The sale and purchase of equipment described herein shall be governed exclusively by the following provisions:
1. SPECIFICATIONS: AshtonTucker LLC is furnishing its standard equipment. The equipment may not be in strict compliance with the Engineer’s/Owner’s plans, specifications, or addenda. However, the equipment will meet the general intention of the purpose of the equipment.
2. ITEMS INCLUDED: This order includes only the equipment specified herein and does not include erection, installation, accessories, nor associated materials such as controls, piping, etc., unless specifically listed.
3. PARTIES TO CONTRACT: AshtonTucker LLC is not a party to or bound by the terms of any contract between AshtonTucker LLC ’s customer and any other party. AshtonTucker LLC ’s undertakings are limited to those defined in the contract between AshtonTucker LLC and its direct customers.
4. PRICE AND DELIVERY: All selling prices are subject to change without notice. If paying with a purchase order, the order must be received within 10 business days in order to honor the listed price. All prices are F.O.B. AshtonTucker LLC or its supplier’s shipping points. The buyer may arrange for freight, or freight can be arranged by AshtonTucker LLC , and the freight costs added to the invoice. All claims for damage, delay or shortage shall be made by Purchaser directly against the carrier. Purchaser shall inspect the equipment shipped, notifying AshtonTucker LLC of any damage or shortage within forty-eight hours of receipt, and failure to so notify AshtonTucker LLC shall constitute acceptance by Purchaser, relieving AshtonTucker LLC of any liability for shipping shortages.
5. PAYMENTS: All invoices are net 30 days. Delinquencies are subject to a 1.75 percent service charge per month or the maximum permitted by law, whichever is less on all past due accounts. If shipments are delayed by the Purchaser, invoices shall be sent on the date when AshtonTucker LLC is prepared to make shipment and payment shall become due under standard invoicing terms. If the work to be performed hereunder is delayed by the Purchaser, payments shall be based on the purchase price and percentage of completion. Products held for the Purchaser shall be at the risk and expense of the Purchaser. Unless specifically stated otherwise, prices quoted are for equipment only. These terms are independent of and not contingent upon the time and manner in which the Purchaser receives payment from the owner.
6. PAYMENT TERMS: Credit is subject to acceptance by AshtonTucker LLC ’s Credit Department. If the financial condition of the Purchaser at any time is such as to give AshtonTucker LLC , in its judgment, doubt concerning the Purchaser’s ability to pay, AshtonTucker LLC may require full or partial payment in advance or may suspend any further deliveries or continuance of the work to be performed by the AshtonTucker LLC until such payment has been received.
7. ESCALATION: If shipment is, for any reason, deferred by the Purchaser beyond the normal shipment date, or if material price increases are greater than 5% from purchase date to material procurement date, stated prices set forth herein are subject to escalation. The escalation shall be based upon increases in labor and material and other costs to AshtonTucker LLC that occur in the time period between order by the purchaser and shipment by AshtonTucker LLC .
(a) The total quoted revised price is based upon changes in the indices published by the United States Department of Labor, Bureau of Labor Statistics. Labor will be related to the Average Hourly Earnings indices found in the Employment and Earnings publication. Material will be related to the Metal and Metal Products Indices published in Wholesale Prices and Prices Indices.
(b) Price revision for items furnished to, and not manufactured by AshtonTucker LLC , which exceed the above escalation calculation, will be passed along by AshtonTucker LLC to Purchaser based upon the actual increase in price to AshtonTucker LLC for the period from the date of order to the date of shipment by AshtonTucker LLC . Any item that is so revised will be excluded from the index escalation calculations set forth in subparagraph (a) above.
8. INSTALLATION SUPERVISION: Prices quoted for equipment do not include installation or supervision. AshtonTucker LLC can recommend an experienced installation supervisor to act as the Purchaser’s employee and agent to supervise installation of the equipment. Unless otherwise arranged by way of a proposal to perform the installation the purchaser shall at its sole expense furnish all necessary labor equipment, and materials needed for installation.
Responsibility for proper operation of equipment, if not installed by AshtonTucker LLC or installed in accordance with AshtonTucker LLC’s instructions, and inspected and accepted in writing by AshtonTucker LLC , rests entirely with Purchaser; and any work performed by AshtonTucker LLC personnel in making adjustment or changes must be paid for at AshtonTucker LLC current per diem rates plus living and traveling expenses.
AshtonTucker LLC will supply the safety devices described in this order or shown in AshtonTucker LLC’s drawings furnished as part of this order but excepting these, AshtonTucker LLC shall not be required to supply or install any safety devices whether required by law or otherwise. The Purchaser hereby agrees to indemnify and hold AshtonTucker LLC harmless from any claims or losses arising due to alleged or actual insufficiency or inadequacy of the safety devices offered or supplied hereunder, whether specified by AshtonTucker LLC or Purchaser, and from any damage resulting from the use of the equipment supplied hereunder.
09. ACCEPTANCE OF PRODUCTS: Products will be deemed accepted without any claim by Purchaser unless written notice of non-acceptance is received by AshtonTucker LLC within 3 days of delivery. Such written notice shall not be considered received by AshtonTucker LLC unless it is accompanied by all freight bills for said shipment, with Purchaser’s notations as to damages, shortages and conditions of equipment, containers, and seals. Non-accepted products are subject to the return policy stated below.
10. TAXES: Any federal, state, or local sales, use or other taxes applicable to this transaction, unless specifically included in the price, shall be for Purchaser’s account.
11. TITLE: The equipment specified herein, and any replacements or substitutes therefore shall, regardless of the manner in which affixed to or used in connection with realty, remain the sole and personal property of AshtonTucker LLC until the full purchase price has been paid. Purchaser agrees to do all things necessary to protect and maintain AshtonTucker LLC ’s title and interest in and to such equipment; and upon Purchaser’s default, AshtonTucker LLC may retain as liquidated damages any and all partial payments made and shall be free to enter the premises where such equipment is located and remove the same as its property without prejudice to any further claims on account of damages or loss which AshtonTucker LLC may suffer from any cause.
12. INSURANCE: From date of shipment until the invoice is paid in full, Purchaser agrees to provide and maintain at its expense, but for AshtonTucker LLC ’s benefit, adequate insurance including, but not limited to, builders risk insurance on the equipment against any loss of any nature whatsoever.
13. SHIPMENTS: Any shipment of delivery dates recited represent AshtonTucker LLC ’s best estimate but no liability, direct or indirect, is assumed by AshtonTucker LLC for failure to ship or deliver on such dates.
AshtonTucker LLC shall have the right to make partial shipments; and invoices covering the same shall be due and payable by Purchaser in accordance with the payment terms thereof. If Purchaser defaults in any payment when due hereunder, AshtonTucker LLC may, without incurring any liability therefore to Purchaser or Purchaser’s customers, declare all payments immediately due and payable with maximum legal interest thereon from due date of said payment, and at its option, stop all further work and shipments until all past due payments have been made, and/or require that any further deliveries be paid for prior to shipment.
If Purchaser requests postponements of shipments, the purchase price shall be due and payable upon notice from AshtonTucker LLC that the equipment is ready for shipment; and thereafter any storage or other charge AshtonTucker LLC incurs on account of the equipment shall be for the Purchaser’s account.
If delivery is specified at a point other than AshtonTucker LLC or its supplier’s shipping points, and delivery is postponed or prevented by strike, accident, embargo, or other cause beyond AshtonTucker LLC ’s reasonable control and occurring at a location other than AshtonTucker LLC or its supplier’s shipping points, AshtonTucker LLC assumes no liability in delivery delay. If Purchaser refuses such delivery, AshtonTucker LLC may store the equipment at Purchaser’s expense. For all purposes of this agreement such tender of delivery or storage shall constitute delivery.
14. WARRANTY: AshtonTucker LLC warrants equipment it supplies only in accordance with the warranty expressed in the“Warranty” against defects in workmanship and materials which is made a part hereof. Such warranty is in lieu of all other warranties, including warranties of merchantability and fitness for particular purpose, whether written, oral, expressed, implied or statutory, AshtonTucker LLC shall not be liable for any contingent, incidental, or consequential damages for any reason whatsoever.
15. PATENTS: AshtonTucker LLC agrees that it will, at its own expense, defend all suits or proceedings instituted against Purchaser and pay any award of damages assessed against it in such suits or proceedings, so far as the same are based on any claim that the said equipment or any part thereof constitutes an infringement of any apparatus patent of the United States issued at the date of this Agreement, provided AshtonTucker LLC is given prompt notice in writing of the institution or threatened institution of any suit or proceeding, and is given full control of the defense, settlement, or compromise of any such action; and Purchaser agrees to give AshtonTucker LLC the needed information, assistance, and authority to enable AshtonTucker LLC to do so. In the event said equipment is held or conceded to infringe such a patent, AshtonTucker LLC shall have the right at its sole option and expense to a) modify the equipment to be non-infringing, b) obtain for Purchaser the license to continue using said equipment, or c) accept return of the equipment and refund to the Purchaser the purchase price thereof less a reasonable charge for the use thereof. AshtonTucker LLC will reimburse Purchaser for actual out-of-pocket expenses, exclusive of legal fees, incurred in preparing such information and rendering such assistance at AshtonTucker LLC ’s request. The foregoing states the entire liability of AshtonTucker LLC with respect to patent infringement; and except as otherwise agreed to in writing, AshtonTucker LLC assumes no responsibility for process patent infringement.
16. SURFACE PREPARATION AND PAINTING: If furnished, shop primer paint is intended to serve only as minimal protective finish. AshtonTucker LLC will not be responsible for the condition of primed or finish painted surfaces after equipment leaves its shops. Purchasers are invited to inspect paint in shops for proper preparation and application prior to shipment. AshtonTucker LLC assumes no responsibility for field surface preparation or touch-up of shipping damage to paint. Painting of fasteners and other touch-up to painted surfaces will be by Purchaser’s painting contractor after mechanism installation.
Motors, gear motors, and other components not manufactured by AshtonTucker LLC will be painted with that manufacturer’s standard paint system. It is AshtonTucker LLC ’s intention to ship major steel components as soon as fabricated, often separate from drive, motors, and other manufactured components. Unless Purchaser can ensure that shop primed steel shall be field painted within thirty (30) days after arrival at the job site, AshtonTucker LLC encourages the Purchaser to order these components without primer.
AshtonTucker LLC ’s prices are based on paints and surface preparations as part of standard equipment. In the event that an alternate paint system is selected, AshtonTucker LLC requests that Purchaser’s order advise of the paint selection. AshtonTucker LLC will then either adjust the price as may be necessary to comply or ship the material unpainted if compliance is not possible due to application problems or environmental controls.
17. CANCELLATION, SUSPENSION, OR DELAY: After acceptance by AshtonTucker LLC , Purchaser’s order shall be a firm agreement and is not subject to cancellation, suspension, or delay except upon payment by Purchaser of appropriate charges which shall include all costs incurred by AshtonTucker LLC to date of cancellation, suspension, or delay plus a reasonable profit. Additionally, all charges related to storage and/or resumption of work, at AshtonTucker LLC plant or elsewhere, shall be for Purchaser’s sole account; and all risks incidental to storage shall be assumed by Purchaser.
18. RETURN OF PRODUCTS: No products may be returned to AshtonTucker LLC without AshtonTucker LLC’s prior written permission. Said permission may be withheld by AshtonTucker LLC at its sole discretion.
19. BACKCHARGES: AshtonTucker LLC will not approve or accept back charges for labor, materials, or other costs incurred by Purchaser or others in modification, adjustment, service, or repair of AshtonTucker LLC furnished materials unless such back charge has been authorized in advance in writing by an AshtonTucker LLC employee.
20. INDEMNIFICATION: Purchaser agrees to indemnify AshtonTucker LLC from all costs incurred, including but not limited to court costs and reasonable attorney fees, from enforcing any provisions of this contract, including but not limited to breach of contract or costs incurred in collecting monies owed on this contract
21. ENTIRE AGREEMENT: These terms and conditions express the entire agreement between the parties hereto superseding any prior understandings, and is not subject to modification except by a writing signed by an authorized officer of each party.
22. MOTORS AND MOTOR DRIVES: In order to avoid shipment delays of AshtonTucker LLC supplied equipment, the motors/ drives may be sent directly to the job site for installation by the equipment installer. Minor fit-up may be required.
23. EXTENDED STORAGE: Extended storage instructions will be provided if equipment installation and start-up is delayed more than 30 days. The provisions of the storage instructions must be followed to keep WARRANTY in force. The Purchaser shall contact AshtonTucker LLC for extended storage instructions.
24. LIABILITY: Professional liability insurance, including but not limited to, errors and omissions insurance, is not included. In any event, liability for errors and omissions shall be limited to the lesser of $100,000 USD or the value of the particular piece of equipment (not the value of the entire order) supplied by AshtonTucker LLC against which a claim is sought.
25. ARBITRATION NEGOTIATION: Any controversy or claim arising out of or relating to the performance of any contract resulting from this order or contract issued, or the breach thereof, shall be settled by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered to any court having jurisdiction.
26. TRAINING: The training materials on this or any other AshtonTucker LLC site are for informational purposes. While it is believed that the TuckTech content is true and accurate, TuckTech should not be the sole source of information when making an engineering decision. Please consult a professional Engineer if uncertain. The information in the TuckTalk section represents an experienced opinion on the topic and is sometimes a forum for open discussion. The TuckToon section is purely for entertainment.
27. WEBSITE: The images on the website may be for similar items of differing size, and are for demonstration purposes only.