1. Installation and Maintenance: Except as set forth on the face hereof, Purchaser is responsible for the prompt installation and proper maintenance of the equipment which is the subject of this Agreement (the “Equipment”), including an adequate foundation and employment of sufficient technically qualified personnel, and shall furnish any necessary equipment, materials, services, facilities, waste disposal arrangements and utilities, and adequate access to the Equipment and the installation site.
2. Risk of Loss; Transportation Charges: Title and risk of loss shall pass from Seller to Purchaser upon Seller’s delivery to carrier at Seller’s shipping point, notwithstanding the fact that Seller may have selected the carrier. Purchaser shall bear all transportation charges, insurance, taxes (as is further provided in Section 4 hereof), fees forwarding charges, storage and any other expenses incurred during the shipment.
3. Title and Remedies: A. Until full payment of all obligations of Purchaser hereunder (whether represented by notes, open account, judgment or otherwise), Seller reserves title to all of the Equipment, whether or not the same is attached to the reality, and the Equipment shall be considered as personal property and subject to a purchase money security interest of Seller hereby granted by Purchaser to Seller.
B. If Purchaser defaults in paying or performing any of its obligations hereunder, or becomes the subject of any insolvency, receivership or bankruptcy proceeding, or makes an assignment for the benefit of Purchaser’s creditors, or any of the Equipment is misused or substantially damaged prior to full payment of all obligations of Purchaser hereunder, or Purchaser, without the prior written consent of Seller, sells, transfers, leases or mortgages any of the Equipment, or moves any of the Equipment to another site, or any lien it placed on any of the Equipment, or any other persons have or acquire an interest therein, or any of the Equipment is seized or attached by process of law, then in any such event: (i) Seller, with notice to Purchaser, may terminate this
Agreement without any further obligation to Purchaser and may retain any payments made by Purchaser to Seller to the date of such termination as liquidated damages (and not as a penalty); or (ii) Seller, with or without notice, may treat all amounts owing hereunder by Purchaser, regardless of the date to be paid, to be immediately due and payable, and when Purchaser is in default hereunder, Seller may repossess the Equipment, and Purchaser agrees that it will permit Seller so to do, and in that case (a) Seller, upon such notice, if any, as required by law, may keep the Equipment as its own, free from any claim on the part of the Purchaser, retaining as compensation for the use or decrease in value of the Equipment all payments made thereon by Purchaser, or (b) Seller, within four months from such repossession, upon giving to Purchaser not less than 15 days’ advance written notice of Seller’s intention in that regard, may sell the Equipment for the account of Purchaser either at public sale (at which Seller may bid) or at private sale, whereupon the net proceeds of sale, after paying Seller’s costs and expense in repossessing, transporting, reconditioning, storing and selling the Equipment, shall be applied on the unpaid balance of the obligations of Purchaser hereunder and the surplus, if any, shall be returned to Purchaser, but if a deficiency remains, Purchaser shall continue liable to Seller therefor. In exercising any of the remedies aforesaid, Seller shall give such other and additional notices as are required by law.
C. When required by Seller, Purchaser shall duly acknowledge this Agreement, and execute, acknowledge and deliver to Seller, in Seller’s form, a supplement hereto, chattel mortgage, supplemental security agreement, financing statement or statements or other additional appropriate instrument which Seller may require to constitute the Equipment as the unencumbered security for the obligations of Purchaser hereunder, or to enable Seller to comply with all applicable filing or recording laws. Purchaser hereby appoints Seller as its duly authorized attorney-in-fact to sign and file any financing statements necessary to perfect the security interest of Seller hereunder. D. If in the judgment of Seller, either before or after manufacture or shipment of the Equipment, the financial responsibility of Purchaser is such as to indicate to Seller the inability of Purchaser to pay Purchaser’s obligations, including those hereunder, as they may come due, Seller, upon giving written notice to Purchaser, may require payment in full or of a specified part of the balance of the purchase price within ten days after the giving of such notice, irrespective of the terms of payments stated herein. Payments received by Seller more than ten days after the due date there of shall be subject to late charges at the highest lawful rate.
4. Taxes: Purchaser shall pay Seller, or upon receipt of invoice from Seller, shall reimburse Seller, for all sales, use, occupation, excise and other taxes or charges levied or imposed on Purchaser, or required to be collected by Seller, or imposed on the equipment or on Seller, resulting from this transaction or any part thereof, irrespective of whether included on the face hereof at the time of entry of this order or subsequent thereto.
5. Condition; Remedies of Purchaser: OTHER THAN AS STATEDHEREIN ALL EQUIPMENT IS SOLD IN “AS IS” CONDITION AND ON AN “AS IS” BASIS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE EQUIPMENT IS WITH THE PURCHASER. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED. INCLUDING ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULARPURPOSE, OR ANY IMPLIED WARRANTY OF, WHETHER ARISING FORM STATUTE, COMMON LAW, CUSTOM OR OTHERWISE. Purchaser shall be entitled to terminate this Agreement under the conditions set forth in Section 8 or Section 9 hereof. Except as set forth in this Section 5, the foregoing remedies shall be the exclusive remedies available to the Purchaser. Purchaser hereby agrees that Seller’s liability hereunder shall not include loss of anticipated profits or special, incidental or consequential damages.
6. Insurance: Purchaser shall furnish to Seller an insurance policy or policies on the Equipment with any insurance company acceptable to Seller. Such insurance shall insure the Equipment against fire and extended coverage perils in an amount equal to the full value of the Equipment, with loss first payable to Seller as its interest may appear. Purchaser will maintain such insurance until full payment shall have been made to Seller, in default of which Seller may obtain insurance at Purchaser’s expense, for which Purchaser shall promptly reimburse Seller. Seller may act as agent for Purchaser in making, adjusting and settling claims under, and canceling, such insurance and endorsing Purchaser’s name on any drafts drawn by the insurers of the Equipment.
7. Warranties and Indemnification: Purchaser hereby represents and warrants to Seller that it has full power and legal right and authority to execute, deliver and perform under this Agreement, and that the person executing this Agreement on behalf of Purchaser (if Purchaser is not an individual) has full power and authority to do so. Purchaser hereby agrees to defend, indemnify and hold harmless Seller against and in respect of (a) all losses and damages resulting from, arising out of, or related to, any breach by Purchaser of any of Purchaser’s representations, warranties or agreements set forth in this Agreement or the erection, operation or use of the Equipment, whether on account of negligence or otherwise (except Seller’s negligence); and (b) any and all actions, suits, proceedings, claims, demands, judgments, costs and expenses (including attorney’s fees) incident to the foregoing. Warrantied parts, if applicable, are shipped standard UPS service. Any special shipping charges, i.e. express, next flight out, etc., are the responsibility or the Purchaser. In addition, the warranty as it applies to those products listed separately under “Other Equipment & Accessories” convey from the respective manufacturers of those products and are not extended or further warranted under this agreement.
8. Delivery: If Purchaser delays shipment without the prior written consent of Seller, payments are to be made as though shipment had been made as specified. In such event, the Equipment may be stored by Seller at Purchaser’s risk and expense. Seller’s obligations hereunder are subject to delays incident to labor difficulties, fires, casualties and accidents, acts of the elements, acts of the public enemy, transportation difficulties, inability to obtain equipment, materials or qualified labor sufficient to fill timely its orders (in which latter case Seller may apply or pro rate shipments of its products to or among its customers as in its judgment is reasonable in the circumstances), governmental interference or regulations, and any other causes beyond Seller’s control. If by reason of any of the foregoing events or conditions shipment is delayed for more than one year beyond the period specified herein, either party may terminate this Agreement by written notice to the other, and in that event Seller shall refund to Purchaser all payments previously made hereon, without interest. (If other equipment has been accepted by Seller as part payment and is not available for return to Purchaser, then Seller shall either pay to Purchaser the agreed-upon value thereof as shown on an trade-in riders hereto attached or attempt to obtain for Purchaser similar equipment.)
9. Price Adjustment: Seller, by written notice to Purchaser, may adjust the price of the Equipment to Seller’s list price in effect at the time of shipment. On receipt of such notice, purchaser shall have the option of accepting such new price or terminating this agreement. If, within ten days after receipt of any such notice, Purchaser fails to notify Seller in writing of Purchaser’s acceptance, this Agreement shall be deemed terminated, in which case Seller shall refund to Purchaser all payments previously made hereon, without interest (including the return of any tradein equipment or, at the option of Seller, the agreed- upon value thereof as shown on any trade-in riders hereto attached).
10. Notices: All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered in person or mailed by registered or certified mail, return receipt requested, and first-class postage prepaid, addressed to either Seller or Purchaser at the address specified on the front page of this Agreement. Such names and addresses may be changed only by written notice pursuant to and in accordance with this Article 10.
11. Miscellaneous: This Agreement, and all future purchases, service requests, orders, or transactions between the parties, shall inure to the benefit of and be binding upon Seller and Purchaser, and their respective successors, assigns, and legal and personal representatives. This Agreement, and all future transactions between the parties, shall be governed by and construed in accordance with the laws of the State of Maryland, without regard to its conflict-of-law principles. Any dispute arising out of or relating to this Agreement, or any future transaction between the parties, shall be brought exclusively in the state courts of Maryland. Purchaser irrevocably consents to the personal jurisdiction and venue of such courts and waives any objection, including any claim of inconvenient forum. The headings in this Agreement are inserted for convenience and reference only and are not to be used in construing or interpreting any of the provisions of this Agreement. Seller, before or after acceptance hereof, is authorized to insert in this Agreement as a part hereof the serial or other identification numbers of the Equipment described herein. Any or all of Seller’s rights or obligations hereunder may be assigned by Seller without notice to Purchaser and may be exercised by any assignee thereof. Purchaser shall not assert against any transferee of this Agreement any defense (other than actual payment), set-off, equity or counterclaim which Purchaser may have or claim against Seller. Each provision of this Agreement is severable and, in the event that any one or more thereof may be declared invalid, the remainder of this Agreement shall nevertheless remain in full force and effect. The acceptance of any payments after the specified due dates thereof shall not constitute a waiver of Purchaser’s obligation to make future payments on the specified dates. Seller may apply any amounts paid by Purchaser pursuant to this Agreement to any indebtedness owing by Purchaser to Seller on account hereof or otherwise.
12. Acceptance: This order is subject to acceptance by Seller at its home office written herein. Thereupon, Seller shall mail to Purchaser a signed duplicate copy hereof, and the same shall constitute the entire agreement between the parties, which replaces, supersedes and merges all prior discussions, agreements or understandings between the parties and which shall be changed only by written agreement of the parties. Purchaser has retained a copy of this order as signed. The banking by Seller or other disposition of funds paid by Purchaser to Seller or the disposition by Seller of any trade-in equipment offered by Purchaser to Seller hereunder shall not constitute an acceptance of this order by Seller.