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.
Telephone: 801 290 5757