriPower Manufacturing & Services, Inc., or its subsidiaries are referred to herein as "Seller." "Buyer" refers to the purchaser of any products or services, written or verbally placed with and accepted by Seller into which these Terms and Conditions are incorporated. Any purchase order or other document or communication from Buyer in connection with the purchase of products or services from Seller is referred to herein as "Purchase Order." "Goods" refers to the products or services specified on a purchase order from Buyer to Seller.

Application
 I.             These Terms and Conditions of Sale shall govern the relationship between Seller and Buyer. These Standard Terms and Conditions of Sale (referred to herein as "Terms and Conditions") shall apply to any purchase order, written or verbally, placed with and accepted by Seller. All sales of Goods are subject to final approval by Seller and shall be subject to these Terms and Conditions, which supersede any other written or verbal agreement between the parties. Seller specifically objects to the inclusion of any different or additional terms or conditions by Buyer. In the event, Buyer includes different or additional terms and conditions in a purchase order, acceptance, confirmation, or other written form, neither Seller's delivery of all or part of Goods, nor any other action except a written notice from Seller, shall constitute acceptance of such additional or different terms, but instead, these Terms and Conditions shall apply.
 II.           No change, modification, amendment, alteration, waiver, cancellation other agreement regarding any of these Terms and Conditions is binding unless made in writing and signed by an authorized officer of Seller. Buyer acknowledges that Seller has not authorized any of its employees, sales agents, or representatives to make any representations, warranties, agreements, or promises in relation to Goods or the sale of Goods other than as contained in these Terms and Conditions.

Prices
 I.             All estimates are subject to acceptance within sixty (60) days and are subject to withdrawal at any time before acceptance by Buyer without notice. Any price specified by Seller to Buyer for any Goods is based on Seller's estimated cost of production, manufacture, and/or supply at the time of estimate. Prices are subject to increases and shall be invoiced at the prices and charges in effect at the time of shipment, notwithstanding any price specified unless otherwise agreed to in writing by Seller.
 II.           Any applicable local, state, federal, or foreign duties and taxes and any sales and excise taxes levied on Goods shall remain Buyer's sole responsibility, are not included in any estimate unless specifically noted, and shall be added for Goods paid by Buyer. Buyer shall provide Seller, upon request, with completed exemption certificates for any tax from which Buyer claims exemption. Buyer shall pay all costs and charges for or relating to delivery, shipment, freight, transportation, duties, handling, storage, insurance, and related items with regard thereto.
 III.          Orders are subject to a net minimum dollar amount. Requests for expedited orders (overnight, next-day air, etc.) will be subject to an expedited fee. In addition, a surcharge of ten dollars ($10) will apply on all expedited orders.
 IV.          Installation is not included in any estimate unless specifically noted and shall be added for Goods paid by Buyer.

Cancellation or Change Orders
 I.             Orders accepted by Seller may not be withdrawn, canceled, or deferred unless Seller has previously approved such withdrawal, cancellation, or deferral in writing. At which time, Seller shall have been paid a withdrawal, cancellation, or deferral charge of a reasonable amount acceptable to Seller, not to exceed its cost plus anticipated profit. Orders may not be altered in whole or in part by Buyer without Seller's written consent. If Buyer requests changes in any order submitted to Seller, Buyer shall be responsible for all charges and expenses reasonably incurred by Seller with respect to such changes. Buyer shall not have the right by change orders to specify any products or services not generally made available by Seller to its customers. Goods custom manufactured to Buyer's specifications is subject to a cancellation fee of one hundred percent (100%) of the estimated price.
 II.           If Seller reasonably anticipates that Buyer will fail to pay for Goods or otherwise fail to observe and/or perform Buyer's obligations under these Terms and Conditions, Seller may cancel the order for Goods. Cancellation of the order pursuant to this clause shall not affect the rights of Seller to recover from Buyer any monies due to Seller by reason of the order or damages in breach thereof.

Credit
 I.             All sale of Goods will be on a cash-in-advance basis until a credit account is established, unless otherwise agreed to by Seller, in writing. To qualify for a credit account, Buyer must complete a credit application. A credit account will only be considered after this time and is subject to the necessary trade and bank references proving satisfactory. Credit limit and payment terms requested are contingent upon credit department approval. Any Buyer has a three thousand dollar credit limit ($3,000). Amounts causing the credit limit granted by Seller to be exceeded are payable in advance. Exceptions are at the discretion of Seller.
 II.           Buyer certifies that all information supplied in the credit application is complete, accurate, and truthful. Buyer agrees to notify Seller, in writing, of any substantive changes in the information provided. Buyer consents to the disclosure to Seller by any person, firm, or entity with whom or which Buyer may have financial, trade, or other relations of any information required for a credit check. Buyer gives Seller the right to periodically obtain updated information from Buyer's creditors, consumer or commercial credit agencies, or bank references as may be required to perform credit checks.
 III.          Unless otherwise agreed, the granting of credit facilities is made on the condition that payment is received by Seller within thirty (30) calendar days from the date of Seller's invoice. Seller reserves the right to close the Buyer's account and revoke credit extended if Terms and Conditions are not observed. Seller can refuse to permit further purchases or may limit the amount of purchases at any time. Seller reserves the right to change a credit status at any time and without notification. Seller may change, modify, amend, suspend, discontinue, terminate, and/or otherwise revoke any credit extended if Buyer fails to pay any monies due or if, in Seller's judgment, there has been an adverse change in Buyer's financial condition. Thereupon, Seller may demand payment or other assurance, in its sole and absolute discretion, required before shipment of any further Goods.

Payment and Terms
 I.             Payments are to be made to Seller without any deduction other than as stated in these Terms and Conditions or the relevant invoice or statement. Seller may, on written notice to Buyer, unilaterally correct any arithmetic, typographical, clerical, or related errors contained herein, and the corrected copy hereof shall be binding upon Buyer as if it was the original hereof. Any possible protest must be communicated within ten (10) days after the invoice date. Unless otherwise agreed to by Seller in writing, Buyer shall pay all invoices within thirty (30) calendar days from the date of Seller's invoice.
 II.           Seller reserves the right to request progressive or cash-in-advance payments. Goods custom manufactured to Buyer specifications may require prepayment of a portion of the full purchase price. Where Seller requires deposit payment, Buyer acknowledges that the deposit is non-returnable. Seller reserves the right to invoice separate parts of an order separately. Separate contract terms will be drawn, agreed upon, and signed for certain orders.
 III.          If Buyer defaults on any payment due hereunder, Seller reserves the right thereupon to suspend further deliveries without notice, to refrain from the execution of further components or to cease work on an order or of any subsequent order, or to terminate a delivery, until any outstanding balances shall have been paid in full. If Seller receives payment from Buyer more than fifteen (15) days after the invoice due date, Buyer will be charged a late fee of twenty dollars ($20.00). In addition, delinquent payments shall accrue a service charge of twelve percent (12%) per annum of the total unpaid amount. The service charge accrues retroactively from the due date and is assessed monthly or a portion of the month the balance is unpaid. Such amount is payable to Seller without prejudice to other rights and before, as well as after judgment. Payments made shall be applied by Seller in the following order: on all late charges, if any, and then invoices beginning with the earliest date up to the most recent. If Buyer is more than ninety (90) days in arrears, Seller may refer collection of the unpaid amount to an attorney or collections agency. In the event of default, Buyer agrees to pay all collections agency fees, late fees, and accrued service charges. If the account is referred to an attorney, Buyer agrees to pay all charges and expenses, including reasonable attorney's charges and court costs, to the extent permitted by law. In the event of a dispute hereunder, threatened or actual, between Seller and Buyer, Buyer shall pay Seller all costs incurred by Seller in enforcing the terms and provisions hereof, including, but not limited to, travel expenses, court costs, litigation costs, and reasonable legal fees.

Default
 I.             Seller may treat any default by Buyer in payment of any monies due to Seller as a breach of these Terms and Conditions. In the event of Buyer's default hereunder, Seller reserves the right to suspend further deliveries, refrain from execution of further components, cease work, or terminate a delivery. Whenever an order includes start-up or service agreement, Seller shall not be obliged to provide start-up or other services as long as payment to Seller is in default. Seller shall be entitled to recover any losses or damages incurred as a result of such default and to seek any other remedy provided by law.
 II.           If Buyer defaults under any agreement with Seller, then Seller may immediately reclaim, repossess, and take actual physical possession of all or any part of the Goods transferred from Seller to Buyer. Buyer shall grant unrestricted access to Goods to permit Seller to reclaim, repossess, and retake Goods physically.
 III.          Default is defined as, but not limited to, Buyer's insolvency or the filing or institution of a proceeding under any bankruptcy, reorganization, or similar law, by or against Buyer; an assignment for the benefit of creditors by Buyer; the appointment of a receiver, trustee or custodian for any of the property or assets of Buyer; and Buyer otherwise being in default of any obligation to Seller hereunder or otherwise. By submitting an order to Seller, Buyer warrants, represents, and covenants that it is solvent now and will be solvent at shipment and agrees to notify Seller immediately in writing upon the occurrence of any of the events set forth in this paragraph.

Storage
 I.             Any Goods on which manufacture or shipment is delayed or by causes which affect Buyer's ability to receive Goods within the Buyer's control, Goods, may be placed in storage by Seller. Buyer agrees that it shall bear all and insure against all risk of loss at all times while such Goods are located at Seller's Facility or while such Goods are under the direction and control of Seller. If Seller or any of Seller's suppliers are required to store an item because of delay caused by the Buyer, Buyer agrees to pay all storage and other fees associated with storage, inventorying, and warehousing of Goods. Neither Seller nor any of Seller's suppliers shall be liable for any damage resulting from such storage. In the event there is no activity related to Goods for a period of twelve (12) months, Seller shall have the right to destroy, resell or otherwise dispose of such Goods, and Buyer shall be liable for all costs and expenses related thereto, including but not limited to all costs of shipment, destruction, resale, enforcement of and collection under these Terms and Conditions, including reasonable attorney's fees. 

Title
 I.             Seller shall remain the sole owner of delivered Goods, and title to Goods shall not pass to Buyer until Seller receives payment in full of the entire purchase price for such Goods, including transport costs and taxes. Said property shall not become a fixture to any realty account or annexed thereto. In such case of default of payment, Seller shall have the right to take possession of Goods any time after thirty (30) days subsequent to such default. Title to any extra material furnished shall also be retained by Seller until paid in full.
 II.           If Buyer defaults under any agreement with Seller or becomes insolvent, is declared bankrupt, makes an assignment for the benefit of creditors, or is liquidated or dissolved; Seller may exercise all rights and pursue all remedies available under law, concurrently, including the right to purchase Goods at any public or private sale and take immediate physical possession of Goods. Buyer shall pay all expenses, including any purchase price, incurred by Seller in retaking, holding, preparing for sale, or selling the Goods, including reasonable legal fees.

Term of Delivery
 I.             Deadlines and delivery dates specified by Seller for the performance or delivery of Goods have been stated as approximately and an estimate only. Shipment of Goods is specifically contingent upon, among other things, prompt receipt of specifications, designs, samples, approvals, and all additional necessary information reasonably requested by Seller to be provided by Buyer, availability of the Goods, labor, transportation, and the payment to Seller by Buyer of all monies otherwise due. Seller shall not incur any liability, either direct or indirect, nor shall any order be canceled as a result of any delays in meeting such dates or schedules. Seller shall not be liable for any loss or damage resulting from any failure to deliver or delay in delivering the Goods. Seller shall not be responsible for any delays caused by third parties utilized by Seller or the inability of such third parties to provide or deliver their Goods or services to Seller. Buyer hereby agrees and acknowledges that Seller's delivery may be based on a third party, and Seller shall not be bound if any third party fails to provide its Goods or services as promised or agreed.
 II.           Unless otherwise expressly agreed to in writing, shipment of Goods will be F.O.B. Seller's facility, at which time all risk of loss, damage, and other incidentals of ownership of and to Goods shall immediately pass to Buyer upon the delivery of Goods to the Shipper or Buyer. Claims for damage in transit shall be processed solely by Buyer directly with the carrier, and Seller shall have no liability to Buyer with respect to any act or omission of the carrier.
 III.          Payment of all shipping and freight charges, along with all customs, duties, costs, taxes, insurance premiums, and other expenses related to the transportation of Goods, shall be the sole responsibility of Buyer. Prepaid freight charges paid by Seller at Buyer's request are not subject to discount and are due immediately upon receipt. Freight charges are based on current rates and classification. Should Seller be required to pay additional charges due to changes in such rates and/or classifications, then the additional charges, including penalties, shall be charged to and paid by the Buyer. All truck shipments are subject to route survey and permit approval and changes in routing required by government authorities. Offloading of Goods is the responsibility of the Buyer.
 IV.          Seller may deliver or ship Goods in installments. All installments may be separately invoiced and paid as invoiced without regard to subsequent deliveries. Failure to pay for any installment when due shall excuse and release Seller from making further deliveries to Buyer, and Seller may bring a separate action to recover the price of each such shipment, delivery, or installment.

Force Majeure
 I.             All deadlines and dates shall be adjusted and extended, and Seller shall not be liable whatsoever for any delays in delivery, any failure to deliver Goods or delays or failures in performance with respect to any estimate or order for Goods that is the direct or indirect result or consequence of any circumstances due to any cause or condition beyond the control of Seller, including but not limited to acts of God, civil commotion, revolution, war, mobilization, riots, embargoes, hostilities between any powers, domestic or foreign governmental regulations, epidemic, fires, floods, weather, other actions of the elements, strikes, lock outs, labor difficulties, breakdown of machinery, shortages or inability to obtain goods or capital, unavailability or shortage of materials or equipment, inability to secure transportation, sabotage, or other industrial acts or disputes, failure of delivery or shipment on the part of manufacturers, producers, suppliers, merchants or agents or other related items with regard thereto. Seller shall have additional time to ship and/or deliver Goods as may be reasonable or appropriate under all circumstances. If Seller determines that it is unable to comply with any term or condition or contract by reason of a Force Majeure Event or that it is unable to deliver within a reasonable time or at all, Seller may cancel the order or contract. In the event of cancellation, Buyer shall have no claim against Seller for any loss, cost, or expense. The Buyer shall not be relieved of any obligation to accept or pay for Goods by reason of any delay in or failure to deliver.

Inspection
 I.             Buyer agrees that it shall physically inspect and examine all supplied Goods at the time of receipt and before use to verify conformity and compliance with specifications. Any tests requested by the Buyer to determine the performance of products covered by Seller's quotation must utilize procedures acceptable to Seller, and the Buyer is responsible for costs thereof. Buyer shall be responsible for the costs of any required specialized inspection or special tests prescribed by Buyer.
 II.           Goods shall be deemed accepted if no written notice specifying in detail any shortages, damages, wrongful delivery, failure to meet specifications, or other claims has been received by Seller within ten (10) days following delivery of Goods. After which, the shipment and Goods shall be conclusively presumed to fully satisfy the terms and specifications, and full payment shall be due per these Terms and Conditions.
 III.          In the event that Buyer omits to exercise control of Goods or elects to use nonconforming Goods, Buyer thereby releases and dismisses Seller from any and all liability for the possible consequences of the usage of such Goods.

Return Policy
 I.             Goods must not be returned without Seller's prior written authorization. Goods returned to Seller without authorization will not be accepted and be returned to Buyer at Buyer's sole risk and expense. Failure to adhere strictly to the procedure will result in delay and/or refusal to accept Goods back for credit or replacement. Seller must receive notice of product or quantity errors within ten (10) calendar days of purchase. Seller must receive returns or exchanges within thirty (30) calendar days of purchase. Claims for damaged parcels and items damaged or lost in transit must be issued to the carrier. Buyer must submit a warranty claim prior to returning defective Goods. If thirty (30) days or more have passed since the purchase date, Seller cannot guarantee a credit or an exchange. Returns will be handled case-by-case if thirty (30) days or more have passed since the purchase date. If approved for return, a twenty percent (20%) restocking charge of the purchase price will be charged.
 II.            Goods must be in new, unaltered, unused condition, with all original packaging, including inserts and accessories. The original packing slip and return authorization number must accompany all returns. In cases of returns due to Buyer's error, any amounts credited will not include the cost of shipping. Return shipping fees will also apply. All International sales are final. We do not accept customer error returns from International customers. Only regular-priced Goods may be returned. Goods custom manufactured or ordered to Buyer's specification will not be accepted for return. In cases of returns due to Seller's error, Seller will ship replacement Goods and/or credit Buyer's account for the purchase price of Goods and the cost of shipping. Seller must receive the original Goods before exchanged Goods are shipped. In addition, Seller must receive the original Goods before a credit is applied to Buyer's account. Seller only offers account credit and the exchange of products. No cash refunds will be given.

Warranty
 I.             Except as described herein, there are no warranties or guarantees, either expressed or implied, written, oral or arising under custom or trade, including and without limitation, the warranty of merchantability and fitness for a particular purpose. Seller warrants that it has good title to Goods, and title to Goods shall be free from any lien, security interest, or other encumbrance.
 II.            The warranty is effective from the date of shipment and expires at the end of the warranty period specified, which differs for the type of Goods. Subject to the terms and conditions herein, Seller warrants to the original owner at the original installation site that standard equipment and components manufactured by Seller are free from defects in materials and workmanship for a period of ninety (90) days following the shipment of Goods to Buyer. Seller warrants to the original owner for a period of thirty (30) days from the date of shipment, replacement components and spare parts to be free from defects in materials and workmanship under normal use and service.
 III.          To the extent that any provisions of this warranty would be void or prohibited under applicable law, such provisions shall be limited in effect to the minimum extent necessary to render the remaining provisions hereof enforceable.

Remedy
 I.             The liability of Seller, in lieu of any other warranty, obligation, or liability whatsoever and the exclusive remedy of Buyer, are expressly limited to either of the following, as determined at the sole and exclusive discretion of Seller, repair or replacement to correct any components found to be defective, existing at the time of purchase, under conditions of normal use within the warranty period, without cost to Buyer upon return of defective Goods, less any applicable service, handling, and related charges. The warranty applies to normal operating conditions based on an eight (8) hour workday.
 II.            Warranty or remedy will not be accepted without prior notification and approval. Within the Warranty Period, the Buyer must notify the Seller in writing, providing a detailed description of all claimed defects. Transportation to the factory or other designated facility for repairs of any equipment or components alleged defective shall, in all events, be the responsibility and at the Buyer's cost.
 III.          The warranty solely applies to default equipment or components and does not include installation, on-site service, or travel costs at Buyers request.

Exclusions
 I.             Seller accepts no responsibility for defects, damage, or failure due to abuse, misuse, neglect, lack of proper maintenance or installation, or modification not authorized by Seller in writing. The warranty is void if considered to be in excess of normal wear and tear, abused, or used in abnormal conditions.
 II.            Use of non-authorized labor to perform warranty repairs will not be reimbursed, except under special circumstances, which will be handled on a case-by-case basis and solely at Seller's discretion.
 III.          The standard equipment warranty does not include the replacement of any expendable items, such as but not limited to glass, filters, cutting system parts, fuses, and lightbulbs.

Limitation of Warranty
 I.             Seller shall have no liability for any damage due to abrasion, erosion, corrosion, deterioration, abnormal temperatures, or the influence of foreign matter or energy. The design or operation of Buyer's plant or equipment or any facility or system of which any Goods may be made a part or suitability of Goods for any particular application.
 II.            In no case shall Seller be held liable for any incidental, special, or consequential damages, delays, or loss which may result directly or indirectly from the operation, adjustment, alteration, breakdown, or repair of any materials, such as loss of the use of products, facilities or production, inconvenience, loss of time or labor expense involved in the repairing or replacing of the alleged defective Goods.
 III.          Seller's liability under this warranty shall not, in any case, exceed the amount paid for the Goods found defective.
 IV.          Replacement or repair of equipment under this warranty shall not extend the warranty to the equipment or component beyond the original warranty period.

Third-Party Warranties
 I.             Goods purchased by Seller from a third party for resale to Buyer (Resale Products) shall carry only the warranty guidelines of the original equipment manufacturer. Seller will provide no additional warranty for equipment furnished beyond what the manufacturer provides. Buyer agrees that Seller has no liability for Resale Products beyond making a reasonable commercial effort to arrange for procurement and shipping of the Resale Products. Any remedy for defects or performance will be offered solely by the manufacturer of such equipment, and no additional remedy is available through Seller. Seller shall assign all such manufacturer warranties to Buyer.

Limitation of Liability
 I.             In no event shall Seller, or any of its agents, be liable to Buyer or any third party for consequential, incidental, or special damages, loss of profits, injury to goodwill, character, and/or reputation, and/or for any other damages, losses or other expenses whatsoever, resulting from or in any manner related to Goods, any performance or non-performance by Seller, or the design, use or any inability to use Goods, whether such damages are claimed under contract, tort or any other legal theory. Buyer undertakes to include all requirements and specifications relating to Goods ordered, and under no circumstance shall Seller be held liable for any product defects or specifications which Buyer has requested in the order. This limitation of liability shall survive the termination, expiration, or cancellation of any agreement or order with respect to the sale of Goods.

Indemnification
 I.             Buyer shall indemnify, keep indemnified and hold harmless Seller and its officers, directors, employees, agents, subsidiaries, and other affiliates from and against any and all claims, damages, losses, liabilities, costs, and expenses (including, without limitation, reasonable attorney's fees) and from and against all actions, proceedings, or demands made against Seller, on account of any damaged property or injury or death of persons arising out of the Buyer's storage, handling, use, implementation or disposal of Goods purchased from Seller; as a result of Buyer's failure to comply with any laws, rules, standards or regulations applicable in relation to Goods or the use of Goods; as a result of any other negligence, breach of contract or other breaches of duty by Buyer; or as a result of compliance or adherence to instructions, specification or requirements that Buyer has given Seller about Goods. This indemnity obligation shall survive the expiration, termination, or cancellation of any agreement or order with respect to the sale of Goods.

Governing Law and Jurisdiction; Attorney's Fees
 I.             Buyer and Seller hereby agree to submit to the jurisdiction of the state and federal courts for the State of New York, Nassau County, and such courts shall have exclusive jurisdiction and venue to adjudicate the rights and obligations of the parties relating in any manner hereto. The parties hereby waive any argument relating to the convenience of forum. Buyer and Seller hereby agree to expressly waive any right they may have to a jury trial and agree that a judge shall try any such litigation without a jury. The substantially prevailing party shall be entitled to recover its expenses, including reasonable attorney's fees, from the other party.

Confidential Information
 I.             Any information that Seller or Buyer receives or otherwise has access to incidental to or in connection with an order (collectively, the "Confidential Information") shall be and remain the disclosing party's property. Confidential information shall not include information that was in possession of the Receiving Party at the time the Disclosing Party first disclosed it; was in the public domain at the time it was disclosed to the Receiving Party; enters the public domain through sources independent of the Receiving Party and through no breach of this provision by the Receiving Party; is made available by the Disclosing Party to a third party on an unrestricted, non-confidential basis; was lawfully obtained by the Receiving Party from a third party not known by the Receiving Party to be under an obligation of confidentiality to the Disclosing Party; or was at any time developed by the Receiving Party independently of any disclosure by the Disclosing Party. Confidential information may be used to the extent necessary to fulfill an order, and the parties shall not disclose Confidential Information to any third party except to its agents (who have executed confidentiality agreements containing terms substantially similar to the terms) as necessary to provide the order hereunder. In no event shall Buyer acquire any right, title or interest in and to any product or process information, including related know how, either existing or developed during the course of the business relationship with Seller and Buyer, and in no event shall Seller acquire and right, title, or interest in and to any materials or information provided to it by Buyer.

Waiver
 I.             The waiver by Seller to insist upon strict performance of any term, warranty or condition of these Terms and Conditions contained herein shall not constitute or be deemed as a waiver thereof or of any rights Seller may have and no waiver shall be deemed a waiver of any subsequent breach of any term warranty or condition.
 Severability
 I.             If any term or provision of these Terms and Conditions is held invalid by a court of law, then such term or provision shall be enforceable to such extent as the court may determine to be lawful. Furthermore, such invalidity shall not affect the other terms and provisions. The remaining provisions of these Terms and Conditions shall remain in full force and effect.

Amendments
 I.             Seller reserves the right to alter or amend these Terms and Conditions for any particular class of products or Buyer, these terms supersede all previous terms.